On July 31st, 2020 a Divisional Court Panel wasted little time in denying former Justice of the Peace Massiah an adjournment to allow him to argue that Anti-Black Racism tainted the decisions of the Justices of the Peace Review Council Hearing Panels which denied his claims for compensation to cover the legal costs associated with defending his judicial office.
In a tearful and passionate plea, former Justice of the Peace Massiah's lawyer, Osborne G. Barnwell begged the Panel to allow him a two week adjournment to permit him an opportunity to make submissions on how Anti-Black Racism, White Supremacy and Implicit Bias tainted the actions of Presenting Counsel and the Hearing Panel Decisions.
Counsel for the Attorney General of Ontario strenuously opposed the request for adjournment standing firmly behind Presenting Counsel - to whom they appear to have delegated full authority to defend the case even though the Notice of Application for Judicial Review asserts claims of excess of jurisdiction in their presentation of the case. In other words, neither the Attorney General, who is charged with upholding the law in Ontario or the Divisional Court Panel took issue with Presenting Counsel defending their own actions and the Decisions of the Hearing Panels which they forcefully advocated for.
Mr. Barnwell stated to the Divisional Court Panel that although the case is rife with uncensored discriminatory acts and omissions against both Mr. Massiah and his Black lawyer, E.J. Guiste, he was afraid to raise the issue in light of the JPRC Panel's very public referral of E.J. Guiste to the Law Society of Upper Canada for professional misconduct for, among other reasons, his raising questions about Anti-Black Racism in the case.
Mr. Barnwell carefully explained that the world-wide attention now placed on Anti-Black Racism provided him the strength and courage to fearlessly raise the issue as did Mr. Guiste. Mr. Barnwell assured the court that he would act with haste in ensuring the matter resumed promptly for hearing
and would insist on the other parties having a full opportunity to respond.
The Divisional Court Panel politely heard submissions from the parties - rose for deliberations and swiftly dismissed the request for adjournment and proceeded to hearing the application. The Panel reserved its decision but invited full submissions on costs from the parties.
Background:
His Worship Massiah, who is Black, was removed from office by the Attorney General of Ontario on April 29, 2015. The Hearing Panel which recommended his removal from office found that he acted in a manner inconsistent with the Human Rights Code and he created a "poisoned work environment". This is so even though Mr. Massiah called three managers to testify in his defence who confirmed that his compliments to staff were "well-received" and they were unaware of him creating a "poisoned work environment". In fact, one manager testified that if there was a "poisoned work environment" it was not created by Mr. Massiah. The manager went on to confirm that the staff are covered by both a collective agreement and a Discrimination and Harassment Policy and not a single employee complained to her about Mr. Massiah. Mr. Massiah applied for a transfer to another court on his own initiative and this was granted by his Senior Justice.
This is to be contrasted with the case of H.W. Kowarsky. His Worship Kowarsky who is White received a reprimand and was transferred to another court following a finding of judicial misconduct where he stated in open court, "Madame Clerk I'd like my blow job now.". Mr. Kowarsky plead guilty and explained that he said, "Made Clerk I'd like my blow job now....the fan." This matter which was presented by the very same Presenting Counsel proceeded by an Agreed Statement of Facts and a guilty plea.
The Agreed Statement of Facts and the Notice of Hearing raised the following three discrete particulars of misconduct:
1. January 29th, 2010 - The Madame Clerk, I'd like my blow job now comment;
2. 2008 event - The complainant attended JP Kowarsky's office prior to court and he hugged her and said, "Some people say hello by kissing on the lips". "Until January 29, 2010 it was Justice of the Peace Kowarsky's custom to greet female colleagues and clerks with whom he had not worked for a while with a hug. He no longer does so."
3. March 2, 2010 - JP Kowarsky summoned the complainant to his office and admonished her in a loud voice for what he said was her inappropriate conduct in court the day before. The complainant was crying and shaking. She was upset and asked that she not be assigned to work in the same courtroom as JP Kowarsky ever again.
The Kowarsky Panel's Decision:
[15] The complainant subsequently requested not to be assigned to the same courtroom as Justice of the Peace Kowarsky.
[31] The Panel agrees with the submissions of Counsel that the facts of January 29, 2010 constitute judicial misconduct and the panel upholds the complaint.
[32] Further, the Panel agrees with the submissions of Counsel that the facts involved in the other two dates particularized in the Notice of Hearing do not constitute judicial misconduct and the Panel dismisses those complaints. The facts did not meet the test set out in paragraph 7 above.
[42] The Panel's decision is to reprimand Justice of the Peace Kowarsky.
JP Kowarsky was indemnified to the tune of $37,000 for the costs of his defence.
Former Justice of the Peace Massiah received zero indemnification for his 23 day hearing. His Black lawyer was referred to the Law Society of Upper Canada for discipline. His White lawyer was not. Presenting Counsel actually praised the work of the White lawyer and the Hearing Panels actually acknowledged this in their Decisions. JP Massiah's conduct is said to have violated the Ontario Human Rights Code. No such allegation was made against JP Kowarasky in her Notice of Hearing against him.
JP Kowarsky most clearly created a poisoned work environment for his complainant. She actually demanded never to be assigned to work with him again. Absolutely no one in the Massiah case made any such request. JP Kowarsky enjoyed the benefit of a publication ban to protect his name. JP Massiah did not. The publication of the Notice of Hearing against JP Kowarsky was not published on the JPRC website. JP Massiah's was published on the JPRC website, The Toronto Sun, The Toronto Star, The Globe and Mail and Law Times.
Every single witness called by Presenting Counsel against JP Massiah testified to not having any intention to file a complaint against him. They were asked this because in response to a disclosure request Presenting Counsel answered that the complainants are the witnesses she would call to testify at the hearing. Some 19 months later in their Decision dated January 12th, 2015 the Hearing Panel ruled that former Presenting Counsel, Mr. Doug Hunt was the complainant. JP Massiah was denied the opportunity of confronting him. Not a single witness called by Presenting Counsel was able to testify with specificity about when the allegations took place. None.
JP Kowarsky was so protected by White Privilege that the words he uttered to the complainant are not even mentioned in the JPRC decision. Have a look for yourself.(see Kowarsky Decision on link below) The Agreed Statement of Facts which the very same Presenting Counsel put before the Hearing Panel stated that it was his practice up until January 29th, 2010 to hug staff he had not seen for awhile. JP Massiah hugged no one. He touched a clerk on a should and asked her how she was doing. This was the offence which Presenting Counsel passionately advocated made this a much more serious case than his first. It must be that "soul brother" voice which sexualized this innocent encounter. The witness who claims to have observed this is the very same witness who, behind JP Massiah's back, referred to him as a "soul brother" among her workmates. This is what the Hearing Panel wrote on this point in the liability Decision at para 176:
176. As Ms. II described, the words as well as the slow, breathy manner of
expressing them, were reminiscent of a style of speaking which the
phrase "soul brother" connotes. Ms. BB described how His Worship
would slowly inhale and exhale, commenting as he was exhaling, in a
sensual way.
Here is a definition of "soul brother" from a leading dictionary.https://www.merriam-webster.com/dictionary/soul%20brother
Readers and concerned citizens may also be interested to read what Madame Justice Cronk of the Ontario Court of Appeal had to say about the type of evidence necessary to establish a poisoned work environment in Johnson v. General Motors of Canada 2023 ONCA 502. (see paragraphs 66 and 67)
