Friday, February 16, 2018

Post Hearing Agreement Between Counsel at Divisional Court and Submissions on Re-Hearing Exposes Key Omission in Divisional Court Order

Presenting Counsel
and Appellate Counsel

Following the retirement of the Chair of the original Hearing Panel in August, 2016 and the Divisional Court's order of October 4th, 2016 ordering a re-hearing on JP Massiah's compensation claim, Presenting Counsel and JP Massiah's appellate counsel agreed that the proper way to proceed was for the two remaining members of the "2012 Panel" to hear the compensation claim referred back to the original Hearing Panel for re-hearing.

Non-Compliance with
Divisional Court Order ?

Unfortunately, counsel for the parties before the Divisional Court did not inform the Divisional Court that the original Hearing Panel had lost its chair, Justice Livingstone although this fact was known by all parties before the court at the time of the hearing on September 14th, 2016.  The re-hearing matter proceeded to be adjudicated by the two remaining members over JP Massiah's objections only for that Hearing Panel to issue a decision claiming they are unable to come to a decision thirteen months after they received the case from the Divisional Court.  Readers and followers will recall that JP Massiah and E.J. Guiste have to date been blamed by both the Hearing Panel and Presenting Counsel for delaying these proceedings - indeed culminating in the Hearing Panel's referral of a complaint against E.J. Gusite to the regulator, The Law Society of Upper Canada.(as they were then known)

The two-member Hearing Panel then posed the following two options to Presenting Counsel and JP Massiah:  1.  Chief Justice appoint a judge to join and chair the Hearing or 2.  The Chief Justice appoint a fresh new Hearing Panel.

Presenting Counsel's Submissions
Dated February 1st, 2017:

"We take the position that s.4.2.1(1) does not apply to a circumstance like this because it empowers the chair (with the consent of the parties) to decide that a hearing will be conducted by a "panel of one person", not to add one person to an already existing panel of two.  Likewise, s.4.2.1(2) allows a case to be decided by a reduced panel even where their is a "statutory requirement in another Act that a proceeding be heard by a panel of a specified number of persons, " provided that all parties consent.  Again, this is about enabling a tribunal to constitute a smaller panel than normally required, not  about adding a member to a panel that has already been constituted."

JPRC Panel
Decision of Bias:

Readers will remember that on this motion JP Massiah strenuously argued that the Chief Justice had no jurisdiction to replace The Law Society of Upper Canada's nominee, Ms. Margot Blight and that her sitting on the Hearing Panel for some seven months tainted the entire Hearing Panel. This fact is reflected in the Hearing Panel's Decision on the Motion Alleging Bias at paragraph 4 in the following words;

4(1)   An order that the Hearing Panel recuse itself;

4(2)   Alternatively, an order quashing the Notice of Hearing as the Chief Justice has exceeded her jurisdiction in replacing Ms. Blight.

The Hearing Panel disagreed stating:

[31]   Therefore, pursuant to s.4.2.1(2) of the SPPA, having received the consent of both parties to appoint a new Panel member when Ms. Blight recused herself, the Chief Justice acted within the statutory authority, when she appointed Ms. Foster to this Hearing Panel, so it could continue with a quorum.

Appellate Counsel's Answer
As to Why Lack of Juris of 
Chief Justice to Replace
LSUC nominee not raised 
in Divisional Court:

At paragraph 12 of an affidavit affirmed January 3rd, 2018 served on JP Massiah's
Rule 59 Motion currently before the Divisional Court this is what his appellate
counsel had to say about why this was not raised before the Divisional Court:

(12)   The only issue concerning Ms. Blight that was relevant to the judicial review application was the manner in which she recused herself from the proceeding below.  The applicant and Mr. Guiste wanted to argue that her aborted appearance on the Hearing Panel poisoned the entire panel, and therefore all of its members should have recused.  I explained that this issue could not be raised on judicial review because it was not raised before the Hearing Panel.  To the contrary, the parties agreed at the time that the proper resolution of the issue was for Ms. Blight to recuse herself, and no further issue was raised by Mr. Guiste.  Accordingly, it was my view that an ex post facto challenge on the ground of bias was sure to fail.....The Applicant accepted my advice that this argument should not be advanced in the judicial review application.

Divisional Court Reasons:

[15]   ....In my view, those alleged errors can be effectively reduced to four:

(a)   the 2012 Panel did not have jurisdiction to entertain the complaint;
(b)   the 2012 Panel erred in its conduct of the hearing including considering improper evidence and failing to give proper consideration to various factors including delay;
(c)   the 2012 Panel erred in its consideration of the appropriate penalty to be imposed;
(d)   the 2012 Panel considered irrelevant factors in declining to recommend ccompensation for the applicant's legal costs.

