In May, 2014 Justice of the Peace Massiah(as he then was) brought a motion raising a reasonable apprehension of bias and argued that the Chair of the Justices of the Peace Review Counsel, the Chief Justice of the Ontario Court of Justice had no jurisdiction to appoint a replacement for Ms. Margot Blight*, the Law Society of Upper Canada's(as it was known then) nominee when she voluntarily stepped down from the Hearing Panel amidst concerns of bias raised by the JP.
He also asserted that the Notice of Hearing prepared by the lawyer retained by the JPRC to act as Presenting Counsel exceeded the "complaint" and therefore was contrary to the Ontario Court Appeal's binding decision in Hryciuk v. Ontario(ONCA). The JPRC Hearing Panel dismissed the motion and later referred the African-Canadian lawyer acting for H.W. Massiah(the writer) to The Law Society of Upper Canada to be dealt with. The Chair of the Hearing Panel subsequently "fully retired" causing the hearing panel to lose statutory quorum yet "again". According to an article published in the London Free Press on May 31, 2011 Justice Livingstone retired "after 21 years as a criminal court judge". Lori Newton, Executive Legal Officer, Office of the Chief Justice, Ontario Court of Justice confirmed that "the Honourable Deborah Livingstone became a per diem judge on June 1, 2011 and fully retired from the bench in 2016."
The Justices of the Peace Review Council Hearing Panel dismissed the motion and ruled that the Chair had jurisdiction to add another member under section 4.2.1(2) of the Statutory Powers Procedure Act. In so doing the Hearing Panel committed manifest error which was not raised before the Divisional Court. Here is why. They wrote:
[30] The Statutory Powers Procedures Act (SPPA) provides authority to the Chief Justice when a Panel is reduced by one member. It states:
Panel of one, reduced Panel
Panel of one
4.2.1(1) The chair of a tribunal may decide that a proceeding be heard by a panel of one person and assign the person to hear the proceeding unless there is a statutory requirement in another Act that the proceeding be heard by a panel of more than one person.
Reduction in number of panel members
(2) Where there is a statutory requirement in another Act that a proceeding be heard by a panel of a specified number of persona, the chair of the tribunal may assign to the panel one person or any lesser number of persona than the number specified in the other Act if all of the parties to the proceeding consent.
[31] Therefore, pursuant to s.4.2.1(2) of the SPPA, having received the consent of both parties to appoint a new Panel member when Ms. Blight recused herself, the Chief Justice acted within the statutory authority, when she appointed Ms. Foster to this Hearing Panel, so it could continue with a quorum.
Fast Forward Three Years:
The JP applied for judicial review of his removal from judicial office and the Divisional Court ordered a re-hearing on his compensation claim by the original Hearing Panel. Although the Registrar and Counsel for the JPRC, Ms. Marilyn King was aware that Justice Livingstone, the Chair of the original Hearing Panel had resigned the court was not informed and the matter was remitted to the two remaining members of the panel over Mr. Massiah's objections and Presenting Counsel's alleged "agreement" with Mr. Massiah's appellate counsel before the Divisional Court. It is important to recognize that Mr. Massiah's appellate counsel was no longer representing Mr. Massiah on the re-hearing before the two-member Hearing Panel but the "agreement" between Presenting Counsel and his former lawyer was implemented with the two-member panel holding office from January to November, 2017 only to come to the conclusion that "we are dead-locked" on the question of compensation. Interestingly, the two-member panel was never deadlocked when it dismissed at least four motions properly brought before it for adjudication.
Presenting Counsel made the following submission to the two-member Hearing Panel this time around in written submissions dated February 1st, 2017:
**"We take the position that s.4.2.1(1) does not apply to a circumstance like this because it empowers the chair (with the consent of the parties) to decide that a hearing will be conducted by a "panel of one person", not to add one person to an already existing panel of two. Likewise, s.4.2.1(2) allows a case to be decided by a reduced panel even where there is a "statutory requirement in another Act that a proceeding be heard by a panel of a specified number of persons", provided that all parties consent. Again, this is about enabling a tribunal to constitute a smaller panel than normally required, not about adding a member to a panel that has already been constituted.
Two-Member Panel's Ruling
on Compensation for Legal Costs
Claim:
[5] ....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 exists two options. The first option would require a joint position by both parties. That option is:
Option 1
Pursuant to s.4.2.2(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
.....we must advise the Chief Justice that we are deadlocked and request that s.11.1(1) of the Justices of the Peace Act, she appoint a new three member Hearing Panel to replace us.
