On April 3rd, 2018 a panel of the Divisional Court is scheduled to hear JP Massiah's Rule 59 Motion and Constitutional Question seeking to set aside an earlier Divisional Court order of October 4th, 2016 upholding a Justices of the Peace Review Council Hearing Panel decisions finding him liable of judicial misconduct and recommending his removal from office.
It will be close to eleven years now since the alleged occurrences and close to four years since the hearing commenced on July 7th, 2014. Clearly, not a prescription for fair and timely adjudication by any standard. This point is amplified when one considers that a 2012 Hearing Panel chaired by highly respected Ontario Court of Justice, Judge Vallencourt made specific findings of fact that - 1. he was not aware that his conduct was improper; 2. no one had brought it to his attention that his conduct was of concern; 3. this was his first offence and 4. he had learned his lesson and he would not re-offend.
The legal and moral soundness of JP Massiah's Rule 59 motion is made irrefutably clear by the following passage in the Divisional Court's Reasons in support of their order upholding his removal:
[37] ....While the factual findings made by the 2011 Panel are binding on the 2012 Panel, (for example, that the applicant engaged in specific instances of misconduct), the disposition has no such effect.
All Ontarians who are interested in a fair and just society where The Rule of Law applies to all regardless of race or other irrelevant considerations will find JP Massiah's fight just and worthy of their support. Arbitrariness and injustice to JP Massiah is a threat to justice for all Ontarians. It is as simple as that. Who among us will be next ?
I, for one, have been unwavering in my belief that JP Massiah is the victim of a miscarriage of justice. I will continue to fearlessly defend him as a lawyer because it is my duty to do so. Here is why I hold this belief even though the Divisional Court dismissed his application for judicial review by way of order dated October 4th, 2016:
1. By decision dated March 12th, 2012 a Justices of the Peace Review Council Hearing Panel found JP Massiah liable of judicial misconduct and ordered a 10 day suspension and a reprimand. In addition JP Massiah completed the following remedial actions: 1. Gender-Boundary sensitivity training; Human Rights training and writing letters of apology to all affected persons.
2. Before that legitimate legal proceeding was even over some staff at the Durham Region Provincial Offences Court where JP Massiah also heard cases decided among themselves that the Disposition handed down by Justice Vallencourt was a "slap on the wrist" and that they would seek to increase it through a second complaint.
3. The problem with their plan was that their second set of complaints were not new. They either pre-dated or were contemporaneous to the first set.
4. The first Disposition was not appealed by the Justices of the Peace Review Council. Nevertheless they retained high profile counsel to act as Presenting Counsel. Presenting Counsel's job is to draft a Notice of Hearing and present the complaint fairly and dispassionately.
5. Presenting Counsel's first legal error was to draft a Notice of Hearing which had no relationship at all to the complaint. The Notice of Hearing included allegations which were not part of the complaint at all, including an allegation that JP Massiah acted contrary to the Human Rights Code by acting in a "vexatious", "unwelcomed" manner and by creating a "poisoned work environment".
6. Presenting Counsel's second legal error was to incorporate the first Disposition into her Notice of Hearing in paragraph 14. This paragraph actually stated "your history of judicial misconduct of a similar nature at a different courthouse.....demonstrates a pattern of inappropriate conduct toward women in the justice system." To her credit, Presenting Counsel candidly acknowledged when questioned by per diem Justice Livingstone, the Chair of the Hearing Panel, "In my submission, that really was designed to address potential disposition." (see July 29th, 2014 transcript at p.110)
7. Presenting Counsel's admission that paragraph 14 of the Notice of Hearing was intended for "potential disposition" did not cure the serious legal error flowing from this aspect of the Notice of Hearing. In addition to the first Disposition JP Massiah was made to defend and found liable of numerous allegations that were not part of any complaint in writing to the Review Council and consequently not pre-screened by a Complaints Committee as mandated by our Court of Appeal in Hryciuk v. Ontario.
8. A consistent theme advanced by JP Massiah throughout the proceedings was the glaring issue of a a lack of fairness and bias from the Hearing Panel as between himself and Presenting Counsel.
9. Every legal argument advanced on behalf JP Massiah was rejected by the Hearing Panel chaired by per diem judge Livingstone.
10. Although the Hearing Panel retained Independent Counsel, Mr. Brian Gover, to advise them on a jurisdictional question they raised in June, 2013 and which legal question they did not resolve until July 7th, 2014 - days before the commencement of the hearing, the Hearing Panel actually disregarded the opinion provided them by Mr. Gover, i.e. that it is a complaint which they are to adjudicate, and they went on the adjudicate Presenting Counsel's Notice of Hearing instead.
