Some Evidence on Panel's Conduct Allegation re Motion for Interim Publication Ban - Part One

Allegations:

1.   Publication Ban Motion required an adjournment of the hearing;
2.   Motion based on Applicant's dissatisfaction with certain media articles already published;
      and about which the Panel had no ability do anything;
3.   In the same motion, he sought both a publication ban and an order that the media publish articles that were fair.  In other words, the Applicant sought relief that was factually and legally impossible to grant.

Some Evidence:

1.   A motion asserting a lack of jurisdiction and abuse of process was served and filed with the Justices of the Peace Review Council and was properly before the Hearing Panel on or about July 4th, 2013.

2.   On July 24th, 2013 His Worship Cuthbertson raised the following question of law for the parties to address before the motion on jurisdiction and abuse of process could be adjudicated by the panel: does the panel have jurisdiction to entertain the motion and overrule the decision of the complaints committee ?  Independent Counsel was retained to assist the Hearing Panel on its questions and the issue of their jurisdiction remained unresolved until close to a year after the motion was brought.

3.   On July 29th, 2013 the matter was adjourned to November 4th in accordance withe the Panel's direction in order that members of the media may have notice and participate on the publication ban motion.

November 4th, 2013:

3.   The motion for an interim publication ban was argued and concluded on November 4th, 2013.

JUSTICE LIVINGSTONE:   So that date, November the 19th is 15 days away.  We all noted that Mr. Guiste, you on numerous times during your oral submission today, stated that we should hold publication, or the issue of a ban publication in abeyance until the important issues, as you've described them, the issue of jurisdiction and abuse of process have been concluded.

We, as a panel, wish to take some time to review all of your oral submissions and prepare our reasons on this issue, the issue of ban on publication, and it is quite likely based on our respective schedules and importance of the issue, that those reasons may not be completed before we commence the motions for jurisdiction and abuse on Tuesday, November the 19th.

November 19th, 2013

2.   MS. BLIGHT:  Ms. Henein, when we - - I can't remember which day it was.  When we were here perhaps on July 24 the Panel asked the parties to address a question in terms of this motion, and that was whether we have the jurisdiction as a hearing panel appointed under section 11.1 I think of the Act to consider the abuse of process motion.

JUSTICE LIVINGSTONE:   Just for the record, it was July 24th, page 75 of the transcript of that day.  His Worship Cuthbertson raised the issue, specific issue about jurisdiction which he addressed to both of you actually, both of you and Mr. Guiste.

MS. HENEIN:   That's right.  And I assumed we would have been dealing with it in oral submissions as to whether or not there's jurisdiction.

MS. BLIGHT:   And was it your intention to deal with that question as a preliminary matter ?

MS. HENEIN:   I had anticipated dealing with it, subject of course to the Panel's direction, in the entirety of the motion.

JUSTICE LIVINGSTONE:  Today ?

MS. HENEIN:   Yes.


.....RECESS AT 10:49 a.m.

----- On resuming at 11:24 a.m.

JUSTICE LIVINGSTONE:   Please be seated.  All right, Mr. Guiste, just before we ask for your response on this motion, another issue has arisen.  You commented about a complaint made by the Registrar in relation to testimony of His Worship.  That was something that this Panel, at least His Worship and I had never heard of, and we've discussed that, and we want to address an issue about that now.  And I'll let Ms. Blight speak first.

MS. BLIGHT:   So Mr. Guiste described a complaint filed by the Registrar against a justice of the peace arising from testimony given at a hearing held before a prior hearing panel.  I can advsie the parties that I sat as the lawyer member of the complaints committee.  Until Mr. Guiste raised the issue this morning I had not realized that I'd had any prior involvement with His Worship.

Excerpts from Applicant's Factum:

Legality of "complaints" 
in question:

8.   The question as to whether or 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 (sic) 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 fact the panel has yet to rule on them.

A Similar JPRC Case
involving a publication ban:

The order issued by a panel of the JPRC in Re His Worship Kowarsky is precisely the type of order which was sought on behalf of His Worship Massiah.

His Worship Paul  Kowarsky - Interim Orders

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 Paul Kowarsky

Before:

The Honourable Justice Kathryn L. Hawke , Regional Senior Justice Her Worship Cornelia Mews, Senior Justice of the   Peace

Mr. Steven G. Silver, Community  Member

Hearing Panel of the Justices  of the  Peace Review Council

Order under Section 11.1 of the Justices of the Peace Act and the Justices of the Peace Review Council's Procedural  Code for Hearings

Counsel:   Ms. Marie Henein ,
Henein and Associates Presenting Counsel

                  Mr. Mark Sandler

Cooper  and Sandler, LLP

Counsel for His Worship Paul Kowarsky

Preamble:

1.    The Justices of the Peace Act, R.S.O.,c. J.4, as amended is referred as "the Act" herein.

2.     The Justices of the Peace Review Council's Procedural Code for Hearings is referred to as  " the Procedural Code" herein.

3.     The full wording of the sections of the Act and the  paragraphs  of the  Procedural Code  referred to in this Order are attached as Appendix A

Interim Orders

1.     At the request of Mr. Sandler, Counsel for the Respondent , this Hearing Panel orders that, between March 25, 2011 and the next date that counsel appear before the panel, there be no publication of a) the Notice of Hearing filed in this matter and b) any information that might identify the Respondent. This includes, but is not limited to, no publication of the Notice of Hearing on the Justices of the Peace Review Counsel's website. This Interim Order is to allow             time for counsel for the Respondent to prepare a motion under paragraph 18 of the Procedural Code and to preserve any rights the Respondent may have under 11.1(21) of the Act in the meantime.

2.     At the joint request of counsel and pursuant to paragraph 14 of the Procedural Code, this         Hearing Panel orders a Pre-Hearing Conference and directs the Registrar to contact the Chief Justice of the Ontario Court of Justice so that a judge or a justice  of the peace can be  assigned to conduct the pre-hearing and, once an assignment is made, to arrange a date for the pre­ hearing when counsel can attend.

Dated at the city of Toronto in the Province of Ontario, March 25th, 2011 . Hearing Panel:

The Honourable Kathryn L. Hawke, Regional Senior Justice Her Worship Senior Justice of the Peace Cornelia  Mews

Mr. Steven G. Silver, Community Member Appendix A

1.  Section 11.1(21) of the Act, provides that: Continuing publication ban

11.1 (21) If an order was made under subsection (9) and the panel dismisses the complaint with a finding that it was  unfounded, the justice  of the peace shall not be identified in the report without  his or her consent and the panel shall order that information that relates to the complaint and might identify the justice of the peace shall never be made public without his or her consent. 2006, c. 21, Sched. B, s. 10.

2.  Paragraph 14 of the Justices of the Peace Review Council's Procedural Code for Hearings states:

The panel may order that a pre-hearing conference take place before a judge or justice of the peace who is a member of the Review Council or any other judge or justice of the peace of the Ontario Court of Justice but who is not a member of the panel to hear the allegations against the respondent, for the  purposes of narrowing the issues and promoting    settlement.

3. Paragraph 18 of the Justices of the Peace Review Council's Procedural Code for Hearings states:

http://www.ontariocourts .ca/ocj/jprc/public- hearings-decisions/2011/kowars ky- interim-orders/