E MAIL COMMUNICATIONS REGARDING
SERVICE AND FILING OF REPLY
TO PRESENTING COUNSEL’S
SUBMISSIONS ON COMPENSATION AND
HEARING PANEL’S DECISION DENYING
RESPONDENT A RIGHT TO
ANSWER RELEVANT POINTS RAISED BY
PRESENTING COUNSEL
1- May 27th, 2015 @ 3:42 PM
– E.J. Guiste to Marilyn King,
Marie Henein, Jeffry House, Mathew Goulay and James Morton
Please find attached the
Respondent’s Reply Submissions to PC’s submissions.
Four copies are on way for the
Hearing Panel. I have already raised the
issue of
The propriety of the Respondent
having an opportunity to respond in accordance with
The practice granted to PC to
date.
In the event that leave is
required, I hereby request such leave from the Hearing Panel.
Sincerely,
E.J. Guiste.
2 - May 27th, 2015 @ 3:57 PM
- Marilyn King(Registrar) to
E.J.Guiste, Marie Henein, etc.
Mr. Guiste,
I noted that you have sent an e
mail with an electronic document prior to waiting for a decision from the Panel.
The Panel has made its decision
and it is attached.
Ms. King
Marilyn E. King, Registrar,
Justices of the Peace Review Counsel
3 - May 27th, 2015 @ 4:31 PM
- E.J. Guiste to Marilyn King,
Marie Henein, Jeffry House, Matthew Gourlay, James Morton
Regrettably, the Reply
Submissions had been prepared, served and filed prior to receipt of this
decision.
I politely request that the
materials be provided to the Hearing Panel for their review and
consideration. I hereby request leave of the Hearing Panel
to receieve and consider the
Reply for the following reasons:
1. Respondent is entitled to answer to points 1 –
4 in the Reply;
2. Counsel, EJG, is entitled in fairness to
address the points raised by PC impacting him;
3. The Reply is a fair and proper reply to the
issues raised;
4. The Reply assists the Hearing Panel in its
work;
5. There is in fact no prejudice to anyone in
receiving the Reply;
6. Adjudication of a salient part of the hearing
would be done without sufficient input from the Respondent;
7. Presenting Counsel has not voiced any
objection to the receipt of the Reply;
8. It is in the public interest to receive the
Reply in all of the circumstances.
In the event that the Hearing
Panel requires legal authorities to bring this request to fruition the
Respondent is prepared to do this.
Sincerely,
Ernest J. Guiste.
4 - May 27th, 2015 @ 4:37 PM
- Marilyn King to E.J. Guiste,
Marie Henein etc.
Mr. Guiste,
The decision was finalized
earlier today and prior to receipt of anything from your office.
Please read the decision, in
particular, please note in particular paragraph 7 which states, “No reply will
be accepted.”
I am not prepared to disregard
the Panel’s decision.
Ms. King
5 – May 27th, 2015 @ 5:03 PM
- E.J. Guiste to Marlyn King,
Marie Henein, Matthew Gourlay etc.
Ms. King,
I would never ask you to disobey
an order.
That is not the nature of my
request.
Clearly, you received my
communication
prior to you sending me the
decision.
In the circumstances it would be
quite proper
for you to put the matter before
the panel for
their consideration.
Sincerely,
Ernest J. Guiste.
6 - May 27th, 2015 @ 5:19 PM
- Marilyn King to E.J. Guiste,
Marie Henein, etc.
Mr. Guiste,
I would respectfully urge you to
read the decision.
I reiterate that the decision of
the Panel was finalized before we received anything from you. I am not prepared
to disregard an order of the Hearing Panel which states: “No reply will be
accepted.”
I would respectfully ask that you
refrain from further requests that I disregard that order.
Ms. King
Hearing Panel’s Decision
Denying the Respondent
the Right to Reply:
Justices of the Peace Review Council
IN THE MATTER OF A HEARING UNDER
SECTION 11.1 OF THE JUSTICES OF THE PEACE ACT, R.S.O. 1990,
c. J.4,
AS AMENDED
Concerning a Complaint about the
Conduct of Justice of the Peace Errol Massiah
Before: The Honourable Justice Deborah K. Livingstone, Chair Justice of the Peace Michael Cuthbertson
Ms. Leonore
Foster, Community Member
Hearing
Panel of the Justices of the Peace Review Council
Requests after the Deadline for Submissions on the Compensation Request
Counsel:
Ms. Marie Henein Mr.
