By way of order dated October 4th, 2016 the Divisional Court upheld the removal from judicial office of His Worship Massiah finding that the liability and penalty decisions rendered by a Hearing Panel of the Justices of the Peace Review Council were reasonable.
On or about September 20th, 2017 the former judicial officer filed a motion under Rule 59.06(1) and 59.06(2)(a) in the Divisional Court seeking to "amend", "set aside", "vary" or "suspend" the Divisional Court's order of October 4th,, 2016 upholding the findings of judicial misconduct and the recommendation to the Attorney General for his removal from judicial office and Order in Council 546/2015 dated April 29, 2015.
On December 4, 2017 the former judicial officer filed a Notice of Constitutional Question in the Divisional Court challenging the constitutionality of various sections of the Justices of the Peace Act and their Procedures Document.
In his Notice of Motion the judicial officer cites the following statutory enactments as sources of jurisdiction for his motion: .6(1) and 10 of the Judicial Review Procedures Act and s.20(d) of the Statutory Power Procedures Act and s.52(1) of the Constitution Act, 1982, including the Constitutional Principle of Judicial Independence.
A Departure From Finality
Rule 59 of the Rules of Civil Procedures is a clear statutory enactment which provides a litigant with the ability to re-open a case notwithstanding an appeal to an appellate court based on criteria stipulated in the rule and the jurisprudence under both the Rule and otherwise.
In Mehedi v. 2057161 Ontario Inc 2014 ONCA 604(Canli) Juriansz J.A. made it clear
that Rule 59 is available to a litigant even though an appeal was determined. He wrote:
[20] The rationale of rule 59.06(2)(a) continues to apply even though an appeal has been determined. An appeal merely concludes there is no reversible error at trial. The rule allows an order to be set aside or varied, not because of any mistake in the proceedings, but because it has become apparent that the decision was wrong due to fraud or other facts discovered after it was made.
Rule 59
Amending
59.06(1) An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.
Setting Aside or Varying
59.06(2) A party who seeks to,
(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;
(b) suspend the operation of the order...
may make a motion in the proceeding for the relief claimed.
The JP's Argument in Brief:
1. He has a constitutional right to a fair and impartial hearing of his removal from judicial office which continued when the Divisional Court adjudicated his judicial review application and he was denied this right for the following reasons:
(a) The Divisional Court's order was based on an admittedly deficient record of proceedings which prevented the court from inquiring into "the qualities that make the decisions reasonable and to inquire into the "existence of justification, transparency and intelligibility within the decision-making process and whether the decisions fall within a range of possible, acceptable outcomes which are defensible in law" as mandated by established and binding legal principles;
(b) Presenting Counsel exceeded the jurisdiction granted by the JPRC Procedures Document in the execution of her public duty and deprived the Applicant a fair and impartial hearing of the complaint initiated by prior Appointed Presenting Counsel and continued to defend the acts and omissions in this court.
Erroneous Instruction
on Hryciuk by Presenting
Counsel:
(c) Presenting Counsel provided an incorrect instruction to the Hearing Panel on the interpretation and application of the Human Rights Code, Hryciuk v. Ontario and the source of their jurisdiction being her Notice of Hearing as distinct from the complaint under s.11.1(10) of the Justices of the Peace Act - instructions which the Hearing Panel followed and improperly applied in finding that the Applicant committed judicial misconduct and that this misconduct required a recommendation for his removal from office.
Ineffective Assistance
and Divided Loyalty
of Appellate Counsel:
(d) He was denied his constitutional right to a fair and impartial hearing of the review of the Justices of the Peace Review Council Hearing Panel's decisions on account of the divided loyalty and ineffective assistance of his appellate counsel on the judicial review on, among other grounds, his failure to raise bias, non-compliance with Hryciuk v. Ontario, erroneous interpretation of the Human Rights Code only to raise Hryciuk v. Ontario on a leave to appeal in the Ontario Court of Appeal when he failed to raise it at first instance and he failed to raise Presenting Counsel's erroneous instruction to the Hearing Panel on this point.
Commentary and Analysis:
The proper functioning of the administration of justice requires that litigants must be able to have undivided loyalty from their lawyers. Where a litigant's loyalty from his or her lawyer is anything but uncompromising it is difficult to argue that this litigant has had a fair and impartial hearing of any legal proceeding - especially one involving the removal of a judicial officer from office.
In the Notice of Application for Judicial Review filed with the Divisional Court in this matter the judicial officer's appellate counsel clearly and indeed properly asserted that "The Decision, Penalty and Compensation Decision, and all Related Interlocutory Orders should be Quashed". He went further stating, The Order in Council Should be Quashed (bb) the Order in Council is predicated on the decisions in the interlocutory motions, the Decision and the Penalty and should accordingly be quashed as result of the errors of the Hearing Panel". In addition, appellate counsel asserted in the Notice of Application for Judicial Review the following evidence will be used at the hearing of the Application: (a) the record of proceedings before the Hearing Panel; (c) The Investigation Transcripts dated June 2, 2012 to November 1, 2012."
