In Ontario v. Ontario Power Generation [2015] 3 S.C.R. 147 the Supreme Court of Canada addressed the question of when it is appropriate for an administrative tribunal, like the Justices of the Peace Review Council, to participate in the defence of its own decision on appeal or judicial review. In this decision the court seems to depart from the more rigid position it took in Northwestern Utilities Ltd. v. City of Edmonton [1979] 1 S.C.R. 684 prohibiting such participation primarily on account of concerns with the tribunal's impartiality.
In Ontario v. Ontario Power Generation supra the Supreme Court ruled that a discretionary approach provides the best means of ensuring that the key principles of finality and impartiality are respected without sacrificing the ability of the reviewing court to hear useful and important information and analysis. The court reasoned that on account of their expertise tribunals may be well positioned to assist the reviewing court. In addition, the court pointed out that in circumstances where there is no other party to defend the decision the tribunal may be in a position to help the reviewing court.
The Supreme Court of Canada ruled that the following factors are relevant in a reviewing court like the Divisional Court exercising its discretion on the tribunal's standing to defend its decision:
1. statutory provisions addressing the structure, processes and role of the particular tribunal;
2. the mandate of the tribunal - is the tribunal adjudicative in nature or policy-making,
regulatory or investigative ?
3. does the tribunal acts on behalf of the public interest ?
The Supreme Court of Canada clearly held that in exercising its discretion on this point a reviewing court, like the Divisional Court in Massiah v. Justices of the Peace Review Council is required to balance the need for fully informed adjudication against the importance of maintaining tribunal impartiality.
"Bootstrapping"
The Supreme Court of Canada addressed the critical issue of bootstrapping as well. The court pointed out that the issue of bootstrapping is closely related to the question of when it is proper for a tribunal, like the Justices of the Peace Review Council, to act as a party on a judicial review or appeal of its decision. The standing issue the court pointed out deals with the types of argument a tribunal may make and the bootstrapping issue concerns the content of these arguments.
According to the Supreme Court of Canada a tribunal engages in bootstrapping where it seeks to supplement what would otherwise be a deficient decision with new arguments on appeal. The court was clear that a tribunal may not defend its decision on a ground it did not rely on in the decision under review. Finality the court said, "dictates that once a tribunal has decided the issues before it and provided reasons for its decision, absent a power to vary its decision or rehear the matter, it cannot use judicial review as a chance to amend, vary, qualify or supplement its reasons." The court went to express strong concern that permitting bootstrapping "may undermine the importance of reasoned, well-written original decisions."
Analysis and application to
Massiah v. JPRC:
Role of Presenting Counsel
The JPRC Procedures circumscribed the role of Presenting Counsel. Under this statutory regime Preesenting Counsel is retained by the Review Counsel to do the following:
- draft the Notice of Hearing and - "see that the complaint against the justice of the
peace is evaluated fairly and dispassionately to the end of achieving a just result".
Presenting Counsel "shall operate independently of the Review Council."
In Re Massiah the key argument is that the Notice of Hearing drafted by Presenting Counsel exceeds the complaint and therefore it destroys the key constitutional rights of judicial independence, namely, financial security and security of tenure. It is also inconsistent with binding legal authority from the Ontario Court of Appeal, namely, Hrycicuk v. Ontario. This point is eloquently stated in JP Massiah's factum in support of his Rule 59 motion in the following words:
2. ....paragraph 14 of current Presenting Counsel's Notice of Hearing which asserted a "history of judicial misconduct of a similar nature at a different courthouse" thereby subjecting the Applicant to liability for not only the complaint filed against him by prior Presenting Counsel, Doug Hunt, but for the "actual 2012" Panel's disposition as well, thereby irreparably tainting the liability portion of the hearing since the Hearing Panel would have no jurisdiction to find liability on it - a point which was properly argued at first instance before the 2013 JPRC Hearing Panel and arguably properly conceded by Presenting Counsel but the the Applicant's appellate counsel before the Divisional Court failed to raise.
