EXCERPT OF REASONS FOR DECISION
ON LIABILITY :
[50] When a court clerk, EE, told her supervisor, JJ, that His Worship Massiah had been getting dressed for court with his chambers door open when she delivered his court dockets, the supervisor did nothing. Both Ms. JJ and KK, supervisors of the court staff, made light of the inappropriateness of a judicial officer undressing with the door open and inviting staff to enter when they appeared at the open door in the course of performing their job.
(Transcript July 16, pp. 165, 166; Transcript July 28, pp. 210, 211, 212,; Transcript July 28, pp. 44, 45)
[51] It should be noted that in cross-examination, Ms. JJ re-considered her lack of response to Ms. EE when she stated that:
In hindsight, because we are all having this conversation, I can look at it and say, "well, maybe, I should have called her in and said, "okay. I want to hear about this. When is this happening ? How is this happening ? No I didn't do that.
(Transcript July 28, p. 211)
[99] CC, referred to previously, testified that justices of the peace usually had the door to their chambers shut in the morning when they arrived and were getting ready for the day and robing. (Transcript July 14, pp.174-175). She recalled two incidents clearly in her mind when she went to deliver paperwork to His Worship, knocked on an open door and was invited in by His Worship to enter the office when he was not fully dressed. Because of the office's "L-shaped" format she could not see His Worship prior to entering, but when she did walk in, he had his pants on and was putting on his shirt. He was not wearing an undershirt. On the first occasion, she recalled, Ms. CC felt embarrassed and she immediately turned and left. She testified that "I felt that - I was afraid, really, because I didn't know what to do. As I said, he was my boss, I don't know what I could have done."
(Transcript July 15, p. 179-184)
[100] On the second occasion, she recalls exclaiming something like "Oh my God", and His Worship saying "something like "its okay, I 'm just about done." She did not report the incidents to anyone. She testified that, "At that time when things were happening, he could hurt me more than I could hurt him, by status alone. I don't think - at that time, I don't think anybody would listen to a courtroom clerk."
(Transcript July 15, pp. 179-185)
[101] FF was an administration clerk at the Rossland court during the relevant time frame. She testified that her interaction with His Worship and other justices of the peace would relate to clarification of signing of paperwork. She recalled one occasion when she attended at His Worship Massiah's chambers, knocked on the open door but saw no-one(sic) and heard no response. When she looked into the office, she saw His Worship's bare arm. She was uncomfortable and backed out of the office. She waited, knocked again, heard "come in" and His Worship was then fully dressed. She did not report the incident.
(Transcript July 17, pp. 137-142)
[103] GG, a court clerk at the Rossland court, testified that His Worship Massiah would occasionally change out of judicial robes in the hallway behind the courtrooms - which stuck out in her mind because she had not observed any other justices do that. His Worship was not bare-chested - he had an undershirt on when she observed his behaviour.
(Transcript July 17, p.177)
[104] His Worship categorically denied that any staff member saw him shirtless. He always wears an undershirt, he stated; he also described a large disfigurement on his chest; this is visible - "Let's put it this way, I do not go to the beaches and take off my shirt, sir."
Transcript July 29, pp, 53, 54)
[202] We accept that His Worship was in the habit of changing into his court attire with his chambers door open, and inviting staff to enter if they arrived when he was doing so. As EE testified, she felt uncomfortable after she found herself in his chambers with him in a state of partial undress, that she went downstairs and told manager, JJ. Both managers, Ms. KK and Ms. JJ, confirmed the evidence of Ms. EE that she had seen him with his shirt off. Surprisingly, neither manager seemed to appreciate that such conduct by His Worship was inappropriate. Rather, their evidence was that Ms. EE made light of it and enjoyed it. Neither of the managers took any steps to investigate the incidents reported to them by their female staff
CROSS-EXAMINATION OF CC
July 15, 2014 (p.181 - 182)
MR. HOUSE:
Q. And can you place those two incidents in time at all for us, in terms of, was it early on when - in your relationship with Mr. Massiah, or in his tenure, or later on; do you have a sense ?
