Court
of Appeal File No.M49113
Divisional Court File No. 316/15
COURT OF APPEAL FOR ONTARIO
ERROL
MASSIAH
Applicant/Moving
Party
-and-
THE
JUSTICES OF THE PECE RVIEW 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
NOTICE OF MOTION FOR LEAVE TO APPEAL
THE MOVING PARTY, Errol
Massiah, will make a motion to the Court of Appeal for Ontario for leave to
appeal the decision of the Divisional Court dated April 9th, 2018.
PROPOSED
METHOD OF HEARING is in writing 36 days after service of the moving party’s
motion record, factum and transcripts, if any, or on the filing of the moving
party’s reply factum, if any, whichever is earlier, at Osgoode Hall, 130 Queen
Street West, Toronto, Ontario, M5H 2N5, pursuant to rule 61.03.1(1) of the
Rules of Civil Procedure.
The Motion is for:
1. An
order granting the moving party leave to appeal to the Court of Appeal for
Ontario from the decision of the Divisional Court dated April 9th,
2018;
2. His
costs; and
3. Such
further and other relief as counsel may advise and this Honourable Court
permit.
THE
GROUNDS FOR THIS MOTION ARE:
(1)
The Original Decisions:
1. By
Order dated October 4th, 2016, the Divisional Court dismissed an
application for judicial review brought by the Applicant seeking to quash the
decision, penalty, compensation decision, Order-in-Council and all
interlocutory decisions of a Hearing Panel of the Justices of the Peace Review
Council which recommended the Applicant’s removal as a Justice of the
Peace. Leave to appeal that decision was
sought at the Ontario Court of Appeal and that motion was denied.
2. Throughout
those proceedings (judicial review and leave to appeal motion) the Applicant
was represented by the Intervenors.
3. Following
the dismissal of the proceedings, the Applicant sought the advice of other
counsel regarding what he considered a most unjust result in the
circumstances. At that time it was
discovered that the intervenors had been quite ineffective on a number of
fundamental points of law and indeed had a conflict of interest in their
representation of the Applicant which deprived him of natural justice and to a
fair and impartial adjudication of his right to have the Divisional Court
supervise the Justices of the Peace Review Council Hearing Panel’s exercise of
their statutory power of decision under the Judicial Review Procedures Act.
4. Following
the dismissal of the proceedings, the Applicant learned that Presenting
Counsel’s spouse in the proceedings before the Justices of the Peace Review
Council Hearing Panel was a law partner of the complainant, Mr. Doug Hunt, in
the hearing she acted as Presenting Counsel in which resulted in his
removal. Standing alone this may not
raise concerns of fairness. However,
Presenting Counsel was expressly asked in writing who the complainant was in
the case and she advised in writing that it was the witnesses who she would call the hearing. Relying on this representation the Applicant
asked every witness whether they had any intention to complain about him and
they all answered in the negative with the Hearing Panel making a finding that
this point was not relevant because Mr. Hunt was the complainant.
5. Remarkably,
the hearing proceeded to a finding of liability without the Applicant knowing
who the complainant was. In addition,
although seeking the advice of Independent Counsel who specifically advised
them in his opinion that it was a “complaint” which the Justices of the Peace
Act authorized them to adjudicate they proceeded to adjudicate the counts on
Presenting Counsel’s Notice of Hearing.
6. A
motion and Notice of Constitutional Question was brought before a three member
panel of the Divisional Court seeking to set aside the decision of the
Divisional Court as a miscarriage of justice citing the following sources of
jurisdiction: s.6(1) and 10 of the Judicial Review Procedures Act and s.20(d) of
the Statutory Power Procedures Act, s.51(1) of the Constitution Act, 1982 and
Rule 59.06(1) and 59.06(2)(a)(b) of the Rules of Civil Procedure.
April
9th, 2018
Divisional
Court
Decision:
7. On
April 9th, 2018 a panel of the Divisional Court dismissed the
Applicant’s Notice of Constitutional Question seeking a declaration of
unconstitutionality arising from a conflict between the in-writing complaint
provision mandated by s.10.2(2) of the Justices of the Peace Act and the Notice
of Hearing provisions of the Procedures Document which allow an unfettered
discretion to Presenting Counsel retained by the Justices of the Peace Review
Council to present the case to also draft a Notice of Hearing having no
relation to the complaint and even to assert liability for matters in a prior
hearing which were clearly res judicata;
9. Further,
the panel of the Divisional Court dismissed the Applicant’s Notice of
Constitutional Question seeking a declaration that the
compensation-for-legal-costs portion of the Justices of the Peace Act is
unconstitutional since the legislation has no statutory language requiring the
Attorney General of Ontario to pay compensation on any recommendation for
compensation involving a justice of the peace – while s.51.7(8) of the Courts
of Justice Act contains mandatory language directing the Attorney General to
pay compensation to Judges of the Ontario Court of Justice pursuant to any
recommendation made by a Hearing Panel.
