Saturday, February 24, 2018

JP Counsel's Evidence on Why Human Rights Code Interpretation Error Not Raised in Divisional Court Reveals JP Not Heard on Fundamental Issue

JP's Rule 59 Motion

The Motion is for:

1.   An order amending, setting aside, varying or suspending the Divisional Court's order of October 4th, 2016 upholding the findings of judicial misconduct and the recommendation to the Attorney General for the Applicant's removal from judicial office by a Hearing Panel of the Justices of the Peace Review Council and Order in Council 546/2015 dated April 29, 2015;

4.   An order declaring the said Appellate Counsel to have provided ineffective counsel to the Applicant thereby depriving the Applicant of his constitutional right to a fair and impartial hearing of the review by a Superior Court of his removal from judicial office;

11(2)   Applicant's counsel: overlooked or refused to take the Applicant's instruction to challenge the Hearing Panel's error in its interpretation and application of the Human Rights Code principles of "vexatious", "unwelcome" and "poisoned work environment".

JP's Affidavit Sworn 
Nov. 22nd, 2017:

(51)    Although Presenting Counsel's Notice of Hearing, her written submissions to the Hearing Panel and the Hearing Panel's Decisions on Liability and its Decision on Jurisdiction and Alleged Abuses of Process founded the allegations of judicial misconduct against me on the Human Rights Code, the record of proceedings filed in this court does not reflect the place of the importance which the interpretation and application of the Code played in those decisions and was not addressed in this court despite my wishes.

JP's Affidavit Sworn
Dec.10th, 2017:

Judicial Misconduct
Grounded on Human
Rights Code:

(14)   Liability for judicial misconduct in my case before the JPRC was expressly based on the Human Rights Code of Ontario and indeed in their Decision on liability the Hearing Panel expressly found at paragraph 207 that I acted in a manner inconsistent with the Code.

(15)   The three first authorities relied upon by Presenting Counsel in their Book of Authorities on liability were three human rights cases including the Supreme Court of Canada's seminal decision in Janzen  v.  Platy Enterprises Ltd. [1989] 1 S.C.R. 1252.  Attached to this my affidavit and marked as Exhibit "C" is a true copy of the Index from Presenting Counsel's Book of Authorities on the liability phase of my hearing.

Appellate Counsel's 
Involvement at 
First Instance:

(16)   The areas in which appellate counsel assisted me during my hearing before the JPRC Hearing Panel was on the interpretation and application of the Code, my bias motion and my jurisdiction and abuse of process motion.

Test for "Vexatious", 
"Unwelcome" and "Poisoned
Work Environment":

(17)   The Notice of Hearing issued against me by the JPRC alleged that I made "vexatious", "unwelcome" comments to individuals and that I created a "poisoned work environment" for court staff.  This was an area where appellate counsel assisted my lawyers at first instance and supported their position that the adjudication of this conduct called for an objective test.  Attached to this my affidavit and marked as Exhibit "D" is a true copy of an e mail chain wherein appellate counsel affirmed his agreement on this legal point.

Exhibit "C"

Presenting Counsel's Book of Authorities

1.  Smith  v.  Menzies Chrysler, 2009 HRTO 1936
2.  Janzen  v. Platy Enterprises Ltd. [1989] 1 S.C.R. 1252
3.  Professional Institute of the Public Service of Canada   v.  Communications, Energy and Paperworkers' Union of Canada, Local 3011, 2013 ONSC 2725 (Div Ct.)

Exhibit "D"  

E mail - appellate counsel to - Sunday, September 21, 2014 10:28 PM

I agree that the conduct must be unwelcome.  Some conduct will be acceptable regardless of the reaction of an oversensitive complainant.  Conversely, some conduct will be harassment even
though there is no overt objection by a stoic or unperceptive complainant.  In the middle is conduct where the reaction of the complainant will be largely determinative of whether it is harassment.

Appellate Counsel

Affidavit Affirmed
Jan. 3rd, 2018:

(36)   The applicant raised certain arguments about whether his conduct constituted sexual harassment.  He made these submissions, unsuccessfully, before the Hearing Panel, despite my advice as mentor to Mr. Guiste at the time.  The applicant and Mr. Guiste initially wanted to raise the same arguments on judicial review. I disagreed.

(37)   On September 22, 2015, I provided a written opinion outlining the problmes with advancing the failed human rights arguments.  A copy of my written opinion dated September 22n, 2015 is marked as Exhibit "F" to this affidavit.

