Tuesday, January 3, 2017

Re JPRC Referral of Counsel to LSUC: J.P. Massiah 2015 and Re Hryciuk J. - Deja Vu All Over Again

   Some years ago Justice Hryciuk, a judge of the Provincial Court of Ontario was removed from office following a public hearing into two complaints from two Assistant Crown Attorneys from the Ministry of the Attorney General for Ontario. On appeal this decision was set aside by the Ontario Court of Appeal. The Court of Appeal found that the Inquiry Judge Justice MacFarland exceeded her jurisdiction by entertaining allegations which were not first made to and investigated by the Judicial Council. (see Hryciuk  v.  Ontario (1996) 31 O.R. (3d) 1 (C.A.)

   Close to twenty years later a hearing panel of the Justices of the Peace Review Council (The JPRC Panel) summarily dismissed three preliminary motions(bias, jurisdiction and abuse of process) which I initiated on behalf of my client H.W. Massiah inviting them to quash a Notice of Hearing which relied upon allegations not first made to the JPRC and then investigated by a Complaints Committee contrary to Hryciuk supra.  The JPRC hearing panel went on to recommend removal of my client, non-recommendation for compensation for the cost of his defence and they referred me to the Society in a very public way. The thrust of the JPRC hearing panel's referral to the Society is that I brought "meritless motions" and raised concerns about the "appearance of unfairness" in the proceedings.  The Justices of the Peace Review Council failed to include any of the motion materials I filed on behalf of my client in the "record of proceedings" they were required to file with the Divisional Court once they were served with a notice of application of judicial review.

Duty to Raise Hryciuk: 

   As a lawyer I had a duty to raise Hryciuk and the litany of other binding authorities including Blencoe  v. B.C. Human Rights Commission [2000] 2 S.C.R. 307 and R  v. Skolnick [1982] 2 S.C.R. 47.  Each of these cases were binding legal authorities on the hearing panel.  Blencoe supra and Skolnick supra are not mentioned in any of the hearing panel's decisions.  The reference to Hryciuk supra focusses only on the requirement to hold a new hearing in the event that new allegations come to light during an existing proceeding but fails to consider whether the matters before them were "first made to" to the JPRC and then "investigated by" a complaints committee.

The similarities in Hryciuk supra and Re Massiah 2015 in terms of the jurisdictional objection I properly and dutifully raised on behalf of my client are striking.  Here they are:

The Complaint in Hryciuk:

   In Hryciuk the Inquiry Judge had two items of misconduct before her in the complaint.

The Liability Finding
in Hryciuk:

   Justice McFarland went on to find that Hryicuk J. committed some 5-7 acts of misconduct beyond those articulated in the complaint before her. Those 5-7 extrinsic matters were not "first made to" and investigated by" the Review Council and therefore were not properly before the Inquiry Judge.

Jusitce MacFarland's Reasoning
for going beyond the complaint:

   "It would be wrong to limit the inquiry to a consideration of only the two matters heard by the Judicial Council."

   "It seems to me that one of the purposes of the public inquiry is to open up to the public process, which to that point in time, has remained private. It must be expected that members of the public who may think they had information relevant to the issue before the Commission, would come forward.  It would not, I suggest, be a very satisfactory response, nor in the public interest, to tell such persons that they must first make their complaint to Judicial Council, and then to have, if that body considers it appropriate, a second inquiry. To say nothing of the perception that would be left with the public were such complaints ignored by this Commission and particularly so where one judge is in effect being asked to judge the conduct of a fellow judge.  This is a public inquiry and I feel duty bound to consider all evidence if is is relevant."

The Complaint in Massiah:

   In Massiah the Hearing Panel found the complaint to be a report prepared by high profile lawyer, Mr. Douglas C. Hunt, Q.C..  Ironically, Mr. Hunt was counsel for the complainants in Re Hryciuk. His report contained five will-says from five individuals(court staff ).  There was no suggestion by anyone in the will-says that any of these incidents were vexatious, unwelcome or that they constituted a poisoned work environment or were otherwise contrary to the Human Rights Code. Clearly, Mr. Hunt himself did not make any such allegation. In fact, when asked by the Registrar and Counsel for the JPRC Ms. Marilyn King whether this was a new complaint his answer was not that it was. His answer was that members of the public brought information to his attention and he was sending it in for their consideration.

The Liability Finding
in Massiah 2015:

[207]   ....However, we find that His Worship acted in a manner inconsistent with the Human Rights Code. His actions constituted sexual harassment and he failed to treat others in the justice system with mutual respect and dignity.

