Monday, April 24, 2017

Who was the "Complainant" in the Third JP Removal Case Under The Access to Justice Act Amendments

   One of the goals of the Access to Justice Act, 2005 was to expand the functions of the Justices of the Peace Review Council to improve the complaints process and make it more effective.  Since its coming into law in 2006 three justices of the peace have been removed from office and three have resigned their office prior to a disposition - representing a marked and substantial increase in the removal rates of justices of the peace in Ontario.  It would appear that more justices of the peace have been ordered removed from office or voluntarily resigned their office in the past ten years than ever before in Ontario.  This alarming rise in the removal of judicial officers is a matter of public importance.

   In Re Massiah (2015) a hearing panel chaired by part-time and since retired Justice Livingstone of the Ontario Court of Justice recommended removal from office to the Attorney General.  The hearing panel ruled after some 23 days of hearing that prior Presenting Counsel, Mr. Douglas Hunt, Q.C.'s report to his instructing counsel, the Registrar and Counsel to the Justices of the Peace Review Council was the complaint and that the Notice of Hearing dated May 31st, 2013 drafted by current Presenting Counsel, Ms. Marie Henein provided their jurisdiction to proceed with a hearing - thereby
exceeding their jurisdiction by ruling on matters raised in the Notice of Hearing for the
first time and which were not pre-screened or investigated by the Complaints Committee
as mandated by Hryciuk  v.  Ontario - totally disregarding my legal submissions made as early as July, 2013 on behalf of the subject judicial officer.

   In its recent decision (2016 ONSC 6191) on a judicial review application brought in the
case Justice Nordheimer of Ontario's Divisional Court wrote the following:

[42]   It bears repeating that the role of a judicial office holder is different than any other professional position.  It was described in Re Therien [2001] 2 S.C.R. 3 by Gontheir J., at para. 108:

The judicial function is absolutely unique.  Our society assigns important powers and responsibilities to the members of its judiciary.  Apart from the traditional role of an arbiter which settles disputes and adjudicates between between the rights of the parties, judges are also responsible for preserving the balance of constitutional powers between the two levels of government in our federal state.  Furthermore, following the enactment of the Canadian Charter, they have become one of the foremost defenders of individual freedoms and human rights and guardians of the values it embodies.

[52]   Second, where a Provincial Attorney General makes a complaint against a federally appointed judicial officer, a hearing is mandatory.  While the same provision does not apply in the cases of judges of the Ontario Court of Justice or of justices of the peace, the prospect of a complaint emanating from the Government is, nonetheless, a real one. This possibility is of some significance given that one of the most important roles performed by judicial officers is to stand between the state
and the citizen, in terms of application of government powers. This role is referenced in the earlier statement I quoted from Re Therien.  Judicial officers are therefore exposed not only to the vagaries of complaints by citizens but also to those of government.

Who is Douglas Hunt, Q.C. ?  (The "complainant")

- Former Assistant Deputy Attorney General for Ontario
- Former lead counsel to the two complainants at the Inquiry into the Conduct of Judge Hryciuk
- Presenting Counsel in Re Massiah 2012 when he sent his report to his instructing
counsel, Ms.  Marilyn King, who is also the Registrar of the Justices of the Peace Review Council
- Counsel of record for the Law Society of Upper Canada in 2007 ONLSHP 27 (Canli)
- Co-counsel with Mr. Michael J. Meridith* in  A Complaint Re Hon. Justice Douglas (2006)
- Law partner with Presenting Counsel, Marie Henein's spouse from 2005 - 2011**

Did Mr. Hunt intend to make a complaint about the conduct of my client ?

Exhibit 30A:

Dear Ms. King:

Re: Complaint Respecting His Worship Justice of the Peace Massiah
And Re:  Report dated November 1, 2011

Please find enclosed Report to the Justice of the Peace Review Council dated November 1, 20111.

