Canadian Judicial Council Announces Dates of Public Hearing re Justice Michel Girouard

   Dates for the adjudication of the fresh complaints filed against Justice Girouard based on his testimony before the Hearing Panel who adjudicated his initial judicial misconduct proceedings were announced by the Canadian Judicial Council yesterday.  The new Inquiry Committee will proceed with public hearings January 30 to February, 2017 and again from February 20, 2017 to Febraury 24, 2017 as needed.  The hearings will be held in Quebec City at the Quebec courthouse, 300 Jean-Lesage Blvd.

   Readers will recall that this is the Quebec judge who was accused of being involved in a drug trafficking transaction and the Hearing Panel found that the substantive complaint against him was not made out on the evidence but two of the three panel members concluded that he ought nonetheless to be removed from office based on his testimony before them which they concluded was not credible. On further review within the Canadian Judicial Council administrative framework the recommendation for removal was set aside.  It was set aside on the reasoning that it was in breach of natural justice and fairness since Justice Girourard was not provided with any notice in advance that the manner of his testimony would be used against him as a separate and distinct ground of misconduct.

Hryciuk  v. Ontario
1996 Canlii 4013 (ONCA):

   We in Ontario are quite familiar with this reasoning when 20 years ago Madame Justice Rosalie Abella quashed a removal from office order against Justice Walter Hryciuk of the Ontario Court of Justice employing that very reasoning in the landmark case of Hryciuk  v.  Ontario.  The Court of Appeal was clear that a judge can not be removed from office unless the complaint has been pre-screened by the judicial council in that case and that removal may only result from that complaint being established.  The inquiry the court ruled was not a general one to determine whether the judge ought to be removed from office but rather a limited one focusing on whether he or she ought to be removed for the particular complaint filed.

   Readers will also recall my now well documented struggle of trying to obtain a fair and impartial hearing for my client, His Worship Massiah, in judicial misconduct proceedings before a hearing panel of Ontario's Justices of the Peace Review Council.  My objection that the Notice of Hearing had 7 allegations of misconduct that were not pre-screened by the Complaints Committee and hence my client received no notice of until the issuance of the Notice of Hearing on or about May 31st, 2013 was dismissed along with the myriad of other procedural irregularities in those proceedings.

    However, the following excerpts from the hearing panels Disposition Decision and Presenting Counsel's Written Submissions on Disposition raise yet another discrete breach of natural justice and fairness and Hryciuk Error:

Presenting Counsel:

[81]   Presenting Counsel submits that administrative law principles of fairness place limits on the ability of a tribunal to give effect to new misconduct that comes to light in the course of a hearing. This principle was given effect by the Court of Appeal in Hryciuk.  It leads to the conclusion that untruthful testimony in the course of a hearing could only be pursued as a separate instance of misconduct through the usual procedural mechanisms beginning with a fresh complaint.

[81]   However, even though His Worship's untruthful testimony cannot be considered a separate head of misconduct, Presenting Counsel submits that it can legitimately be considered on disposition as a factor going to public confidence.  It pertains directly to the likelihood of His Worship committing similar misconduct in the future and his fitness to continue to hold office.

Respondent's Submissions:

[47]   Presenting Counsel suggests two further areas which might convince the Panel that removal from office could be called for.  First, it is suggested that the panel's finding that Justice Massiah's testimony was dishonest or unreliable could underpin a determination that removal is appropriate. Justice Massiah is required to accept the findings of the panel.  However, it is submitted on his behalf that this finding should not be used against him on the penalty phase, as envisaged in Hryciuk in the Court of Appeal.

Disposition Decision:

[64]   When we consider the extent and duration of His Worship Massiah's misconduct, and his testimony, before us, which demonstrated a complete lack of insight into the gravity of his misconduct even after a previous public hearing, we conclude that the dispositions set out in paragraphs 11.1(10) (a) to (f) are not sufficient to restore public confidence in His Worship Massiah or in the judiciary in this case.


Justice of Appeal Abella 
in Hryciuk (supra):

   "The language of the statute is unambiguous and leaves no discretion to a judge conducting a s.50 inquiry to hear new complaints not previously screened by the Judicial Council.  The inquiry judge had a specific, narrow mandate under the legislation: to conduct an inquiry, not into the general question of whether Judge H should be removed, but into whether he should be removed because of those complaints referred to her by the Judicial Council, namely, the two complaints referred to in the order-in-council.  By hearing three additional complaints not so referred, she exceeded her jurisdiction.

   The inquiry judge based her recommendation on all the complaints she heard, including the ones she had no authority to hear.  The evidence of those three complaints formed an integral part of her recommendation that Judge H be removed.  It was, therefore, impossible to say what her recommendation would have been if her finding had been based only on the two complaints she had jurisdiction to hear."


What was the "complaint" which the 
Hearing Panel was called up to 
Adjudicate ?

   In November of 2011 while acting as Presenting Counsel in a separate case involving His Worship Massiah Mr. Douglas Hunt, Q.C. took statements from five persons claiming to have information regarding His Worship Massiah and sent them off to his instructing counsel, Ms. Marilyn King, who also happens to be the Registrar of the Justices of the Peace Review Council. When Ms. King received the information she sent Mr. Hunt a letter asking him whether this was a new complaint.
Mr. Hunt wrote back simply stating that members of the public brought information to his attention and he was sending it in for consideration.

Here is the Hunt Report in a nutshell:

1. B.N - a provincial prosecutor was anticipated to state that his colleague M.E. told him
that Ms. Sole-Defendant, a litigant, who had earlier appeared before His Worship Massiah spoke
with him and he appeared to hand her a business card that appeared to be his official
Justice of the Peace business card.  He was not called as a witness by Presenting Counsel.

2. M.E.- a prosecution assistant was anticipated to state she made the observation noted
above with resepect to HW Massiah's interaction with Ms. Sole-Defendant and that she conveyed
this to B.N. She was not called as a witness by Presenting Counsel.

3. QQ - Supervisor, Provincial Prosecutors was anticipated to state that sometime in
2009 he saw HW Massiah give his business card to woman who had previously appeared
before him.  "My assumption is it is his, I don't know what else it would be, but I am
assuming that, but he's handing her a business card while they wee in conversation. That
struck me as strange."

When asked by a lawyer from Mr. Hunt's office whether HW Massiah ever acted inappropriately in his presence, QQ said the following:

A.  These are tough questions aren't they ?  I will say no to that, but it doesn't mean I am being overly supportive of him.  What often bothered me about him, that's not too strong a word to use I don't think, in courtrooms, he was kind of leering, ogling, attractive woman(sic) in court and that to me is not how we do things. We may say he as just being friendly and I will probably say, "Okay", but it was obvious on a number of occasions and that's about as far as it goes.

A.B.  Obvious on a number of occasions with whom ?

QQ   Female, attractive defendants

A.B.   Did they, in your experience, were they treated differently than other defendants ?

QQ   No. I don't think he ever, as far as I am aware, I don't think there was ever any lack of impartiality with him as a jurist or a judicial officer making decisions on penalty for example. I have never seen that, I will give him that.  That is not the issue.

A.B   ....Do you recall the name of the defendant ?

QQ   I do not.  I didn't make any notes.  I should have taken some notes or kept a docket but I didn't. That doesn't sound good, but I never keep any details.

4.   II - A POA clerk - brought a number of issues including the BB touching incident.
Two incidents involving her daughter were dismissed by the complaints committee,
namely, 1. "I had the pleasure of meeting your daughter" and 2. a touching incident
involving her daughter.  She mentioned EE going up to his chambers and encountering
him shirtless. She mentioned the PP chest incident.

5.   HH - a provincial prosecutor advised that in the late spring of 2010 she was
proceeding towards the entrance of 605 Rossland Road, past the entrance for the
Justices of the Peace. Justice of the Peace Massiah was sitting outside the Justices
of the Peace entrance. No one else was present. As HH passed HW Massiah she
says that he said, "Looking Gooood " and "raked her" up and down with his eyes.

That is it.  That is the Hunt Report. That is the "complaint" which was filed against HW Massiah.
(see Record of Proceedings - Vol.II - Tab 37)  If you have a minute to spare I invite you to take the time and compare it to the Notice of Hearing.(see Record of Proceedings - Vol.I - Tab 2)

You will see that there is an obvious lack of congruence between the "complaint" and Notice of Hearing.  If you dig further you see that there is a lack of congruence between the "complaint", the Notice of Hearing and the matters which the Hearing Panel relied upon to make the removal order.

The long and short of it is that the Hearing Panel considered a myriad of issues which were not part of the complaint and was not investigated by the complaints committee in making their removal decision.  Some of their findings of liability, namely, paragraphs 1-6 and 14 in the Notice of Hearing were made with no evidence. Presenting Counsel conceded in their written submissions that no evidence was called on these items.


NOTE:  This piece is written for the sole purpose of drawing attention to an issue of public importance - the removal of a judicial officer from office. Judicial officers can not be fired as the main stream press have frequently characterized this removal from judicial office. Those who defend them in accordance with their duty as counsel ought not to be the subject of arbitrary penalty and sanction without due process of law either.
  

   

Did the JPRC Violate their Own Procedures in Compensation Policy Change Media Coverage ?

 
   "Taxpayers billed for guilty justices' legal fess" read the headline in a November 20, 2014 article published in the Toronto Star.  The article went on to identify "The guilty JPs" and the corresponding sums of money paid out by the Attorney General of Ontario to compensate them for the cost of defending judicial misconduct proceedings initiated against them under the Justices of the Peace Act. The Toronto Star article went on to suggest that these "guilty JPs" "had their legal fees compensated to the tune of more than $200,000.

   A question of law arises with respect to the publication of this information given that the Procedures Document which governs proceedings before the Justices of the Peace Review Council did not provide for making this aspect of the proceedings public until an amendment on May 14th, 2015 during the proceedings involving JP Massiah.

   The May 14, 2015 copy of the Procedures Document reads as follows on this point:

"The Review Council's consideration of the question of compensation shall take place in public if there was a public hearing into the complaint, and otherwise shall take place in private. The hearing panel may recommend that the justice of the peace be compensation for all or part of the cost of legal services incurred in connection with the hearing".

   The May 6, 2014 copy of the Procedures Document reads as follows on this point:

"The hearing panel may recommend that the justice of the peace be compensated for all or part of the cost of the legal services incurred in connection with the hearing."

A Look at the Five Cases:

   In four of the five cases cited in the article a review of the Reasons for Decision in each of them shows that the issue of compensation is neither discussed or adjudicated in them.(see Re JP Welsh, JP Kowarsky, JP Guberman, JP Massiah)   This would tend to be consistent with the May 6, 2014 Procedures Document and the May 14, 2015 amendment which called for the compensation portion of the hearing being public if there was in fact a public hearing.