Exhibit "F"

September 22, 2015

Dear Mr. Massiah:

I understand from my associate, Hayley Peglar, that you have requested further clairity regarding our opinion about arguments relating to the Ontario Human Rights Code (the "Code") and human rights/employment law jurisprudence advanced by your counsel before the Hearing Panel in this matter.

In our view, these arguments stand little chance of success.  The proceeding before the Hearing Panel was a judicial misconduct proceedings pursuant to the Justices of the Peace Act, and not an adjudication under the Code or a proceeding seeking damages in relation to Code violations.  The limitation period applicabale to a proceeding under the Code has no application to proceedings before the Justice of the Peace Review Counsel(sic) and cannot be used to bar a complaint regarding the conduct of a justice of the peace.  Where there are legitimate arguments concerning delay between the events in question and the ultimate hearing of the matter, these issues are separate and distinct from any limitations analysis involving the Code.

The hearing Panel's reference to the Code jurisprudence to contextualize and ground its analysis regarding the presence of a poisoned work environment does not import the limitation periods under the Code into the proceeding.  This jurisprudence appears to have been used by the Hearing Panel to consider whether the alleged conduct amounted to sexual harassment or judicial misconduct.  In our view there is nothing improper with this approach.

Similarly, there is no requirement that the individuals in question pursue remedies through their union and the associated grievance procedure before bringing a complaint to the JPRC.  First, the complainant in this case was found to be Doug Hunt.  Mr. Hunt was not subject to the various human rights policies in place or any collective agreement governing the court at 605 Rossland Road East.  Second, the individuals who raised individual complaints about your comments or conduct toward them were not required to pursue grievances or otherwise report the alleged harassment in accordance with any human rights policies in place. These individuals are not seeking personal remedies via the complaints process, and whether they are or are not entitled to a personal remedy is at most, tangentially related to the severity of the alleged judicial misconduct.

Finally, I note that these arguments were raised and rejected by the Hearing Panel in both the first and second proceeding.  These arguments were not challenged in the judicial review of the first proceeding.

Yours truly,

Appellate Counsel.

JP's Submission
to JPRC Hearing 


(a)   Unwelcome

The first essential element of the test is to determine whether the conduct was desired or solicited.  As stated by Professor A. P. Aggarwal in his book Sexual Harassment in the Workplace, this is essential because "sexual conduct" becomes unlawful only when it is unwelcome.  Obviously consensual relationships, by definition, cannot be regarded as harassment.  In order to determine if the conduct is welcome or unwelcome, the Tribunal will look to the complainant's reaction at the time the incident occurred and assess whether she expressly, or by her behaviour, demonstrated that the conduct was unwelcome.  If the evidence shows that the complainant welcomed the conduct, the complaint will fail.

CHRC   v.  Canadian Armed Forces, 1999 Canlii 18902 (FC)

(26)  At the time the events now objected to, no one complained that they were unwelcome; no one informed management that the workplace was being poisoned or that they were being discriminated against.  Justice Massiah testified that he felt generally well received by the staff of the courthouse, and his testimony to this effect was supported by other witnesses such as Supervisor D and Ms etc.

(27) The question arises whether Justice Massiah "ought to have known that the comments and behaviour were unwelcome" as the statutory definition requires.

(28)   As Cronk, J.A.  stated for the Ontario Court of Appeal:

[66]   Workplaces become poisoned for the purpose of constructive dismissal only where serious wrongful behaviour is demonstrated.  The Plaintiff bears the onus of establishing a claim of a poisoned workplace.  As the trial judge recognized, the test is an objective one.  A Plaintiff's subjective feelings or even genuinely-held beliefs are insufficient to discharge this onus. There must be evidence that, to the objective reasonable bystander, would support the conclusion that a poisoned work environment had been created.

[67]   Moreover, except for particularly egregious, stand-alone incidents, a poisoned workplace is not created, as a matter of law, unless serious wrongful behaviour sufficient to create a hostile or intolerable work environment is persistent or repeated:  Bobb at para 85087; Canada (Canadian Armed Forces: (Re Frandke at paras 43-46.

General Motors of Canada Limited   v.  Johnson 2013 ONCA 502(Canlii)

Presenting Counsel's 
Submissions on Liability
to Hearing Panel:


[205]  Presenting Counsel submits that, as set out above, the evidence supports a finding that His Worship engaged in a course of conduct, including comments and conduct, towards female court staff, prosecutors and defendants that was known or ought to have reasonably been known to be unwelcome or unwanted, and the conduct resulted in a poisoned work environment that was not free of harassment.