11. On the judicial review which culminated in the upholding of the liability and penalty decisions, the JPRC failed to file numerous relevant documents which they had agreed at the hearing formed part of the record "for any proceedings which may follow" the Hearing Panel's order.
12. By letter dated March 15, 2017, roughly four months after the Divisional Court order was formally entered by the Court, the JPRC wrote:
"Further, in an email received from Mr. Guiste on March 13, 2017, he requested confirmation of a number of items in relation to the earlier stage of the hearing. This letter confirms that we have retained the record."
13. JP Massiah's written submissions on jurisdiction where this legal objection was raised was not part of the record before the Divisional Court.
14. The statutory regime under which JP Massiah was removed, the Justices of the Peace Act, has a three-stage process. First, a complaint in writing to the Review Council, triggers an investigation by
a Complaints Committee. Second, the Complaints Committee investigates the written complaint and then reports to the Review Council under s.11(18) which reads, "The complaints committee shall report to the Review Council on its decision and, except where it orders a formal hearing, it shall not identify the complainant or the justice of the peace who is the subject of the complaint in the report.
15. Disturbingly, the parties to the hearing before the Hearing Panel did not know who the complainant was until the Hearing Panel's decision on Jurisdiction and Alleged Abuses of Process rendered on January 12th, 2015.
16. Further, although the Hearing Panel clearly relied upon the five volume investigation transcripts from the Complaints Committee in concluding that they acted within jurisdiction in considering the "new allegations in those transcripts within its mandate under s.11(7) of the Act" those transcripts were not part of the record before the Divisional Court when it determined that the Hearing Panel's decision on liability and penalty were reasonable.
17. In responding to JP Massiah's Rule 59 motion to have the Divisional Court order set aside, his appellate counsel in the proceedings before the Divisional Court revealed the following in his affidavit sworn January 3rd, 2018:
1. He did not raise bias involving the Law Society of Upper Canada nominee tainting the remainder of the Hearing Panel before the Divisional Court because he believed that it was not raised below. He was clearly in error on this point and the Hearing Panel's decision on bias confirms this.
2. He did not raise the question of the jurisdiction of the Chief Justice to replace the Law Society of Upper Canada nominee for the same reason as above.
3. He revealed in his affidavit sworn January 3rd, 2018 that he did not raise the question of whether the Hearing Panel was improperly constituted because it contained two temporary members of the Review Council because he understood it was not raised before the Hearing Panel and he could not raise it for the first time on judicial review. He was again in error on this point because the information on the status of the temporary members was not available until the first disclosure to him in an e mail dated December 4th, 2015.
4. He revealed in his affidavit sworn January 3rd, 2018 that he did not raise the Hearing Panel's error in the interpretation and application of the Human Rights Code for reasons cited in a written opinion he provided JP Massiah. That opinion is silent on the question of the interpretation and application of the Code principles of "vexatious", "unwelcome" and "poisoned work environment". The opinion focused on there being no limitation for the bringing of a complaint under the Justices of the Peace Act and that the persons subject to the conduct need not complain about it.
5. He revealed in his affidavit sworn January 3rd, 2018 that he did not raise Hryciuk v. Ontario as a bar to the Hearing Panel's jurisdiction because the facts of the case were distinguishable from Hryciuk. However, he raised it on leave to appeal to the Ontario Court of Appeal.
6. After preparing a memorandum on or about November 8th, 2015 for JP Massiah's review delineating numerous excesses of Presenting Counsel in the discharge of her duties as Presenting Counsel, including that she "acted as prosecutor and tainted the proceedings", "presenting counsel abandoned impartiality" and "although presenting counsel claimed that she did not intend to introduce evidence of the findings in the First Proceeding as similar fact evidence, this is exactly what was done....In by-passing a similar fact evidence application, evidence of the findings of the First Proceeding was introduced in such a manner that the applicant was denied the opportunity to mount a defence to the similar fact evidence." - he deposed in his January 3rd, 2018 that he advised JP Massiah that raising these issues about Presenting Counsel would not be well received by the court and JP Massiah agreed with his advice.
7. JP Massiah maintains that his appellate counsel failed to discharge his duty of candour to him and to put him in a position where he would have been fully informed and capable of making an informed decision on his advice he asserts he agreed to.