   Re Foulds 2013 is the first case in which a hearing panel of the Justices of the Peace Review Council addresses the issue of compensation in their published decision.  This decision is dated July 24th, 2013 - 22 months prior to the amendment in their Procedures Document making this portion of the proceedings a public matter.  It is in Foulds 2013 that a hearing panel of the JPRC introduced the new standard on compensation decisions which was relied upon in Re Massiah (2015) to deny compensation.

Who is quoted in the Star Article:

   The following persons affiliated with the Justices of the Peace Review Council are prominently quoted in the Toronto Star story:  Mr. Douglas Hunt - Presenting Counsel in Re Massiah, and Marilyn King, Registrar of the Justices of the Peace Review Counsel. An unnamed spokesman for the Attorney General is said to have confirmed that "the government paid the full recommended amount to all five disciplined JPs."

Douglas Hunt:

Lawyer Douglas Hunt presented the case against Massiah in his first hearing and was found by the JPRC Hearing Panel to have been the complainant in the second proceeding. Mr. Hunt is no stranger to cases of this nature having acted for the complainants in the landmark judicial misconduct case of Hryciuk  v.  Ontario where a removal order was overturned by the Ontario Court of Appeal. The following are the quotes the Toronto Star attributes to him in their publication:

- Compensation for legal fees for JPs was "an important issue that obviously needs to be looked at."

- "The government does not pay the legal costs of citizens who are acquitted, let alone someone who is found guilty".

- But, Hunt said it is important JPs have access to resources to defend themselves against allegations brought forward by the government.


Commentary:

   In my 23 years as a lawyer in Ontario I have yet to see a Crown Attorney argue against funding by Legal Aid Ontario or otherwise to enable Ontario residents to defend themselves in criminal proceedings.  Most reasonable and informed observers agree that a system which pits the unlimited resources of the state against an individual of limited financial means runs the risk of undermining the legal legitimacy of its findings of guilt. We in Ontario take great pride in our current system of Legal Aid where individuals of limited means have some access to a lawyer of their choice to defend their legal rights.

   Indemnification of the legal costs incurred by judicial officers in defending judicial misconduct proceedings can not be equated with a criminal or a civil trial. The right to bring a complaint of judicial misconduct against a judicial officer is a right which every single resident who enters a court of law is guaranteed in Ontario. Accordingly, it can reasonably be said that the right to indemnification for defending their office is an implied term and condition of the judicial appointment. Otherwise, a judicial officer making $120,000 a year could not reasonably defend their office in a judicial misconduct proceedings spanning 5 years, some 30 days and more than $700,000**.

   Indemnification of the legal costs associated with judicial officers defending their office by the Attorney General is part of the public interest component of this office. This is because indemnification is the small price that we pay for judicial independence and the right to be able to complain and initiate proceedings to correct unsatisfactory behaviour from our judges.

   Indeed, the Government of Ontario is not as prosperous as it once was. We have witnessed substantial and damaging cut-backs throughout the administration of justice which threaten to undermine its proper operation. This is an issue for the law-makers to tackle.  It is not one that Presenting Counsel and the Registrar of the Justices of the Peace Review Council need to champion.
(readers are invited to read Michele Mandel's of April 10th, 2014 entitled Oshawa JP's Sexual Harassment Hearing Lags)

NOTE:  This piece is written for the sole purpose of drawing attention to an issue of public importance, namely, the operation of agencies and tribunals charged with the discharge of important public functions such as the Justices of the Peace Review Council. How these agencies conduct their business is vitally important and must at all times be seen to be fair and impartial. If there are any inaccuracies in this publication kindly bring them to my attention and I will correct them. My role is to educate and not to punish.  Democracy and the Rule of Law work best when the participants have full and fair disclosure of all of the necessary information.  Readers are invited to read Michele Mandel's coverage of this issue in the Toronto Sun as well.

**Estimated cost of the two proceedings for substantially the same conduct at the same time for which a panel chaired by esteemed jurist Charles Vallencourt issued a reprimand, a 10 day suspension, gender-boundary sensitivity training and letters of apology - all of which were complied with but Massiah's return was prevented by Presenting Counsel, Mr. Hunt's report to the JPRC which they found to be a complaint more than 3 years after it was submitted by Mr. Hunt.

The Problematic Portions of the Massiah Notice of Hearing:Part V of My Defence to the JPRC Referral to The LSUC

1.   Page one of the Notice of Hearing proclaims:

"The Justices of the Peace Review Council (the "Review Council", pursuant to subsection 11(15(c) of the Justices of the Peace Act, R.S.O. (1990, c. J.4, as amended (the "Act"), has ordered that the following matter of a complaint regarding the conduct or actions of Justice of the Peace Error Massiah be referred to a Hearing Panel of the Review Council, for a formal hearing under section 11.1 of the Act.

Problems:

1.  The Review Council can not order hearings. The function is reserved to a Complaints Committee by s.11(15)(c).

s.8(2) clearly spells out the functions of the Review Council:

(a)   to consider applications under section 5.2 for the accommodation of needs;
(b)   to establish complaints committees from among its members to review and investigate complaints under section 11;
(b.1)   to approve criteria under subsection 6(5) for granting approval for justices of the peace to continue in office one they reach 65 years of age;
(c)   to review and approve standards of conduct under section 13;
(d)   to deal with continuing education plans under section 14; and
(e)   to decide whether a justice of the peace may engage in other remunerative work.

s.11(15)   When its investigation is complete, the complaints committee shall,

(c)    order that a formal hearing into the complaint be held by a hearing panel


   When myself and my co-counsel, Mr. Jeff House, properly sought leave to bring this irregularity in the Notice of Hearing to the attention of the Hearing Panel their response was to issue an order directing that I not make any further submissions. This order was made without providing me any opportunity to respond to it.


2.   The following items and issues were not pre-screened by the Complaints Committee as mandated by the Court of Appeal for Ontario in Hryciuk  v. Ontario (1996) 31 O.R. (3d) 1.  Accordingly, the subject JP was never asked to respond to them and learned of them for the first time once served with the NOH in and around June, 2013 - six years after some of the allegations:

1.   Between May 30, 2007 and August 23, 2010, you engaged in a course of conduct, including comments and/or conduct, towards female court staff, prosecutors and defendants that was known or ought to have reasonably been known to be unwelcome or unwanted. The conduct resulted in a poisoned work environment that was not free of harassment;

2.   You acted in a manner inconsistent with the Ontario Court of Justice Discrimination and Harassment Policy for Judges and Justices of the Peace by failing to treat others in the justice system with mutual respect and dignity;

3.   You displayed improper and/or offensive conduct and made inappropriate, sexual and/or offensive comments directed at females that made persons working in the justice system feel uncomfortable, uneasy or embarrassed;

4.   Your Worship ought to have know that such behaviour, particularly given your position as a judicial officer, could cause offence, harm, discomfort and/or undermine the dignity of female staff and prosecutors;

5.   The behaviour occurred in the workplace at the Courthouse or at a location or event related to the workplace;

6.   Your Worship's inappropriate and/or offensive conduct contributed to a poisoned work environment such that that comments and/or behaviour created a hostile or offensive work environment for individuals or groups and diminished individual's confidence in you as a judicial officer and their confidence in the administration of justice;

14.   In light of the nature of the conduct set out above in paragraphs 1 to 13, the range of women who were recipients of your conduct, and your history of judicial misconduct of a similar nature at a different courthouse, your conduct demonstrates a pattern of inappropriate conduct toward women in the justice system.

   When I properly raised the Hryciuk Error on the face of the Notice of Hearing along with other procedural irregularities in the proceedings the Hearing Panel's response was to initiate their very own motion questioning whether they had jurisdiction to entertain the motion I initiated on behalf of my client and order the relief I sought.  The Hearing Panel then went on to retain Independent Counsel in May, 2014 and there motion was not resolved until June, 2014 - some 12 months following the initiation of the original motion I brought on behalf of my client.

Delay:

  The original question I raised dealing with the complaint in writing requirement for jurisdiction was not answered until January 12th, 2015 - close to 19 months after I raised the question in June, 2013 and 38 months after the Hunt Report(the complaint) was received by the Review Council.  The full record in this case shows that I was not responsible for this delay.  Witnesses were called upon to testify in July, 2014 on matters that took place between 4-7 years prior - not because they initiated a complaint and were committed to seeing the process through.  They were interviewed during their work hours and paid for the time. Their union had no involvement in the process.

Reasonable Apprehension
of Bias:

   Indeed, an independent third party observer aware of the surrounding facts of how HW Massiah's first and second proceedings came to light may reasonably see these second set of proceedings as a calculated effort to justify and secure his removal from office. The following facts speak to this concern:

1.   First proceedings(2011) were initiated not by the staff but by the Director of Court of
Operations of the Ministry of the Attorney General and there was no union involvement
although all the workers were covered by a collective agreement which touched on the
issues raised in the Director's complaint;

2.   Second set of proceedings(2013) were initiated not by the staff but by Presenting Counsel - who was presenting the case initiated by the Director of Court Operations at the time - again with no union involvement although the subject workers were covered by a collective agreement and an anti-harassment policy touching on the issues raised in Presenting Counsel's Report(Hunt) and later in the Notice of Hearing - paragraphs 1-6 and 14 drafted by Presenting Counsel who presented the second case;

3.  Three of the five persons interviewed by Mr. Hunt testified at the second hearing that they were concerned that he may get a "slap on the wrist";

4.   Evidence that the second proceedings(2013) could and should have been initiated with the first was ignored by the Hearing Panel.  Although the second set of proceedings was brought forward on the theory that it involved a second court the allegation at 7(b) of the Notice of Hearing involving AA in 2007 took place at OCJ and not the Provincial Offences Court;

5.   In an article entitled "JP Wants Legal Costs Covered in Sexual Harassment Case " by Michele Mandel of The Toronto Sun dated April 28, 2015 the opinionated columnist, who is one the person's followed on Twitter by Deborah Livingstone @dresdengirrl wrote the following:

"In a 2013 decision, the review council indicated the days of automatically asking the government to reimburse JP's costs are done, especially when they've been found guilty of such "extreme  misconduct" that they've been recommended for removal from office.  JP Donna Phillips, who retired before she could be fired for lying to police, was told she's have to pay her own lawyers' fees. "We are of the firm view that the average reasonable Canadian fully apprised of all of the facts would be shocked if any compensation were awarded".  Ditto for Massiah.  It's time he dipped into his own pocket for a change."

