Divisional
Court File No. 316/15
ONTARIO
SUPRIOR COURT OF JUSTICE
DIVISIONAL COURT
ERROL
MASSIAH
Applicant/Moving
Party
-and-
THE
JUSTICES OF THE PEACE REVIEW COUNCIL and THE LIEUTENANT GOVERNOR BY AND WITH
THE ADVICE AND CONCURRENCE OF THE EXECUTIVE COUNCIL OF THE LEGISLATIVE ASSEMBLY
FOR THE PROVINCE OF ONTARIO and THE ATTORNEY GENERAL FOR ONTARIO
Respondents
NOTICE OF MOTION
The Applicant, Errol
Massiah, will bring a motion before the Divisional Court on a date to be fixed
by the Registrar at 130 Queen Street West, Toronto, Ontario
Jurisdiction:
Rule 59.06(1), 59.06(2(a)(b) of the Rules of Civil
Procedure, s.6(1) and 10 of the Judicial Review Procedures Act and s.20(d) of
the Statutory Power Procedures Act and s.52(1) of the Constitution Act, 1982,
including the Constitutional Principle of Judicial Independence
The
Motion is for:
1. An
order amending, setting aside, varying or suspending
the Divisional Court’s order of October 4th,
2016 upholding
the
findings of judicial misconduct and the recommendation to
the Attorney General for the Applicant’s removal from judicial
office by a Hearing Panel of the Justices of the Peace Review
Council and Order in Council 546/2015 dated April 29, 2015;
2. An
order admitting the Applicant’s proposed fresh evidence;
3. An
order declaring appellate counsel for the Applicant in Divisional Court File No. 316/15 to have been in a
personal conflict of interest on five
fundamental grounds thereby depriving the Applicant of the right to counsel or the effective assistance
of counsel rendering this Honourable
Court’s orders and decision void or voidable;
4. An
order declaring the said Appellate Counsel to have provided ineffective counsel to the Applicant thereby
depriving the Applicant of his
constitutional right to a fair and impartial hearing of the review by a Superior Court of his removal from
judicial office;
5. An
Order declaring that Presenting Counsel exceeded the statutory ambit of her duties as Presenting
Counsel under the Justices of the Peace
Review Council’s Procedures Document and in so doing deprived the Hearing Panel with the effective assistance of
counsel and or improperly interfered
with the Applicant’s right to counsel and his
right to defend his judicial office as is his constitutional right so to do;
6. An
order declaring Henein Hutchison LLP to be in a conflict of interest and consequently disqualified from defending
the decisions of the Justices of the Peace Review Council Hearing Panel’s decisions in this matter since the challenged acts and omissions flow from
their discharge of the function of Presenting Counsel before the Hearing Panel
and the filling of the tribunal’s record of proceedings and it is for the Attorney General of Ontario to
exercise his common law, constitutional
and statutory jurisdiction under the Ministry of the Attorney General Act in the public interest;
7. An
order appointing a Case Management Judge to oversee and direct the proceedings between the parties.
The Grounds for the Application are:
Decisions found to be Reasonable
1. By order dated October 4th,
2016 a Divisional Court panel upheld an Order in Council dated April 29th,
2015 removing the Applicant from office as a Justice of the Peace finding the recommending
tribunal’s liability and penalty decisions were reasonable and directing a
rehearing for his claim for compensation of his legal costs with directions;
Decision Based on Admittedly
Deficient Record of
Proceedings
2. The legal soundness of that decision by
the Divisional Court panel is undermined by the fact that the subject tribunal
failed in its duty to file its complete record of proceedings with the court
pursuant to the Judicial Review Procedures Act, the Statutory Powers Procedures
Act and an order or agreement by the hearing panel itself expressly delineating
the content of the “record for any further applications which could follow our
decision”;
3. Appellate counsel for the Applicant though
recognizing the patent deficiency in the record of proceedings and alerting
JPRC counsel to the deficiency relied upon the JPRC’s counsel’s undertaking to
file the investigation transcripts as vol. 8-12 of their Application Record and
he and all counsel proceeded with filing their facta and books of authorities
with this court prior to delineating and resolving the issue of the record of
proceedings contrary to this court’s established jurisprudence thereby
depriving the Applicant of a fair hearing in this Honourable Court;
4. The record of proceedings filed by the
tribunal and Appellate Counsel for the Applicant with the Divisional Court
lacked the following relevant documents:
1. The Applicant’s written answer to the
Complaints
Committee’s notice of
allegations
from their investigation;
2. The five volume investigation transcripts
filed
by the Applicant with the Hearing Panel
and
relied upon by the them in their Decision
of January 12th,
2015 at para 66;
3. Applicant’s sworn affidavit filed March 28th,
2014; (see para 142 of
above-noted decision)
4. Written submissions of the parties on jurisdiction
and abuse of
process motion; (as
above at para 3)
5. Written submissions of the parties on
liability;
(see
para 6 Reasons for Decision dated January
12, 2015)
6. Written submissions of the parties on
penalty;
(see
Decision on Disposition at para 28)
7. All facta, books of authorities,
responding facta
per
Chair’s pronouncement October 8th, 2014
5. The deficient record of proceedings filed
with the court prevented the court from inquiring into “the qualities that make
the decisions reasonable” and to inquire into the “existence of justification,
transparency and intelligibility within the decision-making process and whether
the decisions fall within a range of possible, acceptable outcomes which are
defensible in law” as mandated by established and binding legal principles on
this Honourable Court.
