E.J.Guiste on Law and Justice: JP Massiah's Factum on The Motion to Set Aside Order Upholding Removal

Divisional Court File No. 316/15

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

ERROL MASSIAH

Applicant

- and -

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

- and-

RAJ ANAND and WEIR FOULDS LLP

Intervenors

APPLICANT’S FACTUM

E. J. GUISTE

PROFESSIONAL CORPORATION

Trial & Appellate Advocacy

2 County Court Blvd., Suite 494

Brampton, Ontario

L6W 3W8

Ernest J. Guiste (LSUC # 34970C)

Tel. (416) 364-8908

Fax (416) 364-0973 fax

E mail – ejguiste@yahoo.com

Counsel for the Applicant, His Worship Massiah

BACKGROUND

1. The Applicant, His Worship Errol Massiah, was removed from office by Order In Council 546/2015 on April 29 2015 following a hearing under section 11.1 of the Justices of the Peace Act(JPA Act) before a Hearing Panel of the Justices of the Peace Review Council (JPRC – incorrectly identified in this Court’s October 4^th, 2016 order as “the 2012 Panel”). In fact, the 2012 Panel was the Panel chaired by Justice Vaillancourt which concluded with a reprimand on or about March, 2012. The Notice of Hearing in the matter before this court was issued on May 31^st, 2013 and filed by Presenting Counsel as Exhibits 1A and 1B in the initial set-date on July 4^th, 2013 pursuant to paragraph 6(2) at page 20 of the JPRC Procedures Document – thereby declaring that the “complaints process will become public”.

Order In Council 546/2015 (Relevant Docts Tab 3)

Divisional Court Reasons (As above Tab 2)

Notice of Hearing – Exhibit 1B (Applicant’s Motion Record

Supporting Affidavit – Tab B)

JPRC Procedures Document – (Relevant Docts Tab 8)

2. The original Divisional Court Panel’s incorrect reference to the JPRC Panel which issued the removal recommendation as “the 2012 Panel” may be understandable in light of 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 that the Applicant’s appellate counsel before the Divisional Court failed to raise.

Applicant’s Written Submissions Part II

Paragraphs 11, 25-33 (Applicant’s Motion Record

- Additional Relevant Documents Not Filed with

this Honourable Court – Tab 3, para 11, p.47, p 65

Presenting Counsel’s admission re para 14

(Applicant’s Motion Record – Supporting Afd

- Exhibit “F”)

JPRC Hearing Panel - Decision, para 153-154

and para 210

3. Following a two day hearing, the original panel in this Honourable Court upheld the 2013 JPRC Hearing Panel’s decision on liability and penalty and remitted the compensation issue back to the said panel for adjudication in accordance with their reasons.

4. Although counsel for the JPRC and the Applicant before this court were aware of the “full retirement” of the chair of the 2013 Hearing Panel, Justice Livingstone, a per diem judge of the Ontario Court of Justice, they failed to inform the court of this material fact prior to the “taking out” or formal issuance of the subject order of October. The following statements by the Applicant’s appellate counsel in this court is both instructive and relevant on this motion:

“I spoke with Scott Hutchison about the fact Justice

Livingstone had retired, and that Ernest’s complaint

against her had been dismissed for that reason, so how

could she chair the reconvened hearing ? He did not know

about the Guiste complaint; he suggested that the SPPA

provision about the remaining two panel members continuing

the hearing would apply; but that he did not know (nor did I)

whether that applies to this statute. He also said we could raise

that before the panel when it reconvened. I told him I would

want to put that before the Div. Ct., before we took out the

order, because otherwise the hearing panel would think they

had a binding direction to re-hear the costs issue.”

Affidavit of Raj Anand – Exhibit “W”

“Errol, I wanted to confirm a number of things after our

telephone conversation yesterday:

2. I have recommended that we agree to a modification of

the Divisional Court’s order so that it is re-heard by a

panel of two that excludes Justice Livingstone because

she has retired. I understand that Scott Hutchison will

agree to this, and I have recommended this resolution

because the Court of Appeal has ruled in similar

circumstances that the thre(sic) member panel can

continue. Therefore, our written submission on this

point are likely to be costly and unsuccessful.

Affidavit of Raj Anand – Exhibit “Y”

5. Twelve months following this Honourable Court’s order, the two remaining members of the 2013 Hearing Panel issued their No Unanimous Decision Regarding Compensation on October 25^th, 2017. Instead of returning to this court to address the issue the Chief Justice has appointed a new panel to hear the ordered re-hearing.

Applicant’s Further Supporting Affidavit – Exhibit “I”

Presenting Counsel’s Feb.1^st, 2017 Submission

No Unanimous Decision Re Compensation

PART I – THE MOTION AND JURISDICTION

6. The Applicant judicial officer has brought this motion and a Notice of Constitutional Question pursuant to Rule 59.06(1), (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. He seeks an order declaring the JPA Act unconstitutional; An order amending, setting aside, varying or suspending the Divisional Court’s order of October 4^th, 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.

