Saturday, January 27, 2018

Court of Appeal on the Lawyer's Duty to Raise Bias or Unfairness in the Trial Process

Amato   v.  Pesek 2010 ONCA 708

[7]  As this court said before, trial counsel are in the best position to gauge whether a trial judge is overstepping the bounds of propriety and improperly interfering with the conduct of the trial.  While not fatal, a failure to object constitutes powerful evidence that neither the appellants nor their counsel felt that the trial judge was improperly interfering with the conduct of the trial as they now suggest.

[8]   Mr. McCarthy, for the appellants, forcefully submitted that we should not place undue emphasis on the failure of trial counsel to object.  He observed that it is difficult for counsel to object to the conduct of a trial judge and counsel often feel constrained from doing do.

[9]   Much as we appreciate Mr. McCarthy's submission, there are times when trial counsel can be expected to raise objections, especially when they feel that a trial judge is exceeding the bounds of judicial propriety and taking up the cause of one of the parties.   Polite but firm objections, in these circumstances, are entirely appropriate.  Counsel should not feel constrained for fear of judicial censure.  In this regard, we note that defence counsel was not shy to object when he felt the need to do so.  The record disclosed several occasions in which he forcefully but politely, registered his disagreement with the trial judge.

Application to Re Massiah 2015 (JPRC)

Compensation Decision (June 16, 2015)

[25]   Mr. Massiah's conduct of this proceeding is considered in the context of the factors referred to in Re Foulds, namely that in cases of serious misconduct, compensation should be the exception rather than the rule even when the defence was conducted entirely appropriately.

[26]   In our view, awarding compensation for legal fees in a judicial disciplinary process where the proceedings were conducted in the manner described above would be an affront to the public confidence in the judiciary and in the administration of justice.  His conduct of the case did nothing to expedite the proceedings; in fact, we have found it prolonged the hearing unduly.

[30]   **The conduct of Mr. Massiah's lawyer, Ernest Guiste, is not relevant to this decision.  We have set out concerns about Mr. Guiste's conduct in an Addendum.


[1]   In our decision regarding Mr. Massiah's request for a recommendation for compensation of his legal costs, reference was made to the conduct of Mr. Massiah during the proceedings.  That conduct encompassed procedural steps take by Mr. Massiah, through one of his counsel, Mr. Guiste.  While we recognize that Mr. Guiste would have been acting on the instructions of Mr. Massiah, nonetheless Mr. Guiste, as a lawyer, must bear responsibility for the inefficient and unprofesssional manner in which he filed submissions, continued to amend submissions, and contributed to delay in the progress of the proceedings.

(6)   Mr. Guiste made comments to suggest that the Panel was discriminating against Mr. Massiah and his counsel during this process.

         On April 9, 2014, Mr. Guiste said, "but the writing requirement is a very serious one, and all I'm saying is you can't suck and blow.  You can't say on your website, this has to be in writing, signed letter.  You can't say in your annual report, and when this African Canadian Justice of the Peace comes, oh the law is changed for you.  It doesn't look good. It's not right."

         On May 28, 2014, after the Chair of the Panel said, 'Thank you for that speech" to Mr. Guiste, he responded,, "To a man of African Canadian descent, it strikes at the - what is that word ?  A stereotype of the black man on a soap box giving speeches on the street corner."  As we remarked at that time, the Panel was offended at the suggestion that we are racist.  Mr. Guiste responded by saying, "I am suggesting to you that the context in which that was said, "Thank you, Mr. Guiste, for that speech", I am a man of African-Canadian descent and I'm very familiar with my history, and that when individuals of Europen descent in power want to exert their power, it is not uncommon to resort to that type of stereotyping."


[6]   In our view, comments such as those cited above, were unprofessional and inappropriate and exemplified conduct which did nothing to advance Mr. Massiah's defence.  **We did not consider the inappropriate conduct or comments of Mr. Guiste in deciding the issues in this hearing or in our reasons on the request regarding compensation.(emphasis added) However, this judicial disciplinary process plays an important role in preserving and restoring public confidence in the administration of justice. Such conduct and comments from a lawyer cannot be overlooked.  This Panel directs the Registrar to provide a copy of this Addendum to the Law Society of Upper Canada for its consideration.