5.   Just prior to the consideration of HW Massiah's claim for compensation for the fees incurred in defending his office the JPRC made an amendment to their Procedures Document making this portion of the hearing public for the first time;(See HW Massiah's Written Submissions on Compensation and May 14th, 2015 Procedures Document)

6.   The day following the Hearing Panel's decision denying compensation and referring me to the Society, Michele Mandel of the Toronto Sun published an article entitled, "Fired JP loses bid to have taxpayers pay legal fees - Lawyer's conduct to be reviewed" - "JP fired over lecherous behaviour loses bid to have taxpayers pay $600,000 in legal fees. "(June 17, 2015);

7.   Deborah Livingstone @ dresdengirrl Retweeted - "JP fired over lecherous behaviour loses bid to have taxpayers pay $600,000 in legal fees."(June 17, 2015 - 6:02 P.M.)

Use of Twitter to 
Promote Position:

    One can not help but wonder just what it is that was so special about the Massiah 2013 proceedings which could have caused the JPRC to amend its Procedures during the course of the hearing to make what has historically been a private issue public. It may have something to do with the test which the Hearing Panel applied in denying compensation, namely, the average reasonable Canadian test.

   Just like so many other aspects of the Massiah case the Toronto Sun's Michele Mandel either has a very effective crystal ball or she is the Government of Ontario's undercover Minister of Information. Ms. Mandel called it perfectly on liability and penalty citing the very same sections of the Notice of Hearing which the Hearing Panel relied upon before their decisions were rendered.

   Prior to the Hearing Panel rejecting the claim for compensation she introduced her readership to the JPRC's new position on compensation and boldly stated, "It's time he dipped into his own pocket for a change."

   Some may argue that in a free and democratic society this is normal. That argument is destroyed once the connection between Deborah Livingstone @ dresdengirrl and Michele Mandel on Twitter is factored into the equation.

   Which ever way one may choose to approach this it is strong and cogent evidence of bias and a lack of impartiality and independence.  The current storm brewing over a judge in Hamilton wearing a Trump Cap pales in comparison to this. No one can accuse that judge of unfairly judging anything as of yet. On the other hand, Justice Deborah Livingstone's every judicial move in the Massiah case mirrors the positions advanced by Michele Mandel from start to finish.


Evidence of Pressure 
on Witnesses Ignored:

   It is noteworthy that prior to taking the stand before the Hearing Panel to testify that she was touched on the shoulders, BB actually complained to her supervisor that a co-worker, II was pressuring her to come forward to testify about the subject incident which she did not remember. (see her testimony - July 16th, 2014 transcript - p.92-102)  These highly relevant admissions were made by BB during the Complaints Committee's investigation.  They are captured in the 5 volumes of transcripts which I specifically filed with the Hearing Panel and the Hearing Panel referred to in the decision on Decision on Jurisdiction and Alleged Abuses of Process at paragraph 11(b) as The Investigator's Report.

  It is also noteworthy that prior to taking the stand before the Hearing Panel and doing a total 360 on her written character reference dated September 12, 2011 in support of HW Massiah in which she stated, "Again, the bottom line is, I find no merit to the case against him from his dealings with myself nor do I think he could/would be that type of person." (Exhibit # 25 ) CC mysteriously communicated an unwillingness to testify in his support in the following words:

"Dear Mr. Bhattacharya,

I was happy to answer your inquiries about His Worship Massiah.  However, I do not consent to attending any type of hearing to testify for personal reasons.  I hope you respect my decision as it would make me feel very uncomfortable to appear in front of my peers.

Regards,

CC

      

NOTE: This piece is written for the sole purpose of drawing attention to an issue of public importance. The public referral by the JPRC of one of two lawyers representing a judicial officer to the regulating body for lawyers in Ontario, namely, The Law Society of Upper Canada, is a matter of public importance.

My Defence to the JPRC Referral to the LSUC - Part IV: The Notice of Hearing was Contrary to Hryciuk

   Today marks the 20th anniversary of the Ontario Court of Appeal landmark decision in Hryciuk  v.  Ontario 31 O.R. (3d) 1.  This is the case in which Justice MacFarland, sitting as an Inquiry Judge, appointed under the Courts of Justice Act, ordered Judge Walter Hryciuk's removal as a Provincial Court Judge on account of sexually inappropriate acts and comments towards various court staff.

   A unanimous panel of the Court of Appeal composed of Catzman, Weiler and Abella JJ. A. overturned the removal order finding that the Justice MacFarland exceeded her jurisdiction by entertaining matters which were not previously pre-screened by the Judicial Council. In Judge Hryciuk's case he faced two complaints involving Kelly Smith and Susan Lawson. Those two complaints were properly screened by the Judicial council and ultimately forwarded for a public hearing. After Judge Hryciuk completed his case, new complaints were brought forward and Justice MacFarland decided that since it was a public inquiry it was proper to hear everything and so she did.

   That decision by Justice MacFarland proved to a fatal jurisdictional error. In a nutshell, the Court of Appeal held that Justice MacFarland's mandate was not a general one but one which flowed from the two specific complaints referred to her for hearing - namely the Kelly Smith and Susan Lawson complaints. Because the three new complaints heard by her were not not first made to or investigated by the Judicial Council they could not be entertained by her.  The Court of Appeal said:

"The language of the statute is unambiguous, and leaves no discretion to a judge conducting a s.50 inquiry to hear new complaints not previously screened by the Judicial Council. Circumventing the statutory requirement that there be prior vetting by the Judicial Council defeats the whole purpose of the legislative scheme, and violates the mandatory nature of the two-stage process set out in s.46 of the Courts of Justice Act."

Application to Re Massiah:

   In Re Massiah, Douglas C. Hunt, Q.C*., in his capacity as Presenting Counsel retained by the Justices of the Peace Review Council to present a separate case against His Worhship Massiah took will-say statements from staff at the Provincial Offences Court who called him to provide information regarding His Worship Massiah and forwarded them to the JPRC in the form of a report. The JPRC treated this report as a complaint and appointed a Complaints Committee to investigate.

   The Hunt Report as it has come to be identified contained will-says from five individuals. None of the will-says asserted vexatious, unwelcome acts or utterances which created a poisoned work environment.  In the course of the investigation some incidents came to light. In a letter dated January 2nd, 2013 the Registrar of the JPRC, acting on behalf of the Complaints Committee invited His Worship Massiah's response to the the matters which the Complaints Committee found required an answer from him and he answered.  Under the statutory scheme the Complaints Committee can order a hearing.  A public hearing was ordered.  Curiously, I questioned whether the Complaints Committee actually carried out this statutory obligation since the Notice of Hearing on its face states that the Review Council ordered the hearing and no order was ever disclosed to me. The Hearing Panel's response was to issue an order prohibiting me from making further submissions on behalf of my client. (see Decision dated November 18th, 2014)

   The JPRC retained counsel to act as Presenting Counsel. This is the lawyer who presents the case on behalf of the JPRC. Under the JPRC procedures Presenting Counsel drafts a Notice of Hearing which provides particulars of the allegations which the Hearing Panel will adjudicate.

   The Notice of Hearing in Re Massiah was dated May 31st, 2013. It contained 15 plus counts of misconduct.

Motion Asserting Lack of Jurisdiction
and Abuse of Process served June 28th, 
2013:

   The factum I served and filed with the Hearing Panel on behalf of my client clearly raised the Hryicuk Error on the face of the Notice of Hearing.  At paragraph 10 I stated: "The NOH dated May 31st, 2013 included seven additional counts of alleged misconduct not raised in the Registrar's letter dated January 2nd, 2013."  At paragraph 11 I stated: "Paragraph 14 in the NOH purports to rely upon a "history of judicial misconduct."


Factum of Presenting Counsel
Dated July 19th, 2013:

2.   In brief, the response is as follows:

(iii)   the process followed to address the new complaint was consistent with the mandatory two-stage process set out under the Act that requires a confidential investigation before a complaints committee can determine whether a public hearing into allegations is required to maintain public confidence in the justice of the peace and in the judiciary.  His Worship received these procedural safeguards by law. (Hryciuk  v. Ontario (1996) 31 O.R. (3d) 1 (C.A.))

8.   As a result, a complaints committee was assigned to investigate the new allegations and to determine the appropriate disposition under s.11(15) of the Act, the Applicant was given an opportunity to respond, and in due course a Notice of Hearing was issued in respect of the new allegations. (Henderson  v.  College of Physicians (2003) 65 O.R. (3d) 146 (C.A.)

34.   In conclusion, Presenting Counsel submits that the Motion should be dismissed, without prejudice to renew it at the end of the Hearing.

Flawed Instruction on
Hryciuk Followed by
Hearing Panel:

   In their written submissions dated March 13th, 2014 this is the instruction provided by Presenting Counsel on Hryciuk supra:

....The case demonstrates the propriety of the Hearing Panel (or in that case the inquiry judge)  considering whether the screening process contemplated in the legislative framework has been satisfied.  If the statutory scheme was complied with - i.e. a person made a written complaint to the council; the complaint was investigated by a Complaints Committee; the Complaints Committee determined as a result of its investigation that there were allegations of judicial misconduct; the particulars of the allegations against the respondent which would be the subject of the hearing were set out in a Notice of Hearing; and the Complaints Committee had jurisdiction to order those allegations to hearing - then the Hearing Panel can be satisfied that it has jurisdiction to proceed to hear the evidence in relation to those allegations."

   The Hearing Panel like Presenting Counsel failed to address the objection to the Notice of Hearing containing 7 allegations which were not pre-screened by the Complaints Committee in accordance with Hryciuk.  Instead they focused their attention on simply concluding that the statutory scheme was complied with.  They said the following at para 96 of their Decision on Jurisdiction and Abuse of Process:

"Logically then, given that the law was followed in the process which led to this hearing in order to ensure that he was afforded due process and that the public interest was protected, it cannot be successfully argued that His Worship has suffered prejudice from it."

JPRC Re-Argued the
Erroneous Instruction
Before Divisional Court:

   The JPRC once again argued the flawed interpretation of Hryciuk supra in their factum before the Divisional Court recently.

    It is clear in the Hearing Panel's Decision on Jurisdiction and Alleged Abuses of Process at paragraph 6 below that it was argued on behalf of His Worship Massiah that the Notice of Hearing was improper and that if this was the case the panel would have no jurisdiction to proceed.

6.   Counsel for His Worship argued that the legislative requirements under s.10.2 of the Act were not followed at the time of the purported complaint(s).  As well, His Worship was of the view that the Complaints Committee exceeded its authority in the investigation it undertook.  In addition, His Worship submitted that the Notice of Hearing was improper. If any of these concerns proves to be valid, then this Panel would not have jurisdiction to proceed.