7. The gravamen of the Applicant’s motion and Constitutional Question is that in order to be removed from judicial office in Ontario and indeed elsewhere in Canada he must have a fair and impartial hearing of the complaint of judicial misconduct against him by an independent and impartial tribunal and that this right continues when he asserts his right to seek judicial review of any such finding in a Superior Court. Where this fundamental right can reasonably be said or appear to be tainted by any of the factors identified in his Notice of Motion, namely, a deficient record of proceedings, whatever the cause, divided loyalty and or conflict of interest of counsel acting for the Applicant or the tribunal, in the special circumstances of this case, ineffective assistance of the Applicant’s counsel, ineffective assistance of tribunal counsel, in the special circumstances of this case or bias, this Honourable Court can not be said to have judiciously discharged its Constitutional and statutory jurisdiction under the Judicial Review Procedures Act to provide the Applicant with a fair and impartial hearing of his judicial review application and any such order must be set aside.

PART II - THE FACTS:

Deficient Record Of

Proceedings Filed In

This Court:

8. A Notice of Application for Judicial Review was issued on June 18^th, 2015 challenging the legality of the said Order in Council in the following words:

The Decision, Penalty and Compensation Decision, and

all Related Interlocutory Orders should be quashed

The Order in Council Should be Quashed

(bb) The Order in Council is predicated on the decisions in

the interlocutory motions, the Decision and the Penalty

and should accordingly be quashed as a result of the

errors of the Hearing Panel.

Paragraph 4 of the said Notice of Application listed the
following documentary evidence to be used at the hearing of the application:

(a) The record of proceedings before the Hearing Panel;

(b) The affidavit of Sandra Noe, to be sworn an filed;

(d) the letter from the JPRC to the applicant dated January 2, 2013;

(e) Such further and other evidence as counsel may advise and this Honourable Court may permit.

Notice of Application for Judicial Review

Applicant’s Motion Record – Supporting Affidavit

Exhibit “A” – Tab 1 A

9. Rather than file its complete record of proceedings, the JPRC filed, through counsel, a record in which “more than half of the record formally acknowledged by the JPRC Panel on October 8^th, 2014 including the Applicant’s answer to the allegations brought to his attention and the five volume investigation transcripts both of which would show that he was made to defend allegations of judicial misconduct at a public hearing not first made to the JPRC in a “complaint” in writing and investigated by a Complaints Committee contrary to the Court of Appeal’s decision in Hryciuk v. Ontario.”

As above para 38, 39 – Exhibit “V” – Tab V

March 15^th, 2017 Confirmation

JPRC Retained The Record of

Proceedings:

10. By way of e mail dated March 13, 2017 the Registrar of the JPRC was expressly asked whether they have the record of proceedings in their possession and she answered by way of letter dated March 15, 2017 – “This letter confirms that we have retained the record.”

As above – Exhibit HH – Tab H

Hearing Panel Decisions

Clearly Cite Documents

Omitted from Record

Before Divisional Court:

Investigation Transcripts

11. [66] Therefore, we find that the investigators for the Complaints Committee had the authority to gather the Information about the new allegations and to provide the results to the Committee. The transcripts from the witness interviews conducted in 2012 during the investigation were filed as part of the Record by His Worship.

Decision on Jurisdiction and Alleged Abuses of Process

Applicant’s Motion Record – Relevant Docts – Tab 4

Motion Records etc.

Identity of Complainant

12. [33] ....The narrow interpretation favoured by His Worship is inconsistent with the finding of the Divisional Court that the section “is designed to ensure that the process is open and public.”We support the view that complaints process is designed to be a funnel for concerns about judicial misconduct, not a fence.

The Hearing panel goes on to cite the following after the above passage:

Applicant’s Motion Record, Tab 2, filed July 12, 2013;

Motion Record of Presenting Counsel, Tab A, filed July

19, 2011(sic)

As above

Decision on Jurisdiction and Alleged Abuses of Process

Applicant’s Affidavit

Filed March 28, 2014

13. Paragraph 142 of the JPRC Hearing Panel’s Decision on Jurisdiction and Alleged Abuses of Process clearly cites the “Applicant’s Supporting Affidavit, Exhibit F, filed March 28^th, 2014 yet this document was not in the record of proceedings before the Divisional Court.

Decision on Jurisdiction and Alleged Abuses of Process

Written Submissions of

The Parties on Jurisdiction

14. [3] The Hearing Panel has now received written and oral submissions from His Worship and Presenting Counsel on these remaining grounds.

As above

Written Submissions of

The Parties on Liability

15. [6] Written and oral submissions were provided by counsel, with submissions concluding on October 8, 2014.

Reasons for Decision dated January 12, 2015

Applicant’s Motion Record – Relevant Docts – Tab5

Written Submissions of

The Parties on Penalty

16. [28] ...We have reviewed the report, dated June 7, 2012, contained in Tab 3 of Volume 1 of His Worship’s written submissions on the Penalty Phase, which outlines the counselling in which His Worship was engaged as the Chief Justice directed. We have reviewed, also, the documents contained in Tab 7 (from the same volume as noted above) which describes a one-to-one Remedial Human Rights session in which His Worship voluntarily participated on April 3, 2012.

Decision on Disposition

Applicant’s Motion Record – Relevant Docts – Tab 6

17. The JPRC Hearing Panel expressly identified two reports which were involved in determining and documenting allegations of judicial misconduct. The first the Hunt Report which they determined to be the “complaint” and the second the “Investigators Report” – a document submitted by the investigators to the Complaints Committee and containing new allegations for their consideration. They went on to conclude:

[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.