6. The incomplete record prevented the
Divisional Court from assessing both the correctness and reasonableness of
various interlocutory motions brought on behalf of the Applicant challenging
the following salient legal points reflected in the subject tribunal’s Decision
on the Motion to Ban Publication, Decision on The Motion for Disclosure and
Particulars, Decision on Bias and Decision on Jurisdiction and Alleged Abuses
of Process,:
1. Whether an interim publication ban should
issue pending the
Hearing Panel’s
adjudication of the Applicant’s
and the
Hearing Panel’s motions on Jurisdiction
and their
determination of who is the complainant;
2. Whether Presenting Counsel failed to
discharge
its
mandatory disclosure obligation under paragraphs 10 and
11 of the Procedures
Document by
disclosing the name and
contact information for only those witnesses she intended to
call rather than all
witnesses known to have knowledge of
the relevant facts – i.e. the 20 other witnesses interviewed by
the Complaints Committee during the investigation and the
the relevant facts – i.e. the 20 other witnesses interviewed by
the Complaints Committee during the investigation and the
“complainant” Mr. Doug Hunt who
was not interviewed and
not called as a witness;
3. Whether the Notice of Hearing was improper
in that
it
exceeded the document determined to be the
“complaint”
some 19 months after its issuance and
material aspects of it
were never investigated by the Complaints Committee and
relied
on propensity evidence and a “history of
judicial
misconduct”
in paragraph 14 when the current allegations
pre-dated or were concurrent with the Applicant’s
first
disposition and did not follow it;
4. Whether the Complaints Committee exceeded
its
authority
in the investigations it undertook;
5. Whether the Applicant’s acts and omissions
in his
interactions
with court staff met the objective test
established
by both this court and the Court of Appeal
for Ontario for findings of “vexatious”, “unwelcome”
and creating a “poisoned work environment” and the
conclusion that he “acted in a manner inconsistent
with the Human Rights Code”;
for Ontario for findings of “vexatious”, “unwelcome”
and creating a “poisoned work environment” and the
conclusion that he “acted in a manner inconsistent
with the Human Rights Code”;
6. Whether the Hearing Panel exhibited a reasonable
apprehension
of bias against the Applicant and his
counsel,
Ernest J. Guiste both during and post
hearing
when the Chair of the Hearing
Panel retweeted a Toronto Sun article published
the day following their release of the Compensation
Panel retweeted a Toronto Sun article published
the day following their release of the Compensation
Decision and
Addendum entitled “Fired JP Loses
Bid to Have Taxpayers Pay Legal Fees –
Lawyer’s Conduct to be Reviewed.
Bid to Have Taxpayers Pay Legal Fees –
Lawyer’s Conduct to be Reviewed.
7. The incomplete record deprived the
Applicant of the ability to raise serious legal errors involving the
interpretation and application of the Human Rights Code and this court’s
decision in Hryciuk v. Ontario 31 O.R.