However, after the JPRC Hearing Panel referred the judicial officer's lead counsel and appellate counsel's referring lawyer to the Law Society of Upper Canada, appellate counsel abandoned the Hearing Panel's errors on the interlocutory motions and at least according to an affidavit sworn by counsel for the JPRC on August 14th, 2017 entered into an agreement with them not to file the Investigation Transcripts as part of the record of proceedings in the Divisional Court. Appellate counsel and all of the parties before the Divisional Court proceeded to file their facta before the issue of the record of proceedings was ever properly resolved contrary to Divisional Court jurisprudence mandating the resolution of the record of proceedings prior to the filing of facta. (see Sierra Club Canada v. Ontario 2011 ONSC 4086 (Div Crt))
A former member of the original JPRC Hearing Panel who recused herself on account of the JP's concerns of bias used the JPRC Hearing Panel's decision removing him from office as a authority in support of her decision disbarring a lawyer while sitting on a panel of the The Law Society Tribunal where she and appellate counsel for the JP both sit. This was done while the JP's judicial review matter was pending adjudication by the Divisional Court.(see LSUC v. John Kenneth Venn 2016 ONSLSTH 72 (Canli)) She failed to note in her decision that the judicial officer was seeking review of that decision in Divisional Court.
DIVISIONAL COURT HEARING - APRIL 3RD, 2018 - OSGOODE HALL - 130 QUEEN STREET WEST - LIMITED SEATING AVAILABLE
NOTE: This piece is written for the sole purpose of drawing attention to what the writer believes to be an issue of public importance, namely, the removal of a judicial officer from office combined with this issue of the duty of loyalty lawyer's owe their clients in these and indeed all legal proceedings. The writer is counsel to the JP on the Rule 59 motion because he believes him to be the victim of a miscarriage of justice and his duty as a lawyer requires him to vigorously defend his client's cause.
This post deals with a portion of the JP's motion. The JP's full Notice of Motion and record can be found at the Divisional Court. The other parties vigorously contest the JP's motion and Notice of Constitutional Question. The JP's appellate counsel and counsel for the JPRC and the Attorney General for Ontario assert in their defence of the JP's motion that the JP consented to the acts and omissions of his lawyer, Presenting Counsel did not exceed the ambit of the statutory authority granted by the enabling legislation and Presenting Counsel is entitled to defend their acts and omissions in presenting the case in the appellate courts and therefore the court's decisions are final and binding.
On or about September 20th, 2017 the former judicial officer filed a motion under Rule 59.06(1) and 59.06(2)(a) in the Divisional Court seeking to "amend", "set aside", "vary" or "suspend" the Divisional Court's order of October 4th,, 2016 upholding the findings of judicial misconduct and the recommendation to the Attorney General for his removal from judicial office and Order in Council 546/2015 dated April 29, 2015.
On December 4, 2017 the former judicial officer filed a Notice of Constitutional Question in the Divisional Court challenging the constitutionality of various sections of the Justices of the Peace Act and their Procedures Document.
In his Notice of Motion the judicial officer cites the following statutory enactments as sources of jurisdiction for his motion: .6(1) and 10 of the Judicial Review Procedures Act and s.20(d) of the Statutory Power Procedures Act and s.52(1) of the Constitution Act, 1982, including the Constitutional Principle of Judicial Independence.
A Departure From Finality
Rule 59 of the Rules of Civil Procedures is a clear statutory enactment which provides a litigant with the ability to re-open a case notwithstanding an appeal to an appellate court based on criteria stipulated in the rule and the jurisprudence under both the Rule and otherwise.
In Mehedi v. 2057161 Ontario Inc 2014 ONCA 604(Canli) Juriansz J.A. made it clear
that Rule 59 is available to a litigant even though an appeal was determined. He wrote:
[20] The rationale of rule 59.06(2)(a) continues to apply even though an appeal has been determined. An appeal merely concludes there is no reversible error at trial. The rule allows an order to be set aside or varied, not because of any mistake in the proceedings, but because it has become apparent that the decision was wrong due to fraud or other facts discovered after it was made.
Rule 59
Amending
59.06(1) An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.
Setting Aside or Varying
59.06(2) A party who seeks to,
(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;
(b) suspend the operation of the order...
may make a motion in the proceeding for the relief claimed.
The JP's Argument in Brief:
1. He has a constitutional right to a fair and impartial hearing of his removal from judicial office which continued when the Divisional Court adjudicated his judicial review application and he was denied this right for the following reasons:
(a) The Divisional Court's order was based on an admittedly deficient record of proceedings which prevented the court from inquiring into "the qualities that make the decisions reasonable and to inquire into the "existence of justification, transparency and intelligibility within the decision-making process and whether the decisions fall within a range of possible, acceptable outcomes which are defensible in law" as mandated by established and binding legal principles;
(b) Presenting Counsel exceeded the jurisdiction granted by the JPRC Procedures Document in the execution of her public duty and deprived the Applicant a fair and impartial hearing of the complaint initiated by prior Appointed Presenting Counsel and continued to defend the acts and omissions in this court.
