Friday, February 17, 2017

Re Foulds 2017: Names of Complaints Committee Members Disclosable

    In a decision released on February 14th, 2017 a Justices of the Peace Review Council hearing panel ordered the following disclosure be made to Justice of the Peace Foulds:

22.  In the unusual circumstances of this case, and with the objective of preserving public confidence in the complaints process, the Panel also order that the Registrar may disclose to His Worship, counsel retained to represent him at the hearing, Presenting Counsel and counsel representing either party on the application for judicial review, to the Divisonal Court and by that court as it determines:

a)  Whether the judge member, justice of the peace member and community or lawyer member of the Complaints Committee that referred the complaint before us to a hearing were members of any prior Complaints Committee or Hearing Panel in relation any previous complaint against His Worship; and

b)  If the answer to (a) is yes, whether that involvement was on another Complaints Committee or on a Hearing Panel; what the disposition was of such complaint; and, a copy of the case summary that would or has appeared in the JPRC Annual Report for the period of time when that file was closed.

Commentary and Analysis:

   Given H.W. Fould's concern about potential bias and the fairness of the proceedings against him it makes perfect sense for such a disclosure order to be made and for Presenting Counsel to support such an order.

Contrast with Massiah(2015)

The  Revelation
by Ms. Blight:

   The lack of natural justice and fairness in the proceedings initiated against J.P. Massiah was a consistent theme of objection from start to finish. My very first action on the case was to bring a motion asserting a lack of jurisdiction and abuse of process in the manner of the proceedings on several grounds.  In November, 2013 lawyer member, Margot Blight* revealed that she had sat on the Complaints Committee which investigated the Registrar, Ms. Marilyn King's complaint against J.P. Massiah.  This was five months into the proceedings.  Ms. Blight then voluntarily recused herself
from the Hearing Panel.

   I later brought a motion asserting a reasonable apprehension of bias.  As a direct result of Ms. Blight's revelation, the question of the identify of the persons who sat on the three sets of Complaints Committees dealing with J.P. Massiah was now highly relevant.  I properly sought disclosure of this relevant information to no avail. There was no consent order for J.P. Massiah.  Here is an excerpt of my factum on this point:

J.P. Massiah's
Factum on Bias

12.       The Applicant has been subjected to three separate sets of complaints.  
            Accordingly, this would mean that 3 sets of complaints committee and 
            2 sets of Hearing Panels would have dealt with the Applicant to date.  
            Assuming that there is no overlap, this would involve 15 individuals but 
            the Review Council has only 13 members.  In light of the three sets of 
            complaints committee and two hearing panels which the Applicant
            has experienced, there necessarily must have been some overlap among 
            the judges.

13.       Although the Applicant has made reasonable requests for the identity of the 
           persons who sat on the three sets of complaints committees involving him that 
           information has yet to be provided by the Review Council or Presenting Counsel.

 14.       It is known that the following non-judicial officer members have sat on either a 
             Hearing Panel or a complaints committee involving the Applicant: Dr. M. 
             Phillips, Ms. Margot Blight and Ms. Leonore Foster.

   Unlike Presenting Counsel in Foulds(2017), Presenting Counsel in Re Massiah(2015) 
submitted to the hearing panel that J.P. Massiah's motion was without merit and 
 an attempt to delay the hearing.  The Hearing Panel agreed with Presenting Counsel 
and dismissed the motion. The Chair of the Hearing Panel then went on to instruct the 
Registrar, Ms. King to bring my conduct to the LSUC for their consideration.  
Apparently, this motion was a meritless motion and by bringing it I acted in 
appropriately as a lawyer.

   I believe it is safe to say that Ms. Blight's latent revelation that she sat on a Complaints 
Committee which investigated a complaint brought by the Registrar, Ms. King, alleging 
perjury against my client after his first proceeding before Justice Vaillencourt provided 
me with both subjective and objective reasonable grounds to question the fairness 
of the proceedings against my client.  If that is a sin, my God will deal with me.  It can 
not, however, be professional misconduct for me to have brought this motion in all 
of the circumstances. Since the JPRC did not file the motion records and factums in
their record of proceedings pursuant to the Judicial Review Procedure Act the Divisional
Court was handcuffed in its ability to review this point.

   As it stands only the JPRC knows who were the individuals who sat on the three 
Complaints Committees which investigated J.P. Massiah.  How can this be right ? 

About the author:

Ernest J. Guiste is a trial and appeal lawyer based in Toronto, Ontario, Canada.
His practice involves criminal, administrative law, high-handed dismissals, 
insurance and personal injury. He blogs extensively on law and justice issues.
Access to justice for all and the independence of  the bar are principles he

*Lawyer members are selected by The Law Society of Upper Canada.
Ms. Blight is a member of the Law Society Tribunal - Appeal Branch.

No comments:

Post a Comment