Dated:  June 16, 2015

June 17, 2015

Toronto Sun

"Fired JP Loses Bid to Have Taxpayers pay Legal Fees - Lawyers Conduct to be Reviewed"


Deborah Livingstone Retweeted - 6:02 PM - 17 2015 - JP fired over lecherous behaviour loses bid to have taxpayers pay $600,000 in legal fess. Via @MandelSun.bitly/1JVmYkL

January 13, 2016 - Excerpts
from Applicant's Factum
at Divisional Court:

87.   Second, the Panel considered three irrelevant factors in denying compensation.  The Panel grounded its decision on compensation on "prior findings of similar misconduct" **and on the conduct of the applicant's counsel, Mr. Guiste.(emphasis added)

88.   The Panel incorrectly relied on "prior findings of similar misconduct", despite acknowledging that "findings in this hearing pre-dated the prior finding" and that this was a "novel situation".  The unique circumstances that there were two proceedings, instead of one, and one was technically before the other - should not be used against the applicant to deny compensation that would otherwise be appropriate.

89.   **The Panel further erred by unduly focusing on the conduct of one of the applicant's counsel.  While it is clear from the Compensation Decision, and its addendum, that the Panel took issue with Mr. Guiste's conduct of the preliminary motions, the Panel provided no justification for denying compensation for legal services provided by Mr. House.  The Panel found that the hearing was conducted "appropriately and effectively by...Mr. House."  Presenting Counsel similarly acknowledged Mr. House's appropriate conduct of the proceeding.  Yet, without explanation, the Panel denied any compensation to the applicant with respect to Mr. House's legal costs.

Presenting Counsel's Submissions
on Compensation Rehearing (May 1st, 2017)

24.   The "Grand Total of Fees and Disbursements is then stated as $770,360.16.  It is not clear from his shambolic "Bill of Costs" whether Mr. Massiah is actually seeking compensation for the entire amount.  Presenting Counsel will proceed on the assumption that he is.

29.   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.

34.   Presenting Counsel submits that if the Panel is inclined to make a recommendation for compensation, it should direct that the recommendation not include any costs associated with the pre-(or post) hearing motions. These were precisely the kind of unmeritorious and unnecessary steps referred to by Nordheimer J in the passage above.

36.   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 that was in fact the subjective belief of Mr. Massiah or his counsel, it was not a reasonable belief.

Excerpt from Appellate Counsel's
Memo on Presenting Counsel's
Conduct of the hearing:

Presenting Counsel Acted as Prosecutor
and Tainted the Proceeding

   "The Hearing Panel erred in its Decision and Penalty by accepting submission from Presenting Counsel which were outside the proper scope of Presenting Counsel's role and which amounted to a prosecution of the applicant.  Accepting these submissions amounted to an abuse of process"(emphasis added)....

    ...."Presenting Counsel abandoned impartiality and stepped into the role of prosecutor by accusing the applicant of being "untruthful" in his evidence in the Second Proceeding.  Although the Hearing Panel did conclude that there were inconsistencies and an "air of insincerity" in the applicant's testimony, they did not find that he was untruthful.  Inconsistencies abounded in this proceeding, and yet, Presenting Counsel did not accuse the other witnesses of being "untruthful"."

Excerpt from Appellate Counsel's 
Sworn Affidavit on Rule 59 

77.   The applicant complains in his affidavit sworn December 10, 2017 that I failed to include copies of motion materials, including facta, which were filed on the numerous motions before the Hearing Panel.  He claims that these documents would have disclosed a reasonable apprehension of bias because he believed the motions were well founded. (emphasis added) I did not share this view.