A. I can't answer that, I'm sorry.
Q. Okay. How many years would you say it was where you worked with His Worship ?
A. I can't even recall that, when he was actually on his own and - - I can't recall.
Q. What do you mean by "actually on his own" ?
A. Without a mentor
Q. Okay So you're unable to help us out at all about when these two incidents took place ? Sorry go ahead.
A. Are you asking me for a year, or a date, or...
Q. Early in his tenure, later in his tenure ?
A. As best I can put it is the early stages of me knowing him.
Q. And do you recall where(sic) these two incidents close in time together ?
A. I think so, yes. Because I think after, if it were one or if it were three, after I would turn around and say, "well, am not coming in." It didn't happen anymore.
July 16th, 2014 @ p.23
Q. Right. So would it be fair to say that on some material particulars your recollections have been weakened by the passage of time ?
A. I think that would be a fair statement.
ON LIABILITY :
[50] When a court clerk, EE, told her supervisor, JJ, that His Worship Massiah had been getting dressed for court with his chambers door open when she delivered his court dockets, the supervisor did nothing. Both Ms. JJ and KK, supervisors of the court staff, made light of the inappropriateness of a judicial officer undressing with the door open and inviting staff to enter when they appeared at the open door in the course of performing their job.
(Transcript July 16, pp. 165, 166; Transcript July 28, pp. 210, 211, 212,; Transcript July 28, pp. 44, 45)
[51] It should be noted that in cross-examination, Ms. JJ re-considered her lack of response to Ms. EE when she stated that:
In hindsight, because we are all having this conversation, I can look at it and say, "well, maybe, I should have called her in and said, "okay. I want to hear about this. When is this happening ? How is this happening ? No I didn't do that.
(Transcript July 28, p. 211)
[99] CC, referred to previously, testified that justices of the peace usually had the door to their chambers shut in the morning when they arrived and were getting ready for the day and robing. (Transcript July 14, pp.174-175). She recalled two incidents clearly in her mind when she went to deliver paperwork to His Worship, knocked on an open door and was invited in by His Worship to enter the office when he was not fully dressed. Because of the office's "L-shaped" format she could not see His Worship prior to entering, but when she did walk in, he had his pants on and was putting on his shirt. He was not wearing an undershirt. On the first occasion, she recalled, Ms. CC felt embarrassed and she immediately turned and left. She testified that "I felt that - I was afraid, really, because I didn't know what to do. As I said, he was my boss, I don't know what I could have done."
(Transcript July 15, p. 179-184)
[100] On the second occasion, she recalls exclaiming something like "Oh my God", and His Worship saying "something like "its okay, I 'm just about done." She did not report the incidents to anyone. She testified that, "At that time when things were happening, he could hurt me more than I could hurt him, by status alone. I don't think - at that time, I don't think anybody would listen to a courtroom clerk."
(Transcript July 15, pp. 179-185)
[101] FF was an administration clerk at the Rossland court during the relevant time frame. She testified that her interaction with His Worship and other justices of the peace would relate to clarification of signing of paperwork. She recalled one occasion when she attended at His Worship Massiah's chambers, knocked on the open door but saw no-one(sic) and heard no response. When she looked into the office, she saw His Worship's bare arm. She was uncomfortable and backed out of the office. She waited, knocked again, heard "come in" and His Worship was then fully dressed. She did not report the incident.
(Transcript July 17, pp. 137-142)
[103] GG, a court clerk at the Rossland court, testified that His Worship Massiah would occasionally change out of judicial robes in the hallway behind the courtrooms - which stuck out in her mind because she had not observed any other justices do that. His Worship was not bare-chested - he had an undershirt on when she observed his behaviour.
(Transcript July 17, p.177)
[104] His Worship categorically denied that any staff member saw him shirtless. He always wears an undershirt, he stated; he also described a large disfigurement on his chest; this is visible - "Let's put it this way, I do not go to the beaches and take off my shirt, sir."