The point being advanced on behalf of JP Massiah in support of his Rule 59 motion is simple. He was denied natural justice and fairness throughout the JPRC proceedings, complaint, investigation and the hearing. Presenting Counsel exceeded her jurisdiction in both the Notice of Hearing she drafted and in the tone and manner in which presented the case against him. The inconsistency between the Justices of the Peace Act and their Procedures Document which allowed Presenting Counsel to draft a Notice of Hearing without any overview by the Complaints Committee which supposedly ordered the hearing and without any order from them delineating exactly what it is that they ordered to a hearing makes his removal from office unconstitutional since it prima facie deprives him of the two fundamental benefits of judicial independence, security of tenure and the absence of an obligation to pay clause in the Justices of the Peace Act with respect to a hearing panel's recommendation for compensation of costs in defending the complaint - as is found in the Courts of Justice Act for judges of the Ontario Court of Justice deprived JP Massiah of financial security and places the cost of his defence on the backs of JP Massiah's lawyers at first instance. This is wrong. This has the potential of making lawyers beholden to the Attorney General in order to secure their fee. This is serious and very wrong by any legal or moral standard.
The JPRC and JP Massiah's appellate counsel before the Divisional Court assert that JP Massiah is simply a vexatious litigant and he agreed to all of this. The Attorney General for Ontario relies on Res Judicata and asserts that JP Massiah was properly removed and if he wasn't it is Not in the public interest to correct this now.
Hearing: April 3rd, 2018 @ 10 A.M. - Divisional Court - Osgoode Hall - Toronto, Ontario
(TTC - Osgood Hall stop) - across from the Sheraton Centre
NOTE: This piece is published here to draw attention to an issue of public importance. For the first time in Ontario's history a judicial officer removed from office is seeking to set aside the decision upholding his removal employing the Constitution Act, 1982, including the Constitutional Principle of Judicial Independence and Rule 59 of the Rules of Civil Procedure. For the first time in Ontario's history and likely Canada's too - a judicial officer was removed from office with a finding that he acted in a manner inconsistent with the Human Rights Code while at the same time being denied the defences under the said Code afforded all other Ontarians. E.J. Guiste is counsel for JP Massiah on the Rule 59 motion.
If anything stated her is incorrect. Kindly bring it to the writer's attention and it will be reviewed and if in error gladly corrected. This is a public education exercise and not an exercise of placing blame on anyone. History has shown that asserting blame only invites denial and a scorched earth response attacking the credibility of the victim. Remember that women had no credibility until recently. Black men had no credibility as well. In this case JP Massiah is the victim in my view.
It will be close to eleven years now since the alleged occurrences and close to four years since the hearing commenced on July 7th, 2014. Clearly, not a prescription for fair and timely adjudication by any standard. This point is amplified when one considers that a 2012 Hearing Panel chaired by highly respected Ontario Court of Justice, Judge Vallencourt made specific findings of fact that - 1. he was not aware that his conduct was improper; 2. no one had brought it to his attention that his conduct was of concern; 3. this was his first offence and 4. he had learned his lesson and he would not re-offend.
The legal and moral soundness of JP Massiah's Rule 59 motion is made irrefutably clear by the following passage in the Divisional Court's Reasons in support of their order upholding his removal:
[37] ....While the factual findings made by the 2011 Panel are binding on the 2012 Panel, (for example, that the applicant engaged in specific instances of misconduct), the disposition has no such effect.
All Ontarians who are interested in a fair and just society where The Rule of Law applies to all regardless of race or other irrelevant considerations will find JP Massiah's fight just and worthy of their support. Arbitrariness and injustice to JP Massiah is a threat to justice for all Ontarians. It is as simple as that. Who among us will be next ?
I, for one, have been unwavering in my belief that JP Massiah is the victim of a miscarriage of justice. I will continue to fearlessly defend him as a lawyer because it is my duty to do so. Here is why I hold this belief even though the Divisional Court dismissed his application for judicial review by way of order dated October 4th, 2016:
1. By decision dated March 12th, 2012 a Justices of the Peace Review Council Hearing Panel found JP Massiah liable of judicial misconduct and ordered a 10 day suspension and a reprimand. In addition JP Massiah completed the following remedial actions: 1. Gender-Boundary sensitivity training; Human Rights training and writing letters of apology to all affected persons.
2. Before that legitimate legal proceeding was even over some staff at the Durham Region Provincial Offences Court where JP Massiah also heard cases decided among themselves that the Disposition handed down by Justice Vallencourt was a "slap on the wrist" and that they would seek to increase it through a second complaint.
3. The problem with their plan was that their second set of complaints were not new. They either pre-dated or were contemporaneous to the first set.