93.    In his affidavit sworn December 10, 2017, the applicant describes a memo from Ms. Peglar 'delineating serious excesses in the discharge of the function of Presenting Counsel, and questions why I did not raise this issue on the application for judicial review."  The memo in question consists of a draft argument that Presenting Counsel abandoned impartiality and stepped into the role of prosecutor.  I do not agree that this memo discloses "serious excesses".  The purpose of the memo was to develop a potential argument that her conduct affected the fairness of the hearing.(emphasis added)

95.   When we were preparing the initial draft of our factum, I asked Hayley Peglar to develop an argument based on the conduct of presenting counsel.  I remained skeptical of this strategy, but I wanted to examine whether a tenable argument could be made. Ms. Peglar prepared the memorandum that was forwarded to the applicant on November 8th, 2015.

97.   I was never persuaded that this was a compelling argument.(emphasis added)  I advised the applicant of my view on many occasions.  I was very concerned that the argument would be ill-received by the Court, and that it could have negative consequences for the application.(emphasis added)  I explained the issues in great detail in a meeting with the applicant on November 18, 2015, as reflected in the notes marked as Exhibit "J" to this affidavit.

**The JPRC Panel disregarded more than 10 legal authorities submitted by counsel for their consideration.  At least four of the cases were binding upon them from the Supreme Court of Canada and the Ontario Court of Appeal. The JPRC Panel took the unprecedented step of making findings amounting to contempt of court and a referral to the Law Society of Upper Canada without providing counsel with any opportunity to answer contrary to established legal principles.  H.W. Massiah had two lawyers one African-Canadian and one Anglo-American-Canadian.  The JPRC Panel singled out the African-Canadian lawyer for non-payment and referral to the Law Society of Upper Canada - as it was known then.

About the author:

E.J. Guiste is a Catholic lawyer of African-Canadian racial background based in the GTA. He is counsel to the judicial officer, H.W. Massiah, on a motion seeking to set aside the Divisional Court's dismissal of his judicial review application seeking to set aside the Order-in-Council removing him from office.  Part of the foundation for the motion is that Mr. Massiah was denied the undivided loyalty of his appeal lawyer on his judicial review application at Divisional Court.  Another fundamental part of the motion is that bias and Presenting Counsel's conduct in the drafting of the Notice of Hearing and presenting the case denied him of a fair and impartial hearing and that Presenting Counsel's defence of those acts and omissions at the Divisional Court denied him of a fair and impartial hearing of the judicial review application.

This piece is published here for the sole purpose of drawing attention to an issue of public importance.  Our system of justice can not operate unless litigants like H.W. Massiah can have full confidence in their lawyers to raise every lawful argument in defence of their clients without fear that legitimate legal arguments of bias and abuse of process "would be ill-received by the Court."

Saturday, January 20, 2018

The Lawyer's Key Duty: Undivided Loyalty to A Client's Cause

   Bodies which regulate the legal profession in Canada and elsewhere all correctly proclaim that they do so in the public interest.  Their purpose is to ensure that the lawyers whom they regulate discharge their duties to their clients i.e. the public in a manner that is in the public interest and most importantly consistent with The Rule of Law.

Conflict of 

   One of the cardinal rules of legal ethics is that lawyers must avoid conflicts of interests.  Sometimes what is a conflict of interest is plain and obvious.  A criminal lawyer who represented a client in the past and then joins the Crown's office would be in a conflict if he or she was called upon to prosecute the former client.  The rationale underlying this prohibition is that the lawyer would have obtained confidential information from the client which he or she could use against the former client.

    What about a lawyer and his law firm which has acted for a lawyer-client previously* and is then called upon to represent a client referred to him by the said former lawyer-client on an appeal matter, where subsequent to entering into the retainer,  claims ranging from civil wrongdoing to professional misconduct are raised against the former lawyer-client and the referred client in the referred client's case ?

   What if the referred client is of the view that all of the allegations against him and the former lawyer-client - his trial counsel are unfounded and motivated by bias ?