Excerpt of JP's Submissions
Dated November 24th 2017:
"For the reasons cited in the Bias motions which you dismissed your proposed option 1 is moot."
"Option 2 is the presumptive position under the legislation when the statutory quorum
is lost. This should have happened when I brought the Bias motion in 2012.
(sic - 2014). Assuming that you are not functus and that you maintain juris to
entertain the issues which you have put to the parties, option 2 is what Mr. Massiah
asked for in 2014 and would request again today."
"In light of the outstanding Rule 59 motion it would seem prudent to hold your proceedings in abeyance until the proper resolution of that matter and the intended Notice of Constitutional Question which has crystalized on account of the impasse we are in.
Excerpt of Presenting Counsel
Submissions dated November
24th, 2017:
"Presenting Counsel's submission to the Panel is as follows:
**We indicated to Mr. Guiste our willingness to consent to Option 1. Evidently he does not agree to Option 1. Accordingly, Option 2 must be engaged."
Yours truly,
Marie Henein and Matthew Gourlay
Bias and Quorum Question Not
Raised in Divisional Court by
Massiah's Appellate Counsel
(Not E.J. Guiste):
The issues of bias, lack of independence and impartiality of both the Hearing Panel and Presenting Counsel, error in interpreting, applying the Human Rights Code, Hyrciuk v. Ontario(ONCA), Blencoe v. B.C. Human Rights Commission(SCC) and R v. Skolnick(SCC) were not raised as grounds of legal error by Mr. Massiah's appellate counsel before the Divisional Court and has resulted in him bringing a Rule 59 motion before that court to set aside, vary or amend their order upholding his removal from judicial office. In a word, Mr. Massiah asserts that his constitutional right to a fair and impartial hearing of his right of review in a s.96 court of his removal from judicial office was denied on Presenting Counsel exceeding their statutory mandate and thereby depriving him of a fair hearing, the hearing panel exhibiting bias and lack of independence from the Attorney General and ineffective assistance of counsel from his appellate counsel.
*Interestingly, while Mr. Massiah's judicial review hearing was before the Divisional Court for adjudication, Ms. Blight, while sitting as a panel member on a Law Society Tribunal case used Mr. Massiah's removal from office by the JPRC Hearing Panel she recused herself from as legal authority to disbar a lawyer. (see LSUC v. Venn 2016 ONLSTH 72)
All players including Mr. Massiah's appellate counsel vigorously deny the above allegations. Mr. Massiah's appellate counsel has applied for full party intervenor status on his motion and Justice Kitely has granted them full party status without any conditions. Mr. Massiah recognizes that his appellate counsel and indeed any lawyer in Ontario who is the subject of an ineffective assistance of counsel claim is entitled to defend their actions and competence. However, he stated at paragraph 24 of his sworn affidavit filed with the Divisional Court, " I am concerned about the appearance of the commonality of interest between
(my appellate counsel) and all the Respondents on my motion." He did not oppose the motion but invited the court to hear his concerns and exercise its discretion in the public interest and his.
Presenting Counsel have yet to fully respond to the allegations touching on the discharge of their statutory duty and continue to act for the JPRC in defence of their discharge of this statutory duty. They will have an opportunity to do so once Mr. Massiah serves them with his motion record in support of his motion.
The parties to his motion include: 1. Mr. Massiah; 2. Justices of the Peace Review Counsel; 3. Attorney General for Ontario and 4. The Lieutenant Governor in Council.
NOTE:
I was counsel to H.W. Massiah(as he was then) at the proceedings before the JPRC Hearing Panel. I was also his counsel on the Divisional Court ordered re-hearing of the compensation for legal costs claim. I am once again Mr. Massiah's counsel on the Rule 59 motion before the Divisional Court.
Lawyer's Duty to
Defend Fearlessly:
I continue to act for Mr. Massiah because I sincerely believe that he is a victim of a miscarriage of justice. As a lawyer it is my job and duty to raise every law and issue in defence of my client. As a Catholic lawyer I have an obligation to step in and defend the weak and powerless from miscarriages of justice if I can. It remains my belief that under the current statutory regime in Ontario justices of the peace in Ontario have a semblance of judicial independence and nothing close to what the Supreme Court of Canada has held that they are entitled to.
