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.

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