Presenting Counsel -
Admission that No 
Evidence was called on 
1-6 of the NOH:

[21]   The first six allegations are general in nature, encompassing patterns of behaviour rather than specific incidents.  We will therefore focus our submissions on paragraphs 7-14, which relate to specific episodes on which evidence was called.  Presenting Counsel respectfully submits that if some or all of the specific allegations in paragraphs 7-14 are found to have been proven, the general allegations in paragraphs 1-6 would easily be made out. (Presenting Counsel's Written Submissions on Liability)

Hearing Panel
Liability Finding:

[207]   ...However, we find that His Worship acted in a manner inconsistent with the Human Rights Code.  His actions constituted sexual harassment and he failed to treat others in the justice system with mutual respect and dignity.

[210]   Based on the evidence we find to be cogent and compelling, we accept that the allegations set out in paragraphs 1, 2, 3, 4, 5, 6, 7(a), 7(b), 7(c), 7(e), 8(a), 8(c), 8(d), 9, 10, 11, 13, and 14 of the Notice of Hearing, have been made out on a balance of probabilities.

Improper Use of 
Matters Already Dismissed
by Complaints Committee:

   Although the Complaints Committee dismissed (O) - The allegation that you favoured or were partial to attractive female defendants when making decisions as a judicial officer the Hearing Panel nonetheless managed to make the following finding:

[148]   As to the impact His Worship's conduct on the prosecutor, now NN, she testified that it:

A.   ....diminished my confidence in his ability to put aside any biases for a certain type of profile or a defendant before him, and treat them all equally and the same.  And it seemed to me, he had difficulty doing this with a certain type of defendant before him, particularly young, attractive females.  And that diminished my confidence in his ability to be objectively execute his duties. (Reasons for Decision at p.39)

   In addition, although the Complaints Committee dismissed  (N) - The allegation that you sometimes referred to female defendants by their first names the Hearing Panel nonetheless managed to make the following finding:

[149]   II's evidence was that her observations as a court clerk about how His Worship Massiah interacted with female defendants was "...typically he was over friendly, he would address them by their first names."

[150]   She testified that:

A.   Well, yea.  I mean, to be fair, I sit in front, he sits behnd me; so I'm not looking at him, obviously.  But it would just be addressing them by their first names, just the tone, the manner, the tone of his voice, the way he would, you know, "Hi II.  So what happened today ?"  And just sort of very casual, not - I didn't think it was very professional the way he addressed - in my experience working in the judicial system for years - the way he addressed the defendants.

[151]   Ms. II's reaction to these observations affected her confidence in the administration of justice. She stated:

A.   Well, you know, I did't have much confidence in it, that he would be on the bench and treating females, the defendants, in an overly friendly manner.  And that the staff, I just found the arrogance. Because all of this stuff was done right out in the open.

Improper Use of Matters
Not Screened by the 
Complaints Committee:

[73]   Further corroboration of how His Worship looked at female staff arose in the evidence of JJ, the Manager who was called as a witness by His Worship's counsel to testify on his behalf.  She gave her evidence from British Columbia by teleconference.  She described an observation she had made of His Worship's conduct which made her feel uncomfortable.  Ms. JJ said she was showing a female human resources official around the courthouse.  The lady had a low-cut blouse on and was wearing and(sic) a pendant on her neck, and when the ladies met His Worship Massiah, Ms. JJ observed His Worship ask about and pay extra attention to the pendant and stare at the woman's bodice.


Justice Livingstone
Confronted Mr. House
with JJ's "Complaint":
(October 8th, 2014 - transcript at p.55-66)

MR. HOUSE:   It's not someone else.  And at the time of the investigation and the hearing of the first panel our witness, JJ, who was the supervisor, herself made a soert of unofficial check with the people to see if there was anything that arose, and nothing did. Now, what that shows you, in my submission, is that it was pretty obvious that if thee's five complaints about five women that he's saying, you know, "Hi good looking", and so on, it was pretty obvious to Ms. PP that there might be something at the other place and there was nothing.

JUSTICE LIVINGSTONE:  In fact there was according to her.  She raised it in her -- she said there was an incident that bothered her and mentioned it to the --

MR. HOUSE:   Not a complaint.

JUSTICE LIVINGSTONE:  No, not formally.


More from Presenting Counsel
Submissions on Disposition
on Hryciuk:

80.   Presenting Counsel submits that administrative law principles of fairness places limits on the ability of a tribunal to give effect to new misconduct that comes to light in the course of a hearing. This principle was given effect by the Court of Appeal in Hryciuk.  It leads to the conclusion that untruthful testimony in the course of the hearing could only be pursued as a separate instance of misconduct through the usual procedural mechanisms beginning with a fresh complaint.

81.   However,, even though His Worship's untruthful testimony cannot be considered a separate head of misconduct, Presenting Counsel submits that it can legitimately be considered on disposition as a factor going to public confidence. It pertains directly to the liklihood of His Worship committing similar misconduct in the future and his fitness to continue to hold judicial office.


*Douglas C. Hunt, Q.C. was counsel to the complainants in Re Hryciuk

Notice:  This piece is written for the sole purpose of drawing attention to the issues of public importance raised by the acts of the Hearing Panel in their following acts: 1. circumscribing a lawyer's right to defend his client by virtue of their order prohibiting submissions contrary to established international law; and 2.  publicly reporting a lawyer for discipline contrary to established law and practice. If there is anything in this post which is incorrect please bring same to the attention of the writer forthwith and it will be corrected. The purpose of the post is remedial and not punitive. Democracy and the administration of justice is best served by transparency and fair play.





   

My Defence to the JPRC's Complaint to the LSUC - Part III - Hearing Fairness and Cost Impacted by PC Lack of Independence

   The recent decision by the Ontario Divisional Court upholding the JPRC Hearing Panel's findings of liability and penalty and allowing His Worship Massiah's judicial review application of their Compensation Decision has generated considerable discussion among Ontario's legal community.   It was not lost on this writer that the Divisional Court's finding that the lower decision was reasonable departs from the established jurisprudence from the Supreme Court of Canada on the type and quality of analysis which goes into this inquiry without any effort to distinguish the facts and circumstances which would allow for such departure.  Some observers and critics have been quick to express concern and criticism regarding the cost of the defence without even reviewing the Bill of Costs and the Written Submissions made on the Compensation part of the proceedings.  Allegations of this nature are easy to make and are essentially political arguments rather than sound, reasoned legal arguments.

Argument in Brief:

   Contrary to the mainstream media and others, the cost of Mr. Massiah's two judicial misconduct proceedings was high not because of any acts or omissions of Mr. Massiah or his counsel but because of institutional flaws and a clear absence of independence in the current operation of Presenting Counsel.  The record is crystal clear that as early as June, 2013 an objection was made to the Notice of Hearing containing 7 allegations/particulars not pre-screened as mandated by the Court of Appeal's decision in Hryciuk   v.  Ontario[1996] O.J. No. 3813, 31 O.R. (3d) 1 (C.A.).  Of all of the irregularities in this case, and there were many, this one stands out as clear and cogent evidence that there was a lack of independence between Presenting Counsel and the Justices of the Peace Review Council which adversely impacted the fairness of those proceedings. A review of the Justices of the Peace Review Council's factum in the Divisional Court proceedings makes it clear that any finding that Hryciuk  v.  Ontario supra was complied with is based on an error in instruction which failed to consider or address the fact that paragraphs 1-6 and 14 on the Notice of Hearing were not part of what was found to be the complaint - namely - the Hunt Report and was not pre-screened by the Complaints Committee.

What is Presenting Counsel ?:

   The JPRC's Procedural Code for Hearing defines "Presenting Counsel" as "counsel engaged on behalf of the Review Council to prepare and present the case against a respondent.  "Respondent" shall mean a justice of the peace in respect of whom an order for a hearing is made. (see 1(c) and 1(d).

Not Presenting Counsel's
Job to Initiate Complaints:

  The proceedings which were the subject of a judicial review application before the Divisional Court stemmed not from a complaint from a member of the public but from Mr. Doug Hunt, acting in his capacity as Presenting Counsel in proceedings before a Hearing Panel chaired by Justice Vaillencourt. According to Mr. Hunt publicity surrounding the hearing he was presenting caused staff at the POA court in Whitby to contact his office with information regarding Mr. Massiah and he took their information and prepared a report which he forwarded to the JPRC's Registrar and his instructing counsel on the case he was presenting.  How is this act by Mr. Hunt not inconsistent with the stipulation that Presenting Counsel is independent of the Review Council ?  Would not the proper discharge of his duty as Presenting Counsel require him to simply inform the callers of the existence of the Review Council and inform them on how to make a complaint ?

   The rest is history.  Five will says taken by Mr. Hunt led to an investigation by a complaints committee where some 33 persons were interviewed and five volumes of investigation transcripts were generated.  Apparently, the complaints committee ordered a hearing.  I say apparently because I have never seen any order from the complaints committee to this effect.  This problematic order is made all the more problematic when one considers the next step in the process.

New Presenting Counsel
Retained by JPRC:

   Once the complaints committee makes the order for a hearing the JPRC retains counsel to prepare and present the case.  Paragraph 7 of the Procedural Code for Hearing authorizes Presenting Counsel to prepare the Notice of Hearing.  In the Massiah case the Notice of Hearing drafted by Presenting Counsel went beyond Mr. Hunt's complaint and raised issues which the complaints committee did not investigate and which Mr. Massiah was not invited to answer to, namely, paragraphs 1-6 and 14 of the Notice of Hearing.(see Notice of Application for Judicial Review  Indeed, Presenting Counsel herself acknowledged in her written submissions on liability that no evidence was called on those counts.   The fact that those written submissions were not before the Divisional Court deprived that court of the ability to truly review the Decision on Jurisdiction and Alleged Abuse of Proces and the Liability Decision in the manner mandated by the Supreme Court of Canada in Dunsmuire  v.  New Brunswick.

Wrong Party Drafting
Notice of Hearing:

   There are two problems with this manner of procedure.  Firstly, the persons best situated to draft the Notice of Hearing are the ones who investigated the matter and who are statutorily empowered to order a hearing.  This makes perfect sense in light of Hryciuk  v. Ontario since they would be less inclined to insert issues or matters which were not investigated by them. Assuming that the Complaints Committee made an order for a hearing - would not that order have to delineate the issues for hearing making the need for Presenting Counsel to draft one redundant ?

   Secondly, providing Presenting Counsel with this responsibility denudes that office of the very independence which Paragraphs 3 and 4 of the Procedural Code for Hearings expressly articulates. One need just examine the words of paragraph 4 to see how providing this role to Presenting Counsel undermines their independence -if not in reality then by appearance:

Paragraph 4:  The duty of legal counsel engaged under this Part shall not be to seek a particular order against a respondent, but to see that the complaint against the justice of the peace is evaluated fairly and dispassionately to the end of achieving a just result. (at p.18 JPRC Procedures Document)

The requirement that Presenting Counsel draft the Notice of Hearing has the effect of at a minimum creating an appearance of partiality to the JPRC and against the respondent justice of the peace. At a higher level it creates a real and dangerous impediment to a fair and dispassionate evaluation of the complaint. An example will illustrate the point.  Mr. Gover, the Independent Counsel, whom the Hearing Panel retained to advise them on the issues of jurisdiction and abuse of process told them that it is a complaint which they are called upon to adjudicate and it is the complaint which gives them jurisdiction.  Presenting Counsel on the other hand told them it was the Notice of Hearing which provided them with jurisdiction.  The Hearing Panel accepted and acted on the latter advice.