   What if the lawyer accepting the referral is an elected member of the regulatory body regulating the profession and sits as an adjudicator on its disciplinary body ?   

    Is the lawyer and the law firm accepting the referral at liberty to partake in the governing bodies investigation of the referring lawyer during the course of the subject retainer without the consent of either client ?

Divided Loyalty:

   The questions posed above are weighty and unprecedented.  While they may or may not be of the same importance to regulators and academics, I would submit that they are highly important to the members of the public who retain lawyers to protect their legal rights. Members of the public want and crave the undivided loyalty of their lawyers when engaged in litigation - especially public litigation involving the state.  A lawyer who has a loyalty or interest to any party or third party in a proceeding labours under a serious handicap which necessarily impairs his or her ability to properly defend a client.

Duty of "Candour":

Definition:  1.   the state or quality of being frank, open, sincere in speech or expression; candidness.
2.   freedom from bias; fairness, impartiality.  3.   Obsolete. kindliness.  4.  Obsolete purity.

In R  v. Neil [2002] S.C.R. 631 Justice Binnie determined that an aspect of the duty of loyalty involves a duty of condour with the client on matters relevant to the retainer.

In his May 7, 2013 piece entitled Duty of Candour, Law Society of Ontario Bencher and adjudicator Mr. Malcolm Mercer, wrote the following on this subject:  "Fifth, being in a position of accepting a legal obligation of confidentiality is not an excuse for lack of candour but rather a real problem.  The House of Lords put this nicely in Hilton  v. Barker Booth and Eastwood:  ..."if a solicitor puts himself in a position of having two irreconcilable is his own fault."


   Can client's consent to a lawyer's breach of loyalty and candour ?  Law Society of Ontario Bencher and adjudicator, Mr. Malcolm Mercer stated the following in his piece of the Duty of Candor referenced above:

"Third, candour probably can't be waived.  We know that actual conflicts, as opposed to potential conflicts, can be waived.  Where representation will be materially impaired by a conflict, the conflict is not waivable.  A client can only accept the risk of material impairment.  If clients cannot agree to impaired representation for conflicts, the same should be true for candour.  It follows that clients must have the information required to effectively instruct counsel and act on advice given by counsel. Further, the client must have the information required to assess whether the fiduciary acted properly."

"Consent" Defined:
(LSO Rules of Professional

    means fully informed and voluntary consent after disclosure

(a)   in writing, provided that, where more than one person consents, each signs the same or a separate document recording the consent, or

(b)   orally, provided that each person consenting receives a separate written communication recording their consent as soon as practicable.

*What if the law firm and lawyer are actually acting for the said former client and referring client on an existing matter - making the referring lawyer an existing client ?

About the author:

E.J. Guiste is a trial and appeal lawyer based in the Greater Toronto Area. He defends professionals, judicial officers and students in regulatory proceedings before tribunals and all levels of court on professional misconduct, judicial misconduct and academic misconduct and actions against academic institutions for breaches of the Human Rights Code and other civil wrongs.

Friday, January 12, 2018

SCC Asked to Clarify "Public Member" Requirement for Hearing Panel Quorum under Veterinarians Act

Filed January 3rd, 2018                                                                    Court File No.:  37900

(Appealed from the Ontario Court of Appeal)





TAKE NOTICE that the Applicant Dr. Khawar Hanif  will apply for leave to this Court pursuant to section 40(1) of the Supreme Court Act, R.S.C. 1985, c-S-26, as amended, E.S. 1985 (3rd) Supp., c.34, for an order granting leave to appeal to the Supreme Court of Canada from the order of the Ontario Court of Appeal dated October 27th, 2017, File No. M47895 denying the Applicant leave to appeal the Divisional Court of Ontario’s upholding of one count of professional misconduct, dismissing the other and remitting the matter back to the very same deficient panel, the chair of the panel and “public member” having abandoned her role “to pursue another federal appointment” and the remainder of the panel coming to a split decision on liability and penalty with a strong dissent by the other member who found the entire proceedings to be tainted by bias, to assess penalty and costs.

