Monday, April 3, 2017

Quotes From Presenting Counsel in Re Massiah 2015

On who is the Complainant:

"The detailed report of Mr. Burns served this purpose" - July 19th, 2013 - Factum*

In 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 12th 2014*

"Mr. Hunt put the information obtained from these individuals in writing 
and delivered it to the Justices of the Peace Review Council." - July 7th, 
2014 - Presenting Counsel's Written Submissions.*

On the failure to comply
strictly with the statutory 

"In any event, even if the Review Council(sic) finds that there was not technical
compliance with the in-writing requirement or the direction contemplated under
s.10.2(3), Presenting Counsel submits that any non-compliance is minor and
should not cause (sic) result in the loss of jurisdiction."
[Presenting Factum dated July 19th, 2013 at paragraph 18]*

"His Worship complains (Tab 1, para 28) that none of the "complainants" have been
notified as to the "disposition" of the complaint, pursuant to s.11(3) of the Act. That,
of course, is because there has been no disposition as yet.  In any event, this is a
measure intended to benefit complainants and assist in restoring public confidence;
it has nothing to do with procedural fairness for His Worship."
[Presenting Counsel's Reply Submissions on Liability at paragraph 21 - October 6th, 2014]

"Section 11(3) states that 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."  No evidence was called
to show whether there was a report to Mr. Hunt on the disposition.  Nor was evidence
called to show (sic) he that he did not receive the information.  In the absence of
evidence, the Applicant asserts that there was no report to Mr. Hunt and then appears
to assert that a Complaints Committee's failure to comply with this provision deprives
the subsequently-appointed Hearing Panel of jurisdiction to adjudicate the matter.
However, the Applicant invokes no authority or rationale for this assertion; nor does
he explain how he has standing to raise this issue, since compliance with s.11(3) is
intended to benefit the complainant, not the judicial officer."
(JPRC Factum - Divisional Court - at p. 19, paragraph 55]

On the application of
Hryciuk  v. Ontario:

"The case demonstrates the propriety of the Hearing Panel
(or in that case the inquiry judge) considering whether the screening
process contemplated in the legislative framework has been satisfied.
If the statutory scheme was complied with - i.e. a person made a written
complaint to the Council; the complaint was investigated by a Complaints
Committee; the Complaints Committee determined as a result of its investigation
that there were allegations of judicial misconduct which had a basis in fact which,
if believed, could result in a finding of judicial misconduct; the particulars of the
allegations against the respondent which would be the subject of the hearing were
set out in a Notice of Hearing; and the Complaints Committee had jurisdiction to
order those allegations to a hearing - then the Hearing Panel can be satisfied that
it has the jurisdiction to proceed to hear the evidence in relation to those allegations."
[Written Submissions of Presenting Counsel Re: Hearing Panel's Jurisdiction to
Entertain Applicant's Motion at p.10 paragraph 23]*

"Recognizing that it would be wrong in law to call evidence on the new allegations
of misconduct at the hearing  that was already underway, lawyers from Mr. Hunt's
office interviewed each of them, had the interviews transcribed, and submitted the
transcripts to the JPRC in a document titled "Complaint Respecting His Worhship
Justice of the Peace Errol Massiah."
[JPRC Factum before Divisional Court at p.5 paragraph 16]

"In fairness to Mr. Massiah, the Committee decided to hold the new allegations in
abeyance pending the completion of the first hearing.  This was in accordance with
the principles laid down by this Court in Hryciuk   v.  Ontario (Lieutenant Governor
(1996), 31 O.R. (3d) 1 (C.A.) that require due process, including an investigation
and an opportunity for the subject judicial officer to respond, before a disposition
is determined...