This piece is published here to draw attention to an issues of public importance in this case.
It will be for the Divisional Court to decide all of these issues in the public interest and Mr. Massiah's in accordance with the Rule of Law and our constitution.
He also asserted that the Notice of Hearing prepared by the lawyer retained by the JPRC to act as Presenting Counsel exceeded the "complaint" and therefore was contrary to the Ontario Court Appeal's binding decision in Hryciuk v. Ontario(ONCA). The JPRC Hearing Panel dismissed the motion and later referred the African-Canadian lawyer acting for H.W. Massiah(the writer) to The Law Society of Upper Canada to be dealt with. The Chair of the Hearing Panel subsequently "fully retired" causing the hearing panel to lose statutory quorum yet "again". According to an article published in the London Free Press on May 31, 2011 Justice Livingstone retired "after 21 years as a criminal court judge". Lori Newton, Executive Legal Officer, Office of the Chief Justice, Ontario Court of Justice confirmed that "the Honourable Deborah Livingstone became a per diem judge on June 1, 2011 and fully retired from the bench in 2016."
The Justices of the Peace Review Council Hearing Panel dismissed the motion and ruled that the Chair had jurisdiction to add another member under section 4.2.1(2) of the Statutory Powers Procedure Act. In so doing the Hearing Panel committed manifest error which was not raised before the Divisional Court. Here is why. They wrote:
[30] The Statutory Powers Procedures Act (SPPA) provides authority to the Chief Justice when a Panel is reduced by one member. It states:
Panel of one, reduced Panel
Panel of one
4.2.1(1) The chair of a tribunal may decide that a proceeding be heard by a panel of one person and assign the person to hear the proceeding unless there is a statutory requirement in another Act that the proceeding be heard by a panel of more than one person.
Reduction in number of panel members
(2) Where there is a statutory requirement in another Act that a proceeding be heard by a panel of a specified number of persona, the chair of the tribunal may assign to the panel one person or any lesser number of persona than the number specified in the other Act if all of the parties to the proceeding consent.
[31] Therefore, pursuant to s.4.2.1(2) of the SPPA, having received the consent of both parties to appoint a new Panel member when Ms. Blight recused herself, the Chief Justice acted within the statutory authority, when she appointed Ms. Foster to this Hearing Panel, so it could continue with a quorum.
Fast Forward Three Years:
The JP applied for judicial review of his removal from judicial office and the Divisional Court ordered a re-hearing on his compensation claim by the original Hearing Panel. Although the Registrar and Counsel for the JPRC, Ms. Marilyn King was aware that Justice Livingstone, the Chair of the original Hearing Panel had resigned the court was not informed and the matter was remitted to the two remaining members of the panel over Mr. Massiah's objections and Presenting Counsel's alleged "agreement" with Mr. Massiah's appellate counsel before the Divisional Court. It is important to recognize that Mr. Massiah's appellate counsel was no longer representing Mr. Massiah on the re-hearing before the two-member Hearing Panel but the "agreement" between Presenting Counsel and his former lawyer was implemented with the two-member panel holding office from January to November, 2017 only to come to the conclusion that "we are dead-locked" on the question of compensation. Interestingly, the two-member panel was never deadlocked when it dismissed at least four motions properly brought before it for adjudication.
Presenting Counsel made the following submission to the two-member Hearing Panel this time around in written submissions dated February 1st, 2017:
**"We take the position that s.4.2.1(1) does not apply to a circumstance like this because it empowers the chair (with the consent of the parties) to decide that a hearing will be conducted by a "panel of one person", not to add one person to an already existing panel of two. Likewise, s.4.2.1(2) allows a case to be decided by a reduced panel even where there is a "statutory requirement in another Act that a proceeding be heard by a panel of a specified number of persons", provided that all parties consent. Again, this is about enabling a tribunal to constitute a smaller panel than normally required, not about adding a member to a panel that has already been constituted.
Two-Member Panel's Ruling
on Compensation for Legal Costs
Claim:
[5] ....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 exists two options. The first option would require a joint position by both parties. That option is:
Option 1
Pursuant to s.4.2.2(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
.....we must advise the Chief Justice that we are deadlocked and request that s.11.1(1) of the Justices of the Peace Act, she appoint a new three member Hearing Panel to replace us.