Presenting Counsel's
Admission - July 29th/14:
"In my submission, that really was designed to address potential disposition.
Another key argument advanced by JP Massiah is that the JPRC Hearing Panel failed to follow various mandatory statutory provisions in their enabling statute which deprived them of jurisdiction to conduct a hearing into the complaint. The following is an excerpt from JP Massiah's written submissions on jurisdiction filed at the initial hearing (but not included in the record of proceedings before the Divisional Court):
[28] Should "the complaint" be referred to a complaints committee, the committee must report to the complainant that it has received "the complaint". It must also report to "the complainant" as to its disposition of the matter. It is submitted that none of the witnesses testified that they had received communication from the complaints committee that their "complaint" had been received or as to the manner in which the complaints committee disposed of their "complaint", contrary to the requirements of the statute.
JPRC Decision on Jurisdiciton
and Alleged Abuses of Process
Was the Complainant Advised by the Complaints Committee of the Dispositon of the Complaint ?
Positions of the Parties
34. His Worship Massiah submitted s.11(7) of the Act requires that "a complaint in writing" must be made by a 'complainant" will will be informed that the complaint has been received and how the Complaints Committee disposed of the complaint.
35. Presenting Counsel took the position that the complainant need not be informed of the disposition until the end of the hearing in front of this Panel.
Analysis
36. We disagree with the position of Presenting Counsel. Both the Act and Procedures are clear - it is the duty of the Complaints Committee to report its disposition to the complainant.
37. In the Applicant's submissions, His Worship stated, 'The evidence will show that this did not happen in this particular case." During testimony by the witnesses who provided specific evidence as to allegations concerning the conduct of Justice of the Peace Massiah, each was asked if they received any response from the Review Council (or Complaints Committee). The answer was consistently in the negative.
38. As we have stated earlier, none of the witnesses was the complainant. Whether they intended to make a complaint is irrelevant. It was Mr. Hunt who considered the information contained in the Will States of the initial witnesses to be a basis for a complaint. He submitted the information to the Review Council. As noted above, the complainant was Mr. Hunt.
39. No evidence was led as to whether Mr. Hunt was advised by the Complaints Committee of its disposition of the complaint.
40. In any event, we do not see the relevance in this proceeding as to whether this was done or not...
Rule 59 Motion
Non-Compliance with
Mandatory Statutory
Requirements:
Presenting Counsel
Conflict of Interest
10. On April 14th, 2017 the Applicant learned that current Presenting Counsel's spouse was a law partner of the complainant, former Presenting Counsel, Mr. Doug Hunt, in and around the material time of Mr. Hunt acting as Presenting Counsel before Justice Vallencourt and the date of his report to his instructing counsel, Ms. Marilyn King, Registrar and Counsel to the JPRC thereby tainting the objective requirement of fairness in the proceedings contrary to law.
12(b) Current Presenting Counsel told the Applicant that the "complainants" in his case were the witnesses who would be(sic) come to testify in a letter dated January 14th, 2014, which letter was part of the Applicant Motion Record on his motion asserting a reasonable apprehension of bias. Accordingly, the Applicant cross-examined witnesses on this information to his detriment - the Hearing Panel ruling that their intention was not relevant as Mr. Hunt was the complainant.
12(c) After the findings of liability, disposition and compensation, the Registrar and Presenting Counsel's instructing counsel, Ms. King, prepared an affidavit sworn August 19th, 2016 in which she deposed that she - as distinct from the Complaints Committee, complied with one of the two mandatory requirement of notice to complainants, namely that the "complaint" was proceeding to a hearing and that his evidence may be required although this evidence was never properly made part of the "record of proceedings" before this Honourable Court, resulted in an amendment to the Applicant's factum.