Ernest J. Guiste
Mr. Matthew Gourlay E. J. Guiste
Professional Corporation
Henein Hutchison LLP Mr. Jeffry A. House
Presenting
Counsel Counsel
for Mr. Errol Massiah
Mr. James
Morton Morton Karrass LLP
Counsel for the Association of Justices of the Peace of Ontario (Intervenor)
PUBLICATION BAN:
On June 11, 2014, this Panel made an order that the names of all witnesses
who appear in any
of the facta or motion materials or
application records in this hearing shall not
be published, nor shall any information that might identify them be
published. Names of witnesses have been redacted.
Requests after
the Deadline for Submissions on the Compensation
Request
1.
On April 28, 2015, this Hearing Panel made the
following orders: Co-counsel Mr. Guiste
and Mr. House had until May 15, 2015, just over two weeks, to file a Statement of Account and any submissions
in writing in respect of the request for compensation
made by Mr. Massiah. Presenting Counsel was given until May 22, 2015 to provide the Panel with any written response to
the issue of compensation. The Panel stated that it would provide
written reasons in relation to the request for compensation in due course, once we've had an opportunity to consider the submissions and the
Statements of Account from Mr. Guiste and Mr. House.
2.
On May 14, 2015, Mr Guiste, co- counsel for Mr. Massiah,
requested an extension
of time until May 19, 2015 to file the submissions. That request for an extension was granted by the Panel. The time for Presenting Counsel to
file submissions was extended
accordingly to May 26, 2015.
3.
On May 19, 2015 submissions were filed by Mr.
Guiste and Mr. House, co-counsel for
Mr. Massiah. Subsequently, Mr. Guiste filed various
pieces of correspondence on different dates, including two letters, a more particularized Bill of Costs, a copy of an email
exchange with a translator, another copy of an email, a page that appears to be a
revised page of his submissions, and additional case law. There was no
indication of the relevance of the case law.
4.
Presenting Counsel filed written submissions on
May 25, 2015.
5.
Mr. Massiah was already granted an extension of
time to file submission on his request for compensation. The process must have an end date and reach a point
of finality. We are not accepting the additional
materials that were filed late except for the
more detailed Bill of Costs that Mr. Guiste undertook to Mr. Gourlay, Presenting Counsel, to provide in order
to facilitate adjudication of the compensation issue by the Hearing Panel.
6.
There are no persuasive submissions that warrant this Panel ordering
that the public should pay for the cost of translating case law. The Panel notes
that one of the two cases enclosed with the request is not
referenced in the written submissions. The other case that was enclosed is in English.
7.
The Panel will not entertain a reply to Presenting Counsel's submissions on compensation. On April 23, 2015, the dates
and processes of making submissions on compensation were set. No request for
filing a reply was made then. No authority was
provided in support of a request to make a further reply on the request for a recommendation for compensation. No
reply will be accepted.
Date: May 27, 2015
Hearing Panel: The Honourable Deborah K. Livingstone, Chair
His Worship
Michael Cuthbertson
Ms. Leonore Foster, Community
Member
The Reply “Not Accepted”
prior to Hearing Panel
seeing and considering
it:
File No. 05-22-041/1PD2
JUSTICES OF THE PEACE REVIEW COUNCIL
IN THE MATTER OF COMPLAINT(S)
REGARDING HIS WORSHIP ERROL MASSIAH
Justice of the Peace in the
Central East Region
REPLY SUBMISSIONS ON
INDEMNIFICATION
E.J. GUISTE
Professional
Corporation
Trial & Appellate
Advocacy
245 Yorkland Blvd.,
Suite 302
Toronto, Ontario
M2J 4W9
Ernest J. Guiste
(416) 364-8908
(416) 364-0973 fax
JEFFRY HOUSE
Barrister &
Solicitor
31 Prince Arthur Avenue
Toronto, Ontario
M5R 1B2
(416) 707-6271
(416) 960-5456 fax
Co-counsel for HW Massiah
1. The following points raised by
Presenting Counsel(PC) invite a reply from the Respondent:
1. Defence provided by E.J. Guiste not
well grounded, frivoulous and vexatious;
2. PC is unaware of any ‘constitutional
tradition” that the AG
is
responsible for indemnifying judicial officers for the cost
of their
legal defence in judicial misconduct proceedings in
circumstances
where there has been a finding of judicial misconduct;
3 Suggestion by PC that the test for compensation is grounded
in what a
reasonable member of the public would consider
just; and
4. Quantum of costs staggering and
unreasonable. This was a
seven day
hearing
Defence frivoulous
and vexatious:
2. A hearing shall
be commenced by a Notice of Hearing
in
accordance with this Part.