10. By order
dated April 9th, 2018 a panel of the Divisional Court dismissed the
Applicant’s motion seeking to set aside, vary or amend a decision of another
panel of the Divisional Court dated October 4th, 2016 expressly
finding the decisions of liability and penalty of a Hearing Panel of the
Justices of the Peace Review Council reasonable based on the record of
proceedings before it, as a miscarriage of justice.
11. Further,
the said panel of the Divisional Court also dismissed the Applicant’s prayer
for the following relief:
i. An order declaring his appellate counsel
on
the
October 4th, 2016 order to have been in
a
personal conflict of interest;
ii. An order declaring his appellate counsel
to
have provided
him ineffective assistance of
counsel thereby depriving
him of his
constitutional right to a fair and impartial
hearing of the review by a Superior Court
of
his removal from judicial office;
iii. 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 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;
iv. 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.
Cogent
Reason to
Doubt
Correctness
Of
order:
Admittedly
Deficient
Record:
12. The
Applicant’s motion while invoking Rule 59 with respect to various discrete
items of fresh evidence raised a more fundamental point which recognizes the fundamental role of the
Superior Court in the adjudication of an application for judicial review which is
to supervise the statutory exercise of power and to ensure that it was lawful.
In this case, the Divisional Court upheld the Hearing Panel’s decisions of
liability and penalty finding them not to be correct but to be reasonable based
on the record before it;
13. The
April 9th, 2018 decision was made notwithstanding the following
facts before the court:
i. Breach of agreement by the parties
before
the Hearing Panel
on the scope of the
record of proceedings which
is clearly
reflected in the October 8th, 2014
transcript
of the JPRC hearing;
ii. A March 15th, 2017 written
confirmation
from the Registrar
and Counsel of the Justices
of the Peace Review confirming that they
have
in their possession the
five volume investigation
transcripts, exhibits 2,
3, 4, 5, 6, 7, 8, 9, 10, 11,
12, 13A, 13B, 13C, 13D, 14A,
14B, 14C, 14D,
14E, 14F, 14G, 15, 16, 17, 18, 19,
20, 21, 22, 23,
24, 25, 26, 27, 28, 29, 30A, 30B, 30C
and copies
of all motion records, facta and boa; and
iii. A sworn affidavit from co-counsel for the
JPRC
that he
and the Applicant’s appellate counsel on
the judicial review hearing before the
Divisional
Court agreed
after the parties had all filed their
facta with the
court that the five volume
investigation transcripts would not be filed with
the court but “would
be made available to be
passed up to the court
if necessary”
Conflict
with Jurisprudence
From
this court:
14. In
Payne v. Ontario Human Rights
Commissions 2000 Canli 5731 (ONCA) the court stated:
[161] An Applicant for judicial review has the
right
to have a full and accurate record of what went
on
before the tribunal
put before the court.
This is an aspect of the superior
court’s inherent
powers of judicial review... A
statutory body
subject to judicial review cannot immunize
itself
or its process by arriving at decisions
on
considerations that are not revealed by the
record it
files with the court.
15. In the
April 9th, 2018 the Divisional Court Panel ruled that “Rule 59.06
does not apply to any of these matters. The Applicant knew of all of these
issues and complaints before the entry of the October 2016 Order.”
16. In Aird
& Berlis LLP v. Oravital Inc. 2018
ONCA 164 this Honourable Court set aside a motions judge’s finding that the
appellants’ were sophisticated business people who were aware of the value of
the damages and risks of litigation stating that it reflects a misapprehension
of a lawyer’s duty of care to advise the clients about the legal basis for the
damages and the risks of litigation. In addition, although the parties took the
position that the issues for litigation could be resolved on a motion for
summary judgement the court held that they were mistaken on that point and
ordered a trial of the matters.
17. Under
s.10 of Judicial Review Procedure Act the duty to file the tribunal’s record is
on “the person making the decision” as distinct from that person’s counsel or
as in this case the law firm retained to perform the statutory function of
Presenting Counsel pursuant to the JPRC Procedures Document.
Standing
and Boot-Strapping:
18. In
Ontario v. Ontario Power Generation
[2015] 3 S.C.R. 147 the Supreme Court of Canada provided guidelines on the
issues of tribunal standing to defend their own decision on judicial review and
on boot-strapping, supplementing their decision with new arguments on appeal.