4. The first Disposition was not appealed by the Justices of the Peace Review Council. Nevertheless they retained high profile counsel to act as Presenting Counsel. Presenting Counsel's job is to draft a Notice of Hearing and present the complaint fairly and dispassionately.
5. Presenting Counsel's first legal error was to draft a Notice of Hearing which had no relationship at all to the complaint. The Notice of Hearing included allegations which were not part of the complaint at all, including an allegation that JP Massiah acted contrary to the Human Rights Code by acting in a "vexatious", "unwelcomed" manner and by creating a "poisoned work environment".
6. Presenting Counsel's second legal error was to incorporate the first Disposition into her Notice of Hearing in paragraph 14. This paragraph actually stated "your history of judicial misconduct of a similar nature at a different courthouse.....demonstrates a pattern of inappropriate conduct toward women in the justice system." To her credit, Presenting Counsel candidly acknowledged when questioned by per diem Justice Livingstone, the Chair of the Hearing Panel, "In my submission, that really was designed to address potential disposition." (see July 29th, 2014 transcript at p.110)
7. Presenting Counsel's admission that paragraph 14 of the Notice of Hearing was intended for "potential disposition" did not cure the serious legal error flowing from this aspect of the Notice of Hearing. In addition to the first Disposition JP Massiah was made to defend and found liable of numerous allegations that were not part of any complaint in writing to the Review Council and consequently not pre-screened by a Complaints Committee as mandated by our Court of Appeal in Hryciuk v. Ontario.
8. A consistent theme advanced by JP Massiah throughout the proceedings was the glaring issue of a a lack of fairness and bias from the Hearing Panel as between himself and Presenting Counsel.
9. Every legal argument advanced on behalf JP Massiah was rejected by the Hearing Panel chaired by per diem judge Livingstone.
10. Although the Hearing Panel retained Independent Counsel, Mr. Brian Gover, to advise them on a jurisdictional question they raised in June, 2013 and which legal question they did not resolve until July 7th, 2014 - days before the commencement of the hearing, the Hearing Panel actually disregarded the opinion provided them by Mr. Gover, i.e. that it is a complaint which they are to adjudicate, and they went on the adjudicate Presenting Counsel's Notice of Hearing instead.
11. On the judicial review which culminated in the upholding of the liability and penalty decisions, the JPRC failed to file numerous relevant documents which they had agreed at the hearing formed part of the record "for any proceedings which may follow" the Hearing Panel's order.
12. By letter dated March 15, 2017, roughly four months after the Divisional Court order was formally entered by the Court, the JPRC wrote:
"Further, in an email received from Mr. Guiste on March 13, 2017, he requested confirmation of a number of items in relation to the earlier stage of the hearing. This letter confirms that we have retained the record."
13. JP Massiah's written submissions on jurisdiction where this legal objection was raised was not part of the record before the Divisional Court.
14. The statutory regime under which JP Massiah was removed, the Justices of the Peace Act, has a three-stage process. First, a complaint in writing to the Review Council, triggers an investigation by
a Complaints Committee. Second, the Complaints Committee investigates the written complaint and then reports to the Review Council under s.11(18) which reads, "The complaints committee shall report to the Review Council on its decision and, except where it orders a formal hearing, it shall not identify the complainant or the justice of the peace who is the subject of the complaint in the report.
15. Disturbingly, the parties to the hearing before the Hearing Panel did not know who the complainant was until the Hearing Panel's decision on Jurisdiction and Alleged Abuses of Process rendered on January 12th, 2015.
16. Further, although the Hearing Panel clearly relied upon the five volume investigation transcripts from the Complaints Committee in concluding that they acted within jurisdiction in considering the "new allegations in those transcripts within its mandate under s.11(7) of the Act" those transcripts were not part of the record before the Divisional Court when it determined that the Hearing Panel's decision on liability and penalty were reasonable.
17. In responding to JP Massiah's Rule 59 motion to have the Divisional Court order set aside, his appellate counsel in the proceedings before the Divisional Court revealed the following in his affidavit sworn January 3rd, 2018:
1. He did not raise bias involving the Law Society of Upper Canada nominee tainting the remainder of the Hearing Panel before the Divisional Court because he believed that it was not raised below. He was clearly in error on this point and the Hearing Panel's decision on bias confirms this.
2. He did not raise the question of the jurisdiction of the Chief Justice to replace the Law Society of Upper Canada nominee for the same reason as above.
