Monday, May 15, 2017

Representation by Presenting Counsel and Case Law Points to Merit in JP's Particulars and Disclosure Motion

Presenting Counsel's Representation:

   "The complainants in this case are the people who are expected to testify about the alleged misconduct by His Worship." (Presenting Counsel's Letter dated January 14, 2014)

January 2nd, 2014


445 King Street West, Suite 202
Toronto, Ontario
M5V 1K4

Attention:  Ms. Marie Henein, Esq.

Dear Ms. Henein:


   I note that you have yet to make full disclosure to enable Justice Massiah to
respond to the case he has to meet despite requests by myself and Mr. Bhattacharyea.

   The Procedures and in particular s.10 places a much broader obligation on you.  It states - "names and addresses of all witnesses known to have knowledge of the relevant facts and any statements taken from witnesses and summaries of any interviews with the witness before the hearing."  S. 11 states that you "shall provide, prior to the hearing, all non-privileged documents in its possession relevant to the allegations in the Notice of Hearing. S. 12 states that the hearing panel may prevent you from calling evidence which does not comply with the disclosure obligation.  Accordingly, please provide full disclosure of this information as soon as possible....

   I trust that this is satisfactory.

Ernest J. Guiste.
(Disclosure Request Documents filed with JPRC)

Transcript of June 11, 2014
Motion for Particulars/Disclosure
at p.183-

MR. GUISTE:  Now, the employment files, my friend had a lot to say about.
And, of course, intelligent minds have often differed in cases.  In this case, as well
as other cases, and in life generally, spouses differ, everybody has the potential to
differ on fundamental points.

   What I heard my friend says was that somehow the need to look at the employment files is somehow totally unfounded.

JUSTICE LIVINGSTONE:  They are third party records not in the possession of presenting counsel, that was her point with respect to what they are.

MR. GUISTE:   Yes.

JUSTICE LIVINGSTONE:   And that if you seek them, there is a procedure in law to do so for which the threshold is relevancy.

MR. GUISTE:   Yes, so - -

JUSTICE LIVINGSTONE:   Those were her submissions in a nutshell, and that's my understanding of the law.

MR. GUISTE:  All right.  Well, as I understand it, the procedures here provide for,
if I may.  At page 14, parties to the hearing:

"The enabling procedures state that the hearing panel shall determine 
who are  the parties to the hearing."

   This is a very serious legal point.  You'll recall that in the evidence
before you, Presenting Counsel has stated in her letter that the witnesses 
that will be called are the complainants.

   As well as, Presenting Counsel also told us that Mr. Hunt is a complainant.  All of the
information sent, they're complainants.

   So under the enabling legislation, and your procedures require you, so I will be asking
the panel to make a determination as to who are the parties.  Is is my submission 
that the individuals are in fact parties, based on the representations of 
Presenting Counsel, they are parties to the proceeding.

   The parties to this proceeding are the subject, Justice of the Peace,
His Worship Massiah, and all of the persons that my friend has indicated have
evidence to give with respect to his alleged misconduct.

   As such, they are not third parties.  So my friend's theory with respect to 
that, I submit to you as a principle of law, and stemming from your own 
enabling procedures, is that they are parties.  And if they are parties, they 
way you do that is, you seek their consent and authorization, they sign it, 
we get their employment file.

   Because the employment file, I submit, is relevant to the issue of, they're making
allegations with respect to misconduct.  And their information with respect to their
conduct is ripe for His Worship Massiah to challenge and confront.  At paragraph 50 of
the Defaso case, they say:

"The commission submits that the board has no power to order disclosure from the
complainant's doctors because they are not parties to the proceeding.  Is is not necessary
to determine whether the disclosure provison in the board's rules in Section 5.4 of the
Statutory Procedures Act confer power to order disclosure by non-parties.  Because I
think the order in question is confined to imposing disclosure obligation on a party,
the complainant, and not on her doctors who are the parties(sic.)"

   So here, the disclosure obligation is as Ms. Henein told you, the complainants. They
are parties to the proceeding.

JUSTICE LIVINGSTONE:   That's your position.  But the section you referred to
suggests it's the hearing panel who determines who are the parties, correct ?

MR. GUISTE:   Well, I'm suggesting to you that the law, when you read the legislation,
it indicates that a complainant and a Justice of the Peace are the subject of the hearing.
The complainant brings forward allegations, the Justice of the Peace defends his
integrity, and his credibility and his reputation.

   In this case you have evidence before you, that presenting counsel has submitted
before you, here in court - - - well, not court, but here at this hearing, that the persons
that are coming to give evidence, these people are complainants. If they are
complainants, it is my submission that they are parties.  If they are parties, you don't
need a third-party application.

JUSTICE LIVINGSTONE:  Right, I heard that.

MR. GUISTE:  If we do need, alternatively, a third-party application, I make the
request to the panel, that that request be accommodated in all of the circumstances,
because there are very real and serious issues of fairness that arise from that.
And it is one thing to --- and the courts have commented on this quite often.
That it is not right or proper to, in the interest of efficiency and expedience, 
to trump fundamental procedural rights.

  And I would submit to you, that those records are highly relevant to these proceedings.

   The other point I wish to bring to your attention from the Defasco case is the
importance of discovery.