Procedures Document s. 6(1)
3. Presenting
counsel shall prepare the Notice of Hearing
(1) The Notice of Hearing shall contain,
(a) particulars of the allegations against
the Respondent.
Procedures Document s.7
Hearing Issues Defined
by Notice of Hearing
and not the Respondent
or counsel:
3. The legal issues which were the subject
of the within hearing arise directly from the Notice of Hearing(NOH) prepared
by Presenting Council. On its face, the
NOH raises the following legal issues:
1. Respondent violated the Ontario Human
Rights Code (The Code);
2. Respondent created a “poisoned work
environment”;
3. Respondents comments were “unwelcomed
and vexatious”;
4. Respondent leered and oogled defendants
who appeared
before
him in legal proceedings; and
5. Respondent has a prior record of
misconduct and has displayed
a pattern of conduct.
4. The Hunt Report which the Hearing Panel
has found constituted the “complaint in writing” makes no mention of the Code
or items 1, 2, 3, and 5 above.
5. The
Investigators’ Report is the document submitted to the
Complaints
Committee by the investigators, Mr. Lindsay and
Mr. Davis,
who were retained on behalf of the Complaints
Committee
pursuant to section 8(15) of the Act to asssit in its
investigation. This Report contained new allegations which
became known
to the Complaints Committee as a result of
the witness
interviews conducted by the investigators in 2012
during the
Committee’s investigation of the Hunt Report
allegations.
Decision of Jurisdiction and Abuse of
Process
at para 11
6. The evidentiary record before the
Hearing Panel is clear that the Hunt Report, Investigator’s Report, the
Complaints Committee’s letter dated January 2nd, 2013 and the
testimony of the 13 witnesses called by the Presenting Counsel did not assert
any violation of the Human Rights Code by the Respondent.
Hunt Report
Investigators’
Report (five volumes)
Transcripts
July 15, 16, 17 and 18th, 2014
NOH, Hunt Report and
Investigators’ Report
generated a bona fide
questions on jurisdiction
and abuse of process:
7. Accordingly, notwithstanding the Hearing
Panel’s finding that the Hunt Report satisfied the in-writing requirement of
the Act the fact that the Complaints Committee discovered new allegations
during their investigation of it raised a serious enough legal question that
AJPO took an interest in the issue and supported the Respondent and the Hearing
Panel properly sought legal advice on the question. Clearly, it can not reasonably be said that
this was a run-of-the-mill case or that the Respondent was required to overlook
this irregularity as a pre-condition to support his claim for indemnification
from the Attorney General. This is what
PC’s position amounts to.
Procedure for Adjudication
properly decided by Hearing
Panel and not Respondent:
8. The hearing commenced on July 4th,
2013. The Respondent properly served and
filed a Motion Record, factum and Book of Authorities in support of his
motion. Presenting Counsel responded in
like fashion. The factums filed by both
parties reveal that they were open to the idea of commencing the hearing and
allowing for the consideration of the jurisdiction and abuse of the process to
be adjudicated at the end of the evidence proper or for allowance to call
further evidence in support of the motions.
9. Presenting Counsel noted in their
written submissions that the Hearing Panel could well have decided the two
issues it noted in their decision on the motions as stand-alone legal issues in
2013. Clearly, it was within the purview
of the Hearing Panel to do that.
Panel permits expanded
grounds:
10. Indeed, after hearing submissions from
the parties on the issue the Hearing Panel ordered a blended hearing in June,
2014 and specifically allowed grounds 1, 3, and 6(3) on the motions to be
adjudicated on a full evidentiary record.
In addition, the Hearing Panel expanded the grounds at para 76 of their
Reasons on the motions, including, among other grounds, (e) memories have faded due to delay.
