JUSTICES OF THE
PEACE REVIEW COUNCIL
IN THE MATTER OF a complaint respecting
Justice of the Peace Errol Massiah
Justice of the Peace in the Central East Region
CLOSING WRITTEN SUBMISSIONS
OF PRESENTING COUNSEL RE: JUDICIAL MISCONDUCT
Overview
1.
Over the course
of the seven days of testimony in this hearing,
the Panel has heard
evidence from a number of people employed at the Durham Region Provincial Offences Court who either experienced or
witnessed inappropriate, sexually-based conduct by His Worship Massiah. Presenting Counsel submits that, taken as a
whole, their evidence was credible, cogent,
and compelling. His Worship’s testimony, in which he acknowledged
some of the conduct and comments attributed to him but attempted to cover it with an exculpatory gloss, was, respectfully,
unconvincing. His Worship either knew or ought
to have known that his sexually-themed comments and conduct
toward female court staff
were inappropriate and unwelcome. That His Worship
continues to try to justify
clearly inappropriate conduct – even after having been cited by a previous
Hearing Panel for similar conduct and undergone
educational counseling to ensure future compliance – is
deeply concerning.
2.
Presenting Counsel submits that the evidence heard by the
Panel amply justifies findings of judicial misconduct. His Worship’s actions amount to a pattern of conduct which has harmed public confidence in himself as
a judicial officer and the administration of
justice more broadly.
3.
In what follows, we set out
the applicable law on sexual harassment and judicial misconduct. We then proceed sequentially
through the allegations set out in the Notice
of Hearing, summarize the evidence led under each heading, and make submissions about what findings
ought to result.
The Law of Sexual Harassment
4.
Though the Hearing
Panel is applying
the Justices of the Peace Act and the associated
principles of judicial conduct, some guidance can be had from the law of sexual harassment
under the Ontario Human Rights Code,
RSO 1990, c H.19 (the “Code”). His Worship was well familiar with these principles having worked for the Ontario Human
Rights Commission in various capacities including as an investigator of sexual harassment
complaints.
5.
Section 7(2) of the Code prohibits sexual harassment in workplaces. It states:
Harassment because of sex
in workplaces
(2) Every person who is an employee has a right to freedom
from harassment in the workplace
because of sex, sexual orientation, gender identity or gender expression by his or her
employer or agent of the employer or by another employee. R.S.O. 1990, c. H.19, s. 7 (2);
2012, c. 7, s. 6 (2).
6.
“Harassment” is defined
in s. 10 of the Code as “engaging in a course
of vexatious comment or
conduct that is known or ought reasonably to be known to be unwelcome.”
7.
A “poisoned work environment” can arise where unwelcome
comments or conduct inappropriately sexualized the workplace. As the Ontario
Human Rights Tribunal
has stated:
The purpose of section 7(2) of the Code
is to protect employees from sex harassment and this includes inappropriate sexualization of the workplace. Human rights jurisprudence has long
accepted that the “emotional and psychological circumstances in the workplace” which underlie
the work atmosphere constitute part of the terms and conditions of employment: see Dhillon v. F. W. Woolworth
Co. (1982), 3 C.H.R.R. D/743 (Ont. Bd. Inq.) at para. 6691 and Moffatt v. Kinark Child & Family Services (1998), 35 C.H.R.R. D/205 (Ont. Bd. Inq.) (“Moffatt”). It is well-settled law that the prohibition against discrimination in section 5(1) affords employees the right to be free from a poisoned work environment in relation to Code-protected
grounds. If sexually charged comments and conduct contaminate the work
environment, then such circumstances can constitute a discriminatory
term or condition of employment contrary to both section 5(1) and 7(2) of
the Code: see Cugliari v.
Telefficiency Corporation, 2006 HRTO 7 (CanLII), 2006 HRTO 7 (CanLII) and Moffatt, supra.
Smith v. Menzies Chrysler, 2009
HRTO 1936, at para. 151
8.
Sexual harassment is
recognized by the courts as a form of discrimination on the basis of sex.
In Janzen v. Platy
Enterprises Ltd., [1989] 1 S.C.R. 1252, Chief Justice Dickson wrote:
Without seeking
to provide an exhaustive definition of the term, I am of the view that sexual harassment in the workplace may be broadly defined
as unwelcome conduct of a sexual nature that detrimentally affects
the work environment or leads to adverse
job- related consequences for the victims
of the harassment. It is, as Adjudicator Shime observed in Bell v.