JP Massiah's Appellate
Counsel at Divisional
Court Purports to Consent
to "Fresh Evidence" of
JPRC Registrar:
On the eve of the hearing before the Divisional Court - that is September 13th, 2016 - the hearing taking place on September 14th, and 15th, 2016 counsel acting for JP Massiah wrote to the Registrar of the Divisional Court in the following words:
"I am writing on behalf of the applicant with respect to the respondent JPRC's motion to admit a letter dated July 4, 2013, produced by the JPRC following receipt of the applicant's factum, as fresh evidence on this application for judicial review.
The applicant's position is that this letter, written by and clearly available to the respondent JPRC prior to the hearing under review, clearly does not satisfy legal requirements for the admission of fresh evidence. Nevertheless, after assessing its significance, and in the interests of expedition, the applicant does not oppose the filing of the letter.
I would ask that paragraph 48 of the applicant's factum be corrected to read as follows, to conform to what we now know:
48. The Panel had no evidence before it that the Complaints Committee had reported its disposition to Mr. Hunt or anyone else, despite the requirements of s.11(3) of the Act and page 5 of the JPRC Procedures. The Panel rejected Presenting Counsel's argument that there had been no "disposition" at that stage, but treated the notification requirement as irrelevant and outside its jurisdiction. After th commencement of this judicial review application, the JPRC produced a letter from the Registrar of the JPRC to Mr Hunt dated July 4, 2013, notifying him of the Complaints Committee's disposition.
I have enclosed a replacement page 15 of the factum, which I will ask the Court's leave to substitute".
Divisional Court
Order of Oct.4th/16:
ON READING the Applicant's Application Record, the Applicant's Factum, the Respondents' Facta, and the Record of the 2102 Panel, and on hearing oral submissions from counsel for the Applicant and from counsel for the Respondents:
1. THIS COURT ORDERS that the application for judicial review is allowed only to the extent that the decision dated June 16, 2015 is set aside, adn the issue of compensation is remitted back to the 2012 Panel for a fresh determination.
2. THIS COURT FURTHER ORDERS that the application for judicial review in all other respects dismissed.
3. THIS COURT FURTHER ORDERS that the Applicant shall pay costs fixed at $10,000 inclusive of all disbursements and HST to the Respondent, the Justices of the Peace Review Council, and that no such costs shall be payable to the Lieutenant Governor for the Province of Ontario or the Attorney General of Ontario.
Entered: November 15, 2016
OBSERVATIONS:
An order of the court is required for the admission of fresh evidence on an application for judicial review. The Divisional Court's order of October 4th, 2016 is the only order in the court file. That order does not grant leave for the admission of any fresh evidence. The Divisional Court's Reasons similarly does not address any fresh evidence application.
Although the JPRC's decision on Jurisdiction and Alleged Abuses makes clear that - "Presenting Counsel took the position that the complainant need not be informed of the disposition until the end of the hearing in front of this Panel" - and the 2012 Panel went on to conclude, "In any event, we do not see the relevance in this proceeding as to whether this was done or not" - Presenting Counsel, argued a brand new theory in its factum in this court.
Bootstrapping ?
At paragraph 56 of its factum before the Divisional Court - the JPRC, and in reality Presenting Counsel, argued that "when a litigant asserts that a failure to follow a statutory requirement rendered the proceedings a nullity, there should be evidence that the requirement was not fulfilled".
Presenting Counsel also served the parties with a "Fresh Evidence Motion" seeking to admit both the five volume investigation transcripts and the Registrar's letter dated July 4, 2013 to Mr. Hunt.
The Problem
A review of the Divisional Court record conducted on behalf of JP Massiah did not reveal any order by the Divisional Court granting leave to admit any fresh evidence. Although the JPRC - Presenting Counsel for all intents and purposes(Henein Huthcison LLP), served their Fresh Evidence Motion material on the parties before the Divisional Court those materials do not appear to have been filed with the Divisional Court and the Divisional Court did not adjudicate on them. However, a document in a sealed envelope with an affidavit of service attached tends to suggest that the said motion may well have been filed but for some reason remained in a sealed envelope and was not adjudicated upon.