Decision of the Motion For 
Disclosure and Particulars:

13.   Counsel for His Worship seeks employment files and collective agreements**
applicable to the employee witnesses, copies of harassment-type complaints 
made by witnesses since 2007, the discipline record of justices of the 
peace witnesses and copies of all discrimination and harassment policies
applicable in the workplaces of the witnesses**.

14.   Presenting Counsel argues that all such information is, firstly, not relevant and,
secondly, would be classified as third party records, requiring and O'Connor application
(R  v. O'Connor [1995] 4 S.C.R. 411)  Clearly, all of these documents are not in
Presenting Counsel's possession.

18.  Furthermore, Mr. Guiste's submission that such documents are, in fact, not third
party records is innovative, but also without merit.  He suggests that under s.11(8) of
the Justices of the Peace ACt we, the Hearing Panel, can determine who are the parties,
and thereby should determine that all of the witnesses are parties.  We decline to name
the witnesses as parties.   To do so makes no sense.

19.   Presenting Counsel described Mr. Guiste's request for disclosure as a fishing
expedition.  We agree.  His Worship is entitled to all non-privileged documents in
the possession of Presenting Counsel relevant to the allegations in the Notice of
Hearing (Justice of the Peace Review Council Procedures Document, para 11.
Emphasis added.)

[2001] O.J. No. 4420 (ONCA)

Held:  The board made no error by not confining its order to documents on which
the complainant intended to rely to support her case. The recognized purpose of
discovery include not only enabling a party to know the case he or she has 
to meet but, also, to obtain documents which may enable the party either 
to advance his or her own case or damage the case of the adversary.

[38]   As far as history is concerned, it was the generally held view that administrative
tribunals did not have an inherent power to order pre-hearing disclosure of documents
(see Mullan, Administrative Law (Toronto: Irwin Law, 2001) at p.242) but this could
be subject to a tribunal's duty, in some cases, to order pre-hearing disclosure as part
ot its duty to give effect to principles of natural justice or procedural fairness: Ontario
(Human Rights Commission)    v.  Ontario (Baord of Inquiry into Northwestern General
Hospital*) (1993), 115 D.L.R. (4th) 279 (Ont. Div Ct.); Howe  v.
Institute of Chartered Accounts of Ontario (Professional Conduct Committee) 1994,
19 O.R. (3d) 483, 118 D.L.R. (4th) 129 (C.A.), Laskin J.A. dissent.

*OHRC  v. Ontario (Jeffry House) Board of Inquiry
[1993] O.J. No. 3380 67 O.A.C. 72 (Div Crt)

   *One of my co-counsel, Mr. House's little known claim to fame is his ground-breaking
decision while sitting as a Board of Inquiry in what has come to be known as the
Northwestern General Hospital Systemic Discrimination Case. This was the case in
which several African-Canadian nurses brought allegations of discrimination and
systemic discrimination based on race against this hospital and its administrators.

   Recognizing the seriousness of the allegations, Mr. House wrote:

   "The case before me involves the allegation that that a hospital, along with certain
named individuals, practices systemic discrimination based upon colour, race and
associated unlawful bases.  In doing so, it is alleged, they excluded those so discriminated
against from positions which they were otherwise entitled to.  While I have been told no
more of the allegations that this, it appears to me that the allegations are very serious
indeed, with the potential, if made out, to ruin reputations, and case a pall over the
future career prospects of anyone found to have so discriminated."

   At paragraphs 22 and 23 is what the learned judges of the Divisional Court said
about Mr. House's application of R  v. Stinchcombe:

22.   ....It does not take a quantum leap to come to the conclusion that in the appropriate
case, justice will be better served in proceedings under the Human Rights Code when
there is complete information available to the Respondents.

23.   R  v. Stinchcombe also recognized that the "fruits of the investigation" in the
possession of the Crown "are not the property of the Crown for use in securing a
conviction but the property of the public to be used to ensure that justice be done."
(p.331).  We are of the opinion that this point applies with equal force to the
proceedings before a Board of Inquiry and that the fruits of the investigation are
not the property of the Commission.

** Subsequent to the Hearing Panel's finding that the motion had no merit
Presenting Counsel consented to the collective agreement being filed as 
Exhibit 29 on October 8th, 2014 and the Region of Durham Harassment 
Policy as Exhibit 26 on July 28, 2014.  Disclosure of the persons who sat
on Complaints Committees involving my client have yet to be disclosed.
Interestingly, a Hearing Panel in Re Foulds (2017) recently ordered such
disclosure. In the recent re-hearing of the compensation issue the 
Registrar and counsel for the Justices of the Peace Review Council, 
Ms. Marilyn King advised me that documents evidencing the appointment
of H.W. Cuthbertson and Justice Livingstone as "temporary members" 
of the Review Council were not public documents and therefore not 
subject to disclosure.

The decisions ordering removal were made by a panel composed of two
"temporary members". This salient fact was not disclosed by the JPRC
until some time after the decisions when the Registrar amended the 
Annual Report. As it stands judicial officers in Ontario can be subject
to removal by persons whose status with the Review Council is unknown
to the judicial officer and the public until some time in the future. The 
Toronto Star has written on this problem but not on this specific

NOTE: This is piece is published here as a community service in accordance with the
fundamental principle That Justice Must Be Seen To Be Done. The removal of a
judicial officer in the free world and in Ontario is an issue of public importance.

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