Applicability of
Foulds:
11. The Hearing Panel must not overlook the
fact that Foulds was decided in a manner that is contrary to the Procedures of
the Justices of the Peace Review Council and fairness. In Foulds the issues of liability,
disposition and compensation are all rolled into one decision. The discussion on “costs’ in these
circumstances can hardly be characterized as a judicious and binding pronouncement
on the issue of compensation under the Act.
The decision reveals no submissions made by the parties to the Hearing
Panel on the issue of compensation. As a
result, as well intentioned at it may be the entire discussion is nothing but
obiter dicta.
12. If anything legally relevant can be
gleaned from Foulds on the issue of compensation it is their citing of one
legal authority, namely, Reilly v. Alberta, 1999 ABQB 252. The following is a proper and relevant point
of law for the Hearing Panel’s consideration:
Where the conduct in question related to
the judicial
function...the
state should defray the legal fees required
for
the judge to defend himself or herself in order to
preserve the independence of the
judiciary.
Oogling and leering count
related to judicial function:
13. Contrary to PC’s submission, based on the
authority of Reilly supra this is precisely the type of case in which
compensation is proper. This is an
allegation which by its very nature has grave potential to interfere with
judicial independence and invites a strong defence.
The Hearing Panel must recall the
evidence of NN who said that it was so suttle that members of the public would
not notice it and that at the time there was no intention by anyone to move
forward with a complaint and in fact she would never bring such a complaint
because, “The only time I would consider coming forward to complain
about a judicial officer that I’m regularly in front of, is if I can
demonstrate objectively by transcripts or something, a pattern of
conduct. An isolated incident, I would
never do quite frankly.”
(at
p.141 – July 18, 2014)
Legal Authority for
Indemnification:
14. Although Presenting Counsel advocates strong
resistance to the well recognized constitutionally-based practice of the
Attorney General indemnifying judicial officers in the context of having to
defend judicial misconduct complaints brought against them they point to no law
other than the recent decisions of the JPRC and the OJC. It is respectfully submitted that these
decisions are neither binding or persuasive on the topic and are more of a manifestation
of the growing politicization of the issue of governmental fiscal restraint than
anything else.(see below)
Quebec Court of Appeal
and Superior Court have
addressed the issue squarely:
15. Two sound decisions from the Quebec Court
of Appeal and the Quebec Superior Court address the issue of indemnification of
judicial officers by the Attorney General for the cost of
defending
themselves in judicial misconduct proceedings – as we have here.
16. [34] In
Hamann, relying, inter alia, on the Supreme Court of Canada decision in
Valente v. The Queen et al [1985] 2
S.C.R. 673, the Quebec Court of Appeal ruled as follows at paragraphs 12-15 of
its reasons:
[TRANSLATION]
The appellant argues that the Minister of Justice’s refusal to bear the
respondent’s counsel fees does not infringe the principle of judicial
independence since it does not affect the three essential components of that
concept, security of tenure and financial security of the judges and
institutional and administrative autonomy.
The Court, like the trial judge, is of the contrary opinion. The Supreme Court, in Valente v. The
Queen, clearly states that the rule of security of tenure means:
“that the judge be removable only
for cause, and that cause be subject to
independent review and determination
by a process at which the judge
affected is afforded a full
opportunity to be heard.”
The
court is of the opinion that the right to be heard necessarily includes the
right to be assisted by counsel.
In the
case at bar, it is obvious that dismissal is a possible ultimate punishment for
the actions charged against the respondent who, moreover, like any other
person, had the benefit of innocence at the time the complaints were laid. The
principle of security of tenure is therefore directly at issue in this case, as
is the concept of the respondent’s financial security, in his capacity as a
judge, since the out-of-court fees he may incur would in all likelihood exceed
his income as a part-time municipal judge, a situation that is peculiar to this
case.
Incidentally,
in this case the Court is also of the opinion that it woud be unreasonable,
pursuant to these concepts, that a judge could be obligated to defend himself
at his own expense against an unscreened complaint in the nature of the one
made by the Club juridique.
