Saturday, April 7, 2018

Copy of JP Massiah's Notice of Motion Asserting a Miscarriage of Justice

                                                                                                 
                                                                              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 
          “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”;

 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 
          Decision and Addendum entitled “Fired JP Loses 
          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;

(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

          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;

2.     overlooked or refused to take the 
        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”;

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;
                                            
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;

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

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)  



September 20th, 2017                                                            

E.J. Guiste (LSUC # 34970C)
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 Gene

NOTE:  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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