Saturday, April 1, 2017

Sworn Affidavit Filed with JPRC Hearing Panel:Re J.P. Massiah


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


            I, Errol Massiah, the Respondent Justice of the Peace in these proceedings MAKE OATH AND SAY AS FOLLOWS.

1.                  I am the Respondent Justice of the Peace in these proceedings and as such have knowledge of the matters hereinafter deposed to.

2.         I swear this affidavit for three reasons. 

3.         Firstly, the hearing panel on the court ordered rehearing of my claim for compensation has elected to depart from the public hearing format provided by the Procedures Document for the adjudication of claims for compensation and has provided no answer to my requests for guidance on how evidence will be received by them on the rehearing since it was my intention to give viva voce evidence. 

4.         Secondly, both the Divisional Court panel and the 2012 Panel, as the Divisional Court has identified it in its Reasons have made conclusionary and incorrect findings against me on the issue of my compensation claim which I must correct at this time.

5.         Thirdly, as an evidentiary foundation for the motions which the JPRC has publicly acknowledged receipt of.

2012 Panel Did Not
Adjudicate Issue The
JPA Authorized them to:

6.         Although my lawyers and Independent Counsel retained to advise the Hearing Panel advised them that it was a “complaint” which they were to adjudicate under the Act they went on to adjudicate the particulars in Presenting Counsel’s Notice of Hearing instead contrary to the opinion they received from Independent Counsel in Exhibit 17.

Human Rights Code
Relied upon by
Presenting Counsel:

7.         Because Presenting Counsel’s Notice of Hearing raised issues involving the Human Rights Code I felt compelled to retain additional counsel who was not only versed in Human Rights Law but had skill in the areas of Administrative and Constitutional law.  I therefore retained Mr. Ernest J. Guiste.

8.         Mr. Guiste’s challenged the propriety of the Notice of Hearing drafted by Presenting Counsel and the jurisdiction of the Hearing Panel to hear the matter for want of a “complaint” pursuant to the legislation in a motion brought pursuant to the Procedures Document and which motion was entertained by the Hearing Panel and Presenting Counsel.

9.         The Hearing Panel raised its own jurisdiction question i.e. whether they had the jurisdiction to entertain the motion brought on my behalf.  The Hearing Panel had my counsel provide work for its benefit on its motion.  The Hearing Panel’s own jurisdictional question was not resolved until around July 7th, 2014 causing me to incur significant legal costs not typically incurred in these proceedings.

10.       To compound matters, the Hearing Panel did not adjudicate the question of whether the Hunt Report was a complaint until January 12th, 2015.  Once again, causing me to incur significant legal fees to defend my office.  I am not aware of a similar case in which a judicial officer was required to defend judicial misconduct allegations which were made public before a determination was made as to their legality.

11.       I am in possession of an affidavit sworn by the Registrar and Counsel to the JPRC, Ms. Marilyn King on August 19th, 2016 containing a letter which she deposed she wrote to Mr. Hunt to satisfy the mandatory reporting requirement called for by the Justices of the Peace Act.  Attached to this affidavit and marked as Exhibit A is a true copy of Marilyn King’s sworn affidavit and letter.

12.       Mr. Guiste expressly raised the non-reporting point before the Panel on November 19th, 2013,  again in his Reply submissions on the Hearing Panel’s question on jurisdiction at p.5 and then both Mr. House and Mr. Guiste raised it again in their written submissions on Jurisdiction and this letter was never placed before the Panel. 
13.       I instructed Mr. Guiste to seek a publication ban once I saw the beating that my reputation was taking in the local press and the question of the legality of the “complaint” 
against me was unresolved at the time.  I am not aware of any other judicial officer being 
punished for bringing a motion seeking in interim publication ban in the circumstances.

14.       I instructed Mr. Guiste to bring a motion asserting a reasonable apprehension of bias for, among other reasons, the fact that the Notice of Hearing issued by Presenting Counsel contained allegations which were not first made to the Review Council and investigated by a Complaints Committee as mandated by the Court of Appeal in Hryciuk  v. Ontario.

15.       I instructed Mr. Guiste to bring a motion seeking particulars and disclosure in advance of the hearing.  My best recollection is that by the time this motion was brought Mr. House was part of my defence team. There was still important outstanding disclosure when the hearing commenced in that Presenting Counsel failed to provide me with contact information for two of the management witnesses I called, namely, JJ and LL.  Mr. Guiste somehow tracked them down.