Hearing Panel Failed
to Address the Fundamental
Question of the Propriety of
the Notice of Hearing:


It is clear on a proper reading of the JPRC Hearing Panel's Decision on Jurisdiction and Alleged Abuses of Process that they failed to address the fundamental question of whether the Notice of Hearing exceeded the Hunt Report and the Complaint Committee's investigation. The Hearing Panel appears to have understood the objections I raised to their jurisdiction.  This is what they said on p.2 of the said Decision:

6.   Counsel for His Worship argued that the legislative requirements under s.10.2 of the Act were not followed at the time of the purported complaint(s).  As well, His Worship was of the view that the Complaints Committee exceeded its authority in the investigations it undertook.  In addition, His Worship submitted that the Notice of Hearing was improper.  If any of these concerns proves to be valid, then this Panel would not have jurisdiction to proceed.


July 2013 Objection to 
the Notice of Hearing on
Hryciuk Grounds Resisted
by Presenting Counsel:

   The proper objection raised on behalf of Mr. Massiah based on Hryciuk  v. Ontario i.e. that the Notice of Hearing contained 7 counts or particulars which were not previously screened by the complaints committee was forcefully resisted and prompted the following instruction on Hryciuk by Presenting Counsel:

.....The case demonstrates the propriety of the Hearing Panel ( or in that case the inquiry judge) considering whether the screening process contemplated in the legislative framework has been satisfied.  If the statutory scheme was complied with - i.e. a person made a written complaint to the council; the complaint was investigated by a Complaints Committee; the Complaints Committee determined as a result of its investigation that there were allegations of judicial misconduct; the particulars of the allegations against the respondent which would be the subject of the hearing were set out in a Notice of Hearing; and the Complaints Committee had jurisdiction to order those allegations to a hearing - then the Hearing Panel can be satisfied that it has the jurisdiction to proceed to hear the evidence in relations to those allegations." ( at p.11 Submissions of Presenting Counsel dated March 13th, 2014)

Hearing Panel Adopted
Holus Bolus this flawed
instruction:

   The Hearing Panel like Presenting Counsel failed to address the objection to the Notice of Hearing containing 7 allegations which were not pre-screened by the complaints committee in accordance with Hryciuk.  Instead they focused their attention on simply concluding that the statutory scheme was complied with.  They said the following at para 96 of their Decision on Jurisdiction and Abuse of Process:

"Logically then, given that the law was followed in the process which led to this hearing in order to ensure that he was afforded due process and that the public interest was protected, it cannot be successfully argued that His Worship has suffered prejudice from it."

The Clincher:

   The error committed by the Hearing Panel with respect to their application of Hryciuk is that they did as they were told by Presenting Counsel and failed to consider the objection that 7 counts on the Notice of Hearing were not pre-screened by the Complaints Committee as required by Hryciuk. Presenting Counsel specifically instructed them that it was for them to determine whether the statutory scheme was complied with and if it was they could be satisfied that they had the jurisdiction to proceed to hear the evidence in relation to those allegations.

JPRC's Factum
Before Divisional Court:

   This same error is repeated in the JPRC's factum ( * Presenting Counsel before JPRC) before the Divisional Court at paragraph 16 where they expressly raise Hryciuk  v. Ontario (1996) 31 O.R. (3d) 1.  I have reproduced it in its entirety for the purpose of clarity.

16.   In late 2011, during the course of that hearing, several employees at the Durham Region Provincial Offences Court (the "Whitby courthouse"), where the Applicant also presided, contacted Mr. Hunt to say that the Applicant had conducted himself in a similar manner at their workplace.  Recognizing that it would be wrong in law to call evidence on the new allegations of misconduct at the hearing that was already underway, lawyers from Mr. Hunt's office interviewed each of them, had the interviews transcribed, and submitted the transcripts to the JPRC in a document titled "Complaint Respecting His Worship Justice of the Peace Errol Massiah."  It appears that the people who spoke with the lawyers from Mr. Hunt's office were told that the information they provided would be forwarded to the Review Council.  Mr. Hunt disclosed the new allegations to counsel for the Applicant.  In accordance with the Act, a Complaints Committee was convened; the Committee determined that in fairness to the Applicant, the new allegations should be held in abeyance pending the completion of the first hearing to ensure that any investigation, such as interviewing of witnesses, would not in any way interfere with, or be perceived to be interfering with, the ongoing matter.  After the hearing was completed, the Committee carried out an investigation; the Applicant was provided an opportunity to respond in writing to the allegations that the Committee considered capable of grounding a finding of judicial misconduct; and finally, a new Hearing Panel was convened to conduct a hearing on the allegations referred by the Complaints Committee.

Lieutenant Governor in Council and 
Attorney General's Factum before
the Divisional Court:

3.   On the Applicant's issues relating to the JPRC's jurisdiction, procedural fairness and findings, as well as the standard of review to be applied, the Attorney General agrees with the JPRC that there is no basis to set aside the recommendation of the JPRC or the Order in Council.

Clearly, this party did not address the issue which the JPRC Hearing Panel properly identified in its Decision on Jurisdiction and Alleged Abuses of Process as one which was fatal to its jurisdiction - that the Notice of Hearing was improper.


Evidence that Hryciuk (ONCA)
was Significant to Presenting Counsel's
Case:

   Hryciuk  v.  Ontario (ONCA) is cited in two of Presenting Counsel's Book of Authorities. In one Book of Authorities it is cited as the first case.  In another it is the 13th case.

Report of Inquiry Re
Judge Hryciuk;

   Although this case was overturned by the Court of Appeal for Ontario it is actually relied upon by Presenting Counsel in their Book of Authorities on Disposition.

Commentary:

   The JPRC hearing panel referred me to the LSUC in a very public manner when this was not called for.  It can not be the case in a free and democratic society which is guided by the Rule of Law that I must sit by quietly while my good name is improperly attacked.  Like my idol the late Nelson Mandela I will resist firmly, quietly and always being mindful and respectful of the law. The law can oppress but when applied properly is a great liberator. I have chosen to see the law as a liberator and not as an oppressor.  Transparency is the key ingredient to making the law a liberator and not an oppressor.  

 

 





  

Did the JPRC's Deficient Record of Proceedings Prevent Meaningful Appellate Review ?

Excerpt of transcript of 
proceedings of October 8th, 2014:

PRESENTING COUNSEL:

My friend seems to be under the impression that means they're lost from the record and
that they don't form any part of the Panel's consideration or the record of the case, that's
obviously untrue.  All the factums, and motion records, notices of motion that have 
been filed in this proceeding are before you and will be preserved as part of the 
record of this proceeding and there's simply no need to mark them as exhibits.


JUSTICE LIVINGSTONE:

Thank you, Mr. Guiste.  The Panel considered the issue of what is properly filed as an
exhibit and what is not required to be filed as an exhibit.  And generally the Panel is 
of the view that any materials filed, such as Mr. Gourlay referred to facta, books of 
authorities, responding facta, et cetera are not technically filed as exhibits, they are
part of the record.

They remain part of the record for any further applications which could follow our 
decision, but they are not evidence per se and therefore would not be filed.

So in our view, despite the fact that exhibits 3 through 8 were filed as exhibits, they
were in an unusual position in relation to the motion with respect to ban of publication,
and perhaps even filed as exhibits inappropriately, but they were and we can't change
that.

So our view is that with respect to your request to have the material with respect to
disclosure and particulars, the motion that was before this court on which we
rendered reasons on June 12, 2014, it is not necessary that those documents be
filed as exhibits.

With respect to the affidavit of His Worship and the materials surrounding that,
His Worship was cross-examined on the affidavit, his testimony is evidence. In
our view all of the material surrounding that is not evidence per se, it is part of
the record but is not required to be filed as an exhibit.

The submissions, the disclosure request documents, which you referred to from
November of 2013, again they are not evidence. They are part of the record. They
will not be filed as exhibits.

With respect to the facta with respect to abuse of process, for which you have
argued it only makes sense for fairness and for the integrity of the process that
we be informed by having them, we have them.  They are part of the record.
They do not need to be filed as exhibits.


Registrar on Record of Proceedings:

"The record for a judicial review includes the transcripts of the proceedings, the
orders made by the Panel and a copy of the exhibits."


Missing from the JPRC Record of Proceedings:

1.   All motion records, facta, book of authorities;

2.   Exhibits 1-9

3.   5 Volumes of Complaints Committee Investigation Transcripts

4.   Reasons on Liability and Disposition of 2011 Hearing Panel

5.   Applicant's Written Submissions on Compensation, Presenting Counsel's
      written submissions on Compensation and Reply which was refused by
      the JPRC - including a Bill of Costs which delineated the costs of the
      proceedings in detail and a copy of the JPRC recently amended Procedures
      Document which was changed to make the Compensation portion of the
      hearing public.


Divisional Court Decision:


1.  Although I properly raised Hryciuk  v.  Ontario (ONCA) as a bar to the
proceedings as early as July, 2013 this aspect of the challenge to jurisdiction
and abuse of process is clearly not addressed in the Divisional Court decision.
While the JPRC Hearing Panel made reference to Hryciuk it is clear on
a proper reading of the record including the written submissions by the parties on
the point that the Hearing Panel clearly misunderstood the holding of the Court of
Appeal in Hryciuk. Hence, they clearly erred in law on a point which they were
required to be correct on.

   The Hearing Panel thought it was sufficient that the "new' allegations were dealt
with in a separate hearing and that they had the authority to determine if the proper
procedures were followed by the complaints committee and that if they determined
that it did that was the end of their duty on Hryciuk. (see Presenting Counsel
submissions on Jurisdiction dated March 13th, 2014 )  Indeed, this is precisely
how Presenting Counsel presented the law on Hryciuk to the Hearing Panel at
p. 10-12 of this document. I properly raised an objection to this instruction
on the motion I brought asserting a reasonable apprehension of bias - as well as
institutional bias which the Hearing Panel also dismissed and found was "entirely
baseless and was justifiably characterized as "frivolous" in the Panel's decision."
(see Compensation Decision at p.11)


2.  Although I properly included His Worship's Answer to the  complaints committee
investigation in his original motion record - wherein he clearly acknowledges that
some of the allegations are consistent with his prior manner of interaction and that
he will not interact that way in the future the Hearing Panel went on to unfairly
attack his credibility and fitness to sit as a judicial officer on account of his testimony.
A proper review of the totality of the record of proceedings - including the Answer to
the complaints committee makes it clear that the testimony which the Hearing Panel
found offensive was the Applicant's truthful testimony that he felt "well received" at
the material time.  The Hearing Panel appears to have erred in misapprehending the
Applicant's evidence on the allegation in the Notice of Hearing that his comments
were "well received" as speaking to his understanding of the inappropriateness of the
prior findings or sexual harassment generally.  Indeed, Justice Marrocco, A.C.J.
appeared to be labouring under a similar misapprehension when he suggested to the
Applicant's counsel in my presence that the Applicant's defence was no defence at all.

