J.P. MASSIAH'S FACTUM IN SUPPORT OF RE-OPENING ETC.

JUSTICES OF THE PEACE REVIEW COUNCIL

IN THE MATTER OF COMPLAINT(S)

REGARDING HIS WORSHIP ERROL MASSIAH

Justice of the Peace in the

Central East Region

J.P. MASSIAH’S FACTUM

IN SUPPORT OF MOTIONS

E.J. GUISTE

Professional Corporation

Trial & Appellate Advocacy

2 County Court Blvd., Suite 494

Brampton, Ontario

L6W 3W8

Ernest J. Guiste

(416) 364-8908

(416) 364-0973 fax

JEFFRY HOUSE

Barrister & Solicitor

31 Prince Arthur Avenue

Toronto, Ontario

M5R 1B2

(416) 707-6271

(416) 960-5456 fax

 Overview:

A.        J.P. Massiah asserts the following three discrete motions:  1. Re-opening per Chandler  v.  Alta Assoc. of Architects [1989] 2 S.C.R. 848; 2.  Bias; and 3. Disclosure.

B.        J.P. Massiah will make separate submissions on the discrete issue of the re-hearing on compensation as invited by the Hearing Panel.

1.         The following facts invite a re-opening on the decisions rendered on liability and penalty:

1.         The Notice of Hearing states that the hearing in this matter was ordered 
by the “Review Counsel” and the Justices of the Peace Act (The Act) does not 
vest this body with the authority so to do;

2.         The power to order a hearing is vested in the complaints committee under s.11(15)(c );

3.         s.11(18) requires the complaints committee to report to the Review Council on its decision;

 4.         No Report and no order of the complaints committee has been disclosed to His Worship Massiah or the people of Ontario to date. Transcripts from an investigation without more do not constitute a report;

 5.         J.P. Massiah challenged the Panel’s jurisdiction on the basis that there was no complaint in writing from a complainant. In their factum dated July 19^th, 2013 Presenting Counsel wrote that “The detailed report of Mr. Burns served this purpose.” In a letter dated January 14^th, 2014 Presenting Counsel informed J.P. Massiah in response to a question as to who was the complainant in this case and Presenting Counsel responded that it was the witnesses who would be called to give evidence.  In their Submissions dated July 7^th, 2014 Presenting Counsel suggested that  “Mr. Hunt put the information obtained from these individuals in writing and delivered it to the Justices of the Peace Review Council on November 2, 2011.”

                    

             Presenting Counsel led no evidence in support of  Mr. Hunt or Mr. Burn’s intention to make a complaint.  Neither Mr. Burns nor Mr. Hunt ever said they were making a complaint about the conduct of J.P. Massiah. Presenting Counsel’s witnesses were all questioned on this point and they confirmed no intention to complain.

             It is not for J.P. Massiah to establish the requirement of a complaint in writing from a complainant.  In a sworn affidavit dated August 19^th, 2016 the Registrar has produced a letter which she deposed was sent to Mr. Hunt as the complainant.  Had this letter been properly disclosed in advance of the hearing J.P. Massiah could have confronted Mr. Hunt directly on factual and legal         requirements of a complaint which Independent Counsel referred to in his opinion to the Hearing Panel. Ex. 17)

6.         The Justices of the Peace Act mandates that the Hearing Panel is to “uphold or dismiss the complaint” and the Hearing Panel failed to adjudicate this question;

7.         Paragraphs 1-6 and 14 of the Notice of Hearing did not stem from any complaint to the Review Counsel and was not screened or investigated the complaints committee or the persons retained to investigate on their behalf;

8.         Paragraph 14 in particular on the Notice of Hearing expressly relies on bad character and propensity evidence to ground liability contrary to R   v.  Corbett [1988] 1 S.C.R.  670 and Presenting Counsel acknowledged on July 29^th,  2014 at page 110 line 4 that the intent was to restrict this
evidence to penalty but the Hearing Panel clearly relied upon this evidence to ground liability, as invited by Presenting Counsel(see Presenting Counsel’s submissions on liability paragraph 1 and paragraphs 16 and 211 of Decision on Liability) ;                              

9.         The Notice of Hearing in this case asserts claims for acts or conduct in the workplace for which the subject employees have both collective agreements and statutory protections which potentially conflict with the exclusive jurisdiction pronouncement made by the Supreme Court of Canada in Weber  v. Ontario Hydro [1995] 2. S.C.R. 929.  Presenting  Counsel’s  suggestion that the witnesses are the complainants make this line of authority highly relevant to the question of whether the Hearing Panel had jurisdiction to entertain.

 10.       The findings of liability and penalty cannot stand since the Hearing Panel was not properly constituted on two grounds.  Firstly, the Chair of the Hearing Panel was a part-time judge who required the consent of the Attorney General to sit and therefore lacked the degree of independence and impartiality to provide J.P. Massiah with a fair and impartial hearing as that term is used under the Charter.  Secondly, the Hearing Panel was composed of two temporary members, both judicial members,  when the Chief Justice can only appoint one temporary member pursuant to the Procedures Document. Key disclosure in the form of the Chief Justice’s appointment letters for Justice Livingstone and H.W. Cuthbertson remains outstanding.

11A.    The finding on liability can not stand because the Hearing Panel failed to apply the law in Ontario on “vexatious”  “unwelcome” and “poisoned work environment”.

