Wednesday, April 11, 2018

New JPRC Panel Denies JP Public Hearing and "Rubber-stamps" Old Compensation Decision


  If it wasn't enough that the JPRC failed to inform the Divisional Court that the 2012 Hearing Panel which that court ordered to rehear the compensation issue in Massiah v.  JPRC ONSC no longer existed prior to the court's order of October 4th, 2016, resulting in a two-member panel actively considering the case for some nine months only to conclude that they were "unable to make a unanimous decision" in their decision of October 25th, 2017 - they have managed to do it again.


    Over JP Massiah's objections, the 2/3s of the 2012 Panel went on to recommend to the Chief Justice that she appoint a new panel to hear the compensation issue. JP Massiah properly advised them that their jurisdiction was spent and assuming they have jurisdiction he would go with a new panel.  JP Massiah also questioned the utility of the exercise since under the governing legislation the Attorney General is not obligated to pay on their recommendation as is required with Ontario Court of Justice judges by virtue of s.51.7(8) of the Courts of Justice Act.

   Once again Presenting Counsel supported this move and went even further.  Presenting Counsel argued in written submissions on the issue that JP Massiah's appeal lawyer at the Divisional Court agreed that this was the proper way to proceed.  Interestingly, JP Massiah's appellate counsel told a different story in his sworn affidavit dated January 3rd, 2018.  In an e mail to JP Massiah which is Exhibit Y on his affidavit he stated, "I told him I would want to put that before the Divisional Court, before we took out the order, because otherwise the hearing panel would think they had a binding direction to re-hear the costs issue." 

   JP Massiah's appeal lawyer and counsel for the JPRC and the Attorney General overlooked the necessity of seeking directions from the Divisional Court in order to comply with the Divisional Court's October 4th, 2016 order.   

   An October 17th, 2016 Law Times publication on the case suggests that JP Massiah's appeal lawyer was very much aware of the compliance problems flowing from the retirement of Justice Livingstone.  It reads: "Anand says the Divisional Court ruling on the compensation issue will cause some practical difficulties, since Justice Deborah Livingstone, who chaired the second review council panel, has since retired from the bench." (Legal bill covered for fired justice of the peace ?)

   Presenting Counsel once again argued for and obtained a departure from the traditional obligatory public hearing over JP Massiah's objections. JP Massiah's request to call viva voce evidence was objected to by Presenting Counsel and denied by the new hearing panel chaired by Justice Lahaie.


   Justice Lahaie went on to rule that she had in her possession all of the written submissions made to the 2/3 of the 2012 Panel and that no further evidence or submissions would be received.  Among the cases in her possession from the earlier submissions made by JP Massiah included a Court of Appeal Case - Re Lovering and Minister of Highways [1965] 2 O.R. 721 (ONCA).

   In Re Lovering and Minister of Highways [1965] 2 O.R. 721(1965 Canli 276 (ONCA) the Court of Appeal was faced with a situation where a tribunal which had been ordered to rehear an issue refused to allow a party to adduce evidence and proceeded to effectively rubber-stamp their initial decision. The Court of Appeal held as follows:

"It was wrong for the Board on a rehearing ordered by the Court to decided the case on the record already before it and to refuse to hear further evidence. The matter must be referred back again and on the further rehearing the Board should be differently constituted."

NOTE:  This piece is published here to draw attention to various issues of public importance which arise in this case. The first is that orders of our courts are to be respected unless appealed. The Divisional Court rehearing order was not complied with.  Why ?  If the 2/3s of the 2012 Panel who undertook to comply with the Divisional Court's order was unable to decide the issue was it open to them to do anything other than to render their decision and for JPRC to seek directions from the court ? Second, if a public hearing is the presumptive right on these matters - why was JP Massiah denied this fundamental right ?  Third, if there is no obligation on the Attorney General to follow the tribunal's recommendation for compensation for legal fees under the legislation - how does the Attorney General justify paying JP Massiah's lawyers on his first hearing directly for a similar case ?  What was different, if anything, the first time around ?

The author, E.J. Guiste is currently counsel to JP Massiah in his efforts to remedy what he, his client and many observers see and believe to be a miscarriage  of justice and a glaring lack of consistency, fairness, impartiality and independence in the complaint process involving Ontario's justices of the peace. Any error in this publication ought to be brought to the writer's attention and it will be dealt with.     

1 comment:

  1. So, for the love of God, is it finally OVER?