            TAKE NOTICE that the said application for leave shall be made on the following grounds:

This case is of fundamental importance to all Canadians impacted by self-regulating professional bodies such as the College of Veterinarians of Ontario
in this case on the following five issues of national importance:

Public Interest:

            1.         Is the public member requirement for quorum on
                        self-regulating professional bodies such as that 
                        prescribed by s.28(3.2) of the Veterinarians Act,
                        R.S.O. 1990 c. V.3 mandatory ?

Disability of
a member

            2.         When is a panel member “unable to act” as that 
                         term is used in s.28(6) of the Veterinarians Act  
                         and other like legislation ?


            3.         What role, if any, does s.4.4(1) and (2) of the 
                        Statutory Powers Procedures Act, R.S.O. 1990, 
                        c. 2.22  and similar provincial legislation play in 
                        the face of a mandatory statutory quorum
                        calling for members of the public on the panel ?

Withdrawal of tribunal
members from duty

            4.         Can this court provide guidance on the issue of 
                        when and how persons appointed to tribunals 
                        ought to withdraw from their adjudicative 
                        duties ?

Bias and impartiality
of tribunal

            5.         Did the courts below err in disregarding or 
                        improperly applying binding legal authorities on 
                        the issues of bias and the importance of the 
                        appearance of impartiality before administrative 
                        tribunals ?                                    

                                                Dated at Toronto, Ontario this 24th  day of 
                                                December, 2017

            ERNEST J. GUISTE.                                                                

            E. J. GUISTE PROFESSIONAL CORPORATION                                               
            Trial & Appellate Advocacy                                                              
            2 County Court Blvd., Suite 494                                                   
            Brampton, Ontario                                                                                 
            L6W 3W8
            Ernest J. Guiste (LSO# 34979C)           
(416) 364-8908
            (416) 364-0973 fax                                                                          
                                                            Counsel for the Applicant

                        Barristers & Solicitors
                        401 Bay Street, Suite 2308
                        Toronto, Ontario
                        M5H 2Y4

                        Bernard C. LeBlanc
                        (416) 599-2200
                        (416) 593-7867

                        Solicitors for the Respondent

AND TO:        The Registrar of this Court

NOTICE TO THE RESPONDENT(S): A respondent may serve and file a memorandum in reply to this application for leave within 30 of the date a file number is assigned in this matter.  You will receive a copy of the letter to the applicant confirming the file number as soon as it is assigned.  If no response is filed within that time, the Registrar will submit this application for leave to appeal to the Court for consideration.


Dr. Khawar Hanif, a veterinarian regulated by the College of Veterinarians under the Veterinarians Act, was the subject of two complaints of professional misconduct in and around 2006. One complaint pertained to a cat named Cleo. That complaint alleged that he was physically abusive to Cleo and verbally abusive to Cleo's owner.  Dr. Hanif denied these allegations.  The second complaint involved his treatment and diagnosis of a dog named Scully. That complaint alleged that Dr. Hanif misdiagnosed Scully.

The Discipline Committee of the College of Veterinarians of Ontario brought these complaints for adjudication before a Hearing Panel in 2007. That hearing started off with a three member panel which ultimately was reduced to two members on account of one member stepping down on account of concerns of conflict of interest.  By order dated March 2nd, 2010 the hearing pane acquitted Dr. Hanif of the two substantive complaints involving Cleo and Scully following eleven days of hearing.

The College of Veterinarians of Ontario appealed Dr. Hanif's exoneration by the hearing panel to the Divisional Court pursuant to the enabling legislation. By order dated February 28, 2011 the Divisional Court overturned the decisions exonerating Dr. Hanif and remitted the matter back for reconsideration before a new hearing panel.

On the court-ordered rehearing a panel composed of four members which included the chair of the Discipline Committee and the President of the College of Veterinarians heard the case again over the course of sixteen days between February 2012 and February 2013.  After hearing the majority of the case as chair of the hearing panel - the "public member" withdrew from the panel and resigned her public appointment with the College "to pursue a new Federal appointment."