3.   In its Compensation Decision the JPRC Hearing Panel takes issue with
various motions properly initiated on behalf of the Applicant and the
propriety of these motions are not addressed - understandably because the
motion records, facta and book of authorities were not in the record. It
appears that the reviewing court did not even have the Bill of Costs and
Written Submissions of the parties on the compensation issue.

Commentary:

   The JPRC Hearing Panel has suggested that I brought inappropriate, baseless and
frivolous motions in representing my client. The Hearing Panel issued a public
Addendum containing their complaint against me to the Law Society of Upper
Canada.  It appears that the chair of the Hearing Panel retweeted a very critical
article by the Toronto Sun's Michele Mandel promoting her Compensation
Decision and my referral to the Law Society a day after the release of her
decision.

   The Divisional Court had the following to say even thought they did not
even have a copy of the Bill of Costs before them:

[55]   The legal expenses issue is not a fanciful one.  In this case, for example, the
applicant incurred legal fees in excess of $600,000.  In setting out that fact, I do not,
for a moment, mean to suggest that the level of legal fees was either appropriate or
justified for what took place in this case.  I merely use it as an example of the type
of financial consequence that may arise for a judicial officer(sic) holder, who finds
her/himself in the position of having to decide whether s/he can actually afford to
respond to a complaint.

   The fact is I acted in the best traditions of the Bar and represented my client
fearlessly and competently.  The cost of this litigation could have been significantly
less if the binding legal authority of Hryciuk  v.  Ontario (ONCA) was respected and
applied at the outset of the proceedings.  I was just doing my job !  My good
Catholic upbringing compels me to speak out against injustice.

NOTE:  This piece is written for the sole purpose drawing attention to issues of public
importance.  The recommendation for the removal of a judicial officer by an
administrative tribunal is an issue of public importance.  The denial of compensation
by the Attorney General for Ontario for a judicial officer who is compelled to defend
himself in judicial misconduct proceedings is also a matter of public importance.
The singling out of a lawyer for prosecution by the Law Society of Upper Canada
for a lawyer who is "simply doing his/her job" is also a matter of public importance.
If I have stated anything that it inaccurate or wrong in this publication kindly bring it
to my attention and I will no doubt correct it.  My purpose is remedial and not punitive.
Justice must be seen to be done.  Too many of our fellow Canadians gave up their lives
so that we can enjoy The Rule of Law and Judicial Independence for me to remain silent.


   

Massiah v. JPRC 2016 ONSC 6191: A Case Comment

   The Divisional Court recently upheld a decision of a Justices of the Peace Review Council Hearing Panel removing a justice of the  peace from office finding that its decision on liability and penalty were reasonable.  That Hearing Panel was formed based on the issuance of Notice of Hearing issued by the Justices the Peace Review Council on May 31st, 2013 and drafted by Presenting Counsel retained to litigate the case by the Justices of the Peace Review Council(JPRC Procedures Document)
The judicial review application is being defended by Presenting Counsel.*

   The Divisional Court's ruling is a matter of public importance because the
Notice of Hearing and findings of liability clearly exceed what the Hearing Panel found
to be the complaint - The Hunt Report - since counts 1-6 and 7 was not screened by the
Complaints Committee and the Hearing Panel heard no evidence on the issues raised
in those particulars in the Notice of Hearing - a point raised in the proceedings by the
writer on his joining the judicial officer's defence team in July, 2013.
(Hryciuk  v. Ontario 1996 Canli 4013 (ONCA)

   The Hunt Report is a private and confidential report prepared by Presenting Counsel, Mr. Doug Hunt for his client.(Applicant's Factum @ Divisional Court)  Mr. Hunt is the lawyer who prosecuted Mr. Massiah's first proceeding which resulted in a 10 day suspension(2012). His report was generated as a result of him receiving calls from court staff following a Law Times article about the case which he was presenting at the time. Mr. Hunt interviewed five people and prepared will says which he sent to the Registrar and Counsel or the JPRC, Ms. Marilyn King. When Ms. King received his report she asked "is this a new complaint ?". Mr. Hunt replied that members of the public brought information to our attention and I am forwarding it for your consideration.

   A complaints committee was appointed to investigate what the JPRC interpreted to be a complaint and it interviewed 33 witnesses which produced five volumes of investigation transcripts.  The bulk of paragraphs 7-13 in the Notice of Hearing issued May 31st, 2013 by the JPRC stemmed not from the Hunt Report itself but from the investigation carried out into it. It is clear that paragraphs 1-6 and 14 were in fact not part of either the Hunt Report or the investigation and accordingly the subject judicial officer was never asked to provide an answer to it and he learned of those specific allegations for the first time following the issuance of the Notice of Hearing.  The JPRC decided that the Hunt Report constituted the complaint in writing in January, 2015. The allegations occurred between 2007 and 2010.

   A stay of proceedings was sought for the myriad of procedural irregularities including the inordinate and prejudicial delay which adversely impacted hearing fairness and hence the ability to defend. This myriad of procedural irregularities prompted the hearing panel to retain high profile lawyer, Brian Gover, for an opinion on the jurisdiction and abuse of process motions raised on behalf of Massiah.  Mr. Gover provided his opinion but it appears that the hearing panel did not accept and apply the legal principles from Blencoe   v.  B.C. Human Rights Commission [2000] 2 S.C.R. 307. The hearing panel issued two decisions after hearing all of the evidence. One decision was on the two motions. The other was on the merits. The former decision was made by the hearing panel on the same day but did not involve its assessment of the evidence. This is what the hearing panel had to say:

[116]   We find there is no time limit for allegations of judicial misconduct to be filed as complaint with the Review Council.

[119]   The ability of each witness, including His Worship, to recall events and provide accurate testimony on events of years ago is an issue to be assessed when we consider and weigh the evidence on its merits.  In our opinion, a passage of time that may cause memory to fade does not, however, form a basis to conclude there has been an abuse of process. No legal basis, or actual prejudice on the facts of this case was presented which counters this view.

    In what is a first in Canada the Hearing Panel went on to refer one of two counsel who represented the judicial officer to the governing body for lawyers in Ontario, The Law Society of Upper Canada alleging that he committed professional misconduct in discharging his duties as a lawyer.  In addition, the Hearing Panel denied the judicial officer's claim for compensation to cover his cost of defending the allegation of judicial misconduct. The Divisional found the Hearing Panel's decision on compensation to be flawed and remitted it back to the JPRC. It is important to appreciate that the Hearing Panel denied compensation to the judicial officer in 2015 and counsel raised the Hryciuk error in the NOH in July, 2013.  Clearly, a careful evaluation of the entire record of the proceedings and the Bill of Costs submitted to the Hearing Panel would reveal that in fact the issues around the legality of the complaint and the items which constitute the Hryciuk Error complicated the proceedings and increased the jeopardy faced by the judicial officer and the cost of the defence.

Deficient Tribunal Record

   Regrettably, the JPRC Record appears to be missing copies of the motion records, facta and books of authorities filed by the parties with the Hearing Panel which both Presenting Counsel and the Chair of the Hearing Panel confirmed on October 8th, 2014 at pages 158-163 of the transcript would be part of the record "for any further applications which could follow our decision.(see JPRC Record of Proceedings - Vol.III - Tab 60)  Given the high standards of fairness of this tribunal in the discharge of its mandate I can only assume that this deficiency in the Record of Proceedings is inadvertent and that it will be corrected.

   Ironically, it would appear that the Divisional Court's finding that the JPRC 2013
decision was reasonable is inextricably tied to the hearing panel's finding that the judicial officer was not credible before them and hence incapable of carrying on judicial duties. This is precisely the concern raised on behalf of the judicial officer which the hearing panel took exception to in referring counsel to the Law Society of Upper Canada and indeed in denying the judicial officer compensation for defending the proceedings.  This is what the Hearing Panel cited to the LSUC in their referral:

(4)   On November 4, 2013, Mr. Guiste stated, "you have the Ministry of the Attorney
        General and you have the Justices of the Peace Review Council...there appears
        to be either intentionally or unintentionally, objective of seeking to, "if we can't
        get him out by legitimate means in accordance with law, then we will so taint his
        reputation so that he will be unfit."  He further explained his comments by stating:
        "Intentionally or unintentionally it appears to me that the Ministry of the
        Attorney General and the Attorney General for Ontario have decided in their
        wisdom that, "If we cannot get rid of Justice of the Peace Massiah within the
        bounds of the law - that is, with respect to legitimate complaints brought in
        accordance with the statute - then we will seek to remove him from office by
        virtue of the deliterious effects of the publications by virtue of the nature 
        of the allegations."

Here are the relevant portions of the Divisional Court's Reasons:

[40]   The 2012(sic) Panel had also made a finding regarding the manner in which the
applicant had given evidence before it that necessarily weighed heavily on their
conclusion as to the appropriate disposition.  In its reasons on the merits, the 2012(sic)
Panel had said:

"In all of these aspects, we find His Worship's evidence to be problematic.  His
testimony was replete with inconsistency, an air of insincerity, and efforts to
adjust his testimony to minimize the inappropriateness of his conduct.  We do
not accept that he is a credible witness or that his evidence was reliable. (para 174)

[41]   The 2012(sic) Panel referred back to this finding towards the end of its decision
on disposition.  I agree with counsel for the JPRC that it is difficult to see how, in light
of this finding, that is amply supported by the evidence, the 2012(sic) Panel could have
achieved the necessary goal of restoring and maintaining the integrity of the judiciary,
if it permitted the applicant to remain in his position as a justice of the peace. It is
tough to see how the applicant could be seen as being able to carry out his duties of
adjudicating matters affecting members of the public, in light of this devastating
attack on his own credibility.
       
Legal Error(s):

   In reviewing the legality of the removal of a judicial officer by an administrative tribunal the Divisional Court is exercising both statutory and constitutional jurisdiction.  In exercising its powers under the constitution with respect to judicial independence the Divisional Court ought not be limited by the acts or omissions of counsel or the parties otherwise those fundamental rights are capable of being rendered merely illusory rather than binding. It stands to reason that in the context of this type of litigation it is for the court to ensure that both the proceedings before the administrative tribunal and before it are in accordance with law.

