Tuesday, May 9, 2017

JP's Reply Factum on Bias Motion and PC Submissions on Re-Hearing Raise Fairness Concerns

Improper Submissions
Attacking Applicant and 
His Lawyer:

25.   The Applicant submits that Presenting Counsel's frequent and unjustified attacks
on him and his lawyer as represented in paragraphs 4, 6, 7, 39 of their factum as well
as her frequent comment on the cost of the proceedings and the "need to reign-in his
lawyer" - which was published in the Toronto Sun - without any intervention by the
Hearing Panel is itself compelling evidence of a reasonable apprehension of bias.

May 25th, 2014 - JP's Reply Factum on Bias Motion

E.J. Guiste, Co-counsel for the Applicant

Ontario's Divisional Court on this point of law.

Abdallah et al    v.   Snopek et al 2008 Canli 6983 (Div Crt)
(Lane, Malloy and Gans JJ.)

Civil Procedure - Trial - Jury Trial - Closing addresses
Defence counsel in personal injury action making comments in
his closing jury address about plaintiff's immigrant status, accusing
plaintiff of taking unfair advantage of Canada's welfare system and
suggesting that he was malingering in attempt to collect award that
he would use to start business outside Canada ---Comments improper,
irrelevant, offensive and inflamatory - Failure of counsel for the
plaintiff to object at trial not fatal to plaintiff's appeal --- Trial Judge's
instruction on defence counsel's comments inadequate to correct
serious injustice caused by jury address --Plaintiff's appeal allowed
and new trial ordered

Gans J.(dissenting)

A sampling of Presenting Counsel's Submissions of May 1st, 2017:

"The astronomical quantum of fees claimed by Mr. Massiah has no basis in
precedent or common sense and the public would rightly be outraged if 
asked to foot the bill."

"It is not clear from his shambolic "Bill of Costs" whether Mr. Massiah is actually
seeking compensation for this entire amount."

"As the Panel will recall, Mr. Guiste conducted the pre-hearing motions and Mr. House
conducted the vast majority of the hearing proper."

"The part of the process conducted by Mr. Guiste served no benefit either to 
Mr. Massiah or to the public at large.  As noted above, counsel's approach was
prolix and often irrelevant and redundant.  A reasonable member of the public 
would not accept that this litigation conduct should be paid for out of the 
public purse."

"There does not appear to be any precedent for a Panel  to make a compensation
recommendation of anywhere close to the magnitude requested here.  The previous
high water mark would seem to the $122,00 paid to Mr. Massiah following the
prior hearing.  The total fees and disbursements allegedly incurred by Mr. Massiah
in this hearing was more than six times the previous record amount."

"Indeed, Mr. Massiah seems to interpret the previous grant of compensation as a sign
that he would be indemnified for any and all expenses incurred in the second hearing.
He received a generous public benefit the first time around; therefore,
he should expect to receive a benefit many times greater the second time.
If this was in fact the subjective belief of Mr. Massiah or his counsel, it 
was not a reasonable belief."

A sampling of Presenting Counsel's omissions in their submissions:

1.  No cross-examination on JP's sworn affidavit and little reference to the facts
deposed to;

2.   No comment or response to paragraph 6 of the JP's submissions that it "is
crystal clear that the Hunt Report, Investigator's Report, the Complaints
Committee's letter dated January 2nd, 2013 and the testimony of the 13
witnesses called by Presenting Counsel did not assert any violation of the
Human Rights  Code by the Respondent."

3.  No comment on paragraph 7 - Presenting Counsel Improperly Invoked
Sexual Harassment and Human Rights Code as Misconduct Ground.

4.  No comment on paragraph 9 - NOH, Hunt Report and Investigator's
Report generated a bona fide question on jurisdiction and abuse of process.

5.   No comment or response to the following legal authorities cited on behalf
of the JP: Reilly v. Alberta 1999 ABQB 252, Bourbonnais  v.  A.G. Canada
2006 FCA 62 and cases cited therein,

The Justices of the Peace Act - 

s.11.1(17)  - The Panel may recommend that the justice of the peace be compensated
for all or part of the cost of legal services incurred with the hearing.

s.11.1(18) - The amount of compensation recommended under subsection (17) shall be
based on a rate for legal services that does not exceed the maximum rate 
normally paid by the Government of Ontario for similar services.

Role of Presenting Counsel:

9.   Pursuant to section 4 of the Justices of the Peace Review Council's Procedural
Code for Hearings, established pursuant to subsection 10(1) of the Act, Presenting
Counsel's duty before the Hearing Panel is "not to seek a particular order against
a respondent, but to see that the complaint against the justice of the 
peace is evaluated farily and dispassionately to the end of achieving a just result".
(Reasons for Decision at p.3 paragraph 9)

NOTE: This piece is published here to draw attention to an issue of public importance.
The removal from office of a judicial officer in our system of law is an issue of
public importance.  The right to counsel and the right to make full answer in defence
to allegations of judicial misconduct is a fundamental right which judicial officers in
the free world enjoy. A motion seeking leave from the Hearing Panel to hear the JP
on the points raised above has been filed with the JPRC and it is awaiting their

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