(3d) 1 – indeed although Presenting Counsel relied upon human rights
authorities to ground liability against the Applicant before the Hearing Panel
the issue of the interpretation and application of the Code is not in the
record filed with the court and consequently not addressed by the parties
before the court to the Applicant’s detriment;
8. The incomplete record also impacted the
nature and quality of assistance the Respondents and particularly the Attorney
General could provide to the court with the important question of whether the
tribunal’s decisions were within jurisdiction and in compliance with the rules
of natural justice, fairness and the law of Ontario – especially the Human
Rights Code - pursuant to the Attorney General’s statutory duty under s.5(c)
and (i) of the Ministry of the Attorney General Act;
9. Through no fault of the Applicant this
most Honourable Court’s decision and order on his judicial review application
was conducted in a manner which is contrary to The Rule of Law and in
particular in contravention of the well established tradition and principle of
the Open Court Doctrine – as relevant portions of the record of proceedings
clearly relied upon by the subject tribunal were not before the court.
Fresh Evidence
10. Conflict
of Interest:
Applicant’s Appellate
Counsel
(1) Applicant’s appellate counsel’s retainer
was contingent upon his conduct of a conflict of interest search which was
never done;
(2) Applicant’s appellate counsel relationship
with a former
panel member who voluntarily recused herself from the Hearing
Panel on account of the Applicant’s concerns about bias
compromised his defence of the Applicant and her reliance on
the Hearing Panel’s disposition in a case she was adjudicating
without acknowledgment that the disposition decision was under
review by this Honourable Court destroyed the necessary
appearance of transparency and fairness in the proceedings;
panel member who voluntarily recused herself from the Hearing
Panel on account of the Applicant’s concerns about bias
compromised his defence of the Applicant and her reliance on
the Hearing Panel’s disposition in a case she was adjudicating
without acknowledgment that the disposition decision was under
review by this Honourable Court destroyed the necessary
appearance of transparency and fairness in the proceedings;
(3) Applicant’s appellate counsel mentored counsel,
Ernest J. Guiste at the proceedings before the Hearing Panel and received the
appellate referral from Mr. Guiste, who both appellate counsel and his law firm
have had a solicitor-client relationship with on four separate retainers,
including the following:
1. (1990) Academic appeal – University of
Windsor
2. (
) Poponne v.
Guiste
3. (2002) Walsh
v. 1124660 Ontario Limited 2002 Canli 4980
4. (2016) Green v. Guiste
4. (2016) Green v. Guiste
and as a result the Applicant reasonably
understood that appellate counsel was duty-bound to vigorously defend all the
allegations made by the Hearing Panel against Mr. Guiste and himself or decline
his retainer;
(4) Applicant’s appellate counsel failed to
disclose to him that in and around 2008 he had been appointed by the Government
of Ontario as the Chair, Board of Directors of the Human Rights Legal Support
Centre attached to the Human Rights Tribunal to advocate on behalf of victims
of discrimination and harassment;
(5) Failed to inform the Applicant of his
decision in a case which sitting as a Board of Inquiry under the Human Rights
Code which objectively compromised his ability to advocate the Human Rights
Code issues forcefully on behalf of the Applicant, namely, Hom et al v.
Impact Interiors et al BOI Decision #93-058.