19. The JPRC
Procedures expressly provide that the role of Presenting Counsel, Henein
Hutchision LLP is “to see that complaint against the justice of the peace is
evaluated fairly and dispassionately to the end of achieving a just result”, a
function which is long spent.
Conflict
of Interest
Of
Applicant’s Counsel
On
Judicial Review:
20. The
April 9th, 2018 decision overlooked the following salient facts
which placed the Applicant’s counsel on the judicial review in a conflict of
interest or position of divided loyalty:
1. He was an integral part of the Applicant’s
legal
team at the JPRC Hearing;
2. Prior to the JPRC Hearing Panel making
its referral
of the Applicant’s lead counsel
to the Law
Society of Upper Canada
alleging, among other
things, that he brought
meritless motions, that
lawyer referred the
judicial review to him;
3. He and his firm have historically been the
counsel
of choice for the subject lawyer,
including
on a reported case touching on
that
lawyer’s conduct;
4. His initial draft of the Notice of
Application
for Judicial
Review and indeed the issued
document show
a clear intention to challenge
the JPRC Hearing
Panel’s errors in the
adjudication of the preliminary
motions
attributed to the said lawyer;
5. On June 22nd, 2015 the JPRC
issued a
Compensation
Decision and Addendum
alleging
professional misconduct on the
part
of the Applicant’s lead counsel touching
on
the merits of legal arguments raised at
the
hearing;
6. The Applicant was clear in his
instructions to counsel prosecuting
the
Judicial review application that
the Hearing Panel’s adjudication of
the preliminary
motions
was
in error and was evidence of the
Hearing Panel’s exhibition
of a
reasonable apprehension of bias based
on
his and his
lead counsel’s race;
7. At no time did the Applicant’s counsel on
the
Judicial
review advise him that the Hearing
Panel’s
referral of his lead counsel to The
Law
Society of Upper Canada, where he sits
as
both a Bencher and Adjudicator on the
Law Society Tribunal placed him
in a conflict
or position
of divided loyalty which resulted
in the following acts of ineffective
assistance
of counsel on their part:
1.
Abandoning
the argument that
the complaint,
the Investigators
Report
and the Notice of Hearing
did
not match;
2. Abandoning the argument that
The Decision, Penalty and
Compensation
Decision, and all
related
interlocutory orders
should be quashed;
3. Abandoning the argument that
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 by the
Hearing Panel;
the allegations
of vexatious,
unwelcome and
poisoned work
environment called for
an
objective test in order to
ground liability – a
position he
supported when mentoring
the
Applicant’s lead counsel before
the JPRC Hearing Panel;
5. Failing/refusing to raise at the
Divisional Court
that a significant
part of the Notice of
Hearing was
barred by the principle of
law in
Hryciuk v. Ontario only to raise
it on the leave motion in this
Court;
6. Failing/refusing to raise the tainted
well doctrine of bias with
respect to
the recusal of The Law Society
of
Upper Canada’s nominee from the
Hearing Panel
– erroneously asserting
in his Affidavit
of January 3rd, 2018
that he did not
raise it on judicial review
because it was
not raised below;
7. Failing/refusing to raise the
argument that the JPRC
Hearing Panel was
argument that the JPRC
Hearing Panel was
improperly constituted
–
again erroneously asserting in
Exhibit II of his affidavit Of
January 3rd, 2108 that he did not
raise it because it was not raised
below when in fact it could not
have been raised below because
again erroneously asserting in
Exhibit II of his affidavit Of
January 3rd, 2108 that he did not
raise it because it was not raised
below when in fact it could not
have been raised below because
the disclosure was
first made to him
after the tribunal’s decisions
and the
Order-in-Council;
8. Failing to ensure that the Divisional
Court had a
complete record of
proceedings and attempting to place
blame
on the Applicant’s
counsel who
was the subject of
the JPRC referral to
the LSUC for this in
his affidavit of
January 3rd, 2018;
9. Engaging in extensive conversation
with the
investigator from the LSUC
on the JPRC
referral between preparing
the memo on
Presenting Counsel’s
conduct and
serving and filing his
factum and Application
Record in
January, 2016.
10. Refusing to raise numerous
serious excesses of Presenting
Counsel in the presentation of the
case against the Applicant detailed
in a November 8th, 2015 memo
which he admitted under cross
-examination
on February 8th,
2018 adversely
impacted the
Applicant’s fair hearing
rights.