Yours very truly,

Andrew D. Burns
cc. Douglas C. Hunt, Q.C

Exhibit 30B:

November 3, 2011

Dear Mr. Hunt:

RE: Justice of the Peace Review Council

This letter acknowledges receipt from your office of a Report, dated November 1, 2011
containing transcripts of new interviews relating to the conduct of His Worship Errol

I am writing to confirm whether the information has been forwarded for the Council's
consideration as a new complaint ?

Thank you.

Yours truly,

Marilyn E. King.

Exhibit 30C:

November 3, 2011

Dear Ms. King:

RE: Complaint Respecting His Worship Justice of the Peace Errol Massiah
And Re:  Report dated November 1, 2011

Thank-you for your letter of today's date seeking clarification concerning the Report
dated November 1, 2011.

During the public hearing into the conduct of Justice of the Peace Massiah, the Law
Times published an article dated October 10, 2011 entitled, "JP accused of sexually
harassing six court clerks - But Errol Massiah says female staff misinterpreted his
manner" (the "Law Times Article").

As a consequence of the publication of the Law Times Article, we, as a result of our
appearance as Presenting Counsel, received calls from a number of individuals who
work at the Courthouse located at 604 Rossland Road in Whitby.  Those individuals
provided information regarding their interactions with Justice of the Peace Massiah.

We do not believe that this information would be admissible at this stage in the present
hearing.  However, it has been brought to our attention by members of the public and
therefore we are submitting it to the Council for its consideration.

The Report contains the information that we received.

Yours very truly,

Douglas C. Hunt, Q.C.
cc. Andrew Burns

Presenting Counsel on 
Who is the Complainant:

1.   "The essence of the Applicant's complaint is not that it was not provided in writing
but rather that the complaint was forwarded in writing by Mr. Burns rather than each
of the five witnesses. There is no statutory limitation on how or by whom a written
complaint may be brought forward to the Review Council."
[Presenting Counsel Factum July 19, 2013 at p.4]

2.   In direct response to the following question: Please clarify for me as to who is the
complainant or complainants in this case.  Is it Presenting Counsel or the people he took
will-says from ?

   "The "complainants" in this case are the people who are expected to testify about
alleged misconduct by His Worship." (Presenting Counsel's letter dated January 14, 2014)

3.   "The material provided by Mr. Hunt to the Council unequivocally constitutes 
complaint in writing."
[Reply Written Submissions of Presenting Counsel on Liability - at p.3]

Hearing Panel on
Who is the Complainant:

[19]   With no evidence to the contrary, we find that, despite being a Presenting Counsel
in a hearing of the Review Council that was underway to consider particular allegations,
Mr. Hunt was acting in the role of "any person" pursuant to s.10.2(1) of the Act, when
he spoke with and had interviews conducted with the original five people from the
Whitby courthouse who contacted him with new information about His Worship's
conduct at that location. He then filed his report with the Review Council.

[22]   We also conclude that Mr. Hunt was the complainant.  Therefore, the complaint
was not anonymous.
[Decision on Jurisdiction and Alleged Abuses of Process, January 12, 2015]

[29]   There is no requirement in the statute nor in the Procedures that a complaint must
be signed to be valid.  Nonetheless, we note that Mr. Hunt, the complainant, signed the
letter of November 3, 2011 that was filed as Exhibit 30A.

[38]   As we have stated earlier, none of the witnesses was the complainant.
Whether they intended to make a complaint is irrelevant.

[40]  No evidence was led as to whether Mr. Hunt was advised by the Complaints
Committee of its disposition of the complaint.

* Mr. Meridith was retained by the Justices of the Peace Review Council to investigate the
complaint which Mr. Hunt was Presenting Counsel on involving H.W. Massiah.

** This fact recently came to light and is the subject of a fresh evidence motion before a JPRC
Hearing Panel

NOTE:  This piece is written for the sole purpose of drawing attention to an issue of public importance. The removal of a judicial officer is an issue of public importance in Ontario and indeed throughout the free world.