Decision on Jurisdiction and Alleged Abuses of Process

Applicant Motion Record – Relevant Dotc. – Tab 4

Breach of October 8^th, 2014

Agreement And Open Court Principle:

18. A letter dated August 19, 2015 from JPRC counsel, Mr. Gourlay to the Applicant’s appellate counsel clearly acknowledges three additional documents to be added to the record, including the “Investigation Transcripts”. With respect to the inclusion of the “Investigation Transcripts”, Mr. Gourlay writes, “The caveat is that if these are to be put before the Court, they should be subject to a sealing order to safeguard the requirement in s.1(8)(sic)of the Justices of the Peace Act that “the investigation shall be conducted in private.” By this I mean an order that would actually shield the materials from public access, not merely an order of non-publication in respect of the contents.”

JPRC’S Counsel’s Letter dated August 19, 2015

Applicant’s Motion Record – Relevant Docts – Exhibit “W”

JPRC Serves Fresh Evidence

Motions on Eve of Hearing:

19. After all of the facta and Books of Authorities of the parties were served and filed with the Divisional Court the JPRC served two “Respondent’s Motion Records Re: Fresh Evidence”. Although the Notice of Motion seeks the following orders: 1. An order that the 5-volume “investigation transcripts” filed by the Applicant at the hearing below be added to the Record of the Proceedings as Volumes 8, 9, 10, 11, and 12; and 2. An order that these five volumes be sealed and not accessible to the public - the two supporting affidavits in the Motion Record deal solely with a letter which the Registrar and Counsel to the JPRC deposed in an affidavit was sent to Mr. Doug Hunt in satisfaction of part of the Complaint Committee’s mandatory statutory obligation. The other motion record deals with a letter the JPRC Registrar maintains was sent to Mr. Hunt to comply with a mandatory statutory requirement in the Act.

JPRC Fresh Evidence Motion Records

Applicant’s Motion Record – Part 3 – Tab 5, 6

20. The only order rendered by the Divisional Court Panel on the Applicant’s judicial review application is the order rendered on October 4^th 2016. No order was made to admit any fresh evidence.

Divisional Court Reasons for Judgement

Applicant’s Motion Record – Relevant Doct. Tab 2

Evidence of Ineffective

Assistance of Counsel

On Record of Proceedings:

Presenting Counsel

21. Presenting Counsel, Henein Hutchison LLP, drafted the subject Notice of Hearing and was retained by the JPRC to present the case before the JPRC Hearing Panel against the Applicant pursuant to Paragraphs 2-5 of the Procedural Code for Hearing portion of the JPRC Procedures Document. They also served and filed the deficient record of proceedings although they were a party to the agreement on the scope of the record of proceedings on October 8^th, 2014 before the 2013 Hearing Panel and continue to defend.

Applicant’s Motion Record – Affidavit -

Notice of Hearing – Exhibit “B”

October 8^th Transcript – Exhibit “F”

Respondent’s Motion

Record Re: Fresh Evidence:

22. Counsel for the JPRC acknowledged in their Notice of Motion that the five volume investigation transcripts were filed with the Hearing Panel and they do not oppose the position that they ought to be part of the record of proceedings. They sought a sealing order which was never acted upon on the basis of the assertion that s.11(8) of the Justices of the Peace Act mandates hat an investigation by a Complaints Committee be “conducted in private.”

JPRC Fresh Evidence Motion Record

Applicant’s Motion Record – Part 3 – Tab 6

23. The Registrar of the JPRC confirmed in writing in response to written correspondence delineating the proper scope of the record of proceedings that they have retained it.

JPRC Registrar’s Letter of March 15, 2017

Aplicant’s Motion Record – Supporting Afd.

Exhibit HH

24.       Counsel for the JPRC and the Attorney General for Ontario
were unable to fully assist the court on their customary function
of delineating whether or not the tribunal’s decisions and
Presenting Counsel’s discharge of their statutory duties were
within jurisdiction.  In particular, neither of these key parties
informed this Honourable Court that in fact paragraphs 1-6
and 14 were not part of the complaint against the Applicant
and as such were never investigated by the Complaints Committee
and hence never ordered to a hearing by the Complaints Committee
to a hearing. In fact, the Complaints Committee failed  to file a report
with the Review Council as appellate counsel, Mr. Anand pointed
out in his factum and consequently it is unknown precisely what the
Complaints Committee ordered a hearing on – if anything.

Facta Filed by the Parties in this Court

Applicant’s Motion Record – part 3 – Tabs1 - 3

Applicant’s Motion Record – Part 1 – Investigation Transcripts

Evidence of Ineffective

Assistance Of Counsel

On Record of Proceedings:

Appellate Counsel

25. Appellate counsel was expressly notified of the Applicant’s concerns with respect to the sufficiency of the JPRC record of proceedings well in advance of him drafting and issuing the Notice of Application for Judicial Review and prior to perfecting the application – as he mentored the Applicant’s lead counsel on the first instance proceedings before the JPRC.