However, Counsel for JP Massiah acted on those materials and purported to consent to this and amend his factum. Counsel for the Attorney General did not.
Appellate Counsel for JP Massiah, not this writer, before the Divisional Court also agreed that the five volume investigations transcripts relied upon by the 2012 Panel in concluding at paragraph 67 of their Decision on Jurisdiction and Alleged Abuses of Process can be formally excluded from the tribunal's record of proceedings but on agreement be available in the court in case it is needed:
[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.
Position of the Respondents
of the Rule 59 Motion:
JPRC - JP Massiah does not meet the test for new evidence under Rule 59.06. The record it filed was not deficient. JP Massiah agreed to everything his lawyer did. JP Massiah is not telling the truth with respect to the failings of his lawyer. The alleged conflict involving the relationship between Presenting Counsel's spouse and Presenting Counsel is not JP Massiah's to raise.
Intervenor - Lawyers are not required to take direction from clients. Lawyers alone possess skill and competence in the manner of advancing litigation and it for lawyers alone to decide how the litigation will be conducted. Appellate counsel discharged their duty competently. JP Massiah agreed with everything his lawyer did. JP Massiah is not a trustworthy witness.
Attorney General - JP Massiah does not meet the test for new evidence under Rule 59.06. Even if the Applicant should satisfy the court that there was some defect in the process it should deny a remedy in the public interest. They take no position on the facts alleged by the Applicant as against his own counsel or JPRC counsel.
DIVISIONAL COURT HEARING - SCHEDULED FOR APRIL 3RD, 2018 @ 10 A.M.- OSGOOD HALL - TORONTO - SEATING IS LIMITED - FIRST COME FIRST SERVED
NOTE: This piece is published here to draw attention to an issue of public importance. The removal of a judicial officer in our system is an issue of public importance that is recognized throughout the common law world and beyond. E.J. Guiste is counsel to JP Massiah on his upcoming motion.
"I would be remiss in my duty as a lawyer to JP Massiah if I allowed this removal, in all of the circumstances of this case, to go unchallenged. To remain silent is to condone what I believe to be a miscarriage of justice."
In Ontario v. Ontario Power Generation supra the Supreme Court ruled that a discretionary approach provides the best means of ensuring that the key principles of finality and impartiality are respected without sacrificing the ability of the reviewing court to hear useful and important information and analysis. The court reasoned that on account of their expertise tribunals may be well positioned to assist the reviewing court. In addition, the court pointed out that in circumstances where there is no other party to defend the decision the tribunal may be in a position to help the reviewing court.
The Supreme Court of Canada ruled that the following factors are relevant in a reviewing court like the Divisional Court exercising its discretion on the tribunal's standing to defend its decision:
1. statutory provisions addressing the structure, processes and role of the particular tribunal;
2. the mandate of the tribunal - is the tribunal adjudicative in nature or policy-making,
regulatory or investigative ?
3. does the tribunal acts on behalf of the public interest ?
The Supreme Court of Canada clearly held that in exercising its discretion on this point a reviewing court, like the Divisional Court in Massiah v. Justices of the Peace Review Council is required to balance the need for fully informed adjudication against the importance of maintaining tribunal impartiality.
"Bootstrapping"
The Supreme Court of Canada addressed the critical issue of bootstrapping as well. The court pointed out that the issue of bootstrapping is closely related to the question of when it is proper for a tribunal, like the Justices of the Peace Review Council, to act as a party on a judicial review or appeal of its decision. The standing issue the court pointed out deals with the types of argument a tribunal may make and the bootstrapping issue concerns the content of these arguments.