Transcript July 29, pp, 53, 54)
[202] We accept that His Worship was in the habit of changing into his court attire with his chambers door open, and inviting staff to enter if they arrived when he was doing so. As EE testified, she felt uncomfortable after she found herself in his chambers with him in a state of partial undress, that she went downstairs and told manager, JJ. Both managers, Ms. KK and Ms. JJ, confirmed the evidence of Ms. EE that she had seen him with his shirt off. Surprisingly, neither manager seemed to appreciate that such conduct by His Worship was inappropriate. Rather, their evidence was that Ms. EE made light of it and enjoyed it. Neither of the managers took any steps to investigate the incidents reported to them by their female staff
CROSS-EXAMINATION OF CC
July 15, 2014 (p.181 - 182)
MR. HOUSE:
Q. And can you place those two incidents in time at all for us, in terms of, was it early on when - in your relationship with Mr. Massiah, or in his tenure, or later on; do you have a sense ?
A. I can't answer that, I'm sorry.
Q. Okay. How many years would you say it was where you worked with His Worship ?
A. I can't even recall that, when he was actually on his own and - - I can't recall.
Q. What do you mean by "actually on his own" ?
A. Without a mentor
Q. Okay So you're unable to help us out at all about when these two incidents took place ? Sorry go ahead.
A. Are you asking me for a year, or a date, or...
Q. Early in his tenure, later in his tenure ?
A. As best I can put it is the early stages of me knowing him.
Q. And do you recall where(sic) these two incidents close in time together ?
A. I think so, yes. Because I think after, if it were one or if it were three, after I would turn around and say, "well, am not coming in." It didn't happen anymore.
July 16th, 2014 @ p.23
Q. Right. So would it be fair to say that on some material particulars your recollections have been weakened by the passage of time ?
A. I think that would be a fair statement.
EXAMINATION-IN-CHIEF OF KK BY MR. HOUSE:
July 28th, 2014 - at p. 53-55
Q. I've asked you about EE
3 .
A. Yes.
Q. And have you exhausted your memory
about what EE said
to you when you
were discussing the fact that
she had seen Justice
Massiah's --
MS. HENEIN: What page are we on?
BY MR. HOUSE:
Q. I think it's 23, I believe.
A. It was said in a joking way;
that's what I said. It was not a complaint, she
made light of it, she made fun
of it.
Q. Okay. If you would just take
a
look at page 24 to refresh your
memory.
A. Okay.
Q. Did you overhear her saying
anything about that interaction
with Justice
Massiah?
don't recall.
JUSTICE LIVINGSTONE: Yes.
THE WITNESS: (Witness reviews
document.)
I don't recall -- like I'm
reading that
and obviously I remembered that
back in July, two
years ago, but I don't...
BY MR. HOUSE:
Q. So first of all, tell us what it
is you said back in July. Can you read to us what
you said back in July?
A. I said:
"I overheard her tell her
colleagues how she went up
there and
because she always thought he
was a
handsome man, and she kind of
liked
the fact that he was up there
without his shirt on."
Q. And you now are saying that you
don't have any recollection of
her having said
that?
A. I remember her not being offended
by that, he was not wearing a
shirt. I remember it
not being a big deal, she made light of it. Like I
said earlier, it sounded like
she rather enjoyed it.
overhearing something she said
to her colleagues?
A. No, I don't specifically remember.
I obviously did if I said it
back then. I
specifically remember that it
wasn't an unpleasant
thing for her.
MR. HOUSE: Thank you very much.
Those are my questions.
CROSS-EXAM OF KK BY PRESENTING COUNSEL:
July 28th, 2014 - p. 84
Q. Let me ask you a little bit about EE
.
When EE came to
you and
said that she had gone upstairs and had seen
Justice of the Peace Massiah
with his shirt off,
was that the very first time
you heard a clerk talk
about that?
A. Yes, I believe so.
Q. All right. So it had never
been
brought to your attention that
there had been other
experiences with this?
A. Of the same nature?
Q. Yes.
A. No.
Q. Had there been, would that have
been something that you would
be concerned about as
a manager?
A. Yes.
Q. Why?
A. Just, I -- I don't know. Because
if it happens all the time, I
would say there's a
would have to look into.
Q. All right. And when EE approaches you and tells you this, you say
she's joking about it, right?