Applicant’s Responding Affidavit – para 33-35

Exhibits “E” and “H”

Applicant’s Further Supporting affidavit – para 2

Opinion – Sufficiency of Tribunal Record –

Raj Anand Affidavit – Exhibit “O”

26. On review of the Notice of Application for Judicial Review, the Draft Factum prepared for the Applicant, the Application Record filed by Mr. Anand and Mr. Anand’s e mail to the Applicant on the eve of the hearing before this court three points are crystal clear. 1. He initially intended to have the investigation transcripts as part of the record of proceedings whether or not the JPRC included them and 2. He later left it to the JPRC to be filed in their Record as Vol. VII to XII. 3. He was not sold on the privacy view which his junior and Ms. Henein’s junior reasoned was a basis for at a minimum having them sealed from public view. He wrote, “I told him it was debatable whether they are private at this point, given the rules of the JPRC and the letter that went to the witnesses.”

Notice of Application for Judicial Review – para 4

Applicant’s Application Record – Exhibit “X”

Applicant’s Motion Record – Supporting Afd – Tab A

Draft Factum – Raj Anand Affidavit – Exhibit “GG”

E mail to Applicant fr Raj Anand – Raj Anand Affidavit

Exhibit “S”

Facta Prematurely

Filed:

27. The following facta were submitted by the parties before the Divisional Court as follows:

1. Applicant’s Factum – dated January 13, 2016

2. JPRC’s Factum – dated June 2^nd, 2016 (almost 5 months later)

3. Attorney General for Ontario – dated June 28^th, 2016 ( 5 plus months later)

4. Applicant’s Reply Factum – July 29^th, 2016.

Applicant’s Motion Record – Affidavit – para 48

28. A review of all of the facta filed by the parties before the Divisional Court reveals that they failed to address the crucial legal issue raised by the Applicant before the JPRC Hearing Panel, namely, whether the Hearing Panel exceeded its jurisdiction by finding liability based on allegations which were not first made to the JPRC in a written complaint and investigated by a Complaints Committee pursuant to Hryciuk v. Ontario and thereby failed to adjudicate the question which the statute authorized them to adjudicate as Independent Counsel Mr. Gover advised them in his opinion.

As above – at para 49

Independent Counsel’s Opinion – (Exhibit “H”- Nov.22^nd/17 afd)

Applicant’s Motion Record – Part 3 – facta

29. After this court upheld the 2013 Hearing Panel’s decisions on liability and penalty appellate counsel initiated a motion seeking leave to appeal from the Court of Appeal for Ontario based on that court’s authority in Hryciuk v. Ontario [1996] 31 O.R. (3d) 1 although he failed to raise it here without objection by counsel for the JPRC.

Appellate Counsel’s Leave to Appeal Facta

Applicant’s Further Supporting Affidavit

Exhibits “J” and “K”

30. In addressing this anomaly in his affidavit appellate counsel deposed that he did not refer to Hryciuk supra in this court because it was distinguishable and he felt that a professional discipline case, Sazant v. College of Physicians and Surgeons of Ontario 2013 ONCA 727, argued by Ms. Henein and presented by Mr. Hutchison was more on point than a binding authority from the Court of Appeal on judicial misconduct which the 2013 JPRC Hearing Panel erred in applying. Mr. Anand deposed that the conflict in these two Court of Appeal cases “would be a basis for granting leave to appeal.”

Raj Anand Affidavit - para 46-50

31. However, Mr. Anand does not expressly argue in his facta that there was a conflict between these two Court of Appeal cases which needed to be resolved by that court.

Raj Anand’s Facta at ONCA

Applicant’s Further Supporting Afd

Exhibits “J” and “K”

32. Under cross-examination on his affidavit, Mr. Anand conceded that Presenting Counsel’s seven general allegations touching on the Human Rights Code concepts of vexatious, unwelcome and poisoned work environment were never pre-screened by the Complaints Committee. He stated correctly, “They were not there to be pre-screened, “ and “The argument was that that was inconsistent with Hryciuk”. He also properly conceded that Hryciuk was not in his factum in this court.

Transcript of Cross-Exam of Mr. Anand – at p.65-66

Prejudice to Applicant:

33. The following prejudice is suffered by the Applicant and the administration of justice as a result of the deficient record and the absence of the investigation transcripts from the record of proceedings:

1. Removal from judicial office contrary to natural justice and

fairness where the excluded evidence shows unequivocally

that the Notice of Hearing drafted by Presenting Counsel

exceeded the complaint determined by the Hearing Panel,

and the 2013 Hearing Panel failed to adjudicate the statutory

issue they were authorized by the Act to adjudicate;

2. The Applicant was made to face a set of new allegations in

the Notice of Hearing which were not investigated by the

Complaints Committee – involving allegations that his

conduct was “vexatious”, “unwelcome” and created a

“poisoned work environment”;

3. Even putting aside the jurisdictional point raised above, the

Applicant’s removal from judicial office is tainted by an

interpretation and application of legal concepts from the

Ontario Human Rights Code which departed in a material

way from both the Divisional Court and the Court of Appeal

for Ontario;

4. Before the JPRC Hearing Panel made a finding that Mr. Hunt

was the “complainant” and his report was the “complaint” as

those terms are used in the Act, the very allegations which the

Applicant was challenging since June, 2013 were receiving

widespread publicity in the press – the panel having denied

his request for an interim publication ban until the legal point

was adjudicated depriving him of any objective semblance of

a fair hearing; and

5. Public confidence in the proceedings which resulted in this

judicial officer’s removal from office is prima facie
tainted by the fact that members of the public can not
review the five volume investigation transcripts and the
litany of other documents not filed with this Honourable
Court to satisfy themselves that he was properly removed
from office.