[18]   The applicant contends that the 2012 Panel did not have any jurisdiction to pursue the allegations made against him  because there was no written complaint filed with the JPRC.

[62]   The application for judicial review is allowed only to the extent that the decision of the 2012 Panel, not to recommend compensation for legal fees, is set aside and that single issue is remitted back to the 2012 Panel for reconsideration.


Two Points Not
Adjudicated by
Divisional Court

The two distinct issues flowing the The Law Society of Upper Canada's nominee on the Hearing Panel, namely, reasonable apprehension of bias founded on the poisoned or tainted well theory of bias and the jurisdiction of the Chief Justice to replace her once she stepped down were not adjudicated by the Divisional Court.  The JPRC Hearing Panel clearly erred in interpreting the Statutory Powers Procedures Act as Presenting Counsel recently pointed out in their Compensation Submissions dated February 1st, 2017 and they bypassed the "poisoned well" argument of bias asserting a reasonable apprehension of bias against the entire Hearing Panel.  Two profound errors calling for a standard of correctness.

Appellate Counsel before the Divisional Court did not raise this specific bias and jurisdiction argument because on his own affirmed evidence(dated January 3rd, 2018) that it was not raised before the JPRC Hearing Panel and he reasoned that he would be raising it afresh before the Divisional Court.  However, appellate counsel is clearly wrong on this point.  The JPRC Decision on Bias and the factum filed on behalf of JP Massiah is clear on this point.  That factum was not part of the record of proceedings filed by the JPRC and appellate counsel despite the Hearing Panel's very clear delineation of the scope of the record on October 8th, 2014.  The Divisional Court's decision in Roberts  v.  College of Nurses of Ontario 1999 Canlii 18725 is clearly cited in support of The Law Society of Upper Canada nominee tainting the remainder of the Hearing Panel. The Hearing Panel clearly finds that the the s.4.2.1(2) of the S.P.P.A grants the Chief Justice jurisdiction to appoint a new panel member to replace The Law Society of Upper Canada nominee. 

Appellate counsel maintains today that JP Massiah accepted his advice and in responding to his claims of conflict of interest and ineffective assistance of counsel, "All of these allegations are false".

Can a client properly accept counsel's advice to his or her detriment when counsel is clearly mistaken on a fact material to the advice and agreement ?  This is among the questions which the Divisional Court will be asked to answer on JP Massiah's Rule 59 motion.

Amending Setting Aside 
or Varying Order


59.06(1)   An order that contains  an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended in the proceeding.

Setting Aside or Varying

59.06(2)   A party who seeks to,

(a)   have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;

may make a motion in the proceeding for the relief claimed.

NOTE: This piece is published here to draw attention to issues of public importance raised in the removal of JP Massiah from the Bench and the referral of his lead counsel, E.J. Guiste to the Law Society of Upper Canada. Two issues were raised on the bias motion before the JPRC Hearing Panel which touched on the Law Society of Upper Canada nominee.  The first issue was that she had tainted the balance of the Hearing Panel. It was Ms. Blight who folded her arms and disconnected from my submissions when I mentioned the term "kangaroo court". The Panel was later asked to delineate what, if any, misconduct was committed and the Chair clearly stated - "Mr. Gusite this Panel has no issue with your conduct" or words to that effect.  However, later on in the process the issue of "kangaroo court" was cited by the Chair in reference to alleged misconduct and later it was a prominent part of the referral to The Law Society Of Upper Canada.  The second issue was that the Chief Justice had no jurisdiction to replace Ms. Blight.  The Hearing Panel addressed the lack of jurisdiction point but failed to adjudicate on the "poisoned well" claim of bias advanced through the Divisional Court case of Roberts   v.  College of Nurses of Ontario 1999 Canlii 18725 (Div Crt).

Democracy and the The Rule of Law works best when clients and the people impacted by legal decisions are fully aware and informed.  An instruction from a client is only worth something if the lawyer has properly discharged the duty of condour owed to that client in putting them in a position where what ever instruction they give is an informed decision.

About the author:

E.J. Guiste is a Catholic, African-Canadian lawyer based in the Greater Toronto Area.
His work involves criminal and civil litigation - including professional discipline
and employment law.  He was counsel to JP Massiah at first instance and on the
compensation re-hearing. He continues to act for JP Massiah because his conscience
tells him that JP Massiah is a victim of a serious miscarriage of justice.  His
representation of JP Massiah motivated him to write "A Catholic Lawyer's Prayer"
- a piece where he looks to God for protection from those who may wish to harm him
for doing his work.

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