Thursday, March 30, 2017



TEL.(416) 364-8908.  FAX (416) 364-0973
March 8th, 2017                                                 E MAIL                                              
1 Queen Street East, Suite 2310
Toronto, Ontario, M5C 2W5

Attention:  Ms. M. King, Registrar and Counsel

Dear Ms. King:


            The following are JP Massiah’s expression of grave concern with respect to the manner in which the Presenting Counsel and the remainder of the 2012 panel intend to proceed with the ordered re-hearing of our client’s compensation claim.  It is our position that the re-hearing ordered is so pervasively and fundamentally tainted by bias that our client’s right to a fair and impartial hearing is reasonably questionable unless steps are taken to cure it now.  Pursuant to the Procedures Document we bring the within motion for adjudication by the panel.

Presenting Counsel

            Presenting counsel was retained by the Registrar and Counsel for the Justices of the Peace Review Council to draft a Notice of Hearing and to present the case against our client to a hearing panel.  Very early on it(sic) the proceedings the Notice of Hearing drafted by Presenting Counsel was challenged as improperly raising issues which were not part of any complaint in writing and clearly were not investigated by the Complaints Committee which is said to have ordered a hearing – notwithstanding the fact that no order from the Complaints Committee has ever been produced. This objection took place before Mr. House was retained but was continued during his retainer.

            Presenting Counsel stepped outside of the amicus role which they are to play in these proceedings and embarked on a full-blown criminal-style prosecution of our client.  Presenting Counsel incorrectly instructed the hearing panel on the application of Hryciuk  v.  Ontario (ONCA) and the hearing panel went on to accept Presenting Counsel submission on what it is they were to adjudicate notwithstanding the fact that the Independent Counsel which the panel retained to advise them on the issue of their jurisdiction expressly told that it was a “complaint”. The hearing panel never addressed its mind to J.P. Massiah’s point that substantial parts of the Notice of Hearing did not come from a complaint in writing and were not investigated by the Complaints Committee.

On Judicial Review
Presenting Counsel
Again Retained:

            Once again Ms. King retained Presenting Counsel to represent the JPRC before the Divisional Court.  Presenting Counsel served and filed the “record of proceedings” for the JPRC.  The “record of proceedings” does not contain all of the material which the hearing panel, presenting counsel and us as counsel agreed would form the “record of proceedings.”  It fails to contain the parties motions records, facta/written submissions, legal authorities and the five volume of transcripts from the investigation which the hearing panel clearly acknowledged in its Decision on Jurisdiction and Alleged Abused of Process was filed by our client.

Issues Curtailed
At Divisional Court
And Court of Appeal:

            The effect of the deficient “record of proceedings” was to circumscribe the issues apparent for review.  The interpretation of the Human Rights Code of Ontario although a fundamental part of both the Notice of Hearing and Presenting Counsel’s written submissions inviting liability is totally absent from the appellate court proceedings.  Former panel member, Margot Blight’s recent use of the decision involving our client as a prescedent before a Law Society Tribunal panel which she chaired while our client’s matter was before the courts without acknowledging that it was under review compounds our concern on this point.  The second significant issue which is not fully addressed before the Divisional Court is the fact that paragraphs 1-7 and 14 of the NOH were not part of complaint and as such were never screened or investigated and our client got no notice of them until the issuance of the NOH on or about May 31st, 2013.

Denial of Compensation
Jurisprudence Established
by current Presenting

            A review of the JPRC’s recent jurisprudence on the issue of compensation makes it clear that current Presenting Counsel is the advocate and founder of the said policy.  She has stated the new principle as, “it is not whether counsel should be compensated but rather whether the public, rather than the client, should be required to “foot the bill”. (see Foulds, Phillips, Chisvin and Tor Sun Article and re-tweet by Deborah Livingstone @ dresdengirrl)  Indeed, in the proceedings she once again stepped outside of the amicus role which other Presenting Counsel – to date – such as Mr. Doug Hunt has played on this issue and embarked on a full-blown prosecution of the issue of compensation totally inconsistent with the manner in which this issue has been handled by Mr. Hunt in our client’s first case and by other Presenting Counsel to date.

Current Presenting
Counsel’s Retainer
Discredits the Impartiality
Of the tribunal:

            Presenting counsel then not only defended the “client and not the public foot the bill”  argument at Divisional Court but also sought leave to appeal the adverse decision.  Presenting Counsel is now on the re-hearing with 2/3 of the panel which did exactly as requested by Presenting Counsel.

