Thursday, February 22, 2018

JP's Bias Factum and Appellate Counsel's Affidavit on Rule 59 Motion Reveal Serious Issues Not Adjudicated by Divisional Court

Excerpts from JP Massiah's
Factum before JPRC 
Hearing Panel:

1.  (ii)   Do the particular facts with respect to the intake, investigation and adjudication of this matter give rise to a reasonable apprehension of bias ?

(iii)   Did the Chair of the Review Council have jurisdiciton to replace Ms. Blight from the Hearing Panel and if so - does this remedy concerns of reasonable apprehension of bias ?

(iv)   Do the matters raised in the Notice of Motion and supporting affidavit establish a reasonable apprehension of bias by the Hearing Panel ?

Presenting Counsel

[15]   "Presenting Counsel" is the name given to the lawyer retained by the Review Council to prosecute the case before the Hearing Panel....

[16]   It is Presenting Counsel who prepares the Notice of Hearing.

[17]   It is clear on the face of the Notice of Hearing that the 14 counts alleged go beyond the proper ambit of any complaint which could be said to have been received by the Review Council.


[18]   In a letter dated January 14th, 2014 Presenting Council clearly and unequivocally stated that the "complainants" in this case are the witnesses who are expected to testify about the alleged misconduct by His Worship" in response to a specific question as to who was the complainant in this matter.

[19]   On April 19th, 2014 Presenting Counsel made the following submissions to the Hearing Panel on the writing requirement and who was the complainant:

"So our position in respect of s.10.2 is very simple.  There was a complaint, it was by a person and it was in writing, and a complainant is the person who puts the complaint in writing to the Justices of the Peace Review Council, in that case, in this case that was Mr. Hunt.  The people who were later
interviewed are the witnesses."

[20]   In their factum dated July 19th, 2013 Presenting Counsel made the following submission to the Hearing Panel on the issue of non-compliance by the complaints committee with the Requirements of s.10.2(3):

"In any event, even if the Review Council finds that there was not technical compliance with the in-writing requirement or the direction contemplated under s.10.2(3), Presenting Counsel submits that any non-compliance is minor and should not result in the loss of jurisdiction."

[22]  At paragraph 21 of their March 13th, 2014 submissions to the Hearing Panel Presenting Counsel made the following submission:

"A true jurisdictional defect in the chain of proceedings resulting in the hearing would arguable entitle the Panel to decline to conduct a hearing on the merits....So too in this case, the Hearing Panel, would arguably be entitled to find that a jurisdictional defect in the process leading to the hearing deprived it of jurisdiction or amounted to an abuse of process."

[24]   On April 9th, 2014 Presenting Counsel made the following submission of law to the Hearing Panel on s.11.1(1):

"So this is a mandatory provision.  The hearing is mandatory when a complaints committee makes that disposition, which it did in this case.  It does not contemplate any review of how the complaints committee came to that disposition or whether it was reasonable and fair in doing so. It does not give the Hearing Panel any ability to second-guess the disposition that was made by the complaints committee."

Error in Legal Submission
To Hearing Panel by
Presenting Counsel:

[23]   At paragraph 24 of their March 13th, 2014 submissions Presenting Counsel made the following erroneous legal submission to the Hearing Panel regarding the legal holding in Hryciuk   v.  Ontario 31 O.R. (3d) 1 (ONCA):

"...If the statutory scheme was complied with - i.e. a person made a written complaint to the Council; the complaint was investigated by a complaints committee; the complaints committee determined that as a result of its investigation that there were allegations of judicial misconduct which had a basis in fact which, if believed, could result in a finding of judicial misconduct; the particulars of the allegations against the respondent which would be the subject of the hearing were set out in a Notice of Hearing; and the Complaints Committee had jurisdiction to order those allegations to a hearing - then the Hearing Panel can be satisfied that it has the jurisdiction to proceed to hear the evidence in relation to those allegations."

Missing from Presenting Counsel's
Hryciuk Instruction to the JPRC

At no time during the proceedings does Presenting Counsel ever clearly inform the Hearing Panel that their jurisdiction to entertain complaints regarding JP Massiah's conduct is limited to complaints made to the Review Council in writing which were subsequently investigated by a Complaints Committee who then referred them for hearing.  This is precisely what Madame Justice Abella held in Hryciuk  v.  Ontario 1996 Canlii 4013 (ONCA).  By prefacing the instruction with "if" this and that - "then the hearing panel can be satisfied that it has the jurisdiction to proceed to hear the evidence in relation to those allegations" it invited speculation on this crucial point. It may have also confused the Hearing Panel when followed up by the submission that holding the hearing was mandatory and that they had no jurisdiction to overrule the Complaints Committee.