Bias:

34. Reasonable Apprehension of Bias and the denial of the right to a fair hearing was a consistent complaint advanced by the Applicant before the 2013 Hearing Panel and one which he specifically instructed Mr. Anand to advance before this Honourable Court.

Applicant’s Supporting Afd (Nov.22/17) (p.2-24)

Raj Anand Affidavit – para 10-13

L.S.U.C Nominee

35. The Law Society Nominee on the 2013 Hearing Panel, Ms. Margot Blight, sat on the Hearing Panel for over five months – July 4^th, 2013 to November 19^th, 2013 before disclosing that she sat on a Complaints Committee which dealt with a complaint filed by the Registrar and Counsel to the JPRC, Ms. Marilyn King alleging he gave perjured evidence before the 2012 Hearing Panel.

Notice of Motion(Bias) – Tab B

Decision on Bias – Tab A

Applicant’s Motion Record – Relevant Docts

Admission by

Presenting Counsel

36. “As you are aware, Mr. Guiste is bringing a motion for recusal

of Ms. Blight from the Hearing Panel on the basis of a claim

that there is a reasonable apprehension of bias. While I do not

agree with the assertion that there is any basis for actual bias,

having considered the legislative framework and the JPRC

Procedures, Presenting Counsel does agree that there may be

a potential concern about the risk of an appearance of bias

if Ms. Blight remains on the Panel.”

Exhibit 17 at JPRC Hearing – Tab 10 p.277

Applicant’s Motion Record – Relevant Docts

37. The Applicant properly brought a motion before the 2013 Hearing Panel asserting various claims of bias, including Hryciuk Error on the face of the Notice of Hearing, the Poisoned Well Theory of Bias on account of Ms. Blight’s tenure in sitting with the Hearing Panel from June 2013 to November 2013.(she actually stepped down in February 2014 and that the Chief Justice exceeded her jurisdiction in appointing a substitute for Ms. Blight rather than appointing a fresh new panel. The Hearing Panel adjudicated the motion – ruling on the issue of the jurisdiction of the Chief Justice to replace Ms. Blight, dismissing the Hryciuk point and failing to adjudicate on the Poisoned Well Theory of Bias referenced in Roberts v. College of Nurses of Ontario 1999 Canlii 18725 (Div Crt) and cited at paragraph 41 of the Applicant’s factum on the said motion.

Notice of Motion (Bias) – Tab B

Panel’s Decision on Bias Motion – Tab A

Applicant’s Motion Record (Relevant Docts)

Applicant’s Factum (Bias) (Docts Not Filed) – Tab 11

38. Mr. Anand deposed in his January 3^rd, 2018 affidavit that he did not argue the Poisoned Well Theory of Bias with respect to Ms. Blight’s tenure on the 2013 Hearing Panel because “I explained that this issue could not be raised on judicial review because it was not raised before the Hearing Panel.” This advice to the Applicant was clearly wrong and not borne out by the record cited above.

Raj Anand’s affidavit – at para 12

39. By letter dated February 1^st, 2017 Presenting Counsel, Ms. Henein and Mr. Gourlay abandoned the 2013 Hearing Panel’s interpretation of s.4.2.1(2) which they relied upon to conclude on the bias motion that the Chief Justice had the jurisdiction to appoint a replacement for the Law Society of Upper Canada nominee, Ms. Blight. In his e mail dated October 6^th, 2016 – two days following the release of this Honourable Court’s order, Mr. Anand wrote to his junior that neither he or Mr. Hutchison knew whether the SPPA provision allowing the two remaining members of the Hearing Panel to adjudicate the compensation claim applied to the Justices of the Peace Act.

Presenting Counsel’s Feb.1^st/17 Admission

Applicant’s Further Supporting Afd. – Exhibit “I”

40. Another aspect of a reasonable apprehension of bias which the Applicant consistently advanced before the 2013 Hearing Panel was related to Presenting Counsel’s discharge of her statutory role pursuant to the JPRC Procedures Document. The Applicant strongly argued consistently that Presenting Counsel exceeded her jurisdiction and these arguments are clearly reflected in the 2013 Hearing Panel’s decisions on bias and jurisdiction and abuse of process – starting as early as June, 2013.

Bias Decision – para 53-55 – Tab 3A

Decision on Jurisdiction and Abuse of Process

Para 69-73 – Tab 4

Applicant Motion Record – Relevant Docts

41. Mr. Anand acknowledges that it was the Applicant’s wish to argue in this court that Presenting Counsel exceeded her jurisdiction in the discharge of her appointment and that in so doing her acts and omissions impaired the Applicant’s fair hearing rights. In moving in this direction, Mr. Anand’s junior lawyer prepared a thorough memorandum delineating the excesses of Presenting Counsel.