11. Ineffective
Assistance
of Counsel:
Applicant’s Counsel:
1. overlooked or refused to take the
Applicant’s instruction to raise bias
as a ground of review;
Applicant’s instruction to raise bias
as a ground of review;
2. overlooked or refused to take the
Applicant’s instruction to challenge
Applicant’s instruction to challenge
the
Hearing Panel’s error in its
interpretation and application of the
Human Rights Code principles of
“vexatious”, “unwelcome” and
“poisoned work environment”;
interpretation and application of the
Human Rights Code principles of
“vexatious”, “unwelcome” and
“poisoned work environment”;
3. overlooked or refused to take the
Applicant’s
instruction to challenge
the
Hearing Panel’s erroneous interpretation
and
application of Hryciuk v. Ontario;
4. Although he prepared a memorandum on the
flagarent
excesses of Presenting Counsel
in
the discharge of her office and received
the
Applicant’s authorization to assert those
clear
excesses as a breach of natural justice
adversely
impacting his fair hearing rights –
he
failed to advance this ground of error;
5. Although recognizing a clear deficiency in
the “Record of Proceedings filed by counsel
for the JPRC and the need to supplement
it, proceeded to serve and file a factum and
reply factum on behalf of the Applicant
without first resolving the issue of the
sufficiency of the record in accord with
this court’s jurisprudence;
the “Record of Proceedings filed by counsel
for the JPRC and the need to supplement
it, proceeded to serve and file a factum and
reply factum on behalf of the Applicant
without first resolving the issue of the
sufficiency of the record in accord with
this court’s jurisprudence;
6. Entered into an unauthorized agreement
with counsel for the JPRC to surpress
documents referred to and relied upon by
the Hearing Panel in making its decisions
from the “record of proceedings” to not
only the Applicant’s detriment but the court
and public’s detriment as the Applicant’s
removal from judicial office is presumptively
a matter of public importance and consequently
this agreement is of no force or effect being
in contravention of the Open Court Principle;
with counsel for the JPRC to surpress
documents referred to and relied upon by
the Hearing Panel in making its decisions
from the “record of proceedings” to not
only the Applicant’s detriment but the court
and public’s detriment as the Applicant’s
removal from judicial office is presumptively
a matter of public importance and consequently
this agreement is of no force or effect being
in contravention of the Open Court Principle;
7. Failed to seek costs on behalf of the
Applicant
despite
knowing of his impecunious state.
Presenting Counsel
Conflict of Interest:
12. On April 14th, 2017 the Applicant
learned that current Presenting Counsel, Ms. Marie Henein’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;
Fresh Evidence that
“Complainant”
Former Assistant Attorney
General
For Ontario:
13. On April 14th, 2017 the Applicant
learned that prior to going into the private practice of law the “complainant”,
prior Presenting Counsel, Mr. Hunt was Assistant Deputy Attorney General for
Ontario;
Ineffective Assistance of
Counsel by Presenting Counsel:
14. Appointed Presenting Counsel exceeded the
jurisdiction granted by the JPRC Procedures Document in the execution of her
public duty and deprived the Applicant
of a fair and impartial hearing of the complaint initiated by prior Appointed
Presenting Counsel, Mr. Hunt.
15. In addition, Presenting Counsel provided an
incorrect instruction to the Hearing Panel on the interpretation and
application of the Human Rights Code, Hryciuk
v. Ontario and the source of their jurisdiction being her Notice of
Hearing as distinct from the complaint under s. 11.1(10) of the Justices of the
Peace Act – instructions which the Hearing Panel followed and improperly
applied in finding that the Applicant committed judicial misconduct and that
this misconduct required a recommendation for his removal from office.
Non-Compliance with
Mandatory Statutory
Requirements:
16. During the Applicant’s hearing before the
JPRC Hearing Panel, the issue of who is the “complainant” and whether the
mandatory requirements prescribed by the Justices of the Peace Act, and
Procedures Document were complied with was a central issue before the Hearing
Panel as is evident in their Decision on Jurisdiction and
Alleged Abuses of Process.
(a) The JPRC Hearing Panel ruled on January 12th,
2015 – some 20 months after the Notice of Hearing was issued on May 31st,
2013 that former Presenting Counsel, Mr. Hunt, was the complainant. Current
Presenting Counsel did not call former Presenting Counsel, Mr. Hunt, to testify
that in submitting a report to his instructing counsel, the Registrar, Ms.
Marilyn King, he intended to make a complaint about the Applicant’s judicial
conduct. Further, current Presenting Counsel failed to provide the Applicant
with Mr. Hunt’s name and particulars pursuant to her disclosure obligations.
(b) Current Presenting Counsel told the
Applicant that the “complainants” in his case were witnesses who would be 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.
(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 and 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.
(d) The JPRC has not disclosed an
acknowledgment of receipt of the “complaint” from the Complaints Committee to
date and the Complaints Committee never filed a “report” with the JPRC contrary
to both mandatory requirements stipulated by s.11(3) and 11(18) of the Justices
of the Peace Act.