   A court's duty to thoroughly review the administrative tribunal's record of proceedings is heightened since argument before the JPRC Hearing Panel included claims that they lacked jurisdiction by virtue of not having a complaint in writing pursuant to the enabling legislation, the complaints committee exceeded its jurisdiction in ordering a hearing, the Notice of Hearing was improper in that it contained as much as seven discrete particulars which were never pre-screened by the complaints committee as required by Hyricuk  v.  Ontario(ONCA), they disregarded established legal authorities from the Supreme Court of Canada such as R   v. Skolnick [1982] 2 S.C.R. 47, Blencoe  v. B.C. Human Rights Commission [2000] 2 S.C.R. 307 and that their penalty decision was a collateral attack on the 2011 Hearing Panel decision chaired by Justice Vaillencourt - the cumulative effect of which constituted an a abuse of process at common law for which a stay of proceedings ought to have been granted.

   In a nutshell, the Divisional Court's decision upholding the JPRC Hearing Panel's decisions on liability and penalty as being reasonable is fundamentally inconsistent with the level of judicial scrutiny called for in the review of the application of the fundamental principle of judicial independence.  The legal error or errors in the decision is best summed up by a quote from The Hon. Justice David Stratas in his very thoughtful and provocative paper entitled The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency:

"When we review the decisions of the  executive and its agencies, we must always:

-   act in a coherent and consistent way relying upon pre-determined, objective doctrine
    emanating from and reflecting the animating concept behind judicial review, namely
    the tension between Parliamentary supremacy and the reviewing courts' duty to
    enforce rule of law standards, and other legal concepts known to our law, including
    public policies emanating from legislation and relevant to the task at hand; and

-   avoid resorting to ad hoc subjective impressions, aspirations, personal
    preconceptions, ideological visions, or freestanding policy opinions - matters that
    can depend on the idiosyncrasies of an individual judge and can vary unpredictably
    - about what is just, appropriate and right.

The former is the stuff of legal contestation and the legitimate domain of the courts; the
 latter is the stuff of public debate and the politicians we elect." (at p.25)

Was Dunsmuir  v.  New Brunswick
Followed ?:

   A finding that an administrative tribunal's decision is reasonable is one which may suggest that the reviewing court is applying the Supreme Court of Canada's binding decision in Dunsmuir  v. New Brunswick 2008 S.C.R 9.   However, if the reviewing court's decision fails to cite that decision and objectively apply the legal principles flowing from that decision to its conclusion of reasonableness it is hard to see and understand just how the reviewing court came to this conclusion. That is a very serious problem in a case such as this. (R  v. Sheppard [2002] 1 S.C.R. 1 and LSUC  v. Neinstein (2010) 99 O.R. (3d) 1 (ONCA))

A Look at the 2013 JPRC Panel
Findings:

[23]   As the allegations in the complaint relate to sexually-themed comments and
         conduct by His Worship, we have jurisdiction to look beyond the Justices of
         the Peace Act and to consider the law of sexual harassment and sexualization
         in the workplace as defined under the Human Rights Code to assist us in
         determining whether there was judicial misconduct...

[24]   The Ontario Human Rights Code R.S.O. 1990 c H.10 (the Code) defines
          harassment in section 10, as "engaging in a course of conduct of vexatious
          comments or conduct that is known or ought to be known to be unwelcome".
          A single instance of inappropriate conduct may be a violation of the Code
          if it creates a poisoned environment.

[26]   Sexual harassment is recognized by the Supreme Court of Canada as a form of
          discrimination on the basis of sex...

[27]   A"poisoned work environment" can exist when unwelcome comments or conduct
         inappropriately sexualized a workplace...

[29]   At a previous JPRC hearing, in addition to the one involving His Worship Massiah,
          an inappropriate sexualized comment to a female court staff was held to amount
          to a finding of judicial misconduct:  Re Kowarsky (JPRC 2011)
       
[64]   The allegations contained in paragraphs 1 though 6 of the Notice of Hearing,
          as referred to herein paragraph 32, describe general patterns of behaviour, rather
          than specific incidents.

[65]   For the sake of clarity, we will firstly address the specific acts alleged, in
          paragraphs 7 through 14 of the Notice of Hearing in the context of the
          evidence, and then we will relate the specific acts which we accept occurred, if
          any, back the general allegations.

[207]   ....However, we find that His Worship acted in a manner inconsistent with the
            Human Rights Code.  His actions constituted sexual harassment and he
            failed to treat others in the justice system with mutual respect and dignity.

Divisional Court's 
Pronouncement on 
Unwelcome Test for 
Sexual Harassment:

   In Thames Valley District School Board  v.  Elementary Teacher's Federation of
Ontario the Divisional Court 2011 ONSC 1021 stated the following:

[34]   In order to establish harassment under human rights legislation, it is not necessary
          to prove intention to harass. Rather, the test is an objective one (Stadnyk  v.
          Canada (Employment and Immigration Commission, [2000] F.C.J. No. 1225,
          257 N.R. 385 (C.A.) , at para 11)

Divisional Court's 
Pronouncement on 
Poisoned Work Environment:

   In Crepe it Up !   v. Hamilton 2014 ONSC 6721 the Divisional Court stated the
following:

[18]   In General Motors of Canada Ltd.  v.  Johnson 2013 ONCA 502 Crong J. A
          discussed the concept of a poisoned work environment, albeit in the context
          of a wrongful dismissal action, at paras 66 and 27:

....There must be evidence that, to the objective reasonable bystander, would
support the conclusion that a poisoned workplace environment had been created...
Moreover, except for particularly egregious, stand-alone incidents, a poisoned
workplace is not created, as a matter of law, unless serious wrongful behaviour
sufficient to create a hostile or intolerable work environment is persistent or repeated.

Ontario Law on Unwelcome
Applied by HRTO:

[198]   The Legislature recognizes the fear of retaliation an employee may experience
            in informing someone in her or his workplace, especially one in authority, that
            his or her conduct is unwelcome.  On the other hand, the Legislature recognizes
            - as well as the Supreme Court of Canada in Blencoe - the inherent stigma,
            which attaches to a serious allegation of sexual harassment.  Thus, it has
            established a scheme, which acts as a sword or a shield for the complainant
            or the respondent, respectively. The complainant can inform the alleged
            perpetrator that her or his sexual advance or solicitation is unwelcome
            without fear or retort.  And, where there is reprisal, or threat, there is
            statutory redress.  Without that protection, a complainant may not be able
            to assert her or his right or prove that the conduct was unwelcome, for
            invariably, the defence will be that the victim did not communicate that
            the conduct was unwelcome.  (Farias   v.  Chung 2005 HRTO 22 Canli)

JPRC erred
in law on Human Rights Code
Interpretation and Application 
to the evidence:

[128]   We also find that any obligation an employee of the Region may have had to
            report any inappropriate behaviour by His Worship to his/her employer is
            irrelevant to our ability to conduct this hearing. This is a hearing regarding
            alleged judicial misconduct under the Act, not a right that may exist for an
            employee of the Region of Durham under the Collective Agreement or the
            Regional Municipality o Durham, Harassment and Discrimination Prevention
            Policy.  The authority under the Act to address judicial misconduct is not
            outsted by documents that are put in place to protect the rights of employees.

[129]    We accept that training was provided to His Worship Massiah regarding
             workplace conduct and the need for respect towards all stakeholders in
             the judicial system...Some notable excerpts from the power point presentation
             are:

Is Known or Ought Reasonably
be Known

-    The onus of recognizing harassment rests primarily with the harasser
-    The victim is not obliged to verbally say "stop".
-    Blushing, embarrassment, and moving away are all ways of indicating that
     the behaviour is unwelcome and should stop

Unwelcome

-    The test is whether the behaviour is unwelcome to the victim, not the harasser....

[130]   Nothing in the HRC indicates that the victim must advise a harasser that his/
            her actions are unwelcome.  That is also made clear in the power point
            presentation above.


Panel Ignored Evidence that
conduct was "well received"
at the material time:

22.   KK one of the managers in the Court Services Area testified that HW Massiah had
in the past complimented her on looking good and losing weight and she took no offence
to his comments but saw them as a compliment.(see Applicant's Written Submissions -
Part II at p.9 para 22)

23.   GG, a witness called by Presenting Counsel gave insightful evidence into HW
Massiah's rapport with the court staff:  She said:

"I thought he was very nice.  I thought he was friendly, approachable, I thought he was
nice.  A lot of them, a lot of the justices, you feel nervous, you don't want to speak to
them. He was more workable and friendly.".....But people were happy to see him
rather than some of the other ones that come in. Again, I don't know if that's because
he would be considered a good-looking older man, or if its because he was friendly
and approachable, people liked him, as opposed to some of the other justices of the
peace who talk to you like they're I don't know ...just like they're much better than
you, which may be the case, but you know, certain ones treat you like you're on
the same level they are, which we do appreciate.".....It didn't bother me that much.
I wasn't really offended by it.  I'm surprised everybody else  was offended by it,
because they never seemed to have a problem with it at the time."(see same doct.)

27.   The following set of questions and answers of GG provides some insight into
the culture or standard of conduct of the work environment:

Q.   Was he considered attractive ?

A.   I'd say he was yes.

Q.   Was there talk to the effect amongst the staff ?

A.   Yes.

Q.   Can you describe that for us ?

A.   Um, well, um we would find out who the justice of the peace is, and you know,
       courtroom 105 that day, if was His Worship Massiah, we would say, um - -I
       don't remember exact terms its been a long time.

Q.   Sure.

A.   But people were happy to see him...(see same doct.)

Overlooked Evidence
(Defendant)

   The only defendant called before the Hearing Panel testified that HW Massiah did not
act inappropriately in any manner with her and in fact increased her coincidence in the
administration of justice.

   The panel released a list of letter acronyms for witnesses who testified before them in
accordance with the publication ban.  Two witnesses called on behalf of HW Worship
are not only not on this list but there evidence is nowhere to be found in the Reasons
on Liability or Disposition.

Evidence of Improper 
Conduct Ignored by
JPRC Hearing Panel:

   HH, QQ and II testiied that they came forward in order to ensure that HW Massiah
did not get a " slap on the wrist."  Each of them admitted that they were essentially
dissatisfied with the penalty imposed by the Justice Vaillencourt Hearing Panel.(2011)
(see Applicant's Written Submissions  - Part II and Part III)

Application of Kowarsky
(JPRC 2011):

1.   HW Kowarsky said to a court clerk in open court while the recording equipment was
      on - "Madame clerk I am ready for my blow job now."