[210]   Based on the evidence we find to be cogent and compelling, we accept that the allegations set out in paragraphs 1,2, 3, 4, 5, 6, 7a, 7b, 7c, 7e, 8a, 8d, 9, 10, 11, 13, and 14 of the Notice of Hearing, have been made out on the balance of probabilities.

The Problem with the Massiah
Finding of Liability per Hryciuk:

1.   H.W. Massiah received notice of the Hunt Report during his first proceeding. Remember, this was five will-says which did not assert any vexatious, unwelcome or poisoned work environment and never mentioned the term sexual harassment or the Human Rights Code;

2.    It is accurate that Massiah received notice of 7, b, c, d, e, f, 8a, b, c, d, 9, 10, 11, 12
and 13 of the Notice of Hearing prior to the hearing.  However, these allegations are contrary to Hryciuk because they were not "first made to" the Review Council but arose from the improper investigation carried out by the Complaints Committee as asserted in the preliminary motions on jurisdiction and abuse of process.

3.   Paragraphs 1-6 and 14 of the Notice of Hearing were never "made to" the Review Council in any form of complaint and "never investigated by" any Complaints Committee. Accordingly, JP Massiah did not receive any notice of these allegations. This is referred to as a breach of natural justice and fairness in administrative law. It is also arguably an abuse of process within the context of a judicial misconduct hearing.

4.   Paragraph 14 of the Notice of Hearing invites liability on propensity or bad character evidence clearly in breach of natural justice, fairness and R   v. Corbett (1988) 41 C.C.C.(3d) 385 (S.C.C.) This too is a breach of natural justice and fairness.  It reads:

"In light of the nature of the conduct set out above in paragraphs 1 to 13, the range of women who were recipients of your conduct, and your history of judicial misconduct of a similar nature at a different courthouse, your conduct demonstrates a pattern of inappropriate conduct toward women in the justice system."

The Hearing Panel's Reasoning for
Going Beyond the Complaint:

[73]   Therefore, the NOH with its particulars, dated July 4, 2013 and filed as Exhibits 1A and 1B, provides our jurisdiction over this hearing. (Decision on Jurisdiction and Alleged Abuses of Process - January 12th, 2015)

At p.50 of the April 9th, 2014 transcript the Chair stated:

"But, as I recall Mr. Gourlay's submissions, it was that once the complaints committee makes its disposition and a hearing is ordered, then our jurisdiction is to conduct a hearing. We don't go behind the order to have a hearing. We are the hearing. "Isn't that what the legislation says ?

Panel Member, Ms. Lenore Foster stated the following:

"But you have never kind of indicated the fairness to people on the other side.  If you deny a complaint being heard or if a complaint is being made by somebody or indicated to somebody else, and this is quashed, I would suggest to you that people would find the same indication of unfairness in a complaint not being heard as you have indicated against His Worship Massiah.---I would suggest to you that the same applies if complaints are disregarded for whatever reason, people would feel that they weren't being investigated properly.  So there would be a perception on the part of the public that there was an unfairness to those people who had perhaps reason to complain."

The Source of 
Complaints in Hryciuk:

   The two proper complaints against Hryciuk came from two Assistant Crown Attorney of the Ministry of the Attorney General for Ontario.  All of the other complaints came from court staff employed by the Ministry of the Attorney General for Ontario.

The Source 
Complaints in Massiah:

   The first Massiah proceedings chaired by the learned and respected Justice Vallencourt came from the Director of Court Operations of the Ministry of the Attorney General for Ontario.  Following that complaint, the Registrar and Counsel, Ms. Marilyn King, brought a complaint alleging that Massiah gave untruthful testimony before the Vallencourt hearing panel. A Complaints Committee dismissed that complaint.  Some two weeks or so following the penalty decision of the Justice Vallencourt hearing panel in April, 2012 the Review Council proceeded to prosecute a complaint said to be filed by Presenting Counsel before the Vallencourt hearing panel, Mr. Douglas Hunt.

The Common Error:

   In both cases the Inquiry Judge and the Hearing Panel expressed concern that there would be a public perception that complaints against a judge or justice of the peace were being ignored and that it was in the public interest to hear everything brought to their attention. In Re Massiah 2015 Panel Member Lenore Foster, seems to express the identical concerns expressed by Justice MacFarland in Re Hryciuk - "a perception on the part of the public that there was an unfairness to those people who had perhaps reason to complain."

