Monday, April 3, 2017

The Making of the Notice of Hearing Chart: Re Massiah 2015 - Exhibit 10

   They say that a picture is worth a thousands words.  There is a lot of wisdom in this simple statement.  Exhibit 10 was entered without objection by either Presenting Counsel or the Hearing Panel. One can only surmise that this is the case because Presenting Counsel and the Hearing Panel could have made argument objecting to it being made an exhibit and they most clearly did not.

   This exhibit is significant because it is a graphic representation of the jurisdictional
defect in the case brought by the Justices of the Peace Review Council against J.P.
Massiah.  Presenting Counsel's Notice of Hearing denied J.P. Massiah of natural justice
and fairness requiring him to defend allegations of vexatious, unwanted conduct
creating a poisoned work environment at a hearing which were, 1. entirely developed
by Presenting Counsel retained by the JPRC to present the case, 2.  not first made to
the Review Council in a written complaint and 3.  not pre-screened and investigated by
a Complaints Committee contrary to the binding legal authority in Ontario of
Hryciuk  v.  Ontario [1996] O.J. No. 3831.

Presenting Counsel
Pleading Human Rights
Code Issues Not Part
of Complaint:

   The most serious procedural and jurisdictional defect in the Justices of the Peace
Review Council's case against J.P. Massiah is Presenting Counsel's pleading
of vexatious, unwelcome conduct which created a poisoned work environment in the
Notice of Hearing.  This pleading had no basis in fact and arguably law.  Neither the
complainant - who incidentally was not called to testify by Presenting Counsel -
or any of the witnesses made any such allegations.

   The procedural and jurisdictional problem posed by Presenting Counsel's pleadings
in the Notice of Hearing were strongly opposed by the Canadian Bar Association in their recommendations to the Canadian Judicial Council on this subject.  They wrote:
"It would also seem unfair for the Inquiry Committee, sitting in adjudication of the
issue, to decide what is in effect a pleading of the alleged misconduct.

   For my lay readers who may have difficulty understanding and appreciating what
was wrong with the manner in which J.P. Massiah was dealt with, I will break it down
in lay person's terms as best I can.  A judge or justice of the peace can only be removed
from office based on a complaint in writing received by the Review Council which
has been pre-screened and investigated by a Complaints Committee which makes a
specific order on what is to be heard at the hearing.

   After the investigation was concluded Presenting Council drafted a Notice of Hearing
raising issues not raised in the complaint or the investigation which J.P. Massiah was
called upon to answer at a public hearing.  Readers and observers will recall the media
circus which followed the proceedings and which understandably led J.P. Massiah to
seek an interim publication ban while the legality of Presenting Counsel's Notice
of Hearing was resolved in an effort to protect his reputation.

  Inserting allegations or conclusions of law not part of the complaint and not
pre-screened and investigated by a Complaints Committee is clearly wrong and unfair.
Why have an investigation if Presenting Council can bypass the pre-screening and
investigation ?  How can findings that J.P. Massiah acts were vexatious, unwelcome
and created a poisoned work environment be lawful when they clearly disregarded the
law in Ontario on the subject matter ?  *Should not human rights law and binding
legal authorities like Hryciuk  v.  Ontario apply equally to all in Ontario ?

    I will to the best of my ability try to convey the information which was so
powerfully captured in Exhibit 10 here.  I was unable to simply insert the diagram in
this blog.  Here it is.

The Making of the Notice of Hearing

- Calls allegedly made to Presenting Counsel (PC)
- When ? No one knows

Report of PC dated November 1st, 2011 (The Hunt Report)

Witness A  - Witness B   - Witness C  -  Witness D   - Witness E
(each of these witnesses is represented by a Happy Face on the Exhibit)

JPRC  (Registrar received the Report) - Appoints a Complaints Committee

Complaints Committee Conducts Investigation

- 33 people interviewed
- 14 counts of alleged misconduct in July 31st, 2013 Notice of Hearing

Witness A - Dismissed     Witness B - Dismissed   Witness C - Dismissed - Witness D - Dismissed

**Witness E - "Looking Good" - "he raked me up and down with his eyes".

*The interpretation and application of the Human Rights Code with respect to the Hearing Panel's liability findings was not an issue before either the Divisional Court of the Court of Appeal for Ontario. The Hryciuk instruction provided to the Hearing Panel
by Presenting Counsel, which instruction was objected to by J.P. Massiah, during
his bias motion before the Hearing Panel and followed by the Hearing Panel was not
an issue before the Divisional Court.

A leave to appeal motion was filed with the Ontario Court of Appeal but it did not raise
the erroneous instruction and application of Hyrciuk but instead focused on what
amounted to an attempt to attack a factual finding in the absence of the necessary
evidence which was not part of the record before the courts.  The question raised
before the Court of Appeal also did not tie the Hryciuk error to the Human Rights Code
issues raised in the Notice of Hearing. It would appear that the Court of Appeal
denied leave on the basis that the test to grant leave was not met.

**When asked why she did not file a complaint against J.P. Massiah this witness testified
that "Because truly in the whole scheme of things it was fairly minor in nature."
(Investigation Transcript Interview at p.14)  Later in the proceedings it came to light that
the hearing transcript reflected this witnesses as stating that J.P. "raped me up and down
with his eyes."  This statement was clearly inconsistent with the witnesses' prior
testimony given to the investigators. When counsel representing J.P. Massiah brought
a motion seeking leave to recall this witness, the Hearing Panel made a order prohibiting
***one of his two counsel from further representation - without any opportunity
to make submissions on their prohibition order.  This act by the Hearing Panel was
in clear violation of U.N. policies on the role of counsel.

***I was the subject of the Hearing Panel's complaint. My co-counsel was not.

NOTE: This piece is written for the sole purpose of drawing attention to issues of
public importance. The removal of a justice of the peace from office is an issue of
public importance.  This publication is not intended to be a criticism of the appellate
courts' decisions in this matter.  Appellate courts and counsel rely upon administrative
tribunals to furnish them with a complete "record of proceedings".

When substantial parts of a case are litigated in writing the written submissions and
objections raised in motions are highly relevant to any assessment of the reasonableness
of the tribunal's decisions.  It is not uncommon for mistakes to happen in litigation.
It would appear that a mistake was made here and that the facta raising the objection to the unscreened and uninvestigated portions of the NOH and other material were not
in the "record of proceedings." Accordingly, it seems the parties and the court
were denied all of the facts.

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