According to the Supreme Court of Canada a tribunal engages in bootstrapping where it seeks to supplement what would otherwise be a deficient decision with new arguments on appeal. The court was clear that a tribunal may not defend its decision on a ground it did not rely on in the decision under review. Finality the court said, "dictates that once a tribunal has decided the issues before it and provided reasons for its decision, absent a power to vary its decision or rehear the matter, it cannot use judicial review as a chance to amend, vary, qualify or supplement its reasons." The court went to express strong concern that permitting bootstrapping "may undermine the importance of reasoned, well-written original decisions."
Analysis and application to
Massiah v. JPRC:
Role of Presenting Counsel
The JPRC Procedures circumscribed the role of Presenting Counsel. Under this statutory regime Preesenting Counsel is retained by the Review Counsel to do the following:
- draft the Notice of Hearing and - "see that the complaint against the justice of the
peace is evaluated fairly and dispassionately to the end of achieving a just result".
Presenting Counsel "shall operate independently of the Review Council."
In Re Massiah the key argument is that the Notice of Hearing drafted by Presenting Counsel exceeds the complaint and therefore it destroys the key constitutional rights of judicial independence, namely, financial security and security of tenure. It is also inconsistent with binding legal authority from the Ontario Court of Appeal, namely, Hrycicuk v. Ontario. This point is eloquently stated in JP Massiah's factum in support of his Rule 59 motion in the following words:
2. ....paragraph 14 of current Presenting Counsel's Notice of Hearing which asserted a "history of judicial misconduct of a similar nature at a different courthouse" thereby subjecting the Applicant to liability for not only the complaint filed against him by prior Presenting Counsel, Doug Hunt, but for the "actual 2012" Panel's disposition as well, thereby irreparably tainting the liability portion of the hearing since the Hearing Panel would have no jurisdiction to find liability on it - a point which was properly argued at first instance before the 2013 JPRC Hearing Panel and arguably properly conceded by Presenting Counsel but the the Applicant's appellate counsel before the Divisional Court failed to raise.
Presenting Counsel's
Admission - July 29th/14:
"In my submission, that really was designed to address potential disposition.
Another key argument advanced by JP Massiah is that the JPRC Hearing Panel failed to follow various mandatory statutory provisions in their enabling statute which deprived them of jurisdiction to conduct a hearing into the complaint. The following is an excerpt from JP Massiah's written submissions on jurisdiction filed at the initial hearing (but not included in the record of proceedings before the Divisional Court):
[28] Should "the complaint" be referred to a complaints committee, the committee must report to the complainant that it has received "the complaint". It must also report to "the complainant" as to its disposition of the matter. It is submitted that none of the witnesses testified that they had received communication from the complaints committee that their "complaint" had been received or as to the manner in which the complaints committee disposed of their "complaint", contrary to the requirements of the statute.
JPRC Decision on Jurisdiciton
and Alleged Abuses of Process
Was the Complainant Advised by the Complaints Committee of the Dispositon of the Complaint ?
Positions of the Parties
34. His Worship Massiah submitted s.11(7) of the Act requires that "a complaint in writing" must be made by a 'complainant" will will be informed that the complaint has been received and how the Complaints Committee disposed of the complaint.
35. Presenting Counsel took the position that the complainant need not be informed of the disposition until the end of the hearing in front of this Panel.
Analysis
36. We disagree with the position of Presenting Counsel. Both the Act and Procedures are clear - it is the duty of the Complaints Committee to report its disposition to the complainant.
37. In the Applicant's submissions, His Worship stated, 'The evidence will show that this did not happen in this particular case." During testimony by the witnesses who provided specific evidence as to allegations concerning the conduct of Justice of the Peace Massiah, each was asked if they received any response from the Review Council (or Complaints Committee). The answer was consistently in the negative.
38. As we have stated earlier, none of the witnesses was the complainant. Whether they intended to make a complaint is irrelevant. It was Mr. Hunt who considered the information contained in the Will States of the initial witnesses to be a basis for a complaint. He submitted the information to the Review Council. As noted above, the complainant was Mr. Hunt.
39. No evidence was led as to whether Mr. Hunt was advised by the Complaints Committee of its disposition of the complaint.