Saturday, April 22, 2017

Fresh Evidence Motion Filed With Justices of the Peace Review Council


IN THE MATTER OF a complaint respecting
Justice of the Peace in the
Central East Region


          TAKE NOTICE THAT the His Worship Justice of the Peace Massiah hereby seeks leave to bring a motion before the Panel – to admit fresh evidence in writing since the Hearing Panel has dispensed with the traditional public hearing format.

The Grounds for the Application are:

1.      During my hearing, the issue of who is the “complainant” and whether the mandatory requirements prescribed by the Justices of the Peace Act, and Procedures Document were complied with and(sic) was a central issue before the Hearing Panel. 

          Current Presenting Counsel did not call former Presenting Counsel, Mr. Hunt, to testify that in submitting his report to his instructing counsel, The Registrar, Ms. Marilyn King, he had the intention to make a complaint about my conduct. Current Presenting Counsel told my lawyer that the “complainants’ were the witnesses who would come to testify in a letter dated January 14th, 2014. Witnesses were accordingly cross-examined on this information and they testified to having no intention to file a “complaint.”

          The Panel ruled On January 12th, 2015 that Mr. Hunt was the “complainant”. 

          After the findings of liability, disposition and compensation, 
the Registrar and Presenting Counsel’s instructing counsel, 
Ms. King, prepared an affidavit sworn August 19th, 2016 in which 
she deposed that she complied with one of the two mandatory 
requirements of notice to complainants, namely, that the 
“complaint” was proceeding to a hearing and that his evidence may 
be required.  Ms. King has not disclosed an acknowledgement of 
receipt of the “complaint” to date.

                   I was denied the right to confront Mr. Hunt 
on the crucial point of whether he intended to make a complaint 
about my conduct.  The Hearing Panel and indeed the People of 
Ontario were denied his evidence on a crucial and material point in 
my removal from judicial office, namely, whether he intended to 
make a complaint about my conduct. 
2.      The new evidence is relevant and calls into question the fairness of the proceedings against me and soundly demonstrates the reasonableness and merit of all of the motions and steps taken on my behalf in defending my office – a pivotal issue in the Hearing Panel’s decision on whether I should be compensated “for all or part of the cost of legal services incurred in connection with the hearing” pursuant to s.11.1(16) of the Justices of the Peace Act.

 3.      On April 14th, 2017 I learned that current Presenting Counsel, Ms. Henein’s spouse was a law partner of the complainant, former Presenting Counsel, Mr. Doug Hunt, in and around the material time of him acting as Presenting Counsel on my matter before Justice Vallencourt and the date of his report to his instructing counsel, Ms. Marilyn King, Registrar and Counsel to the Justices of the Peace Review Council.

4.      On April 14th, 2017 I also learned that prior to going into the private practice of law the “complainant”, prior Presenting Counsel, Mr. Hunt was Assistant Deputy Attorney General and Director of Criminal Law for Ontario.

5.      The Registrar’s recent disclosure in her sworn affidavit prompted investigations which have brought the relationship between current Presenting Counsel, her spouse and the complainant, former Presenting Counsel, Mr. Hunt to light.
 6.      The new evidence is also relevant to the Divisional Court’s clear acknowledgement that “a complaint coming from the Government is, nonetheless a real one” and therefore one of several compelling reasons why “adjudicative bodies, dealing with complaints against judicial office holders, ought to start from the premise that it is always in the best interests of the administration of justice, to ensure that persons, who are subject to such complaints, have the benefit of counsel. Consequently, the costs of ensuring a fair, full and complete process, ought usually to be borne by the public purse, because it is the interests of the public, first and foremost, that are being advanced and maintained through the complaint process.”

7.      Presenting Counsel’s answer to my counsel’s question on who is the complainant and her decision not to call the complainant, former Presenting Counsel to give evidence on his intention,  when looked at in the light of the new evidence raises a true reasonable apprehension of bias and is clearly contrary to the age old principle that justice must be seen to be done.