The hearing proceeded with the remaining three panel members over objections by Dr. Hanif that the panel had lost jurisdiction on account of the resignation of the "public member" from the hearing panel.  Under s.28(3) of the Veterinarians Act the chair of the Discipline Committee may appoint members to hearing panels, one of whom is a person whom the Lieutenant Governor in Council has appointed. In this case the person who stepped down was this "public member". She was both the chair of the Discipline Committee and the hearing panel which was originally to adjudicate the case.

The reduced hearing panel released a split decision on liability and penalty.  The majority composed of the President of the College and a veterinarian now found Dr. Hanif liable on both complaints and ordered him to pay $73,000 in costs to the College.  The minority member, himself a veterinarian not only dismissed the complaints against Dr. Hanif but found that the entire proceedings against Dr. Hanif was tainted by bias and that the College was acting contrary to its public mandate in the manner in which they dealt with Dr. Hanif.

Dr. Hanif exercised his right to appeal to the Divisional Court.  The Divisional Court allowed his appeal on the Cleo complaint but upheld the complaint involving Scully the dog.  The Divisional Court then sent the issue of penalty and costs back to the same hearing panel for reconsideration.

Dr. Hanif sought leave to appeal from the Ontario Court of Appeal.  Leave to appeal was denied October 27, 2017.

Commentary and Analysis:

Self governing professions maintain that they act in the public interest.  Their mandate it is said is to protect the public.  When the Lieutenant Governor in Council appoints a public member to sit on a public body it stands to reason that the rationale behind this is to infuse some degree of public input into the discharge of that statutory body's mandate.

When persons so appointed "willy nilly" abandon their adjudicative duties "to take up a new federal appointment"it can not be that the public interest and justice is served by this.

If the appointment of "public members" to administrative tribunals like the College of Veterinarians is merely "window dressing" to appease the public and to make the statutory actors feel good about themselves the SCC ought to give all of us guidance on this important issue. If that is not an issue of public importance then perhaps the issue of when and in what circumstances person appointed to sit on administrative bodies may abandon their adjudicative duties is. Withdrawing from such an appointment during a hearing does little to enhance public confidence in such tribunals and negatively tarnishes the tribunal's appearance of fairness and transparency. 

About the author:

Ernest J. Guiste is Catholic lawyer of African-Canadian racial background based in the Toronto area.  He practice involves both civil and criminal litigation at all levels of courts and  administrative tribunals.  The article is published here solely to draw attention to an issue of public importance, namely, the role of government appointed "public members" to administrative tribunals and the circumstances in which such appointees and others so appointed may withdraw from their adjudicative duties and the consequences for so withdrawing.  If a judge seized with hearing a case can not abandon a case without consequence then why ought a person appointed by the Lieutenant Governor in Council be so entitled ?

Monday, January 1, 2018

Racism and Inequality in Ontario's Legal System Remains a Major Problem in 2018

   The following is a list of significant events in Ontario's history on the subject matter.

- March 29, 1961 Ontario Human Rights Commission(OHRC) established under Conservative government led by The Hon. Leslie M. Frost

- 1988-89 Chief Commissioner of the OHRC's, term of office comes to an end amidst allegations that African-Canadians unfairly being denied career opportunities at the OHRC

- 1993 - NDP government established Commission of Inquiry into Systemic Racism in Ontario's Criminal Justice System. 

- November 1995 - The Commission's 400 page plus report is easily the most comprehensive and authoritative report on the subject matter in the province's history and perhaps anywhere in the world. However, the recommendations and findings of this important report which clearly outlines the significant and troubling inequities faced by African-Canadian(Blacks) in Ontario's criminal justice system have been shelved by subsequent governments.