Applicant’s Motion Record – Supporting Afd – para 3-8

Raj Anand’s Affidavit – para 93-99

Applicant’s Further Supporting Afd – para 13 – Exhibit “B”

42. Mr. Anand deposed in his affidavit dated January 3^rd, 2018 that he did not raise this argument in this court on account of his concern “that the argument would be ill-received by the Court and that it could have negative consequences for the application.”

Mr. Raj Anand’s affidavit at para 97

43. The Applicant deposed in his affidavit and later at the cross-examination on his affidavits that neither Mr. Anand or his associate took the time to candidly explain to him the legal implications and consequences that would result if he asserted the legal claims he wanted advanced which would have permitted him to make an informed decision on their advice.

Applicant’s Responding Afd – para 27-29

Transcript of Cross-Exam of Errol Massiah – p.171 -191

Human Rights Code:

44. Presenting Counsel exceeded the ambit of her office by raising allegations in her Notice of Hearing which were never made to the Review Council, never investigated by the Complaints Committee and consequently the Applicant received no notice of those specific allegations until he received the Notice of Hearing which was issued May 31^st, 2013 and filed with the Review Council on the first set date on July 4^th, 2013.

Factum filed by Applicant on Bias Motion – Tab 11

Applicant’s Motion Record (Docts Not Filed)

45. Mr. Anand acknowledges that the Applicant wanted him to argue the points raised regarding the Human Rights Code before the Hearing Panel in this Honoruable Court. However, he maintains that he advised the Applicant that these arguments had no merit and he confirmed his advice in an opinion dated September 25^th, 2015 – Exhibit “F” to his affidavit.

46. This opinion fails to address the point raised on behalf of the Applicant before the Hearing Panel that his acts and omissions were not “vexatious”, “unwanted” and did not create a “poisoned work environment” – points which Presenting Counsel argued were present and on which the Hearing Panel did not adjudicate.

Presenting Counsel’s Written Subs on Liability

(Not Filed on Judicial Review) – para 1, 2016

47. Although Presenting Counsel conceded that paragraph 14 of the Notice of Hearing she drafted was flawed in that this paragraph was intended to address disposition Mr. Anand decided not to raise this admission as a breach of natural justice or bias in attacking the liability decision in this Honourable Court.

Excerpt of July 29, 2014 transcript – Exhibit “F”

Applicant’s Motion Record – Supporting Affidavit

48. Mr. Anand and his junior had communications with the Law Society of Upper Canada’s investigator regarding the complaint filed by the JPRC’s Registrar and instructing counsel,

Ms. Marilyn King for which they billed the applicant.

49. Mr. Anand asserts in his affidavit that these contacts were merely to update The Law Society of Upper Canada on what stage the proceedings were at and nothing more.

50. The contacts took place after the memorandum on Presenting Counsel’s conduct and the draft factum wherein he asserts at para 61 that “the complaint, the “Investigators Report” and the NOH did not match and prior to the filing of the Applicant’s factum and Application Record in this Honourable Court.

51. Mr. Anand’s account dated January 29, 2016 shows that one of the contacts involved a Weir & Foulds lawyer who once acted for the subject of the Law Society’s investigation on an appeal. On December 1^st, 2015 following a telephone call from the Law Society investigator, Ms. A. Kirsh; and an e mail to R. Annd the factum is revised and a call is placed to M. Gourlay. On December 11, 2015 Ms. Peglar dockets a telephone call with R.Anand and the Law Society investigator, Ms. A. Kirsh. Four days later on December 15^th, 2015 Ms. Peglar revised the factum and instructed a junior for 2.8 hrs.

Weir Foulds Account – Entry 30/11/15 (p.265)

Entry 04/12/15, 11/12/15; 15/12/15; 13/01/16;

14/10/16

52. Mr. Anand says in his affidavit that he has been counsel on more than 50 applications for judicial review in this court yet he failed to resolve the issue of the scope of the record of proceedings before drafting and filing his facta.

Raj Anand’s affidavit - para 1

53. The Investigation Transcript of the person whom the Applicant is said to have touched in the Notice of Hearing shows that this person could not remember any touching.

Investigation Transcripts – Vol 3 – Tab 19 – Vol. 4 – Tab 28

54. The following witnesses interviewed in the investigation did not witness any improper behaviour from the Applicant: A, B, C, D, E, F, G, H, I, J, K, L, M, N, O and P*.

Investigation Transcripts – Vol. 1-5

55. The issues of “vexatious”, “unwelcome” and “poisoned work environment” were not probed on the investigation.

As above

56. On April 14^th, 2017 the Applicant learned from a publication on the internet that “current Presenting Counsel, Ms. Henein’s spouse was a law partner of the complainant in my removal case, former Presenting Counsel, Mr. Dough Hunt in and around the material time as Mr. Hunt acting as Presenting Counsel on my proceedings before Justice Vallencourt.

Applicant’s sworn affidavit at para 60 – Exhibit “BB”

Applicant’s Motion Record – Supporting Afd.

57. At the same time the Applicant learned that Mr. Hunt was once the Assistant Deputy Attorney General for Ontario.

As above – at para 61 – Exhibt “CC”

58. In response to a clear question as to who is the complainant in the proceeding before the JPRC Hearing Panel Presenting Counsel expressly advised counsel for the Applicant in writing that the witnesses who she would call to testify are the complainants and the Applicant relied upon this representation to his detriment.