8.      Section 4 of the JPRC’s Procedural Code for Hearing;

9.      Rule 3.4-1 of the Rules of Professional Conduct.

The following documentary evidence will be relied upon:

1.  Sworn affidavit of Errol Massiah dated April 16th, 2017 and all exhibits thereto;         

            The Applicant may be served with documents related to this motion at the office of his solicitors of record, E.J. Guiste and J. House pursuant to the Rules.

April 16th, 2017                                                                    

Professional Corporation
Trial & Appellate Advocacy
2 County Court Blvd., Suite 494
Brampton, Ontario
L6W 3W8
(416) 364-8908
(416) 364-0973 FAX
Co-counsel for the Applicant

Barrister & Solicitor
31 Prince Arthur Avenue
Toronto, Ontario
M5R 1B2
Tel.(416) 707-6271
Fax (416) 960-5456

Co-counsel for the Applicant

Henein Hutchison LLP
235 King Street East, 3rd Floor
Toronto, Ontario
M5A 1J9

Ms. Marie Henein and Mr. M. Gourlay



Justices of the Peace Review Council
31 Adelaide Street East
Toronto, Ontario
M5C 2J3
Ms. Marilyn E. King, Registrar   - E mail

NOTE:  This Notice of Motion to Adduce Fresh Evidence was filed with the 
Justices of the Peace Review Council on April 19th, 2017.  In a nutshell, newly 
discovered evidence shows that current Presenting Counsel's spouse was a 
law partner of former Presenting Counsel and complainant, Mr. Doug Hunt.
In addition, the complainant, Mr. Hunt was Assistant Deputy Attorney
General of Ontario prior to going into private practice.

This document is published here because the JPRC has dispensed with 
traditional public hearing format.  This piece is published as a public service.  
The people of Ontario are entitled to see that justice is done. At the time of 
publication the JPRC has not seen fit to publish this or any other 
of the motion materials.  Transparency in these matters is vitally important 
to public confidence in the administration of justice. It is in the spirit that justice 
must be seen to be done that this publication is made here.


Wednesday, April 19, 2017

Evidence Pointing to Unfair Hearing in JP Removal Case: Chair's Sarcasm Astonishing

The following excerpt from the October 8th, 2014 transcript at page 126 in Re Massiah (2015) is classic irony and at the same time compelling evidence that now retired Justice Livingstone had a sound understanding of the legal terms "vexatious" and "unwelcome".

The irony is that in her joking with my co-counsel, Mr. House, the Chair of the Hearing
Panel, now retired Justice Livingstone, clearly displays a sound understanding of our
client's defence to the allegations against him, namely, that if his comments are
welcomed they can not be contrary to the Human Rights Code or constitute judicial misconduct*.

MR. HOUSE:   But, your Honour, every time I say I'm going to be brief you thank me.
But I hope I'm not imposing on your time overmuch.

JUSTICE LIVINGSTONE:  I hope I'm not being vexatious

MR. HOUSE:  I wouldn't complain.

JUSTICE LIVINGSTONE: My comments obviously are welcome.

MR. HOUSE:  Yes.  I do know where to complain if things go off the rails.

Reasons for Decision
on Bias Motion at p.10:

[22]   At the conclusion of Mr. Guiste's explanation, the Chair of the Hearing Panel states:

"Thank you, Mr. Guiste, for that speech". (Transcript April 9, 2014, p.153)

[23]   Mr. Guiste now alleges that the use of the word "speech", by way of sarcastic
comment to him, would cause a reasonable observer to believe that the Chair of the
Hearing Panel was biased - demonstrating disrespect to both His Worship and his
counsel and their racial heritage, stereotyping Mr. Guiste as a black man on a soap box.
The Hearing Panel finds such an assertion completely offensive.