11. Filing his facta and Application
Record before resolving the
scope
of the record of
proceedings contrary
to the Divisional Courts jurisprudence
where he
has handled many such
applications.
12. Failing to discharge their duty of candour
to
the Applicant and to ensure that they
properly
advised him so that he could
give
an informed consent to their advice
to him.
Personal
Conflict:
21. Evidence
before the Divisional Court panel on the Applicant’s motion indicated that he discovered
in April 2017 that Presenting Counsel’s spouse was a law partner of the
complainant former Presenting Counsel Doug Hunt. Presenting Counsel did not call Mr. Hunt to
give evidence and in fact when asked who the complainant was she advised that
it was the witnesses she would call at the hearing. The Applicant relied on
Presenting Counsel’s representation and questioned the witnesses on their
intention to complain only for the Hearing Panel to rule that their intention
was irrelevant as Mr. Hunt was determined to be the complainant only after the
Hearing Panel’s liability decision was issued on January 12th, 2015.
22. The
Divisional Court ruled that neither the above or the other items of the fresh
evidence adduced by the Applicant met the test for admission of fresh evidence
on the motion.
Law
and Ethics Transcending
the
parties:
23. The
Divisional Court Decision raises discrete issues about the role of the court, counsel
and the Attorney General of Ontario on a judicial review application which
merit consideration and clarification by this Honourable Court:
1. Did the Divisional Court construe the
Applicant’s
Motion and Notice of
Constitutional Question
asserting a
miscarriage
of justice before it too
narrowly ?
2. Given the evidence before the Court
pointing to ineffective assistance
of
counsel and conflict of interest which
deprived the Applicant of a
fair hearing
before the Divisional Court and on his
leave to appeal motion before this
Honourable Court did
the Divisional
Court err in refusing to entertain this
evidence in support
of the Applicant’s
claim of a miscarriage of justice in
the
loss of judicial office ?
3. Is there any principled reason why
ineffective assistance of counsel in
the context of a judicial
review application
pertaining
to removal from judicial office
does not constitute facts
arising or
discovered after an order is made
and constitutes
an abuse of process merely
because the client relies
on the same
lawyer on a leave to appeal motion ?
4. The Divisional Court’s decision is
inconsistent with jurisprudence from
the Supreme Court of Canada on
tribunal
standing to defend
its decisions and
boot-strapping, this court with respect
to the duty on a tribunal to
file a complete
record on judicial review,
the Federal
Court of Appeal and other courts with
respect to the availability of
ineffective
assistance of counsel as a
basis for
establishing a breach of natural justice
and hence an unfair hearing in civil cases.
The following documentary evidence will be relied upon:
1. Divisional
Court Reasons dated April 9th, 2018;
2. Motion
Record originally filed with the Divisional Court will be
Requisitioned;
3. Such
further evidence or documents which this Honourable Court may permit.
April 24th, 2018
E.
J. GUISTE
Professional
Corporation
Trial
& Appellate Advocacy
2
County Court Blvd., Suite 494
Brampton,
Ontario
L6W
3W8
E.J.
Guiste (LSUC # 34970C)
(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
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,
Counsel for the Lieutenant Governor
In Council and the Attorney General
AND TO:
DEWART GLEASON LLP
102-366 Adelaide Street West
Toronto, Ontario
M5V 1R9
Tel.(416) 971-8000
Fax (416) 971-8001
Tim Gleason
Counsel for the Intervenor
AND TO:
The Attorney General of Canada (as required by s.109
of the Courts of Justice Act)
Suite 3400, Exchange Tower
Box 36, First Canadian Place
Toronto, Ontario
M5X 1K6
Fax (416) 952-0298
NOTE: This Notice of Motion seeking leave to appeal was filed in the Court of Appeal for Ontario on April 24th, 2018. It is published here because it raises issues of public importance. Is there any principled reason why a judicial officer removed from office is not entitled to effective assistance of counsel on a judicial review pursuant to the Judicial Review Procedures Act ? Can a client give consent to circumstances giving rise to a conflict of interest and or divided loyalty on the part of his or her lawyer which impair his or her fair hearing rights ?
NOTE: This Notice of Motion seeking leave to appeal was filed in the Court of Appeal for Ontario on April 24th, 2018. It is published here because it raises issues of public importance. Is there any principled reason why a judicial officer removed from office is not entitled to effective assistance of counsel on a judicial review pursuant to the Judicial Review Procedures Act ? Can a client give consent to circumstances giving rise to a conflict of interest and or divided loyalty on the part of his or her lawyer which impair his or her fair hearing rights ?
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