A. That's how she presented it, yes.
Q. Did you say, "well, then why are
you raising it with me"?
MR. HOUSE: Sorry, I didn't hear the
question.
BY MS. HENEIN:
Q. Did you say to her, "why are you
telling me about this"?
A. I don't recall what I said to her.
Q. Did you say to her, "were you
bothered by this"?
A. No, I didn't, because she clearly
was not bothered by it.
Q. Did she ever report it again to
you?
A. Not that I recall.
Q. And in terms of your knowledge of
what EE is like,
and how she deals
with things, you said other
than a workplace
relationship, you have no
external dealings with
A. I mean, the few staff have
functions after work, that kind
of thing, but I
have no personal relationship.
EXAMINATION-IN-CHIEF OF JJ
July 28th, 2014 at p. 184...
EXAMINATION-IN-CHIEF OF JJ
July 28th, 2014 at p. 184...
Q. Okay, understood.
Now, you've testified that EE, in particular,
was one of the people who appeared to have some camaraderie
with Justice Massiah; is that true?
A. That's true.
Q. and was there ever an incident in
was one of the people who appeared to have some camaraderie
with Justice Massiah; is that true?
A. That's true.
Q. and was there ever an incident in
which EE talked to
you about seeing
some or all of Justice
Massiah's chest?
A. Yes, she did.
A. I don't exactly know what, you
know, precipitated that. I
mean, when I was going
around and asking questions, you know, as I said
there, or as you had clarified
there, you know, I
asked, "how do you get
along with the judiciary?"
You know, I would have -- I
would have, you know --
I may have named some names, but I wouldn't have
named his name, His Worship
Massiah's name
specifically, without naming
other people. "Oh,
how are you? How is that working out?" You know?
Q. Right.
A. And, you know, the other visiting
Justices of the Peace,
"how is that working out?"
You know, so that kind of
thing. So it was
probative, but it wasn't
directed to try to -- for
me, I know what I was probing
for, but it wasn't
going to be obvious to anybody
else.
However, I know that EE and --
you know, I can remember her
coming over to my
office and saying "oh, we
like working with His
Worship Massiah. And sometimes I get to see him
without his shirt on."
And that certainly made me get
somewhat
concerned. And she's like, "so we try to catch him
Q. Sorry, sorry.
A. Pardon me.
Q. She said what?
A. She said, "sometimes we like to
catch him without his shirt
on."
(Reporter sought
clarification.)
MR. HOUSE: Actually, I don't think
that comment was addressed to
you, Madam
JJ.
JUSTICE LIVINGSTONE: Please have her
repeat the answer.
BY MR. HOUSE:
Q. Could you please repeat the last
answer, though. It may be that we didn't have the
full sense of it. Someone says
that I spoke over
your answer, for which I
apologize.
THE REPORTER: I can read back what I
have.
JUSTICE LIVINGSTONE: Please.
Ms. JJ, can you hear my
voice?
THE WITNESS: No, I can't.
JUSTICE LIVINGSTONE: Let Madam
Reporter tell us what she has
and then ask
Ms. JJ if that is her full
answer.
Q. Ms. JJ, the Honourable
Justice Livingstone is
presiding over this matter,
and she would like the court reporter to read to
you what she believes is her last answer. And then
you are free to add anything to
that, or if you
think that has captured your
answer, you can tell
us that, okay?
A. Thank you.
-- Reporter's Note: Whereupon the
answer was read back as
follows:
"Answer: And, you know, the
other visiting Justices of the
Peace, "how is that
working out?"
You know, so that kind of
thing. So
it was probative, but it wasn't
directed to try to -- for me, I
know
what I was probing for. But it
wasn't going to be obvious to
anybody else.
"However, I know that
EE and -- you know, I
can
remember her coming over to my
office and saying, "oh, we
like
working with His Worship
Massiah.
without his shirt on."
"And that certainly made
me get
somewhat concerned. And she's like,
"so we try to catch him
sometimes
without his shirt on" and
--
BY MR. HOUSE:
Q. So is there anything you'd like to
add to that answer, Ms. JJ ?