Reasons for Decision
on Liability:

"Soul Brother"

[176]   As Ms. II described, the words as well as the slow, breathy manner of expressing
them, were reminiscent of a style of speaking which the phrase "soul brother" connotes.

Parental Obligations:
(April 9th, 2014 Transcript)

JUSTICE LIVINGSTONE: unless you have a strenuous objection, I am going
to order that our next date for commencement by Monday, the 28th of April at 9:30 a.m.

MR. GUISTE:   I can't make 9:30  I was even a little late today.  I came about 10 minutes.
I have to bring my daughter to school and by the time I get on the DVP and down here,
its a little after 10:00 or in and around 10:00

JUSTICE LIVINGSTONE:  Well, we're going to try to start at 9:30, Mr. Guiste, and I'd
ask you to try and make your best efforts to get here for then and we'll see how we do
on the first date of that order.  Thank you.

MR. GUISTE:  Can I just say this ?   I don't mind the panel -- I respect the panel 
making decisions, but when the panel expressly makes a decision in terms 
of start time, when I clearly and unequivocally tell them about my 
parental obligations and you compel me to come at 9:30, in my 
respectful submission that's a little bit unfair.

JUSTICE LIVINGSTONE:  Thank you for that.  We'll see you at 9:30 on April 28th.

"I am old-fashioned" (excerpt from July 15th, 2014 transcript)

JUSTICE LIVINGSTONE:  Sorry, Mr. Guiste, you're hot, you  want to take your jacket
off ?

MR. GUISTE:  Yes, please.

JUSTICE LIVINGSTONE:   I'm sorry.  We're all in the same room, we're all hot, I don't
think it's appropriate.  I'm old fashioned, Mr. Guiste, I've told you that for a year.

"Thank you Mr. Guiste
for that Speech" 
(Transcript April 9th, 2014)

MR. GUISTE:   .....You allowed him to say a complaint was received from 
Mr. Hunt, an investigation was conducted, a decision was made, His Worship
knows why he is here,  you should dismiss the motion and proceed to a hearing.

So when he does that, he is foreclosing my ability to respond on very 
important points.  These points, I would submit, had to be calculated to put in
his reply rather than in his opening so then I can't say anything.  That's unfair.
That's what I was trying to tell you Madam Justice.

JUSTICE LIVINGSTONE:  Thank you, Mr. Guiste, for that speech.  I have 
heard the speech.

*Of course, our main position was that Presenting Counsel, Mr. Doug Hunt was not
and could not be the complainant and Presenting Counsel, Ms. Henein could not
augment his complaint - assuming it to be one - by asserting Human Rights Code
allegations which were not first made to the Review Council and investigated by
a Complaints Committee pursuant to Hryciuk  v. Ontario.

NOTE: This piece is published to draw attention to an issue of public importance. The removal of a judicial officer in Ontario and elsewhere in the free world is an issue of public importance.  The Ontario Human Rights Code is quasi-constitutional legislation which ought to apply to everyone in Ontario equally. Our Attorney General recently stated that he will not impose training on the judiciary on account of his concerns for judicial independence.  This piece is by no means intended to be a criticism of the Divisional Court or Court of Appeal's decisions as these issues were not raised there.
Both the Divisional Court and the Court of Appeal for Ontario jurisprudence is clear that
the terms vexatious, unwelcome and a poisoned work environment call for an objective
assessment of the alleged conduct.

Tuesday, April 18, 2017

How Dare You Call us Racists ? R.I.P. Rahasya Rudra (Rudy) Narayan, Barrister-At-Law !

   Like many West Indians in the 1950s, Rahasya Rudra (Rudy) Narayan, left his native Guyana in search of a better life and went to Britain.  He joined the Royal Army Ordance Corps and put in seven years of service, reaching the rank of sergeant.  He left the army in 1965 and decided to pursue a career as a barrister.  In Britain there are two types of lawyers, barristers and solicitors.  Barristers litigate cases in court.  Solicitors engage in non-litigation work and it is through them that barristers are retained to litigate cases.