As above – para 62 – Exhibit “DD”

Divisional Court Decision:

59. The Divisional Court did not hear from the Applicant on the following issues: constitutionality of the Justices of the Peace Act and Procedures Document, bias, jurisdiction of the Chief Justice to substitute the Law Society nominee, Ms. Blight, whether Presenting Counsel exceeded her jurisdiction in presenting the case against the Applicant, the interpretation and application of Hryciuk v. Ontario and the Ontario Human Rights Code.

PART III - THE ISSUES & LAW:

60.

1. Did the failure of the JPRC and Mr. Anand to ensure that this
court had a full and proper record of the proceedings below
impact the Applicant’s and the public’s trial fairness rights ?

2. Did this failure amount to incompetence in light of the
October 8^th, 2014 agreement on the scope of the record of proceedings ?

3. Would the filing of a full and proper record have expanded the
nature and quality of legal errors which the Applicant could benefit
from ?

4. Was appellate counsel’s failure to raise bias and Presenting Counsel’s
exceeding her jurisdiction detrimental to the Applicant ?

5. Can this failure amount to incompetence ?

6. Could any of appellate counsel’s divided loyalty issues have
impacted his representation or at the very least give the appearance
of having done so ?

PART III - THE LAW:

Primacy of Constitution

of Canada:

61. The Constitution of Canada is the supreme law of Canada, and

any law that is inconsistent with the provisions of the Constitution

is, to the extent of the inconsistency, of no force or effect.

Constitution Act, 1982. s. 52(1)

62. Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law

in a fair and public hearing by an independent and impartial

tribunal;

Canadian Charter or Rights and Freedoms, s.11(d)

Record to be filed:

63. When notice of an application for judicial review of

a decision in the exercise or purported exercise of a

statutory power of decision has been served on the

person making the decision, such person shall forthwith

file in the court for use on the application the record of

the proceedings in which the decision was made.

Judicial Review Act, R.S.O. ch J.1 s.10

Content of Record:

64. A tribunal shall compile a record of any proceedings in which a

hearing has been held which shall include,

(a) any application, complaint, reference or other document, if any,

by which the proceeding was commenced;

(d) all documentary evidence filed with the tribunal, subject to any

limitation expressly imposed by any other Act on the extent to

or the purposes for which any such documents may be used in

evidence in any proceeding.

Statutory Power Procedures Act, s.20

Right of Judicial Independence

65. The Supreme Court of Canada left no doubt that as a Justice of the Peace the Applicant’s office is protected by the constitutional principle of judicial independence and that he has security of tenure – the essence of which mandates that his removal from office not be arbitrary or discretionary. The existing conflict between the JPA and the Procedures Document which resulted in Presenting Counsel being able to draft a NOH which bears no relation to the complaint deprived this Justice of the Peace and indeed all Justices of the Peace in Ontario of security of tenure and financial security. The fact that there is no obligation on the Attorney General to indemnify justices of the peace for the costs of defending their office in the same manner as their Provincial Court judge colleagues also makes the legislation prima facie unconstitutional.

Ell v. Alberta [2003] 1 S.C.R. 857

66. It can not be the case that the Applicant’s constitutional right to a fair and impartial hearing of his removal from judicial office ends at the hearing conducted before the JPRC Hearing Panel which triggered his right to review under the Judicial Review Procedures Act. That Act provides no right of appeal and has no privative clause. As such, all that they are empowered to do they must do so in accordance with the law of the land and the Divisional Court is the court mandated by statute to sit in review of the discharge of their statutory function.

Constitution Act, 1982, s.52(1)

Charter s.11(d)

Justices of the Peace Act, s.11.2

Judicial Review Procedures Act. s.6(1)

67. Where a tribunal fails to dispose of a matter before it in a manner permitted by the enabling legislation it is not functus officio. When the said tribunal files a record of proceedings before a reviewing court which is incomplete for whatever reason neither the tribunal who fails to properly dispose of the matter or the reviewing court can be said to be functus officio – particularly in light of Rule 59 of the Rules of Civil Procedure. Parties can not consent to make that which is relevant to the restoration of public confidence in the judicial removal process disappear.

Chandler v. Alta Assoc. of Architects [1989] 2 S.C.R. 848

68 The Applicant and the public’s right to access to a tribunal’s record of proceedings in a judicial removal case in our system of justice is akin to the public’s right to inspect a search warrant and the information upon which it is issued after it has been executed. Curtailment of public accessibility is justified only where the need to protect other social values is of superordinate importance. The need for confidentiality disappears once the warrant has been executed and in the judicial removal case once the Notice of Hearing is filed with the Hearing Panel as per the Procedures Document in this case.

Nova Scotia (AG) v. MacIntyre [1982] 1 S.C.R. 175

69. This Honourable Court’s jurisprudence of holding that parties are to file their facta only after the resolution of the scope of the record of proceedings is well established and there is no justifiable reason to depart from it.