[35] In Fortin, Lemelin J of the Superior Court
of Quebec, at paragraph 31-33 of his reasons, expressed full agreement with the
Court of Appeal in Hamann:
[TRANSLATION] Viewed from this standpoint, the once that
should be adopted, in the Court’s opinion, the Court sees no valid reason to
suppress or reduce the objective constitutional gurantees of Judge Fortin. He continues to have the right to defend his
office without having his judicial independence compromised. If he had to bear the costs of his defence,
there is a risk that he could not do so for financial reasons or that he would
choose to resign. His independence would
then have been compromised by the Minister’s refusal to pay the fees of his
counsel.
No one
should be able easily or conveniently to obtain the dismissal or sanction of a
judge. That is the very essence of the
security of tenure of the judge’s position.
For that reason, the judicial system must provide Judge Fortin with
reasonable resources to defend his position, not so much in his own interest
but in order to avoid infringement of the security of tenure of the position.
Bourbonnais v.
A.G. Canada 2006 FCA 62
(Fortin and Hamann as quoted from)
17. The legal principles articulated by both
the Quebec Court of Appeal and the Quebec Superior Court are supported by the
Federal Court of Appeal in Bourbonnais in the following words:
There can be
no doubt, as the Quebec Court of Appeal and
Superior
Court found, that the principle of judicial independence
requires, in
the context of a judge’s dismissal proceeding, that
the judge be
entitled to the payment of his out-of-court fees he
will have to
incur in defending himself.
18. “The argument of
public policy leads you from sound law,
and is never
argued but when all other points fail.
Burrough J. , Richardson v.
Mellish (18240
2
Bing 252
19. PC argues that in adjudicating the
question of compensation the Hearing Panel should be guided by the question -
would a reasonable member of the public consider it just for the respondent’s
legal bill to be paid by the “public” ?
20. IT IS RESPECTFULLY SUBMITTED THAT this
manner of characterization of the issue totally misses the point on the
underlying rationale for compensation.
The error in this thinking is grounded in denying the reality that
justices of the peace, as judges, are fully entitled to the constitutional
privilege of judicial independence and that the financial security component of
judicial independence is clearly challenged by the need to defend one’s office. The following is a list the reasons why PC’s test
is neither helpful or persuasive:
1. The complaint process is indeed a term
and condition of office
in a free
and democratic society;
2. Theoretically, a sitting judge or
justice of the peace could be
the target
of an allegation of leering or oogling at anytime from
anyone
appearing before them;
3. Judicial independence is prima facie
compromised if the subject
judge or
justice of the peace is circumscribed in the manner and
extent of
their defence of the complaint;
4. Both the Respondent’s security of
tenure and financial security as
a judicial
officer were at issue in these proceedings;
5. The Applicant earns roughly $122,000
per year and based on the
costs associated
with the first hearing could not reasonably
afford to
defend his office without indemnification from the
Attorney
General. He was in fact indemnified by
the
Attorney
General as the records at tab 10 show.
6. “No one should be able easily or
conveniently to obtain the
dismissal or
sanction of a judge. That is the very
essence of
the security
of tenure of the judge’s position. For that reason,
the judicial
system must provide Judge Fortin with reasonable
resources to
defend his position, not so much in his own
interest but
in order to avoid an infringement of the security
of tenure of
the position”. (Fortin v. Ministre de la
justice)
7. Re Foulds was in essence a guilty plea.
8. Re Johnson was in essence a guilty
plea.
9. Re Chisvin was in essence a guilty
plea.
10. Re Phillips was not a guilty plea but
involved a judicial officer who was found after a hearing to
have obstructing the investigation of
a police officer in the course of a lawful investigation.
11. Caution must be headed so as not to
create the appearance
or
suggestion that defending allegations of misconduct is
somehow
inconsistent with the public interest and that
administrative
frugality trumps the Rule of Law and
judicial
independence and security.
21. If the test for compensation advocated by
PC has any merit or utility in the proper adjudication of the compensation
issue under s.11.1(17) of the Act it is extremely limited and reserved to
circumstances where the judicial officers pleads guilty or is found to have
committed what amounts to a crime of moral turpitude – lying to a police
officer in the execution of their duty.
22. Clearly, we do not have a situation
remotely close to the situations in the cases relied upon by PC.
23. IT IS RESPECTFULLY SUBMITTED THAT for the
Hearing Panel to accept Presenting Counsel’s submissions on indemnification for
the Respondent in this case and in all of the circumstances of this case is for
the Hearing Panel to disregard established legal principles in Canada and
England recognizing the practice of the Attorney General (not the
public)indemnifying judicial officers for the cost of their defence in judicial
misconduct proceedings, to interfere with the Respondent’s right to counsel of
his choice and plain and simply unfair and unprecedented.