   Mr. Narayan studied at Lincoln's Inn.  He was a founder of the Afro-Asian and Caribbean Lawyers Association in 1969.  This association was later renamed the Society of Black Lawyers.

   A champion for equality, Mr. Narayan, was recognized in Britain's growing West Indian community and beyond as the lawyer one went to fight the growing wave of racial intolerance and police brutality that seemed reserved for certain segments of the British population.  Mr. Narayan fought tirelessly in defence of many clients of African descent.

   Mr. Narayan's legal career took a dramatic downward turn once he learned that solicitors were refusing to refer clients to him on the false pretext that he was not available.  He publicly denounced the racism and discrimination which he saw in the legal establishment.  In 1974 he faced a disciplinary hearing for bringing the administration of justice into disrepute after condemning solicitors, barristers and judges in Birmingham as racist.  In 1980 he was reprimanded for being
discourteous to a judge.  In 1982 he was successful in defending a professional misconduct charge stemming from his claiming in a press statement that the Attorney General and the Director of Public Prosecutions were in "collusion with the National Front and fanning the flames of racial hatred"(although he was suspended for six weeks for other infractions).

   Ironically, complaints like Mr. Narayan's brought about the creation of the Bar Council's race relations committee in 1984 and an amendment to the Race Relations Act to prohibit race discrimination in Britain's legal profession.  Mr. Narayan was ultimately disbarred in 1994.  He died on June 28th, 1998 of liver cirrhosis at Kings College Hospital.

NOTE:  Full credit is extended to Wikipedia, the free encyclopedia as the source of the information for this post.  I published this post here because we in Ontario continue to grapple with the issues of racial discrimination in our administration of justice in much the same way that Britain did and continues to. The post is published with the hope that perhaps we can learn something from the life of Barrister Rahasya Narayan.

Tuesday, April 11, 2017

JPRC Registrar's Multi-Roles Has Potential Adverse Impact on Fair Hearing Rights and the Administration of Justice

E MAIL to: marilyn.king@ontario;

Wednesday March 1, 2017 10:00 A.M.

dame(sic) Registrar:

I acknowledge receipt of Presenting Counsel's e mail in response to J.P. Massiah's
submission at 5:33 p.m. and your own at 5:57 p.m.

Again, allow me to be crystal clear.  As counsel neither I or Mr. House take any issue
with the position articulated in your response.  The issue is not about you as a person.
It is about the various hats you wear in the process and the potential adverse impact
this can have on our client's rights and indeed the administration of justice.  Indeed,
as much as it is troubling to us to raise these issues we are unable to overlook the
manner in which the Vallencourt J. panel disposed of the compensation issue and
your role in the process which culminated in counsel in that proceedings receiving
payment directly from the Attorney General rather than by way of a cheque payable
to counsel in trust - since it is J.P. Massiah who is to be compensated.

Further, while you may have a right to bring a complaint of perjury against a JP who
testifies before a Hearing Panel - we have grave concerns about the timing and the fact
that your complaint appears to be a collateral attack on Justice Vallencourt's order
denying Presenting Counsel's motion to call reply evidence.
(I have attached your complaint and relevant documents)

I regret but J.P. Massiah's submissions required minor corrections.  Please find
attached the corrected version and a recent case of ONCA on the issues raised.

The contents of this e mail are intended to supplement J.P. Massiah's submissions.
We leave it to you to share this with Presenting Counsel.


E.J. Guiste.

- REGISTRAR ejgpcFeb28th2017bCorrected Version.cod
- OntarioVchartisInsurance2017ONCA 59.pdf
- jprcBIASmotionKING.pdf

NOTE:  The above e mail was filed with the Registrar of the JPRC to supplement submissions filed with them.  They are being published here as a public service since the Hearing Panel decided that it would depart from the traditional public hearing format and simply receive submissions in writing. The removal of a judicial officer is a matter of public importance in the free world.  How the decision is arrived at to remove a judicial officer is also a matter of public importance.  It is in this spirit and this spirit only that this information is shared with the community. Justice must be seen to be done.

