13 months after the Divisional Court ordered the Justices of the Peace Review Council's (JPRC)2012 Panel to rehear JP Massiah's claim that the Attorney General of Ontario indemnify him for his costs in defending the legal proceedings initiated against him, that portion of the proceeding continues to be delayed by serious procedural irregularities. They include the following:
1. The Chair of the original Hearing Panel, Justice Livingstone, a per diem judge of the Ontario Court of Justice "fully retired" in August, 2016 and the parties before the Divisional Court failed to inform the court of this material fact.
2. The two remaining members of the 2012 Panel sat on the case for 13 months before coming to the lamentable conclusion that they were unable to come to a decision on compensation. That is correct they were unable to decide the compensation issue they said. Clearly, their two member status did not prevent them from dismissing at least 3 motions, including a Constitutional Question raised before them.
3. By letter dated December 19, 2017 the Registrar and Counsel to the JPRC advised the parties that Chief Justice Maisoneuve appointed a "newly constituted" Hearing Panel chaired by Justice Lahaie of the Ontario Court of Justice.
4. In the above-noted letter, the Registrar and Counsel for the JPRC states, "The Panel will have available to it the same materials available to the Panel that preceded it, including the decision of the Divisional Court, transcripts of the hearing, and decisions rendered during the hearing.
JP Massiah's Response
Dated Dec.19th, 2017
5. The following response was submitted on behalf of JP Massiah:
1. JP Massiah desires an opportunity to provide viva voce evidence to the Hearing Panel;
2. The constitutional defect in the enabling legislation makes any recommendation a hallow and ineffective remedy when compared to the Courts of Justice Act which applies to judges -- the AG must follow that recommendation. The AG need not follow any recommendation here. This is a very serious problem.
3. Presenting Counsel also has no role in the issue of compensation under both the Act and the Procedures Document. In fact, in Mr. Massiah's first case you the Registrar did all of the adjudication on this point.
JP Massiah's Request
For Leave to Be Heard
Dated Feb.16th, 2018:
1. JP Massiah sought the new panels leave to review the original record of proceedings to satisfy himself of its completeness;
2. JP Massiah sought leave to be heard from the new Hearing Panel on the question of - How does the Hearing Panel propose we address the fact that the Attorney General for Ontario need not act on any recommendation made on this rehearing ?
3. JP Massiah cautioned the new Hearing Panel that the constitutional defects in the enabling legislation make this process a total waste of public funds in all of the circumstances.
4. "In making this request I am placing reliance on the Procedures Document which expressly calls for independence between Presenting Counsel, the Hearing Panel and the JPRC. It is contrary to the principles of fairness and due process for my client's requests to be pre-screened and effectively adjudicated by a lawyer who retains and instructs Presenting Counsel. I am very sorry but that is the reality."
NOTE: This piece is published here to draw attention to an issue of public importance. All litigants before Ontario's administrative tribunals are entitled to a fair and impartial hearing from an unbiased tribunal. Judicial officers who are parties before such tribunals and in particular this tribunal are entitled to a public hearing and have the right to give viva voce evidence. They also have an unrestricted right to review the tribunal's record of proceedings for completeness and to obtain copies to make their case. Why is JP Massiah being denied these fundamental rights afforded to all other Ontarians ?
About the author: E.J. Guiste is a Catholic, African-Canadian lawyer based in the Greater Toronto Area. He acted for JP Massiah at the initial JPRC hearing. He is currently acting for JP Massiah on the Divisional Court ordered rehearing of the compensation issue and on a Rule 59 motion seeking to set aside the October 4th, 2016 order which upheld his removal from office. Among the grounds being advanced for the setting aside of the order upholding his removal is the failure of his appellate counsel to raise the manifest reasonable apprehension of the bias in the hearing stemming from the following sources: 1. Lack of congruence between the complaint and the Notice of Hearing(NOH) with the NOH containing several particulars not made to the Review Council in any written complaint and not investigated by the Complaints Committee; 2. Presence of Law Society of Upper Canada nominee who ultimately removed herself from the Hearing Panel with an acknowledgement by Presenting Counsel that her continued presence on the Hearing Panel "may be a potential concern about the risk of an appearance of bias if Ms. Blight remains on the Panel." sitting on the Hearing Panel for 7 months thereby tainting the balance of the Hearing Panel; 3. Chief Justice replacing her without statutory jurisdiction to do so; 4. Presenting Counsel exceeding the statutory role prescribed for her office by the JPRC Procedures Document thereby denying JP Massiah a fair hearing; 5. Appellate counsel before the Divisional Court failing to raise bias as a ground for review.