17. The Applicant, who conscientiously believes
himself to have been wrongly removed from his judicial office and to be a
victim of a “miscarriage of justice” desires the fastest and most economically
efficient resolution of his legal matters in the public interest;
18. The proposed fresh evidence meets the
criteria set out by the Supreme Court of Canada in R v. Palmer [1980] 1 S.C.R. 759;
19. Rule 1.04(1), 1.04(2), s.6(1) and s.10 of
the Judicial Review Procedures Act, s.20(d) of the Statutory Procedures Act,
s.5(c) (i) of the Ministry of the Attorney General Act, The Human Rights Code,
The Justices of the Peace Act and The Procedures Document, The Constitution
Act, 1982 and the Constitutional Principle of Judicial Independence, U.N. Basic
Principles on the Independence of the Judiciary para 1, 2, 12, 17, 18, 19, and
20, and U.N. Basic Principles on the Role of Lawyers para 1, 14, 15, 18, 19.
The following documentary evidence will be relied upon:
1. Divisional Court’s order dated October 4,
2016 and Reasons
2. JPRC
Hearing Panel Decisions on Liability, Penalty and Compensation;
3. JPRC
Hearing Panel Interlocutory Decisions on Publication
Ban, Disclosure and Particulars, Bias, Jurisdiction and Abuse of Process
Ban, Disclosure and Particulars, Bias, Jurisdiction and Abuse of Process
4. Complaints
Committee’s Investigation Transcripts
5. Registrar’s
Letter to Applicant providing notice of allegations and inviting a written answer;
6. Applicant’s
written Answer to Complaints Committee
7. Notice of
Hearing issued May 31st, 2013 by JPRC
8. Order in
Council 546/2015
9. JPRC’s
Motion Record RE: Fresh Evidence
10. Presenting
Counsel’s list of authorities and written submissions inviting liability before Hearing Panel based on the Human Rights Code(The Code)
11. Presenting
Counsel’s list of authorities and written submissions inviting removal based on The Code and the Hryciuk Removal Decision which was overturned by the Court of
Appeal for Ontario on the very basis
which the Applicant was asserting before
the Hearing Panel and which appellate counsel failed to raise
in this Honourable Court;
12. Presenting
Counsel’s erroneous instruction on the interpretation and application of Hryciuk v. Ontario
31 O.R. (3d) 1 (ONCA) at para 24
of their March 13th, 2014 submissions which instruction was relied upon by the Hearing Panel and
appellate counsel overlooked;
12. JPRC’s
list of authorities before this Honourable Court;
13. Excerpt of
the October 8th, 2014 transcript where Presenting Counsel acknowledged that paragraph 14 of the
Notice of Hearing she drafted was
intended to be for disposition;
14. JPRC’s
Motion Record Re: Fresh Evidence dated August 23, 2016 and supporting affidavits
15. Sworn
affidavit of Mr. Errol Massiah and exhibits thereto
16. Such
further evidence or documents which this Honourable Court may permit.
Time Estimate:
1-2 days (could change with case-management and admissions by the Respondents
and appellate counsel)
1-2 days (could change with case-management and admissions by the Respondents
and appellate counsel)
September 20th, 2017
E.J.
Guiste (LSUC # 34970C)
E.J. GUISTE PROFESSIONAL CORPORATION
2 COUNTY COURT BLVD., SUITE 494
BRAMPTON, ONTARIO
L6W 3W8
E.J. GUISTE PROFESSIONAL CORPORATION
2 COUNTY COURT BLVD., SUITE 494
BRAMPTON, ONTARIO
L6W 3W8
(416)
364-8908
(416)
364-0973 FAX
Counsel
for the Applicant
Henein Hutchison LLP
235 King Street East, 3rd Floor
Toronto, Ontario
M5A 1J9
Tel.(416) 368-500 – Fax (416) 368-6640
Ms. M. Henein, Mr. S. Hutchison and Mr. M. Gourlay
Presenting Counsel and Counsel for the JPRC
In the Court Proceedings to Date
AND TO:
Ministry of the Attorney General for Ontario
Crown Law Office – Civil Law
720 Bay Street, 8th Floor
Toronto, Ontario
M7A 2S9
Tel. (416) 326-4155 – Fax (416) 326-4181
Ms. Sara Blake, and Mr. Brent Kettles
Counsel for the Lieutenant Governor
In Council and the Attorney GeneNOTE: This is a copy of the legal document which was filed with the Divisional Court asserting a miscarriage of justice and requesting that Court to set aside its Order of October 4th, 2016. It is published here on account of its public interest value. These issues ought never to be litigated in private. The public has not only a right to know but a right to see the court documents and especially the record of proceedings.
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