[65]      It is well established that a tribunal whose decision is challenged in judicial review proceedings should not appear to defend the merits of its decisions.  As stated by the Supreme Court in Northwestern  Utilities Ltd.   v. Edmonton (City) [1979] 1 S.C.R. 684 (SCC) at page 709:

“Such active and even aggressive participation can have no other effect than to discredit the impartiality of an administrative tribunal either in the case where the matter is referred back to it, or in future proceedings involving similar interests and issues or the same parties.  The Board is given a clear opportunity to make its point in its reasons for its decision, and it abuses one’s notion of propriety to countenance its participation as a full-fledged litigant in this Court, in complete adversarial confrontation with one of the principals in the contest before the Board itself in the first instance.”    (quoted from Douglas   v.  AG CANADA 2013 FC 451)           

Fairness Compromised:

            Presenting counsel has suggested to the panel that the proceedings must be circumscribed even though a comprehensive reading of the Divisional Court’s reasons not only raises the point that the mere bringing of a complaint – especially by the government is an affront to judicial independence.   

Public Hearing
Now Denied:

            This portion of the hearing which was made public made public for the first time during our client’s case in May, 2015 has now been shielded from public scrutiny with the panel accepting Presenting Counsel’s request to depart from a public hearing.  While we have asked for an opportunity to call evidence, we have heard nothing on this request other than a frequent reminder that the panel has granted us 25 pages to make submissions by March 24th.

2012 Panel’s Public
Interference with J.P.
Massiah’s Right to

            The 2012 panel made four fatal decisions which undermined the fairness and legality of the proceedings and which raise a reasonable apprehension of bias with respect to the re-hearing:

 1.         Restricting the right of one of Massiah’s counsel to address them without providing any opportunity to  be heard:  (Decision denying leave to make further submissions on jurisdiction);

 2.         Restricting the right of one of Massiah’s counsel to address them without any opportunity to be heard.(Decision on leave to adduce fresh evidence);

3.         Compensation Decision and Addendum with a referral to the Society of one of J.P. Massiah’s lawyers for conduct which included acts undertaken by both counsel raise a spectre of a racial animus since one counsel is African-Canadian and the one who was “well-received” is not. Indeed, a proper reading of the Compensation Decision leaves the impression that J.P. Massiah and his African-Canadian counsel are one and the same;

 4.         Outright ignored all legal authorities cited by J.P. Massiah on the compensation portion of the Hearing and the Chair re-tweeted an article written by Michel Mandel of the Sun praising the denial of the compensation decision and the referral of one of J.P. Massiah’s lawyers.

JPRC silent on Chair’s
Retirement at Divisional

            As counsel I exercised my right to bring complaints of judicial misconduct against the two judicial officers on the 2012 panel following the Compensation Decision.  The Chair of the panel later announced her “full retirement from the bench.”  This fact was known to the JPRC’s instructing counsel, Ms. King, who is also Registrar of both the Ontario Judicial Council and the Justices of the Peace Review Council – the gate-keeper of judicial misconduct complaints in Ontario yet was never disclosed to the Divisional Court.  The complaint against J.P. Cuthbertson is outstanding.  Among other wrongs, the complaint raises serious concerns about this judicial officer treating counsel in a manner in violation of the Human Rights Code. This puts J.P. Cuthbertson in a conflict.

Concern Over
Registrar’s Varied
Roles and Misuse
Of Confidential

            Ms. King is counsel to the Justices of the Peace Review Council.  She retained and instructs Presenting Counsel.  She is also Registrar of the Ontario Judicial Council. In both roles as Registrar she is the “gate-keeper” of judicial misconduct complaints.

            Is there any possible way to guarantee that confidential information is not wrongly used given the various hats which Ms. King wears in the process ?  Regrettably, we like the Divisional Court in a recent ruling on the issue of a disqualifying conflict of interest caused by a lawyer migrating from one firm to another take the view that compliance with the rules and guidelines may not be adequate in every case. How can it ever be o.k. for the person who receives and screens the complaints for both judicial councils be the same person who retains counsel to present not the complaint but draft a Notice of Hearing ? 


            We (sic) grave concerns about the ability of our client to receive a fair and impartial hearing as directed by the court in this matter for the reasons given above. We look forward to Presenting Counsel’s submissions on this motion and the panel’s decision. 

            All of which is respectfully submitted.
Yours very truly,

Ernest J. Guiste
Cc co-counsel, Mr. House, Presenting Counsel – Ms. Henein and Mr. Gourlay

Mr. Massiah via e mail 

NOTE:  This motion was filed with the Justices of the Peace Review Council Hearing Panel.
It is published here only because the tribunal has decided to deviate from the conventional public hearing format prescribed by the Act and Procedures Document. We believe that the removal of a judicial officer is a matter of public importance. The people of Ontario have a right to know and that justice must be seen to be done. Accordingly, this is a public service.

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