Further Note: It is acknowledged that appellate counsel, Presenting Counsel and the Attorney General for Ontario vigorously and strenuously deny all JP Massiah's claims and assert that he was treated fairly and had a full and fair hearing as is the right of all Ontarians.
1. The Chair of the original Hearing Panel, Justice Livingstone, a per diem judge of the Ontario Court of Justice "fully retired" in August, 2016 and the parties before the Divisional Court failed to inform the court of this material fact.
2. The two remaining members of the 2012 Panel sat on the case for 13 months before coming to the lamentable conclusion that they were unable to come to a decision on compensation. That is correct they were unable to decide the compensation issue they said. Clearly, their two member status did not prevent them from dismissing at least 3 motions, including a Constitutional Question raised before them.
3. By letter dated December 19, 2017 the Registrar and Counsel to the JPRC advised the parties that Chief Justice Maisoneuve appointed a "newly constituted" Hearing Panel chaired by Justice Lahaie of the Ontario Court of Justice.
4. In the above-noted letter, the Registrar and Counsel for the JPRC states, "The Panel will have available to it the same materials available to the Panel that preceded it, including the decision of the Divisional Court, transcripts of the hearing, and decisions rendered during the hearing.
JP Massiah's Response
Dated Dec.19th, 2017
5. The following response was submitted on behalf of JP Massiah:
1. JP Massiah desires an opportunity to provide viva voce evidence to the Hearing Panel;
2. The constitutional defect in the enabling legislation makes any recommendation a hallow and ineffective remedy when compared to the Courts of Justice Act which applies to judges -- the AG must follow that recommendation. The AG need not follow any recommendation here. This is a very serious problem.
3. Presenting Counsel also has no role in the issue of compensation under both the Act and the Procedures Document. In fact, in Mr. Massiah's first case you the Registrar did all of the adjudication on this point.
JP Massiah's Request
For Leave to Be Heard
Dated Feb.16th, 2018:
1. JP Massiah sought the new panels leave to review the original record of proceedings to satisfy himself of its completeness;
2. JP Massiah sought leave to be heard from the new Hearing Panel on the question of - How does the Hearing Panel propose we address the fact that the Attorney General for Ontario need not act on any recommendation made on this rehearing ?
3. JP Massiah cautioned the new Hearing Panel that the constitutional defects in the enabling legislation make this process a total waste of public funds in all of the circumstances.
4. "In making this request I am placing reliance on the Procedures Document which expressly calls for independence between Presenting Counsel, the Hearing Panel and the JPRC. It is contrary to the principles of fairness and due process for my client's requests to be pre-screened and effectively adjudicated by a lawyer who retains and instructs Presenting Counsel. I am very sorry but that is the reality."
NOTE: This piece is published here to draw attention to an issue of public importance. All litigants before Ontario's administrative tribunals are entitled to a fair and impartial hearing from an unbiased tribunal. Judicial officers who are parties before such tribunals and in particular this tribunal are entitled to a public hearing and have the right to give viva voce evidence. They also have an unrestricted right to review the tribunal's record of proceedings for completeness and to obtain copies to make their case. Why is JP Massiah being denied these fundamental rights afforded to all other Ontarians ?
About the author: E.J. Guiste is a Catholic, African-Canadian lawyer based in the Greater Toronto Area. He acted for JP Massiah at the initial JPRC hearing. He is currently acting for JP Massiah on the Divisional Court ordered rehearing of the compensation issue and on a Rule 59 motion seeking to set aside the October 4th, 2016 order which upheld his removal from office. Among the grounds being advanced for the setting aside of the order upholding his removal is the failure of his appellate counsel to raise the manifest reasonable apprehension of the bias in the hearing stemming from the following sources: 1. Lack of congruence between the complaint and the Notice of Hearing(NOH) with the NOH containing several particulars not made to the Review Council in any written complaint and not investigated by the Complaints Committee; 2. Presence of Law Society of Upper Canada nominee who ultimately removed herself from the Hearing Panel with an acknowledgement by Presenting Counsel that her continued presence on the Hearing Panel "may be a potential concern about the risk of an appearance of bias if Ms. Blight remains on the Panel." sitting on the Hearing Panel for 7 months thereby tainting the balance of the Hearing Panel; 3. Chief Justice replacing her without statutory jurisdiction to do so; 4. Presenting Counsel exceeding the statutory role prescribed for her office by the JPRC Procedures Document thereby denying JP Massiah a fair hearing; 5. Appellate counsel before the Divisional Court failing to raise bias as a ground for review.
Further Note: It is acknowledged that appellate counsel, Presenting Counsel and the Attorney General for Ontario vigorously and strenuously deny all JP Massiah's claims and assert that he was treated fairly and had a full and fair hearing as is the right of all Ontarians.
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