   Judge Hryciuk was removed from office not because he demonstrated bias in the execution of his judicial functions but because prosecutors, court staff and others employed in the administration of justice initiated complaints against him contrary to the statutory process established to entertain and adjudicate such complaints determined the Court of Appeal for Ontario led by Justice of Appeal Rosalie Abella.

   JP Massisah was removed from office not because he demonstrated bias in the execution of his judicial functions.  Presenting Counsel, Mr. Douglas Hunt, Q.C. brought a complaint against him and Presenting Counsel in his subsequent hearing unfairly and without notice to him substantially augmented that complaint asserting in a Notice of Hearing, among other things, that his conduct was vexatious, unwelcome, created a poisoned work environment and demonstrated a pattern of conduct.

   The JPRC Panel dismissed JP Massiah's jurisdiction and abuse of process motions which raised among other defects the fact that the Notice of Hearing exceeded the complaint filed against him to the extent that paragraphs 1-6 and 14 on the Notice of Hearing were not "first made to" to the JPRC and then "investigated by" their Complaints Committee as required by the Court of Appeal for Ontario in Hryciuk supra.(see Respondent's Factum July, 2013 - Respondent's Factum on Bias Motion - May, 2014 - neither of which were part of the JPRC "record of proceedings" before the Divisional Court despite both the parties and the panel's direction that they would be)

The Erroneous Hryciuk Instruction
by Presenting Counsel:

   **Presenting Counsel remained silent on the legal point raised on behalf of JP Massiah that paragraphs 1-6 and 14 of their Notice of Hearing exceeded the complaint contrary to Hryciuk. Instead, Presenting Counsel provided what is at a minimum an inadequate instruction to the Hearing Panel on the interpretation and application of Hryciuk supra and at its highest level simply an erroneous interpretation of a binding legal authority in Ontario. No mention is made by Presenting Counsel of the two prerequisites mandated by Hryciuk supra, namely, the allegations must be first "made to" the Review Council and "investigated by" a complaints committee of the Review Council before a judge can be made to answer at a hearing and removed from office. 

   "If the statutory scheme was complied with, i.e. a person made a written complaint to the council; the complaint was investigated by a Complaints Committee; the Complaints Committee determined as a result of its investigation that there were allegations of judicial misconduct; the particulars of the allegations against the respondent which would be the subject of the hearing were set out in a Notice of Hearing; and the Complaints Committee had jurisdiction to order those allegations to hearing - then the Hearing Panel can be satisfied that it has jurisdiction to proceed to hear the evidence in relation to those allegations.

**Roughly 98% of the legal submissions and argument before the Hearing Panel were conducted in writing.  A review of those written submissions supports this point and can demonstrate that a common response to virtually every legal argument was that it lacked merit and was merely a delay tactic. Indeed, a careful review of the submissions and the Hearing Panel decisions will reveal that to a substantial degree the decisions mirror Presenting Counsel's submissions with no independent analysis. It must not be forgotten that the jurisdiction and abuse of process motion was initiated in June, 2013 in writing. The Hearing Panel then responded with its own motion raising the question of whether it had jurisdiction to entertain it. The Hearing Panel then retained independent counsel, Mr. Brian Gover and received an opinion from him in May, 2014. The Hearing Panel then invited submissions on that opinion.  The Hearing Panel then awaited the Divisional Court decision on JP Massiah's application there which was released around June 6th, 2014. Once again, the Hearing Panel invited written submissions on the implication of that decision for them. The Hearing Panel did not resolve its issues of jurisdiction until roughly the start of July, 2014. Evidence was heard between July 15 - 30th, 2014.  Again, written submissions were made on the motions, liability, disposition and compensation. None of the motion records, facta and written submissions filed with the Hearing Panel on behalf of JP Massiah were in the "record of proceedings" before the Divisional Court. The only written submissions in the "record of proceedings" were Presenting Counsel's Reply submissions on liability and the written submissions of the Association of Justices of the Peace of Ontario on the jurisdiction and abuse of process motion.

NOTE:  This piece is written for the sole purpose of drawing attention to the issues of public importance raised by the actions of the JPRC hearing panel in publicly referring counsel for a judicial officer to the body responsible for regulating the legal profession in Ontario and declining to recommend compensation of that judicial officer's costs of defending the proceedings before them. When law works for some but not for all that is not only problematic but a matter of public importance which law-makers must address and resolve.



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