40. In any event, we do not see the relevance in this proceeding as to whether this was done or not...
Rule 59 Motion
Non-Compliance with
Mandatory Statutory
Requirements:
Presenting Counsel
Conflict of Interest
10. On April 14th, 2017 the Applicant learned that current Presenting Counsel's spouse was a law partner of the complainant, former Presenting Counsel, Mr. Doug Hunt, in and around the material time of Mr. Hunt acting as Presenting Counsel before Justice Vallencourt and the date of his report to his instructing counsel, Ms. Marilyn King, Registrar and Counsel to the JPRC thereby tainting the objective requirement of fairness in the proceedings contrary to law.
12(b) Current Presenting Counsel told the Applicant that the "complainants" in his case were the witnesses who would be(sic) come to testify in a letter dated January 14th, 2014, which letter was part of the Applicant Motion Record on his motion asserting a reasonable apprehension of bias. Accordingly, the Applicant cross-examined witnesses on this information to his detriment - the Hearing Panel ruling that their intention was not relevant as Mr. Hunt was the complainant.
12(c) After the findings of liability, disposition and compensation, the Registrar and Presenting Counsel's instructing counsel, Ms. King, prepared an affidavit sworn August 19th, 2016 in which she deposed that she - as distinct from the Complaints Committee, complied with one of the two mandatory requirement of notice to complainants, namely that the "complaint" was proceeding to a hearing and that his evidence may be required although this evidence was never properly made part of the "record of proceedings" before this Honourable Court, resulted in an amendment to the Applicant's factum.
JP Massiah's Appellate
Counsel at Divisional
Court Purports to Consent
to "Fresh Evidence" of
JPRC Registrar:
On the eve of the hearing before the Divisional Court - that is September 13th, 2016 - the hearing taking place on September 14th, and 15th, 2016 counsel acting for JP Massiah wrote to the Registrar of the Divisional Court in the following words:
"I am writing on behalf of the applicant with respect to the respondent JPRC's motion to admit a letter dated July 4, 2013, produced by the JPRC following receipt of the applicant's factum, as fresh evidence on this application for judicial review.
The applicant's position is that this letter, written by and clearly available to the respondent JPRC prior to the hearing under review, clearly does not satisfy legal requirements for the admission of fresh evidence. Nevertheless, after assessing its significance, and in the interests of expedition, the applicant does not oppose the filing of the letter.
I would ask that paragraph 48 of the applicant's factum be corrected to read as follows, to conform to what we now know:
48. The Panel had no evidence before it that the Complaints Committee had reported its disposition to Mr. Hunt or anyone else, despite the requirements of s.11(3) of the Act and page 5 of the JPRC Procedures. The Panel rejected Presenting Counsel's argument that there had been no "disposition" at that stage, but treated the notification requirement as irrelevant and outside its jurisdiction. After th commencement of this judicial review application, the JPRC produced a letter from the Registrar of the JPRC to Mr Hunt dated July 4, 2013, notifying him of the Complaints Committee's disposition.
I have enclosed a replacement page 15 of the factum, which I will ask the Court's leave to substitute".
Divisional Court
Order of Oct.4th/16:
ON READING the Applicant's Application Record, the Applicant's Factum, the Respondents' Facta, and the Record of the 2102 Panel, and on hearing oral submissions from counsel for the Applicant and from counsel for the Respondents:
1. THIS COURT ORDERS that the application for judicial review is allowed only to the extent that the decision dated June 16, 2015 is set aside, adn the issue of compensation is remitted back to the 2012 Panel for a fresh determination.
2. THIS COURT FURTHER ORDERS that the application for judicial review in all other respects dismissed.
3. THIS COURT FURTHER ORDERS that the Applicant shall pay costs fixed at $10,000 inclusive of all disbursements and HST to the Respondent, the Justices of the Peace Review Council, and that no such costs shall be payable to the Lieutenant Governor for the Province of Ontario or the Attorney General of Ontario.
