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.

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