A. No. I'd like to take away
some of
the "you knows,"
but...
Q. Well, everyone is amused at that
answer, and so unfortunately
we're verbatim here.
All counsel suffer in the same
way.
A. All right, no. I don't think
I
need to -- I want to add
anything to that
statement.
Q. All right.
A. I should say, maybe I should say,
I was somewhat taken aback by that comment. And
that she says, "oh, I'm
just kidding." And so I
guess I do have something to
add to that.
"Oh, I'm just kidding. But sometimes
we catch him without his shirt on." So she was
treating it very light, and I
let it stand that way.
Q. All right, thank you.
I'm just reviewing my notes to
see if
there's anything else that I
need to ask you. So
if you could just hold on for a
second please.
MR. HOUSE: All right. Those
are my
questions. Thank you very
much.
CROSS-EXAMINATION OF JJ BY PRESENTING COUNSEL
July 28th, 2014 - at p. 210
CROSS-EXAMINATION OF JJ BY PRESENTING COUNSEL
July 28th, 2014 - at p. 210
Q. And let me just ask you about
EE and your saying
that she seemed to
be joking about seeing Justice
of the Peace Massiah
with his shirt off.
A. Um-hum.
Q. Do you recall today you said that
they would try to "catch
him with his shirt off."
A. That's what she said, um-hum.
Q. You didn't tell that to the
investigators, did you?
A. I thought I did.
Q. Well --
A. I don't know, if it's not in the
transcript it's certainly in my
memory.
Q. So you recall -- you recall
EE making a joke
about catching
Justice of the Peace Massiah
with his shirt off,
but you do not recall a serious
complaint involving
BB and II;
am I right?
A. If you want to put it in those
terms, that's what it looks
like. That's not -- I
all into context, and I guess
that's true about
most people that you -- some
things you recall
clearly, and other things you
don't. I don't know.
Q. Let's talk about the one you
recall. EE, when
she says to you, you
know, "I caught him with his shirt off." And she
makes light of it, what do you do to consider that
a little further? Do you ask
her any questions,
"how is it that you come
to see him with his shirt
off?"
A. Well, whatever my response was to
her, that's when she said --
and I don't remember
my exact words -- but as I
said, I took -- I
reacted to her making that
comment. And that's
what she said was, "well,
we try to catch him with
his shirt off." So to me, when I repeat that back
to you and when I thought about
it, I knew she was
trying to make light of the
situation, that she was
treating it with some
frivolity.
In hindsight, because we're all
having
this conversation, I can look
at it and say, "well,
maybe I should have called her
in and said, 'okay.
I want to hear about this. When
is this happening?
How is this happening'?" No, I didn't do that.
she said, "we try to catch
him with his shirt off"
happen"?
A. No, I didn't.
CROSS EXAMINATION OF EE BY MR. HOUSE:
July 16, 2014 - at p.183-184
Q. Okay. And these occasions when you went up to Justice Massiah's office on the second floor, and he was completing getting dressed, do you know what years those were in ? Was that early on in his attendance there, or was that later ?
A. I believe he started when were were at 701 Rossland, and we were there about two or three years, and it happened at 605 Rossland. So it was after we moved. I think it was probably 2007, 2008.
NOTE: Due care has been taken to reproduce accurately the excerpts of the panel's decision on liability and the excerpts of the transcripts quoted herein without comment or analysis. If any errors are located please bring them to my attention forthwith for correction.
CROSS EXAMINATION OF EE BY MR. HOUSE:
July 16, 2014 - at p.183-184
Q. Okay. And these occasions when you went up to Justice Massiah's office on the second floor, and he was completing getting dressed, do you know what years those were in ? Was that early on in his attendance there, or was that later ?
A. I believe he started when were were at 701 Rossland, and we were there about two or three years, and it happened at 605 Rossland. So it was after we moved. I think it was probably 2007, 2008.
NOTE: Due care has been taken to reproduce accurately the excerpts of the panel's decision on liability and the excerpts of the transcripts quoted herein without comment or analysis. If any errors are located please bring them to my attention forthwith for correction.
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