Friday, December 9, 2016

Did the Hearing Panel In Re Massiah (2013) Misapprehend the Opinion they Sought from Mr. Brian Gover ? A Case Comment

   During the hearing into the complaint against HW Massiah independent counsel was retained to provide the Hearing Panel with legal advice as a result of the preliminary motions on jurisdiction and abuse of process initiated on behalf of HW Massiah.  The Chair of the Hearing Panel proudly proclaimed that this decision was on account of the following point raised on behalf of the Respondent:

"This case provides a splendid opportunity for us to fix the Justices of the Peace Review Council.  There are some serious flaws in terms of procedural integrity of investigations and the like, and some good may come out of this."

The Chair of the Hearing Panel pronounced:

"Our view is, as a result of that comment it is clear that the entire procedure is of concern and, if so, we wanted to ensure that we had an independent opinion in respect of the administrative law which applies in this hearing."

Examples of Misapprehension:

1.   Mr. Gover advised the Hearing Panel that it is a "complaint" which they are called upon to adjudicate at p. 5 of his opinion to them.

The Hearing Panel went on to conclude that it is the Notice of Hearing which gives them jurisdiction and they found liability based not on the "complaint" but on the particulars in the Notice of Hearing prepared by Presenting Counsel. The record of proceedings are crystal clear that the Notice of Hearing goes beyond what the Hearing Panel found to be the complaint - five will-say statements containing no allegations of vexatious, unwelcome or conduct amounting to a poisoned work environment.  The Hearing Panel even found that HW Massiah acted in a manner inconsistent with the Human Rights Code.

2.  Mr. Gover advised the Hearing Panel that delay can amount to abuse of process where witnesses have become unavailable, memories have faded, key documents are no longer accessible or significant psychological harm or stigma has attached to the individual such that the administrative process would be be brought into disrepute citing Blencoe  v.  B.C. Human Rights Commission 2000 SCC 44 at p.3 of his opinion.

The Hearing Panel went on to conclude that - 'The ability of each witness, including His Worship, to recall events and provide accurate testimony on events of years ago is an issue to be assessed when we consider and weigh the evidence on its merits.  In our opinion, a passage of time that may cause memory to fade does not, however, form a basis to conclude there has been an abuse of process. No legal basis or actual prejudice on the facts of this case was presented which counters that view."

3.   Mr. Gover twice stated that he found that Presenting Counsel's argument to the asserted abuse of process grounds "are more directed to the merits of any abuse of process argument and its viability or legal force, than they are towards the Hearing Panel's jurisdiction to entertain the issues as part of its consideration of the motion."

The Hearing Panel went on to dismiss the abuse of process motion proclaiming:

[75]   We found several of His Worship's submissions to be more about the merits of the case than relevant to an abuse of process.  We will consider issues relating to the merits of the case in that decision and focus on the abuse of process issues here. (Decision of Jurisdiction and Alleged Abuses of Process)


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