Excerpt of JP's Submissions
Dated November 24th 2017:
"For the reasons cited in the Bias motions which you dismissed your proposed option 1 is moot."
"Option 2 is the presumptive position under the legislation when the statutory quorum
is lost. This should have happened when I brought the Bias motion in 2012.
(sic - 2014). Assuming that you are not functus and that you maintain juris to
entertain the issues which you have put to the parties, option 2 is what Mr. Massiah
asked for in 2014 and would request again today."
"In light of the outstanding Rule 59 motion it would seem prudent to hold your proceedings in abeyance until the proper resolution of that matter and the intended Notice of Constitutional Question which has crystalized on account of the impasse we are in.
Excerpt of Presenting Counsel
Submissions dated November
24th, 2017:
"Presenting Counsel's submission to the Panel is as follows:
**We indicated to Mr. Guiste our willingness to consent to Option 1. Evidently he does not agree to Option 1. Accordingly, Option 2 must be engaged."
Yours truly,
Marie Henein and Matthew Gourlay
Bias and Quorum Question Not
Raised in Divisional Court by
Massiah's Appellate Counsel
(Not E.J. Guiste):
The issues of bias, lack of independence and impartiality of both the Hearing Panel and Presenting Counsel, error in interpreting, applying the Human Rights Code, Hyrciuk v. Ontario(ONCA), Blencoe v. B.C. Human Rights Commission(SCC) and R v. Skolnick(SCC) were not raised as grounds of legal error by Mr. Massiah's appellate counsel before the Divisional Court and has resulted in him bringing a Rule 59 motion before that court to set aside, vary or amend their order upholding his removal from judicial office. In a word, Mr. Massiah asserts that his constitutional right to a fair and impartial hearing of his right of review in a s.96 court of his removal from judicial office was denied on Presenting Counsel exceeding their statutory mandate and thereby depriving him of a fair hearing, the hearing panel exhibiting bias and lack of independence from the Attorney General and ineffective assistance of counsel from his appellate counsel.
*Interestingly, while Mr. Massiah's judicial review hearing was before the Divisional Court for adjudication, Ms. Blight, while sitting as a panel member on a Law Society Tribunal case used Mr. Massiah's removal from office by the JPRC Hearing Panel she recused herself from as legal authority to disbar a lawyer. (see LSUC v. Venn 2016 ONLSTH 72)
All players including Mr. Massiah's appellate counsel vigorously deny the above allegations. Mr. Massiah's appellate counsel has applied for full party intervenor status on his motion and Justice Kitely has granted them full party status without any conditions. Mr. Massiah recognizes that his appellate counsel and indeed any lawyer in Ontario who is the subject of an ineffective assistance of counsel claim is entitled to defend their actions and competence. However, he stated at paragraph 24 of his sworn affidavit filed with the Divisional Court, " I am concerned about the appearance of the commonality of interest between
(my appellate counsel) and all the Respondents on my motion." He did not oppose the motion but invited the court to hear his concerns and exercise its discretion in the public interest and his.
Presenting Counsel have yet to fully respond to the allegations touching on the discharge of their statutory duty and continue to act for the JPRC in defence of their discharge of this statutory duty. They will have an opportunity to do so once Mr. Massiah serves them with his motion record in support of his motion.
The parties to his motion include: 1. Mr. Massiah; 2. Justices of the Peace Review Counsel; 3. Attorney General for Ontario and 4. The Lieutenant Governor in Council.
NOTE:
I was counsel to H.W. Massiah(as he was then) at the proceedings before the JPRC Hearing Panel. I was also his counsel on the Divisional Court ordered re-hearing of the compensation for legal costs claim. I am once again Mr. Massiah's counsel on the Rule 59 motion before the Divisional Court.
Lawyer's Duty to
Defend Fearlessly:
I continue to act for Mr. Massiah because I sincerely believe that he is a victim of a miscarriage of justice. As a lawyer it is my job and duty to raise every law and issue in defence of my client. As a Catholic lawyer I have an obligation to step in and defend the weak and powerless from miscarriages of justice if I can. It remains my belief that under the current statutory regime in Ontario justices of the peace in Ontario have a semblance of judicial independence and nothing close to what the Supreme Court of Canada has held that they are entitled to.
This piece is published here to draw attention to an issues of public importance in this case.
It will be for the Divisional Court to decide all of these issues in the public interest and Mr. Massiah's in accordance with the Rule of Law and our constitution.
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