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."

No comments:

Post a Comment