Erroneous Instruction
on Hryciuk by Presenting
Counsel:
(c) Presenting Counsel provided an incorrect instruction to the Hearing Panel on the interpretation and application of the Human Rights Code, Hryciuk v. Ontario and the source of their jurisdiction being her Notice of Hearing as distinct from the complaint under s.11.1(10) of the Justices of the Peace Act - instructions which the Hearing Panel followed and improperly applied in finding that the Applicant committed judicial misconduct and that this misconduct required a recommendation for his removal from office.
Ineffective Assistance
and Divided Loyalty
of Appellate Counsel:
(d) He was denied his constitutional right to a fair and impartial hearing of the review of the Justices of the Peace Review Council Hearing Panel's decisions on account of the divided loyalty and ineffective assistance of his appellate counsel on the judicial review on, among other grounds, his failure to raise bias, non-compliance with Hryciuk v. Ontario, erroneous interpretation of the Human Rights Code only to raise Hryciuk v. Ontario on a leave to appeal in the Ontario Court of Appeal when he failed to raise it at first instance and he failed to raise Presenting Counsel's erroneous instruction to the Hearing Panel on this point.
Commentary and Analysis:
The proper functioning of the administration of justice requires that litigants must be able to have undivided loyalty from their lawyers. Where a litigant's loyalty from his or her lawyer is anything but uncompromising it is difficult to argue that this litigant has had a fair and impartial hearing of any legal proceeding - especially one involving the removal of a judicial officer from office.
In the Notice of Application for Judicial Review filed with the Divisional Court in this matter the judicial officer's appellate counsel clearly and indeed properly asserted that "The Decision, Penalty and Compensation Decision, and all Related Interlocutory Orders should be Quashed". He went further stating, The Order in Council Should be Quashed (bb) the Order in Council is predicated on the decisions in the interlocutory motions, the Decision and the Penalty and should accordingly be quashed as result of the errors of the Hearing Panel". In addition, appellate counsel asserted in the Notice of Application for Judicial Review the following evidence will be used at the hearing of the Application: (a) the record of proceedings before the Hearing Panel; (c) The Investigation Transcripts dated June 2, 2012 to November 1, 2012."
However, after the JPRC Hearing Panel referred the judicial officer's lead counsel and appellate counsel's referring lawyer to the Law Society of Upper Canada, appellate counsel abandoned the Hearing Panel's errors on the interlocutory motions and at least according to an affidavit sworn by counsel for the JPRC on August 14th, 2017 entered into an agreement with them not to file the Investigation Transcripts as part of the record of proceedings in the Divisional Court. Appellate counsel and all of the parties before the Divisional Court proceeded to file their facta before the issue of the record of proceedings was ever properly resolved contrary to Divisional Court jurisprudence mandating the resolution of the record of proceedings prior to the filing of facta. (see Sierra Club Canada v. Ontario 2011 ONSC 4086 (Div Crt))
A former member of the original JPRC Hearing Panel who recused herself on account of the JP's concerns of bias used the JPRC Hearing Panel's decision removing him from office as a authority in support of her decision disbarring a lawyer while sitting on a panel of the The Law Society Tribunal where she and appellate counsel for the JP both sit. This was done while the JP's judicial review matter was pending adjudication by the Divisional Court.(see LSUC v. John Kenneth Venn 2016 ONSLSTH 72 (Canli)) She failed to note in her decision that the judicial officer was seeking review of that decision in Divisional Court.
DIVISIONAL COURT HEARING - APRIL 3RD, 2018 - OSGOODE HALL - 130 QUEEN STREET WEST - LIMITED SEATING AVAILABLE
NOTE: This piece is written for the sole purpose of drawing attention to what the writer believes to be an issue of public importance, namely, the removal of a judicial officer from office combined with this issue of the duty of loyalty lawyer's owe their clients in these and indeed all legal proceedings. The writer is counsel to the JP on the Rule 59 motion because he believes him to be the victim of a miscarriage of justice and his duty as a lawyer requires him to vigorously defend his client's cause.
This post deals with a portion of the JP's motion. The JP's full Notice of Motion and record can be found at the Divisional Court. The other parties vigorously contest the JP's motion and Notice of Constitutional Question. The JP's appellate counsel and counsel for the JPRC and the Attorney General for Ontario assert in their defence of the JP's motion that the JP consented to the acts and omissions of his lawyer, Presenting Counsel did not exceed the ambit of the statutory authority granted by the enabling legislation and Presenting Counsel is entitled to defend their acts and omissions in presenting the case in the appellate courts and therefore the court's decisions are final and binding.
No comments:
Post a Comment