11.       The following acts subsequent to the disposition of the complaint against J.P. Massiah raises grave concerns about the fairness of the proceedings and beg for the invocation of a stay of proceedings:

1.         The deficient “record of proceedings filed with the Divisional Court:

 2.         Justice Deborah Livingstone’s use of Twitter to publish and promote 
her Compensation Decision and Addendum by retweeting Michele Mandel’s article the day after the release of the Hearing Panel’s decision denuded the panel of any semblance of objectivity, independence and impartiality;

3.         Ms. Margot Blight’s use of the disposition in Re Massiah as a precedent 
in one of her decisions while sitting as the Chair of a Panel on the Law Society 
Tribunal while Re Massiah was under review by the Divisional Court was 
grossly improper and calls into question the fairness and legitimacy of the dispositions against J.P. Massiah standing alone. When combined with the fact that Ms. Blight and appellate counsel, Mr. Anand have sat together on the said Law Society Tribunal both before and after Re Massiah undermines the fairness and legitimacy of the Hearing Panel’s on an objective evaluation.

                                     

THE LAW:   

Jurisdiction to Re-Open:

2.         The Supreme Court of Canada was clear in Chandler  v.  Alta Assoc. of Architects [1989] 848 that where a tribunal fails to dispose of a matter before it in a manner mandated by its enabling legislation it is not functus officio, the purported disposition is a nullity and it is therefore entitled to continue the original proceedings to consider disposition of the matter on a proper basis.

                       Chandler  v.  Alta Assoc. of Architects [1989] 2 S.C.R. 848

Justices of the

Peace Act:

3.         s.10.2(3)      

Timely Reporting to Complainant – The complaints committee shall 
report in a timely manner to the complainant that it has received the 
complaint and it shall report in a timely manner to the complainant 
on its  disposition of the matter.

3.         s.11(15)          

When its investigation is complete, the complaints committee shall,

(c )   order that a formal hearing into the complaint be held by a hearing panel;

s.11(18)          

The complaints committee shall report to the Review Council on 
its decision and except where it orders a formal hearing, it shall not 
identify the complainant or the justice of the peace who is the subject of 
the complaint in the report.

s.11.1(1)         

When a hearing is ordered under subsection 11(15), the chair of the 
Review Council shall establish a hearing panel from among the members 
of the Review Council to hold a hearing in accordance with this section.     

s.8(1)          
The council known in English as the Justices of the Peace Review Council and 
in French as Conseil d’evaluation des juges de paix is Continued, c. 21, Sched. B, s.7.

s.8(2)              
The functions of the Review Council are:

(a)   to consider applications under section 5.2 for the accommodation of needs;

(b)   to establish complaints committee from among its members to 
review and investigate complaints under section 11;

                                   
(b.1)  to approve criteria under subsection 6(5) for granting Approval for 
justices of the peace to continue in Office once they reach 65 years of age;

(c)    to review and approve standards of conduct under under section 13;

(d)     to deal with continuing education plans under section 14; and

(e)     to decide whether a justice of the peace may engage in other remunerative work.                                        

s.8(15)            

The Review Council may engage persons, including counsel, to assist it and its complaints committees and hearing panels.

Three distinct bodies

and functions:

6.         The process of adjudication of complaints under the Act involves three 
distinct bodies with separate and distinct functions in the process.  The 
Review Council receives complaints under section 10.2(1) and appoints 
a complaints committee to investigate the complaint under section 11(1).  
The complaints committee investigates the complaint under s.11(7) and when 
its investigation is complete shall order that a formal hearing into 
the complaint be held by a hearing panel.

7.         It is clear on a proper reading of the statute that the Review Council has 
no jurisdiction under the Act to order a hearing.

8.         It is clear on the face of the Notice of Hearing that the hearing was ordered by the Review Council and there is no evidence to the contrary.

9.         The Act itself is silent on the concept of a Notice of Hearing.  
The Procedures document speaks to this.               

10.       It is clear that the Notice of Hearing contained serious flaws going to jurisdiction which required adjudication and these issues remain unresolved to the grave prejudice of J.P. Massiah.

11.       In Weber  v.  Ontario Hydro [1995] 2 S.C.R. 929 the Supreme Court of Canada held that where the provisions of a collective agreement purports to regulate the conduct at the heart of a dispute the labour arbitration forum has exclusive jurisdiction to deal with such disputes.

12.       In Giorno  v.  Pappas 1999 Canlii 1161 (ON CA) an employee covered by a collective agreement attempted to sue another employee for allegedly defaming her after she grieved the matter and a settlement of that grievance was arrived at.  The Court of Appeal for Ontario reasoned that “As the essential character of the conduct complained of by the plaintiff was covered by the collective agreement, the dispute was one that arose under the collective agreement and had to be resolved in the arbitration process rather than in the courts.  It was irrelevant that the relief was sought against a party or parties other than the employer.

13.       The record reveals that the fact that the subject employees were covered by a collective agreement and a harassment policy which protected them against retaliation for asserting their rights was not disclosed to His Worship Massiah as part of the disclosure obligation in this case but came to light during the hearing itself.  In addition, evidence from the employer of their lack of knowledge with respect to a poisoned work environment only came to light during the hearing itself.

Remedy:

14.       The Applicant seeks leave to have the Hearing Panel entertain and hear the issues raised above in a full public hearing as mandated by the Act or stay the proceedings as an abuse of process.  Proceeding in this manner will be the most efficient use of public resources.          

March 23rd, 2017

All of which is respectfully submitted.

Ernest J. Guiste and Jeffry House, co-counsel for the Applicant, J.P. Massiah

NOTE: This factum was filed with the Registrar and Counsel for the JPRC.  It is published here as a community service.  The people of Ontario need to know.  These are public matters.  The JPRC Hearing Panel has decided that the re-hearing ordered by the Divisional Court in this matter will not be done by way of the conventional public hearing where viva voce evidence is received but the hearing would be conducted in writing only.  The removal of a judicial officer is an issue of public importance. Many men and women died to provide us the right to be tried by an impartial tribunal in fair and public proceedings. This is a fundamental right to all in the community.