Sunday, May 21, 2017

Did Hearing Panel's Uncertainty About their Jurisdiction Cause Delay and Increase the Cost of JP's Defence in Removal Case ?

Presenting Counsel Improperly
Invoked Sexual Harassment
and Human Rights Code 
As Misconduct Ground:

7.   The evidentiary record is crystal clear.  Presenting Counsel in hearing 1 submitted
five will-says.  None of them used the term sexual harassment, vexatious, unwelcome
or poisoned work environment.  The five volume investigation transcripts reveal that the
terms vexatious, unwelcome, poisoned work environment and conduct in violation or
inconsistent with the Human Rights Code is not raised by Mr. Hunt or any witness.
[H.W. Massiah's Submissions on Re-Hearing on Compensation]

H.W. Massiah's 
Sworn Affidavit:

9.   .....The Hearing Panel had my counsel provide work for its benefit on its motion.
The Hearing Panel's own jurisdictional questions was not resolved until around July
7th, 2014 causing me to incur significant legal costs not typically incurred in these

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.

Excerpt from 
Bill of Costs:

June 3rd, 2013 - July 4th, 2013

- Initial client interview, fact-gathering and legal research
- Preparation, drafting and service of NOA raising jurisdiction and abuse of process,
including meeting with client and co-counsel
- Attend hearing on July 4th, 2013

Total: 10 hrs @ $575

July 5th - July 24th, 2013( - July 24th, Panel asserts jurisdiction question)

- Preparation, contd. fact-gathering, legal research on juris, fairness, natural justice,
abuse of process, draft factum, compile Book of Authorities, - serve and file same
- Study Presenting Counsel motion record, factum and BOA and draft Reply factum
- Communications t and fr clnt, co-counsel and Association of Justices of the Peace
on Ontario
- Revue TorStar article on case
- Prep for July 24th, attendance and attendance (10a - 1:15 p)

Total: 60 hrs @ $575

JPRC Procedures Document

19.   The Hearing Panel shall, as soon as is reasonably possible, appoint a time
and a place for the hearing of submissions by both sides on any motion brought
pursuant to section 18, and shall, as soon as is reasonable, render a decision thereon.

The Hearing Panel's Decision on Jurisdiction and Alleged Abuses of Process was
rendered January 12th, 2015.  This was  a whole year and half or 18 months after I
initiated the motion.

Incidentally, a motion brought by my co-counsel, Mr. House and I seeking production
of the Bill of Costs for the work of both Presenting Counsel, Mr. Hunt and Ms. Henein
was denied by the Hearing Panel.


The fact is the cost of H.W. Massiah's defence would have been 70 hrs plus preparation
for the hearing of some nine days plus submissions on liability, penalty and compensation.

But for the Hearing Panel initiating its own motion where it asked counsel for the
parties to assist it in determining whether it had the jurisdiction to 
entertain the jurisdiction and abuse of process motion initiated on behalf 
of H.W. Massiah, the Hearing Panel could have adjudicated the motion and
commenced the hearing in and around July, 2013. In fact, the facta filed by both
H.W. Massiah and Presenting Counsel argue that the hearing could commence and
the adjudication of the motions could follow the evidence.

The record of proceedings is clear.  The hearing was delayed until July 15th, 2014 not on
account of anything which H.W. Massiah or his counsel did but because of 
the following acts and omissions of the Hearing Panel and Presenting Counsel:

1.  The Hearing Panel was clear in stating that it could not and would not consider
the abuse of process issue until it had fully determined its jurisdictional question.

2.   After sitting on the Hearing Panel on July 4th, 24th, 29th, November 4, Ms.
Margot Blight, disclosed that she had sat in judgment of H.W. Massiah on the
Registrar, Marilyn King's own complaint alleging purjury and she later voluntarily
recused herself on or about February 12th, 2014.  Ms. Blight was replaced by
Ms. Lenore Foster in April, 2014;

3.   The Hearing Panel retained Mr. Brian Gover to advise them on two jurisdictional
questions which they raised. He provided his opinion on May 23rd, 2014
(see Exhibit 17)

4.  It was not until July 7th, 2014 that the Hearing Panel was finally in a position to start
the hearing;

5.   Presenting Counsel did not provide contact information for her witnesses until April,

6.  Significant disclosure in the form of the contact information for two of the
management witnesses called on behalf of H.W. Massiah was still outstanding after
Presenting Counsel started its case on July 15th, 2014;

7.  Three relevant items of disclosure sought by H.W. Massiah on his Particulars and
Disclosure Motion, namely, 1.  copy of the applicable collective agreement;  2. copy
of any discrimination and harassment policy covering the staff in question and; 3.
copies of any grievances filed by the staff touching on harassment which were denied
by the Hearing Panel were much later in the proceedings entered as exhibits with the
consent of Presenting Counsel.

NOTE:  This piece is published here as a community service to share information on
an issue of public importance. The removal from office of a judicial officer is an issue
of public importance.  A judicial officer's right to defend their office is also an issue of
public importance.  Another issue of public importance at play in this particular case is
the right of lawyers to defend their clients without threat of penalty, prejudice or
censorship for so doing.

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