3. He revealed in his affidavit sworn January 3rd, 2018 that he did not raise the question of whether the Hearing Panel was improperly constituted because it contained two temporary members of the Review Council because he understood it was not raised before the Hearing Panel and he could not raise it for the first time on judicial review. He was again in error on this point because the information on the status of the temporary members was not available until the first disclosure to him in an e mail dated December 4th, 2015.
4. He revealed in his affidavit sworn January 3rd, 2018 that he did not raise the Hearing Panel's error in the interpretation and application of the Human Rights Code for reasons cited in a written opinion he provided JP Massiah. That opinion is silent on the question of the interpretation and application of the Code principles of "vexatious", "unwelcome" and "poisoned work environment". The opinion focused on there being no limitation for the bringing of a complaint under the Justices of the Peace Act and that the persons subject to the conduct need not complain about it.
5. He revealed in his affidavit sworn January 3rd, 2018 that he did not raise Hryciuk v. Ontario as a bar to the Hearing Panel's jurisdiction because the facts of the case were distinguishable from Hryciuk. However, he raised it on leave to appeal to the Ontario Court of Appeal.
6. After preparing a memorandum on or about November 8th, 2015 for JP Massiah's review delineating numerous excesses of Presenting Counsel in the discharge of her duties as Presenting Counsel, including that she "acted as prosecutor and tainted the proceedings", "presenting counsel abandoned impartiality" and "although presenting counsel claimed that she did not intend to introduce evidence of the findings in the First Proceeding as similar fact evidence, this is exactly what was done....In by-passing a similar fact evidence application, evidence of the findings of the First Proceeding was introduced in such a manner that the applicant was denied the opportunity to mount a defence to the similar fact evidence." - he deposed in his January 3rd, 2018 that he advised JP Massiah that raising these issues about Presenting Counsel would not be well received by the court and JP Massiah agreed with his advice.
7. JP Massiah maintains that his appellate counsel failed to discharge his duty of candour to him and to put him in a position where he would have been fully informed and capable of making an informed decision on his advice he asserts he agreed to.
The point being advanced on behalf of JP Massiah in support of his Rule 59 motion is simple. He was denied natural justice and fairness throughout the JPRC proceedings, complaint, investigation and the hearing. Presenting Counsel exceeded her jurisdiction in both the Notice of Hearing she drafted and in the tone and manner in which presented the case against him. The inconsistency between the Justices of the Peace Act and their Procedures Document which allowed Presenting Counsel to draft a Notice of Hearing without any overview by the Complaints Committee which supposedly ordered the hearing and without any order from them delineating exactly what it is that they ordered to a hearing makes his removal from office unconstitutional since it prima facie deprives him of the two fundamental benefits of judicial independence, security of tenure and the absence of an obligation to pay clause in the Justices of the Peace Act with respect to a hearing panel's recommendation for compensation of costs in defending the complaint - as is found in the Courts of Justice Act for judges of the Ontario Court of Justice deprived JP Massiah of financial security and places the cost of his defence on the backs of JP Massiah's lawyers at first instance. This is wrong. This has the potential of making lawyers beholden to the Attorney General in order to secure their fee. This is serious and very wrong by any legal or moral standard.
The JPRC and JP Massiah's appellate counsel before the Divisional Court assert that JP Massiah is simply a vexatious litigant and he agreed to all of this. The Attorney General for Ontario relies on Res Judicata and asserts that JP Massiah was properly removed and if he wasn't it is Not in the public interest to correct this now.
Hearing: April 3rd, 2018 @ 10 A.M. - Divisional Court - Osgoode Hall - Toronto, Ontario
(TTC - Osgood Hall stop) - across from the Sheraton Centre
NOTE: This piece is published here to draw attention to an issue of public importance. For the first time in Ontario's history a judicial officer removed from office is seeking to set aside the decision upholding his removal employing the Constitution Act, 1982, including the Constitutional Principle of Judicial Independence and Rule 59 of the Rules of Civil Procedure. For the first time in Ontario's history and likely Canada's too - a judicial officer was removed from office with a finding that he acted in a manner inconsistent with the Human Rights Code while at the same time being denied the defences under the said Code afforded all other Ontarians. E.J. Guiste is counsel for JP Massiah on the Rule 59 motion.
If anything stated her is incorrect. Kindly bring it to the writer's attention and it will be reviewed and if in error gladly corrected. This is a public education exercise and not an exercise of placing blame on anyone. History has shown that asserting blame only invites denial and a scorched earth response attacking the credibility of the victim. Remember that women had no credibility until recently. Black men had no credibility as well. In this case JP Massiah is the victim in my view.
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