Wednesday, November 1, 2017

More Evidence of Bias/Unfairness in JP Removal Case: JP's Submissions Overlooked ? - Part 4


TEL.(416) 364-8908.  FAX (416) 364-0973
February 6th, 2017                                                  E MAIL                                              
1 Queen Street East, Suite 2310
Toronto, Ontario
M5C 2W5

Attention:  Ms. M. King, Registrar and Counsel

Dear Ms. King:


            The following are JP Massiah’s submissions on the question raised in your letter of January 23rd, 2017 and Presenting Counsel’s letter of February 1st, 2017.

Role of Registrar:

            It is unclear from your letter of January 23rd, 2017 whether you are writing as
Registrar to the JPRC, Counsel to the JPRC or on behalf of the hearing panel.

Composition of Hearing Panel:

            The Justices of the Peace Act stipulates that a hearing panel shall contain a judge who shall chair the panel, a justice of the peace and a member who is a judge, a lawyer or a member of the public.  All the members of the panel constitute a quorum according to s.11.1(3).

            Accordingly, JP Massiah requests that a member of the JPRC who is a Judge of the Ontario Court of Justice be appointed to satisfy the statutory quorum.  This is precisely what happened when Ms. Margot Blight recused herself.

Public Hearing:

            The Procedures Document at p.23 provides that consideration of the question of compensation shall take place in public if there was a public hearing.  There are no exceptional circumstances put forward by JP Massiah or Presenting Counsel to move from the presumption of a public hearing called for by both the JPA and the Procedures Document.

The Facts:

            JP Massiah does not agree that the underlying facts regarding the issue of compensation is res judicata. Rather, the purpose of the contemplated hearing is to adjudicate the issue of compensation afresh. JP Massiah recommends that the practice of both oral and written submissions be continued.

            I trust that this is satisfactory .
Yours very truly,

Ernest J. Guiste
Cc co-counsel, Mr. House, Presenting Counsel – Ms. Henein and Mr. Gourlay

Mr. Massiah via e mail 

More Evidence of Bias/Unfairness in JP Removal: Presenting Counsel on Panel Composition - Part 3

Excerpts from Presenting Counsel's Submission

February 1, 2017

Marilyn E. King
Justices of the Peace Review Council
31 Adelaide Street East
Toronto, Ontario
M5C 2K3

Dear Ms. King:

RE:  Justice of the Peace Massiah   v.   Justices of the Peace Review Council

As Presenting Counsel, we take the view that the re-hearing of the compensation question should be conducted by the two remaining members of the Panel.  In discussions with then-counsel for Mr. Massiah, (Mr. Anand) following the release of the Divisional Court's decision, it was agreed that this was the appropriate way to proceed....

While the chair of the tribunal may well have the discretion to add a member to an existing panel with the consent of the parties, in our view this is not an appropriate case for any such discretion to be exercised and we would not consent to it....

We would also like to indicate that we are content to have the re-hearing of the compensation issue conducted in writing, should the panel be so inclined.  Full submissions on the facts have already been made to the panel, and a transcript of those submissions is available. The remaining issue the the discrete legal question of how the Divisional Court's reformulation of the applicable legal principles should apply to the application of s.11.1(17) of the Justices of the Peace Act.  This could be adequately addressed in writing, in our view.

Yours very truly,

Henein  Hutchison LLP

Marie Henein
Mathew Gourlay
Presenting Counsel

What does the Justices of the Peace Act say ? 

Justices of the Peace Act

Hearing Panels


s.11.1(2)   A hearing panel shall be composed of,

(a)   a judge who shall chair the panel;
(b)   a justice of the peace; and
(c)   a member who is a judge, a lawyer or a member of the public.


(3)   All members of the panel constitute a quorum.

NOTE:  This excerpt of Presenting Counsel's submission to the JPRC on the issue of the composition of the Hearing Panel and whether the standard oral hearing format would be departed from is published here to draw attention to an issue of public importance.  Rule 59 of the Rules of Civil Procedure allow for the varying or amending of orders where something was not raised or adjudicated upon and that something impacts the court's order. According to Presenting Counsel in her submissions, the JP's appellate counsel was aware of this point. Could not the current impasse caused by the Panel's inability to decide have been averted through a Rule 59 motion on consent ?

More Evidence of Bias/Unfairness in JP Removal Case: No Juris Decision by OJC Re Panel Chair - Part 2


September 2, 2016

Mr. Ernest J. Guiste
Professional Corporation
Trial & Appellate Advocacy
2 County Court Blvd., Suite 494
Brampton, Ontario, L6W 3W8

Dear Mr. Guiste:

RE: Complaint about a judge

I am writing in relation to your complaint about the Honourable Justice Deborah Livingstone.

Her Honour has fully retired from the bench and is no longer a judge. As she is no longer a judge, the Ontario Judicial Council no longer has jurisdiction and cannot continue to review or investigate your complaint.

Thank you.