[206]   ....In Presenting Counsel's submission, this pattern of conduct meets the Janzen definition of sexual harassment in that it was "unwelcome conduct of a sexual nature."

Critical Omission
in Hearing Panel
Liability Finding:

The JPRC Hearing Panel failed to address the following points of law in arriving at their liability finding:

1.  Were the Code allegations raised in the Notice of Hearing part of a complaint made in writing to the JPRC and investigated by a Complaints Committee ? (If not - can not hear them)

2.  Assuming that they were - Was the conduct "vexatious" as the Divisional Court and the Court of Appeal for Ontario have defined this term in this context ?

3.  Were the words or behaviour "unwelcome" as the Divisional Court and the Court of Appeal for Ontario have defined this term in this context ?

3.  Did JP Massiah create a "poisoned work environment" as the Divisional Court and the Court of Appeal for Ontario have defined this term ?

Observations and Analysis:

The Notice of Hearing, Presenting Counsel's submissions on liability, Presenting Counsel's Book of Authorities on the liability phase of the hearing, JP Massiah's written submissions on liability and the 2012 Hearing Panel's liability Decision all make it abundantly clear that the judicial misconduct in this case was grounded on the Human Rights Code. Presenting Counsel's Notice of Hearing asserted that JP Massiah's acts were "vexatious", "unwelcome" and that they caused a "poisoned work environment" in the workplace.

Appellate counsel is clear in his affidavit that his client wanted him to raise "certain arguments about whether his conduct constituted sexual harassment."  "I provided an opinion outlining the problems with advancing the failed human rights arguments."

Appellate counsel's written opinion to JP Massiah does not address the 2012 Hearing Panel's interpretation and application of the Code concepts of "vexatious", "unwelcome", and "poisoned work environment".  It addresses only two of several points raised by JP Massiah regarding the Code before the 2012 Hearing Panel.  Those two points are the argument that the Code limitation period ought to apply to the subject JPRC proceeding.  The other point was that complainants/witnesses ought to have employed the collective agreement and workplace harassment policies available to them.  If the opinion copied above is the basis for appellate counsel's claim that his client agreed with his advice then once again it appears that he may have failed to candidly address all of the facts with the client which would enable him to provide an informed decision on his advice.

The problem with JP Massiah's prosecution in this case is that for some reason JP Massiah's alleged judicial misconduct was firmly grounded in the Human Rights Code but he, unlike all other Ontarians, was denied the right to assert the defences provided by the Code. Although Presenting Counsel clearly asserted in both her Notice of Hearing and written submissions on liability that "this pattern of conduct meets the Janzen definition of sexual harassment in that it was "unwelcome conduct of a sexual nature" she strenuously argued that JP Massiah "continues to try to justify clearly inappropriate conduct".

In the absence of a complete version of the record of proceedings before the Divisional Court and appellate counsel's failure to raise the 2012 Panel's error in interpreting and applying the Human Rights Code language of "vexatious", "unwelcome" and "poisoned work environment" the Divisional Court's order in upholding the findings of liability as reasonable undeniably points to a less than fair, full and impartial hearing of JP Massiah's review of his removal from the Bench by a Superior Court.

NOTE:  This piece is published here to comment on an issue of public importance.  The Human Rights Code is quasi-constitutional legislation which must apply to all Ontarians consistently and in accordance with the law of the Province of Ontario.  JP Massiah is entitled to all of the defences available to Ontarians in defending allegations of judicial misconduct which were clearly founded on the Human Rights Code by Presenting Counsel after the Complaints Committee concluded its investigation.(see Appellate Counsel's Factum filed with ONCA)

The suggestion that JP Massiah had no defence to the allegations brought against him by Presenting Counsel's Notice of Hearing can only reasonably be made in the absence of a review of the full record of proceedings and not the abbreviated version which made its way before the Divisional Court in error.  Furthermore, the 2012 Hearing Panel's failure to properly adjudicate the preliminary motions advanced by JP Massiah, most particularly on his motions asserting bias and the jurisdiction and abuse of process meant that a judicial officer was compelled to answer to a Notice of Hearing which as appellate counsel properly recognized at the outset of his retainer - had a lack of commonality with the complaint.

It is the duty of the Attorney General for Ontario to uphold the law in Ontario.

About the author:

E.J. Guiste is a Catholic, African-Canadian lawyer based in the Greater Toronto Area.
He is counsel to JP Massiah on both the Divisional Court rehearing of his claim for
indemnification from the Attorney General for defending his office and his Rule 59 motion before the Divisional Court seeking to set aside that court's order upholding his removal from judicial office.

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