Monday, April 10, 2017

JP's Request to Call Evidence in Public and Re Lovering and Minister of Highways [1965] 2 O.R. 721 etc.


TEL.(416) 364-8908.  FAX (416) 364-0973
February 28th, 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 submissions arising from your letter dated February 22, 2017 written in your capacity as Registrar of the JPRC on behalf of the hearing panel that will be presiding over the re-hearing of the compensation decision pursuant to the Divisional Court’s order and in accordance with the p.23 of the Procedures Document – May, 2015.

Serious Reservations
Regarding Transparency
And fair play:

            The Respondent continues to have serious concerns with respect to the transparency and fair play in this re-hearing of the compensation issue.  Your multiple roles as Registrar of the JPRC, Registrar of the OJC and instructing counsel to Presenting Counsel create a genuine concern around the potential misuse of confidential information which you come to possess in your various roles.  In making this statement we are not suggesting for a moment that you have acted dishonestly.  We are directing our concerns towards the appearance of the situation only.

            The Respondent is concerned that the Divisional Court was not expressly made aware of the retirement of Justice Livingstone since this was clearly known to you well in advance of the Divisional Court’s decision to remit the matter back to the original panel. 

              I acknowledge that I have an outstanding judicial misconduct complaint against H.W. Cuthbertson which has yet to be disposed of.  If H.W. Cuthbertson is aware of my complaint this can raise a reasonable apprehension of bias.  We have grave concerns of this state of affairs especially in light of your corresponding role as instructing counsel to Presenting Counsel.

Documents Previously
Filed with Panel:

            The Applicant requires that the following documents previously filed with the hearing panel be available to the panel:

    1.        Applicants Motion Record, Factum, Book of                                                                             Authorities(BOA)  on all motions;

            2.         Presenting Counsel’s motions records, facta and BOA
                        on all motions;

             3.         The parties written submissions on liability, penalty and

             4.         The Reply Written Submissions on Compensation which
                         the original panel refused to accept;

             5.         The five volume investigation transcripts filed on behalf
                         of our client and referred to by the hearing panel in their
                         January 12th, 2015 decision dismissing the motions;

             6.         Notice of Constitutional Question.

            The Respondent proposes that the Registrar generate a list of all of the documents previously filed for the parties’ approval before the commencement of the hearing so that everything is above board and transparent.

Issues For

            The Applicant will address the following issues for adjudication:

                                    1.         Does the JPA and Procedures Document
                                                violate security of tenure and is accordingly
                                                unconstitutional ?
                                    2.         Does the JPA and Procedures violate the
                                                Applicant’s right to counsel and financial
                                                security and is accordingly unconstitutional ?

                                    3.         Was the Applicant’s motion seeking an 
                                                interim publication ban pending a ruling
                                                on the legality of the “complaint”  frivolous
                                                and not meriting consideration by the panel ?

                                    4.         Was the Applicant’s motion challenging the
                                                Notice of Hearing based on Hryciuk  v.  Ontario
                                                and other jurisdictional grounds  frivoulous  or
                                                not meriting consideration by the panel ?

                                    5.         Was the Applicant’s motion raising a reasonable
                                                apprehension frivolous or not meriting consideration
                                                by the panel ?

                                    6.         Was the Applicant’s motion seeking particulars and
                                                disclosure frivolous or not meriting consideration by the
                                                panel ?

                                    7.         Was the Applicant’s motion asserting an abuse of
                                                Process based on among other grounds Blencoe
                                                v.  B.C. Human Rights Commission frivolous or
                                                nor meriting consideration by the client.

                                    8.         Was the Applicant’s motions seeking leave to
                                                Re-examine witnesses and raise other latent
                                                jurisdictional defects frivolous or not meriting
                                                consideration by the panel ?