After the first hearing was completed, the Committee carried out an investigation; Mr.
Massiah was given an opportunity to respond in writing to the allegations that the
Committee considered capable of grounding a finding of judicial misconduct; and
finally, a new Hearing Panel was convened to adjudicate the allegations referred by
the Complaints Committee."
(JPRC Factum - Leave to Appeal - Court of Appeal - p.4 at paragraphs 12-13)

Allegations Identified by 
Complaints Committee:

Items 7(a), (b), (c), (d), (e), (f), 8(a), (b), (c), (d), 9, 10, 11, 12, 13
[Letter dated January 2, 2013 from Registrar On Behalf of CC]

**Allegations Not 
Screened or Investigated
by Review Council or
Complaints Committee:

Items 1 - 6 on the Notice of Hearing - raising issues of vexatious, unwelcome conduct
which resulted in a poisoned work environment. Item 14 on the Notice of Hearing
alleges a history of judicial misconduct and a pattern of inappropriate conduct.

***Excerpt from Closing Written
Submissions of Presenting Counsel:

The Notice of Hearing

21.   The first six allegations are general in nature, encompassing patterns of behaviour
rather than specific incidents.  We will therefore focus our submissions on paragraphs
7-14, which related to specific episodes on which evidence was called.  Presenting
Counsel respectfully submits that if some or all of the specific allegations in
paragraphs 7-14 are found to have been proven the general allegations in paragraphs
1-6 would easily be made out.

On the Purpose and 
Intent of Paragraph
14 (Pattern of Conduct):

JUSTICE LIVINGSTONE:   Just before you sit down, Ms. Henein.  I notice in the
Notice of Hearing, paragraph 14 raises a history of judicial misconduct of a similar
nature of a different courthouse.

"Your conduct demonstrates a pattern of inappropriate conduct towards women in the
justice system."


JUSTICE LIVINGSTONE:  Is there possibly the thought by you, that that paragraph
also could lead to the type of specific cross-examination that you are seeking our
discretion to allow at this time ?

MS. HENEIN:  Well, it is certainly our position that there has been a pattern of conduct
that is engaged in by this Justice of the Peace which make it significantly aggravating.
And you see in the Notice of Hearing we set out what we say is the type of environment
that certainly in this day and age, women coming to work should not be subjected to.
And the pattern is relevant, very different than a one-off conduct.

In my submission, that really was designed to address potential disposition---


*The Notice of Hearing is issued after the investigation. J.P. Massiah was invited to
respond in January, 2013. He was never invited to respond to the issues of vexatious,
unwelcome conduct creating a poisoned work environment or being contrary to the
Ontario Court of Justice Discrimination and Harassment Policy for Judges and
Justices of the Peace - which was passed after the occurrence date of most of the
allegations and which is restricted to complaints between judicial officers only.
Several documents were not in the "record of proceedings" filed with the appellate

**As early as July 2013 J.P. Massiah raised the following objection to the Notice of
Hearing in his first factum in support of his motion challenging jurisdiction etc.:

10.   The NOH dated May 31st, 2013 included seven additional counts of alleged
misconduct not raised in the Registrar's letter dated January 2nd, 2013.

11.   Paragraph 14 in the NOH purports to rely upon a "history of judicial misconduct."

Presenting Counsel's responding factum was silent on this point. The Hearing Panel
overlooked this point simply concluding that the statutory scheme was complied
with - likely a result of the instruction they received on the meaning and application
of Hryciuk supra. To compound matters the Hearing Panel expressly found that
J.P. Massiah acted in a manner inconsistent with the Human Rights Code of
Ontario totally disregarding a long line of case law in Ontario calling for an objective
test to determine vexatious, unwelcome and poisoned work environment.

NOTE: This piece is written for the sole purpose of drawing attention to an issue of
public importance.  The removal of a judicial officer in our system is an issue of
public importance. This publication is not intended as a criticism of the appellate
court decisions in this case. Appellate courts and the parties rely on administrative
tribunals in judicial review proceedings to furnish them with a complete record of
proceedings. Mistakes happen in litigation.  It would appear that a mistake may
have happened here and an incomplete record of proceedings was somehow
placed before the appellate courts.

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