Surprisingly, Presenting Counsel and the Hearing Panel relied upon the decision which was overturned by the Court of Appeal in Hryciuk surpa on the penalty phase of the hearing.

JP Massiah raised
Hryciuk supra as a
bar to jurisdiction and
abuse of process:

On the other hand, JP Massiah clearly advised the JPRC Hearing Panel very early in the process that the Notice of Hearing drafted by Presenting Counsel goes beyond the ambit of anything which could be considered a complaint to the Review Council in both his Jurisdiction and Abuse of Process Motion and his Bias Motion.

JPRC Hearing Panel Undertook 
to Address Some Issues in "Due
Course" and others During
the Abuse of Process Motion:

Presenting Counsel's Conduct

[55]   ....Submissions from Presenting expressing concern that the public's confidence and the public interest may be impacted by events taking place during the judicial disciplinary process would not exceed his or her jurisdiction, and will be assessed in due course by this Hearing Panel.

[56]    The Applicant has filed another motion that there was no valid complaint and that there has been an abuse of process ("Motion for Abuse of Process").  The Applicant has inserted some of the grounds in that motion in his factum on this motion.  A decision from the Panel is pending on its jurisdiction to consider the grounds raised in the Motion for Abuse of Process.  It would, therefore, be inappropriate for the Panel to proceed to adjudicate upon grounds raised in the Motion for Abuse of Process as if that decision were not pending.

Hryciuk Error Flowing
from Presenting Counsel's
Notice of Hearing Unaddressed
by JPRC Hearing Panel:

The legal argument by JP Massiah that the Notice of Hearing drafted and filed by Presenting Counsel in his hearing exceeded anything that could be considered a complaint to the JPRC was never adjudicated by the 2012 Hearing Panel.  The closest that Hearing Panel comes to addressing this question is to say in it's Decision of Jurisdiction and Alleged Abuses of Process the following:

[67]   We further conclude that the Complaints Committee had the authority to consider the new allegations in those transcripts within its mandate under s.11(7) of the Act and pursuant to the ruling in Sazant (supra), as an extension of the complaint filed by Mr. Hunt.

This addresses part of JP Massiah's articulated concerns about the impropriety of the Notice of Hearing which the Hearing Panel clearly understood to be a bar to jurisdiction when it wrote the following in it's Decision on Jurisdiction and Alleged Abuses of Process:

[6]   Counsel for His Worship argued that the legislative requirements under s.10.2 of the Act were not followed at the time of the purported complaint(s).  As well, His Worship was of the view that the Complaints Committee exceeded its authority in the investigations it undertook.  In addition, His Worship submitted that the Notice of Hearing was improper.  If any of these concerns proves to be valid, then this Panel would not have jurisdiction to proceed.

Parties Before Divisional
Court Likewise Do Not
Address the Hryciuk Error
on the Face of the NOH:

Although the Notice of Application for Judicial Review at paragraph 3(v) filed with the Divisional Court clearly raises the Hryciuk error on the face of the Notice of Hearing drafted by Presenting Counsel this issue is not pursued by JP Massiah's appellate counsel.

Presenting counsel made two references to Hryciuk supra in her factum before the Divisional Court. The first reference is found at p.22 of her factum. She pointed out that "Out of reasons for fairness to the Applicant, the new investigation and hearing could not proceed until the prior hearing had been completed in April, 2012."  The second reference was to justify the increased penalty from the first proceeding.  Presenting Counsel wrote the following in her Divisional Court factum:

[78]  This was an entirely reasonable approach.  To pretend as if the first hearing had never happend would be to give the Applicant an undeserved windfall owing to the fact that the two hearing happened to proceed separately.  Holding separate hearing was, under the Court of Appeal's holding in Hryciuk, necessary in order to accord the Applicant procedural fairness in light of the Whitby allegations having arisen which the first hearing was already underway. But there is no reason why this manner of proceeding should preclude the second panel from weighing the first panel's findings in its assessment of the appropriate disposition to restore public confidence in the judiciary.

The Attorney General for Ontario and the Executive Council of the Legislative Assembly, who were the responding party in Hryciuk did not address the Hryciuk error in their factum.