Siera Club Ontario v. Ontario 2011 ONSC 4086

Rowse v. WPD Canada Corp. 2016 ONSC 5299

70. A denial of a right to a fair hearing cannot be cured by the tribunal’s subsequent decision. A decision of a tribunal which denied the parties of a fair hearing cannot be simply voidable and rendered valid as a result of the subsequent decision of the tribunal. The damage created by the apprehension of bias can not be remedied. The hearing, and any subsequent order resulting from it, must be void.

Nfld Telephone v. Nfld Public Utilities [1992] 1 S.C.R. 626

71. “A reasonable apprehension of bias in one member of a tribunal is sufficient to disqualify the whole tribunal, even though that member merely sat at the hearing without taking an active role in either it or subsequent deliberations. Mere presence is generally enough.”

Roberts v. College of Nurses of Ontario 1999 Canlii 18725 (Div Crt)

72. This court along with the Court of Appeal for Ontario’s jurisprudence is well established with respect to the test to establish harassment as “vexatious”, “unwelcome” and creating a “poisoned work environment”. It is an objective test.

Crepe it Up ! v. Hamilton 2014 ONSC 6721 (Div Crt)

Thames Valley District School Board v. Elementary
Teacher’s Federation of Ontario 2011 ONSC 1021 (Div Crt)

General Motors of Canada Ltd. v. Johnson 2013 ONCA 502 (ONCA)

73. “I agree that the conduct must be unwelcome.

Some conduct will be acceptable regardless of

the reaction of an oversensitive complainant.

Conversely, some conduct will be harassment

even though there is no overt objection by a

stoic or unresponsive complainant. In the middle

is conduct where the reaction of the complainant will

be largely determinable of whether it is harassment.”

Raj Anand’s Advice during Hearing – Exhibit “D”

Exhibit D – Applicant’s Further Supporting Affidavit

74. All defendants are entitled to effective assistance of counsel. Effective assistance of counsel is a principle of fundamental justice – the denial of which renders a trial finding unreliable. An allegation of ineffective assistance of counsel only succeeds if counsel’s acts or omission constitute incompetence and miscarriage of justice resulted in an unreliable verdict or procedural unfairness. Unreliability of a verdict is made out if the appellant can prove there is a reasonable probability the verdict would have been different if effective legal assistance had been received.

R v. G.D.B. 2000 SCC 22 at para 24-28

R v. McKellar 1994 Canlii 1402 (ONCA)

PART IV - ORDER REQUESTED

75 The Applicant requests an order declaring the Justices of the Peace Act unconstitutional and his removal from office based on it null and void. Alternatively, an Order setting aside the order of October 4^th, 2016 pursuant to Rule 59.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

February 28^th, 2018

_________________________

E. J. Guiste, for the Applicant

SCHEDULE A

1. Chandler v. Alta Assoc. of Architects [1989] 2 S.C.R.848 (S.C.C.) (Headnote only)

2. Ell v. Alberta [2003] 1 S.C.R. 857 (S.C.C.) (Headnote only)

3. Nova Scotia (AG) v. MacIntyre [1982] 1 S.C.R. 175 (Headnote only)

4. R v. McKellar 1994 Canlii 1402 (ONCA) (Headnote only)

5. R v. G.D.B. [2000] 1 S.C.R. 520 (Headnote only)

6. Hryciuk v. Ontario (Headnote only)

7. Crepe it Up ! v. Hamilton 2014 ONSC 6721 (Div Crt)

8. Thames Valley District School Board v. Elementary Teacher’s
Federation of Ontario 2011 ONSC 1021 (Div Crt) (Headnote only)

9. General Motors of Canada Ltd. v. Johnson 2013 ONCA 502

10. Rowse v. WPD Canada Corp 2016 ONSC 5299 (Div Crt)

11. Siera Club Canada v. Ontario 2011 ONSC 4086

SCHEDULE – B

1. Justices of the Peace Act, R.S.O. 1990 ch.J.4 , s.11(18)

2. Judicial Review Procedures Act, R.S.O. 1990 – s.10

3. Statutory Power Procedures Act, R.S.O. 1990 – s.20

4. Constitution Act, 1982, s.52(1)

5. Canadian Charter of Rights and Freedoms, s.11(d)

6. Rule 59.06(1), 59.06(2)(a)(b) of the Rules of Civil Procedure

7. JPRC Procedures Document – Role of Presenting Counsel –
Notice of Hearing – Open Court Principle – Public Hearing

NOTE: This factum was filed with the Divisional Court in support of JP Massiah's Rule 59 Motion heard on April 3rd, 2018. It is published here as a public service. All Ontarians are entitled to know what went on at that legal proceeding as it is a matter of public interest.

*I have used letters rather than names simply to avoid any allegation by anyone that I have misconducted myself by naming anyone who they may believe ought not to be named even though my reading of the JPRC Procedures suggests that the Open Court Doctrine is clearly in play once Presenting Counsel files the Notice of Hearing - "the complaints process will become public, subject to any orders by the hearing panel." The publication ban - issued by the Hearing Panel was limited to witness names of all witnesses which appear in the facta or motion materials in this hearing shall not be published." The June 11th, 2014 publication ban ordered by the JPRC Hearing Panel did not touch the names of persons who were not referenced in the facta or motion materials in the hearing.

E.J.Guiste on Law and Justice

Thursday, April 5, 2018

JP Massiah's Factum on The Motion to Set Aside Order Upholding Removal

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