- 2003 - Court of Appeal renders decision in R  v. Brown 2003 Canli 52142 upholding the acquittal of an African-American motorist whose stop by police was fount to be tainted by a racial animus. The court went on to state: "A racial profiling claim could rarely be proven by direct evidence.  This would involve an admission by a police officer that he or she was influenced by racial stereotypes in the exercise of his or her discretion to stop an motorist.  Accordingly, if racial profiling is to be proven it must be done by inference drawn from circumstantial evidence".

- 2008 - (Liberal)Government of Ontario overhauls human rights complaint process in Ontario divesting the OHRC of its investigatory powers and prosecutorial carriage of complaints to a complainant driven system where the Human Rights Tribunal of Ontario mediates and adjudicates complaints.

- March, 2012 - (Liberal)Government of Ontario appoints high profile human rights lawyer, Mr. Andrew Pinto to review the performance of the new human rights adjudicative process in Ontario.

African-Canadians and other impacted communities did not hold back in voicing their concerns regarding the flaws in the new system as is evidenced in the piece by this writer quoted below.

Excerpts from "African Canadians - Call for Overhaul of "Broken" Human Rights Adjudicative Process (March 17th, 2012 - E.J. Guiste on Law and Justice)

"Margaret Parsons, Executive Director of the African Canadian Legal Clinic, pointed out that race and disability complaints represent the clear majority of complaints to to the Tribunal yet a significant number of these complaints are being summarily dismissed without a hearing on their merits.  Ms. Parson pointed to a number of reasons for this unfortunate reality which included the following;

1.  Inadequate training and expertise of staff at the HRTO Support Centre with race and disability complaints which lead to "knee jerk" conclusions that complaints have no merit thereby leaving many complainants without legal representation;

2.   The Government's decision to dispense with the investigative function formerly carried out by the Ontario Human Rights Commission has resulted in an inordinate number of complaints based on race lacking the evidentiary basis to establish a prima facie case; and

3.   The lack of coverage from Legal Aid Ontario for complainants even though many of the complainants can not afford legal representation.

- April, 2015 - Government of Ontario removes African-Canadian Justice of the Peace Errol Massiah from office by Order-in-Council relying on a recommendation by a Hearing Panel of the Justices of the Peace Review Council who found that he "acted in a manner inconsistent with the Human Rights Code" even though management witnesses he called at the hearing testified that he was well-received by the staff and that if a poisoned work environment existed it was not caused by him.

- November 30th, 2017 OHRC launches public interest inquiry into racial profiling and racial discrimination by the Toronto Police Service".


1.  From 1993 to 2017 the OHRC remained silent on racial profiling and the pervasive and troubling problem of Anti-Black racism plaguing all facets of Ontario's public sectors.

   The problem of anti-Black racism in Ontario is so evident and pervasive prompting this writer to write a piece on this blog entitled, "I Have Never Seen An African-Canadian Firefighter in Canada: Impediments to Equality in Recruitment" (March 11th, 2012) The point of the piece being that African-Canadians are shut out of employment and professional opportunities in Ontario on account of their race. The writer being one of two lawyers of African-Canadian descent in the whole history of Ontario to have represented a judicial officer in a judicial misconduct hearing.*  The writer being the only lawyer in the entire British Commonwealth and likely beyond to have been reported for discipline for advocating against bias and procedural irregularities in the complaint and adjudication process.(see JPRC - Re A Complaint Against H.W. Massiah 2015 and Decision on Compensation and Addendum - June, 2015)

2.  The OHRC inquiry comes 24 years after the ground-breaking comprehensive Report of the Commission of Inquiry into Systemic Racism in Ontario's Criminal Justice System and 14 years after the Court of Appeal for Ontario's ruling in R  v.  Brown Canli 52142 acknowledging racial profiling as a violation of a defendant's rights under section 9 of the Canadian Charter of Rights and Freedoms.

3.   Although racial profiling is not restricted to Toronto and the Toronto Police Service the OHRC has elected to restrict its inquiry to the Toronto Police Service.


   Ontario can and must do much better.  Enough said - action is required now.

*If anyone has information to refute this please bring it to my attention and I will correct this statement.