Divisional Court Decision
Understandably Silent
on Hryciuk etc.:

Not surprisingly the Divisional Court decision makes no reference to the following legal authorities from the Court of Appeal for Ontario made reference to by the JPRC Hearing Panel in its Decision on Jurisdiction and Alleged Abuses of Process:  1. Hryciuk  v.  Ontario;  2.  Ontario College of Pharmacists  v.  Neil Katzman and 3. Sazant  v.  The College of Physicians and Surgeons of Ontario.

The Divisional Court did not adjudicate on the Hryciuk error on the face of the NOH drafted by Presenting Counsel.

Hryciuk Error Raised
For First time on 
ONCA Leave Motion
Without Objection:

JP Massiah's Factum

[9]  The JPRC's factum at paragraphs 36 and 37 mistates His Worship's position and the specific findings of the 2012 Panel that violated the Hryciuk decision of this court.

[10]   The JPRC does not mention Hryciuk at all in responding to paragraphs 17, 24, 25 and 61 to 70 of the moving party's factum.  The JPRC asserts, however, that the only evidence put forward by the moving party and mentioned by the 2012 Panel is Ms.  M's, recounting how the low cut blouse of a female human resources official, and His Worship's attention to it, made her feel uncomfortable.

[11]   This is one category of allegation that was not screened by the Complaints Committee, regardless of whose witness gave evidence "unexpectedly" about it.

[12]   Paragraphs 24 and 25 of the moving party's factum cite specific allegations that were dismissed by the Complaints Committee and then admitted in evidence and relied upon by the 2012 Panel.

[13]   Paragraphs 17, 61 and 62 of the moving party's fctum cite at least seven broad, general allegations that were introduced by Presenting Counsel in the notice of hearing for the first time after the investigation by the Complaints Committee, and on which the 2012 Panel made findings of misconduct.  

Appellate Counsel's
Affidavit of January
3rd, 2018:

(46)   ...I advised the applicant that his case was not like Hryciuk, and that the decision of the Court of Appeal in Sazant   v.  The College of Physicians and Surgeons of Ontario, 2012 ONCA 727 applied squarely to his circumstances.

(47)    The applicant felt that Hryciuk applied to prevent the JPRC from considering anything that was not specifically stated in the Hunt Report.  I explained to him that in his case, unlike Hryciuk, he had notice of all of the allegations in the five volumes of transcripts from the investigation.  Accordingly, it was my view that the Hryciuk case would not apply, and that the issue would be determined in accordance with Sazant.

(50)   I did not refer to the Hryciuk case in the Divisional Court, because the facts of the case were completely distinguishable, and because I was concerned about the application of the Sazant case.  These considerations were different on the motion for leave to appeal, as I believed that it might be possible that the Court of Appeal would find a conflict in the law between its decisions in Hryciuk and Sazant, and that this would be a basis for granting leave to appeal.*

(51)   ....The applicant approved of the final version of the factum, which reflected my advice on the Hryciuk arguments and on other issues.

Key Observation:

Appellate counsel does not cite or make reference to Sazant (surpa) anywhere in his leave to appeal facta to the Court of Appeal.  *In leave to appeal motions it is a ground for leave and indeed a part of the Rules of Civil Procedure dealing with motions for leave to appeal interlocutory orders to show that there are conflicting decisions on a point of law.  If this is the advice that appellate counsel provided and the client agreed to it - there is most clearly a lack of congruence between that advice and agreement and what appellate counsel actually put before the Court of Appeal in his facta and what he failed to put before the Divisional Court.  If it doesn't apply at Divisional Court how can it apply on a leave to appeal motion before the Court of Appeal ?  Why wasn't the conflict between Hryciuk and Sazant which appellate counsel deposes in his affidavit that he advised JP Massiah about raised in the facta before the Court of Appeal ?

NOTE:  This piece is published here to draw attention to an issue of public importance. Members of the public in Ontario rely upon lawyers to advise them on law and to represent them in legal proceedings.  In order for the administration of justice to function members of the public place great trust in their lawyers to guide them. A client's approval or agreement to a lawyer's advice is only as good as the advice itself.

About the author:  E.J. Guiste was lead counsel to JP Massiah at the proceedings before the JPRC Hearing Panel which started in June, 2013 and concluded in June, 2015.  Following the Divisional Court judicial review hearing he acted for JP Massiah on the compensation rehearing for some 13 months before the "depleted version" of the 2012 Panel decided that they could not decide the compensation issue.  E.J. Guiste is now counsel for JP Massiah on a Rule 59 motion where he has been instructed to seek to have the Divisional Court's order of October 4th, 2016 upholding JP Massiah's removal from office be set aside, on among other grounds, ineffective assistance of counsel.

No comments:

Post a Comment