                                    9.         Did the Applicant incur significant financial
                                                prejudice in responding to the hearing panel’s
                                                questions on jurisdiction and the advice of
                                                Independent counsel, Mr. Gover ?

                                    10.       Should the Respondent be compensated for
                                                for all or part of his legal costs related to his
                                                defence of his office – including the cost of
                                                Mr. Anand  and any costs ordered against him
                                                in the court proceedings ?

How to Receive

            The Applicant would like to call evidence before the hearing and proposes that this aspect of the proceedings must be public.

Legal Authority:

            Please see  Re Lovering  and Minister of Highways [1965] 2 O.R. 721 and Ontario  v. Chartis Insurance Company of Canada 2017 ONCA 59(In particular paragraphs 29, 30, 61, 63, 70, 72 and 73)
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 

RE: Lovering and Minister of Highways [1965] 2 O.R. 721 (ONCA)

Administrative law - Boards and tribunals - Rehearing before Board on order of court
Board refusing to admit further evidence - Case determined on same record as before
Order set aside again

Where the Court allows an appeal from the order of a quasi-judicial tribunal, e.g., in 
respect of an award of compensation by the Ontario Municipal Board for expropriated
land, and refers the matter back for hearing and determination, then unless otherwise
expressly stipulated by the Court, it is the Board's duty to hear any additional evidence
properly adduced by the parties and relevant to the issues.  Held, it was wrong for the
Board on a rehearing ordered by the Court to decide the case on the record 
already before it and to refuse to hear further evidence.  The matter was 
referred back again and on the further rehearing the Board should be 
differently constituted.

Ontario   v.  Chartis Insurance Company of Canada 2017 ONCA 59

Basis facts:

Lawyer worked with firm representing one of two parties in litigation and subsequently
joins firm representing other side of the lis. Affirmative steps taken to prevent disclosure
of confidential information. No evidence of actual breach of confidentiality - Party 
moving for receiving firm's disqualification - At first instance Motion Judge dismissing
motion finding that a reasonably informed person would find that no use of confidential
information had occurred or was likely to occur, if opposing counsel took all reasonable
precautions to minimize the risk. Motion judge also justifying non-disqualification by
balancing it against the impact on disqualification on the opposing parties' right to
counsel of their choice.

Held - upholding the Divisional Court that:

[29]   Lederer J. noted that there was nothing to suggest that the LSUC guidelines or 
some other ethical screen would successfully address every conflict in every case.
There will be circumstances, such as in this case, where the public represented by
the reasonably informed person,  could not be satisfied that no use of confidential
information would occur.

[30]   He determined that the relationship was "too close for comfort".  The Divisional 
Court accordingly granted the appeal.

[72]   In its submissions, AIG raised the concern that concurrence with the Divisional
Court's decision would result in uncertainty in the law.  This concern lacks foundation.
Most cases that are guideline compliant will be unobjectionable.  However, this case
is most unusual given the intense working relationship between Foulds and McInnis.
The presumption is that lawyers who work together share confidences, absent clear
and convincing evidence that all reasonable measures have been taken to ensure
no disclosure will occur. The evidence in this case is neither clear nor convincing.

[73]   As mentioned, the concern of inadvertent disclosure should not be taken as a 
reflection of the integrity of either lawyer.  Rather, it is the integrity of the justice
system that is in issue.

Released: January 24, 2017

S.E. Pepall J.A.
Robert J. Sharpe J.A.
C.W. Hourgan J.A.

NOTE:  These documents were filed with the Hearing Panel of the JPRC dealing and are being published here as a public service since the Hearing Panel has decided against the conventional public hearing format traditionally afforded for these matters. The removal of a judicial officer in our system and indeed in the free world is a matter of public importance.

The public has a right to know not only the result but most importantly
the process through which the result is arrived at must be transparent and open to the public.  Justice must be seen to done at all stages of the process.