16.       I did not claim legal costs relating to the preliminary motions in the amount of $500,000 and $116,000 for the hearing proper as suggested by Presenting Counsel and determined by the Divisional Court at paragraph 14 of their Decision.   Mr. Guiste was and continues to be my lead counsel.  Although he allowed Mr. House to examine the witnesses, he continued to do all of the fact-gathering, legal research and the bulk of the written submissions.  It is noteworthy that the Bill of Costs was not part of the “record of proceedings” filed by the JPRC at Divisional Court.
17.       Following the hearing of evidence and prior to a decision being rendered I instructed my defence team to bring a motion seeking the Hearing Panel’s leave to address inconsistencies in the testimony given by material witnesses before the Hearing Panel and during their investigation interviews and to address two further jurisdiction issues  - 1. The Notice of Hearing states that the Review Council ordered my hearing when it had no such jurisdiction and a copy of an order was never produced and 2. The applicability of Weber  v. Ontario since the staff were unionized and covered by a collective agreement which addressed their concerns.

18.       I incurred further costs of roughly $130,000 to appellate counsel, Raj Anand of Weir & Foulds LLP in pursuing judicial review and leave to appeal of the Panel’s decisions.

19.       I have been without income now for close to two years.

20.       I would not have been able to defend my office but for Mr. Guiste and Mr. House agreeing to defer their fees and disbursements until I am indemnified by the Attorney General in accordance with the practice I came to understand and expect from past practice.

21.   I was expressly told by my Regional Senior Judge at the outset of these matters to retain 
counsel and that I will be indemnified for so doing.

22.       Had it been made clear to me that in accepting the appointment to become a Justice of the Peace that I would be subject to complaints not only from the public but from within the statutory regime established to deal with such complaints itself and that I would have to defend my office at my own cost I would not have accepted the appointment.

23.       I swear this affidavit in support of my motions and claim for compensation for the legal costs incurred in defending my office and for no other or improper purpose.

Sworn before me this
19th day of March, 2017                                                        filed copy signed
at the City of Toronto, Ontario.                                  ______________________________
                                                                                         ERROL MASSIAH
            Filed copy commissioned                                          
Ernest J. Guiste, Trial & Appeal Lawyer
A Commissioner of Oaths (Ontario)

Exhibit A – Affidavit of Marilyn King

I Marilyn E. King of the City of Toronto, in the Province of Ontario, MAKE OATH

1.   I am the Registrar at the Justices of the Peace Review Council (“JPRC”) and
Have been in this position since January of 2008.  In that capacity, I therefore have
knowledge of the facts contained in this affidavit.

2.   Pursuant to the Justices of the Peace Act, the JPRC is the statutory body 
responsible for Receiving, investigating and addressing complaints alleging 
misconduct by justices of the Peace of the Ontario Court of Justice.
3.   One of my responsibilities as the Registrar is to communicate information 
on behalf of the JPRC to a complainant about the disposition of his or her complaint.

4.   As Registrar, I communicated information to Mr. Douglas Hunt about the 
disposition of his complaint.

5.   On July 4, 2013, I wrote a letter to Mr. Douglas Hunt to advise him that the 
Complaints Committee had investigated and considered the complaint that 
he transmitted to the Review Council about His Worship Massiah.  I informed him 
that the committee had ordered a formal Hearing into his complaint pursuant to 
section 11(15)(c) of the Act, and informed him of the Criteria are in the 
Council’s Procedures for ordering a hearing.  He was provided with a copy
Of the Notice of Hearing setting out the allegations that would be subject of the 
Hearing Panel; Informed that His Worship had brought a motion to challenge 
the process and when he motion Would be heard; that Ms. Marie Henein was 
retained as Presenting Counsel;  and that he would be contacted if his attendance
at the hearing was required.  A copy of the letter to Mr. Hunt is Attached as Exhibit “A”.

Of Toronto, in the Province of Ontario
On August 19th, 2016                            

(Filed copy commissioned)                                    (Filed copy signed)

NOTE:  These documents are published here as a public service since the Justices of the Peace Hearing Panel has refused to hold a conventional public hearing as practice and the enabling legislation calls for. The removal of a judicial officer is an issue of public importance. The manner in which these proceedings are conducted is undeniably an issue of public importance and justice must be seen to be done.  It is in this spirit and in this spirit only that this publication is made. Too many young men and women gave their lives for the fundamental principles of The Rule of Law and our open court system for me to do otherwise.  It would also be inconsistent with my duty as a Catholic to do otherwise. 

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