2.   HW Kowarsky received an order for a publication ban prohibiting his identification
      between March 25, 2011 ad the next date that counsel appear before the panel,
      including no publication of the Notice of Hearing on the JPRC website;

3.   HW Kowarsky received an order for a Pre-Hearing Conference pursuant to
      Paragraph 14 of the JPRC Procedural Code for Hearings

4.  HW Kowarsky received a reprimand for his judicial misconduct along with a transfer
     to another court.

5.  HW Massiah never propositioned anyone for sexual favours.

6.  HW Massiah was denied a publication ban and his request for one was determined by
     the Hearing Panel to be "relief that was factually and legally impossible to grant."

7.  HW Massiah was denied a Pre-Heairng Conference despite his request for one.

8.  HW Massiah was denied a transfer and was removed from office without any
     opportunity to carry-out the disposition of the Vaillencourt Panel(2011).

Below is a copy of the relevant portions of the factum filed on behalf of HW Massiah on the publication ban motion:

                                                                                                  

                                                           

JUSTICE OF THE PEACE REVIEW COUNCIL

IN THE MATTER OF a complaint(s) respecting

JUSTICE OF THE PEACE Errol Massiah

Justice of the Peace in the

Central East Region

                                                                                                           

                                                                                                                                    

APPLICANT’S FACTUM

PART- I

ARGUMENT IN BRIEF

1.         This Applicant seeks an order to cure the irresponsible, sensational, scandalous 

            and defamatory publication of the allegations in this proceeding to date.  The 

            failure to cure these transgressions threatens to undermine the very integrity 

            and legitimacy of the adjudication process itself.

PART II - THE FACTS:

          

6.         On May 31^st, 2013 the Registrar issued a 15 count Notice of Hearing (NOH) from 

            the JPRC.  This NOH included seven additional counts of misconduct not 

            raised in the Registrar’s letter dated January 2^nd, 2013.

 As above – Notice of Hearing – Tab 6

Legality of “complaints”

in question:

8.         The question as to whether or not the allegations in the NOH were brought in 

             accordance with law and are “complaints” as that term is used in s.10.2 of the  

             Justice of the Peace Act is a live issue to be adjudicated by the panel.

The publications to date:

8.(sic)   Since the commencement of these proceedings three media outlets have 

              published stories on the case against the applicant.  All of them have 

              published the allegations against the Applicant as if they are fact without

             any disclaimer when in the panel has yet to rule on them.           

"Oshawa JP who sexually harassed staff faces new complaints"

"JP facing fresh sexual harassment complaints"

"Justices of the Pease appear before review council"

PART IV - ORDER REQUESTED

           12.   The Applicant requests an order prohibiting publication of the allegations 

                    in the NOH until the questions(sic) of their legality and the jurisdiction of 

m                 the panel to entertain them is conclusively determined in law.                                       

                                                                                                                 

JPRC Panel also

committed Hryciuk
Error:

Presenting Counsel's
Written Submissions
on Liability(Sept.15/14):

[21]   The first six allegations are general in nature, encompassing patterns of
          behaviour rather than specific incidents.  We will therefore focus our 
          submissions on paragraphs 7-14, which relate to specific episodes on 
          which evidence was called.  Presenting Counsel respectfully submits that
          if some or all of the specific allegations in paragraphs 7-14 are found to
          have been proven, the general allegations in paragraphs 1-6 would easily
          be made out.

Respondent's Written
Submission: (July 11, 2013)

[10]   The NOH dated May 31st, 2013 included seven additional counts of alleged
          misconduct not raised in the Registrar's letter (on behalf of the complaints
          committee) dated January 2nd, 2013.


JPRC Liability
Finding(January 12th 2015):

[210]   Based on the evidence we find to be cogent and compelling, we accept that the a
            allegations set out in paragraphs 1, 2, 3, 4, 5, 6, 7(a), 7(b), 7(c), 7(e), 8(a), 8(c),
            8(d), 9, 10, 11, 13 and 14 of the Notice of Hearing, have been made out on a
            balance of probabilities.

JPRC Disposition
Finding: 

[64]   When we consider the extent and duration of His Worship Massiah's misconduct,
          and his testimony, before us, which demonstrated a complete lack of insight into
          the gravity of his misconduct even after a previous public hearing, we conclude
          that the dispositions set out in paragraphs 11.1(10) (a) to (f) are not sufficient to
          restore public confidence in His Worship Massiah or in the judiciary in this case.

Hryciuk  v. Ontario (ONCA):

Headnote

   "The language of the statutue is unambiguous, and leaves no discretion to a judge
conducting a s.50 inquiry to hear new complaints not previously screened by the
Judicial Council. The inquiry judge had a specific, narrow mandate under the
legislation; to conduct an inquiry, not into the general question of whether Judge H
should be removed, but into whether he should be removed because of those 
complaints referred to her by the Judicial Council, namely, the two
complaints referred to the in the order-in-council.  By hearing three 
additional complaints not so referred, she exceeded her jurisdiction."

   Law is not a science.  Intelligent minds may differ on many a legal issue.  Having read the Divisional Court's reasons I for one fail to understand how the reviewing court came to the conclusion that it did.  I am also concerned that the reviewing court mixed up the two panels which the moving party on the judicial review faced and consistently erroneously refers to the decisions under review before them as the 2012 Panel when it was the 2013 Panel's decisions which were before them for review.

   The fact is that the 2013 Panel overruled the 2012 Panel when it boldly stated in its Decision on Disposition - where it  increased a 10 day suspension with removal from office for substantially the same conduct which pre-dated or was concurrent to those of the 2012 Panel - an act which I argued constituted an abuse of process for which a remedy was necessary:

"The Previous Hearing Panel concluded, based on the information presented
at that time, the public nature of the hearing would have brought home to His
Worship any misunderstanding about his position of authority in relation to female
staff.  That belief was proved wrong by His Worship's testimony before us."

Conclusion:

   The points of law discussed above and which were before the Divisional Court for
judicial review called for a standard of review of correctness.(see Barriolhet  v.  JPRC
2011  ONSC 3246 at para 24 (Div Ct.)  The JPRC Notice of Hearing and the Hearing
Panel used the Human Rights Code to ground the allegations of judicial misconduct
against HW Massiah. In doing so the panel surely can not disregard established legal
principles such as the legal concepts of "vexatious", "unwelcome" and "poisoned work
environment" and deny him the well recognized defence of consent and "being well
received".  The Code is quasi-constitutional legislation which can not have a different
application for judicial officers than it does for all other citizens of Ontario. Abuse of
process and the application of Blencoe is also a matter calling for correctness under
Dunsmuir   v.  New Brunswick (supra).  Hrycicuk (supra) is a binding legal authority
from the Court of Appeal for Ontario court calling for a standard of correctness.
In addition, based on the legal principle set down by the Supreme Court of Canada in
R  v. Stolnick(supra) HW Massiah did not re-offend.  Arguably, for the purposes of
Disposition he appeared before the Hearing Panel without a history of misconduct
since the allegations before them pre-dated the first Disposition.

Did the Hearing Panel
embark on the wrong
inquiry in focusing
on the Notice of Hearing ?

* I have written elsewhere on the potential problems that this can pose to a tribunal's appearance of impartiality and its utility to the reviewing court citing respected jurist Justice of Appeal Goudge's caution in a number of decisions before the Court of Appeal for Ontario where the question of the role of a tribunal in resisting judicial review proceedings against itself has been litigated.  In this case Presenting Counsel argued that the hearing panel's jurisdiction stems from the Notice of Hearing -which Presenting Counsel drafted.  Independent Counsel, Mr. Brian Gover, advised the hearing panel in the following words on this point:

"It also appears clear to us that there is jurisdiction in the Hearing Panel to consider questions of law specifically arising under s.10.2 of the JPA not only because of these general factors, but because the Hearing Panel's own governing provisions (s.11.1) repeatedly refers to the subject matter of the hearing as being the "complaint". This is seen, for example, at ss.11.1(9), (10) and (19).  Particularly with respect to s.11.1(10), the triggering event for the Hearing Panel's jurisdiction to impose specific dispositions is the Hearing Panel's view as to whether to uphold the "complaint".  It is therefore necessarily the case that the Hearing Panel must have the power to consider both the content of, and the legislative requirements applicable to, a "complaint" within the meaning of the JPA, since ultimately it is a "complaint" which the Hearing Panel is adjudicating."

Hearing Panel
Departs from Opinion
they Sought:  

The Hearing Panel once again departed from the opinion which they sought and received from highly qualified and respected administrative law counsel, Mr. Brian Gover, and concluded as follows in their Decision on Jurisdiction and Alleged Abuses of Process:

[73]   Therefore, the Notice of Hearing with its particulars, dated July 4, 4, 2013 and filed as Exhibits 1A and 1B, provides our jurisdiction over this hearing.

In the final analysis the Hearing Panel went on to adjudicate not the "complaint" as it is statutorily mandated to do by s.11.1(10) of the Justices of the Peace Act but the particulars in the Notice of Hearing.  They said in their Decision dated January 12, 2015:

[210]   Based on the evidence we find to be cogent and compelling, we accept that the allegations set out in Paragraphs 1, 2, 3, 4, 5, 6, 7(a), 7(b), 7(c), 7(e), 8(a), 8(c), 8(d), 9, 10, 11 13 and 14 of the Notice of Hearing, have been made out on the balance of probabilities.

s.11.1(10)   After completing the hearing, the panel may dismiss the complaint, with or without a finding that it is unfounded or, if it upholds the complaint, it may,

(a)   ward the justice of the peace;
(b)   reprimand the justice of the peace;
(c)   order the justice of the peace to apologize to the complainant or any other person;
(d)   order that the justice of the peace take specified measures, such as receiving
education or treatment, as a condition of continuing to sit as a justice of the peace;
(e)   suspend the justice of peace with pay, for any period;
(f)   suspend the justice of the peace without pay, but with benefits, for a period up to
30 days; or
(g)  recommend to the Attorney General that the justice of the peace be removed from
office in accordance with section 11.2


Note:  This piece is written for the sole purpose of drawing attention to issues of public importance. The issues of public importance in this case include the removal of a judicial officer from office, the arbitrary decision by the Hearing Panel to order that one of the judicial officer's lawyers before them not act on the case before them and their publication of an Addendum wherein they referred the said lawyer - the writer - to the Law Society of Upper Canada with an allegation that he committed professional misconduct and lastly they declined to recommend that the Attorney General indemnify the judicial officer for the two year defence of the judicial misconduct allegations against him contrary to established legal principles - leaving the lawyer unpaid for two years hard labour in defending the judicial officer.

    The opinions expressed here are those of the writer based on his knowledge of the law. Law is not a science. Lawyers and judges often differ on legal questions. This is the nature of our system of law.  Full and robust discussion on issues of public importance is in the interest of all.  This opinion is shared with the community in this spirit. Anyone who disagrees with the opinion expressed here is invited to post their comment here or elsewhere.