Motions:
Bias:
24. The Respondent repeats and relies upon
his prior statements on this point. At
the end of the day the time spent on this motion was minor in the context of
the entire proceedings.
Publication Ban:
25. The publication ban motion was well
founded and based on the fact that to the extent that the complaint was not one
that the Hearing Panel could in law entertain the publication of it while their
legality was under consideration was prejudicial to the Respondent and indeed
the administration of justice. Clearly,
this motion did not take much time to prepare and adjudicate.
26. On the Gover matter counsel indicated
that he would study the matter and if the law provided for such a motion it
would be brought but if it didn’t it would be left alone. This was a fair position for counsel to take.
Disclosure/Particulars
27. The witness statement summaries
contemplated were follow-up interview material and this was a proper request to
make. Other relief was sought and the
Hearing Panel denied the relief. This in
and of itself does not make the bringing of such a motion frivolous and vexatious. Disclosure motions are lost every day by very
able counsel.
The record is clear. PC made an undertaking to Mr. Bhattacharya to
provide him with a list of witnesses by June 14 2013. (Respondent’s Disclosure
Request Documents – Nov.13, 2013 letter to PC)
A witness list was provided in April, 2014. Contact information for A and B was provided after the hearing commenced.
27. Counsel for the Respondent brought two
motions seeking leave to raise issues inadvertently omitted in previous
argument after the Hearing Panel reserved on judgment. Based on
proper legal authority holding that a court or tribunal is not functus until
they render a final decision leave was sought.
The record is clear counsel received
no notice with respect to the abuse of process order made mention of by PC at
para 39 (vi) and (vii). Accordingly,
counsel was not heard on this issue and has lost any opportunity to respond on
it.
Quantum:
28. Breakdown of time expended by E.J. Guiste
Attendances – 23 days: July 4, 24, November 4, 19, 2013, April 9th,
2014, April 28, May 27, 28, 29, 2014, June 11, 12, 18, July 15, 16, 17, 18, 28,
29, 30, October 8th, Dec. 2nd, March 23, 2015, April 28th,
2015
Pre-Hearing: 385.15 hrs
- from June, 2013 to July 14th, 2014
Hearing
proper: 38.5 hrs. (evidence only July 15, 16, 17, 18, 28, 29, 30)
Written
subs etc.: 296 hrs
29. It is clear that a significant amount of
time was spent on what can be characterized as pre-hearing issues. The question is – is it proper to fault the
Respondent or his counsel for this in all of the circumstances and, where as
here, the Hearing Panel specifically invited the parties to address the
question of their own jurisdiction to entertain the motion. Justice Livingstone said, “So we thought
we’d throw that out to you today knowing its going to take some work.” Accordingly, the pre-hearing work is fully
compensable as the bulk of this work was invited by the Hearing Panel to assist
it.
30. The hearing and written submission
preparation is also fully compensable under the authority of Blackburn, Romain,
Obakata, Sinai, Quon, Kowarsky, Massiah, Ruffo, Fortin, Hamann and Reilly.
Comparisons:
Massiah
I – 4 days – no motions from parties of Hearing Panel – Attorney General paid
aprox
$125,000;
Kowarsky
– no viva voce evidence – guilty plea – benefit of Pre-Hearing Conference
$37,000;
Massiah
II had six times more attendances than Massiah I. Massiah II involved serious questions of law
raised by the Respondent, Association of Justices of the Peace of Ontario and
the Hearing Panel itself. It is
understandable that the costs associated with Massiah II would be roughly six
times that of Massiah I. This is
precisely why a Pre-Hearing Conference was requested. The purpose of the Pre-Hearing Conference as
the Procedures Document clearly states is to promote settlement. Massiah II alleged a prior record of
discipline thus increasing the jeapordy faced by the Respondent. All of these factors made this a challenging
case and one where public confidence in the Administration of Justice and the
Rule of Law is enhanced by compensating the Respondent.
31. All of which is respectfully
submitted.
May 27th, 2015.
E.J. GUISTE & J.
House, Co-counsel for the Respondent