Entered: November 15, 2016
OBSERVATIONS:
An order of the court is required for the admission of fresh evidence on an application for judicial review. The Divisional Court's order of October 4th, 2016 is the only order in the court file. That order does not grant leave for the admission of any fresh evidence. The Divisional Court's Reasons similarly does not address any fresh evidence application.
Although the JPRC's decision on Jurisdiction and Alleged Abuses makes clear that - "Presenting Counsel took the position that the complainant need not be informed of the disposition until the end of the hearing in front of this Panel" - and the 2012 Panel went on to conclude, "In any event, we do not see the relevance in this proceeding as to whether this was done or not" - Presenting Counsel, argued a brand new theory in its factum in this court.
Bootstrapping ?
At paragraph 56 of its factum before the Divisional Court - the JPRC, and in reality Presenting Counsel, argued that "when a litigant asserts that a failure to follow a statutory requirement rendered the proceedings a nullity, there should be evidence that the requirement was not fulfilled".
Presenting Counsel also served the parties with a "Fresh Evidence Motion" seeking to admit both the five volume investigation transcripts and the Registrar's letter dated July 4, 2013 to Mr. Hunt.
The Problem
A review of the Divisional Court record conducted on behalf of JP Massiah did not reveal any order by the Divisional Court granting leave to admit any fresh evidence. Although the JPRC - Presenting Counsel for all intents and purposes(Henein Huthcison LLP), served their Fresh Evidence Motion material on the parties before the Divisional Court those materials do not appear to have been filed with the Divisional Court and the Divisional Court did not adjudicate on them. However, a document in a sealed envelope with an affidavit of service attached tends to suggest that the said motion may well have been filed but for some reason remained in a sealed envelope and was not adjudicated upon.
However, Counsel for JP Massiah acted on those materials and purported to consent to this and amend his factum. Counsel for the Attorney General did not.
Appellate Counsel for JP Massiah, not this writer, before the Divisional Court also agreed that the five volume investigations transcripts relied upon by the 2012 Panel in concluding at paragraph 67 of their Decision on Jurisdiction and Alleged Abuses of Process can be formally excluded from the tribunal's record of proceedings but on agreement be available in the court in case it is needed:
[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.
Position of the Respondents
of the Rule 59 Motion:
JPRC - JP Massiah does not meet the test for new evidence under Rule 59.06. The record it filed was not deficient. JP Massiah agreed to everything his lawyer did. JP Massiah is not telling the truth with respect to the failings of his lawyer. The alleged conflict involving the relationship between Presenting Counsel's spouse and Presenting Counsel is not JP Massiah's to raise.
Intervenor - Lawyers are not required to take direction from clients. Lawyers alone possess skill and competence in the manner of advancing litigation and it for lawyers alone to decide how the litigation will be conducted. Appellate counsel discharged their duty competently. JP Massiah agreed with everything his lawyer did. JP Massiah is not a trustworthy witness.
Attorney General - JP Massiah does not meet the test for new evidence under Rule 59.06. Even if the Applicant should satisfy the court that there was some defect in the process it should deny a remedy in the public interest. They take no position on the facts alleged by the Applicant as against his own counsel or JPRC counsel.
DIVISIONAL COURT HEARING - SCHEDULED FOR APRIL 3RD, 2018 @ 10 A.M.- OSGOOD HALL - TORONTO - SEATING IS LIMITED - FIRST COME FIRST SERVED
NOTE: This piece is published here to draw attention to an issue of public importance. The removal of a judicial officer in our system is an issue of public importance that is recognized throughout the common law world and beyond. E.J. Guiste is counsel to JP Massiah on his upcoming motion.
"I would be remiss in my duty as a lawyer to JP Massiah if I allowed this removal, in all of the circumstances of this case, to go unchallenged. To remain silent is to condone what I believe to be a miscarriage of justice."
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