Yours very truly,

Marilyn E. King

NOTE:  This decision is published here to draw attention to an issue of public importance. Complaints about judicial officers in our system are issues of public importance since it is the public whom judicial officers serve through The Rule of Law and the constitutional principle of Judicial Independence. The Chair of the Hearing Panel in the Re Massiah removal case resigned as a judge prior to the Divisional's Court's decision remitting the matter of the JP's compensation for his legal costs back to the original panel for adjudication.  Marilyn King is both the Registrar of the Ontario Judicial Council and the Justices of the Peace Review Council. Ms. King also retained Presenting Counsel to present the adjudication of the complaint against JP Massiah and was instructing JPRC counsel before the Divisional Court(to the very same law firm). The Divisional Court was not made aware that the original panel had now lost its chair and arguably could not entertain the rehearing with only two members pursuant to their enabling legislation.

Readers must understand that the fact that a judge retires in these circumstances is not
in and of itself evidence that they misconducted themselves. This writer makes no such
suggestion.  That is not the point. The point is - did the JPRC have a duty to inform the
Divisional Court of this development so as to save the parties involved time and
resources and to bring some semblance of fairness and decorum to a proceeding which
started in August 2010.  I believe it safe to say that the Divisional Court would not have
remitted the matter back to the "original panel" if they were informed that the
"original panel" no longer existed.

Growing Evidence of Bias/Unfairness in JP Removal Case: Unable to Decide Panel Rules - PART I

Concerning a Complaint about the Conduct of
Justice of the Peace Errol Massiah
Before:    Justice of the Peace Michael Cuthbertson
Ms. Leonore Foster, Community Member
Hearing Panel of the Justices of the Peace
Review Council


Ms. Marie Henein                                        Mr. Ernest J. Guiste
Mr. Matthew Gourlay                                   E. J. Guiste Professional Corporation
Henein Hutchison, LLP
Presenting Counsel                                    Counsel for Mr. Errol Massiah


SUMMARY:    The Hearing Panel has not been able to reach a unanimous decision on the request by Mr. Massiah for a recommendation to the Attorney General under sections 11(17) and (18) of the Justices of the Peace Act that the Mr. Massiah should be compensated for legal costs incurred by him in connection with the hearing .

1)    Pursuant to the Divisional Court’s decision in Massiah v. Justices of the Peace Review Council, 2016 ONSC 6191, the Hearing Panel’s decision in 2015 to not recommend to the Attorney General that Mr. Massiah be compensated for legal fees incurred by the hearing was set aside and submitted back to the Hearing Panel for its re-consideration.

2)    Unfortunately, the Chair of the Hearing Panel, the Honourable Deborah Livingstone had fully retired as a judge of the Ontario Court of Justice prior to the Divisional Court’s ruling.

3)    By virtue of s. 4.4(1) of the Statutory Powers Procedures Act (SPPA), the remaining two members of the Hearing Panel, Justice of the Peace Michael Cuthbertson and community member Ms. Leonore Foster, were tasked with determining the matter.

4)    We note that s 4.2(3) of the SPPA states:
The decision of a majority of the members of a panel, or their unanimous decision in the case of a two-member panel, is the tribunal’s decision.
5)    The Hearing Panel received submissions on the compensation issue from both parties earlier this year. After concluding decisions on motions brought by Mr. Massiah, we began deliberations on the request for a recommendation for the compensation of legal costs. We have worked diligently and cooperatively in attempting to come to a unanimous decision but regrettably have been unable to do so.

6)    As a result, we have considered options both in statute and case law on how to now proceed. There exist two options. The first option would require a joint position by both parties. That option is:

Option 1
Pursuant to s. 4.2.1(2) of the SPPA, the Chief Justice could appoint one person to replace the former Chair of the Hearing Panel, if both parties consent. Then the three member Panel could re-consider the issue of the recommendation of compensation of legal costs and make a determination.

7)    If the parties cannot jointly agree to proceed under Option 1 then, in our view, this Hearing Panel must act as follows:
            Option 2
Pursuant to the decision in Law Society of Upper Canada v Watson, 2015 ONLSTH 189 (see also Worker’s Compensation Appeals Tribunal Decision no. 969/941, 1996 CanLii 9786 (ON WSIAT)), we must advise the Chief Justice that we are deadlocked and request that, pursuant to s. 11.1(1) of the Justices of the Peace Act, she appoint a new three member Hearing Panel to replace us. That new Hearing Panel would then have the responsibility of re-considering the request for a recommendation for compensation of legal costs, in accordance with the Divisional Court’s ruling.
8)    We therefore request that both parties liaise on the issue. We request that each of the parties advise us in writing of its position on Option 1 no later than Friday, November 24, 2017.

Dated:                    October 25, 2017
Hearing Panel:    Justice of the Peace Michael Cuthbertson
Ms. Leonore Foster, Community Member

 NOTE:  This decision is published to draw attention to an issue of public importance. Judicial officers throughout the common law countries are traditionally indemnified for their costs in defending their office. Ontario has opted to depart from this well established tradition and adopted what Presenting Counsel referred to as the "foot their own bill" policy. In Ontario JPs adjudicate bail hearings where they are called upon to adjudicate whether one who stands accused should be deprived of their liberty. This work combined with the Supreme Court of Canada's pronouncement in Ell  v. Alberta assures them all of the rights and privileges of judicial independence.