Ladas, supra, and as has been
widely accepted by other adjudicators and
academic commentators, an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic
and sexual power.
Sexual harassment is a demeaning
practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual
actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim
both as an employee and as a human being.
Perpetrators of sexual
harassment and victims
of the conduct may be either male or female. However,
in the present sex stratified labour market, those with the power to harass sexually will predominantly be male and those
facing the greatest risk of harassment will tend to be female.
9.
This definition covers a broad range
of conduct, from jokes and innuendo to actual physical touching. Citing Janzen, the Ontario Human Rights
Tribunal has stated:
The Supreme Court’s
interpretation of sexual
harassment clearly contemplates a broad range of behaviours with respect to matters of sex, including, but not limited to, sexual gestures, sexual
posturing and sexually-oriented practices, which negatively impact the work environment. As such,
sexual harassment law provides protection from
the imposition of sexually inappropriate overtones and undercurrents in the workplace.
Smith, supra, at para. 148
10.
Employers have a positive duty to provide
a workplace free of sexual harassment. In a recent case, the Divisional Court overturned
an arbitrator’s decision reinstating a sexual harasser on two grounds: (1) another
employee was able to get the employee in question
to stop harassing by threatening him with violence, and (2) the complainant did
not want him to lose his job. Writing for the Court, Sachs J. stated:
Both these considerations were irrelevant and represent a dangerous step backwards in the law surrounding the treatment of sexual misconduct in the workplace. It is not the responsibility of employees to protect themselves from
being sexually harassed or assaulted by being strong or threatening violence.
Employees are entitled to a workplace that is free from sexual harassment and employers have a responsibility to ensure that their employees are not exposed to this type of behaviour.
The legislature has reinforced these
obligations in Bill 168, which involved a series of amendments to the Occupational Health and Safety Act that deal with violence and harassment in the workplace.
Professional Institute of the Public Service
of Canada v. Communications, Energy
and Paperworkers’ Union of Canada,
Local 3011, 2013 ONSC 2725 (Div. Ct.), at para. 26
11.
The JPRC has previously made findings of judicial misconduct where a justice
of the peace made inappropriately sexualized comments to female court
staff. In Re Kowarsky (JPRC 2011), the comment
at issue was an attempt
at humour which, because of its
sexual content, was degrading to the recipient
and
[10] On January 29, 2010, they were each working
in their respective capacities in a courtroom. During the course of the proceedings Justice of the Peace Kowarsky got the complainant’s attention and made a sexually inappropriate comment to her. The comment was said at
least once and was captured on the courtroom audio recording. The comment was not heard by
the other courtroom clerk and, as far as can be known, it was not heard by any member of
the public. It may have been made a second time.
[11] The sexually inappropriate comment, involving eight words, was very short.
It is agreed, and the Panel finds that the comment was not
intended to be hurtful. The comment involved an ill-conceived attempt
at humour on behalf of His Worship.
It involved using
a double entendre
when making what otherwise would have been an innocent request. Unlike most double entendres,
however, the risqué meaning was obvious and the innocent meaning,
while available in the circumstances, was obscure. Further, the risqué meaning went beyond being indelicate. Given the circumstances, it was insulting and degrading.
12.
Even though the comment was merely an “ill-conceived attempt
at humour,” His Worship Kowarsky conceded, and the Hearing Panel agreed, that
it constituted an act of judicial misconduct.
Presenting Counsel respectfully submits that if this Panel finds that His Worship
did in fact make the comments attributed to him, they too amount to
judicial misconduct when considered as a whole, regardless of His Worship’s professed intent.
The Standards of Conduct for
Justices of the Peace
13.
The Principles of Judicial Office for Justices of the Peace have been
established pursuant to s. 13(1)
of the Justices of the Peace Act in
order to provide
guidance on the conduct expected of justices of the peace. For
present purposes, the relevant principle is:
3.1 Justices of the peace should maintain their personal conduct at a level which
will ensure the public’s trust and confidence.
14.
As cases like Kowarsky recognize, sexual comments or conduct in the workplace
can undermine public confidence and constitute judicial misconduct.
Presenting Counsel submits that His Worship’s conduct,
as detailed below, can reasonably be seen to have detracted from the public’s trust and
confidence in him as a judicial officer.
The Test for Judicial Misconduct
15.
Because of the unique role that judicial officers play in
our constitutional democracy, the authority
they enjoy, and the esteem in which they are held, judges and justices
of the peace are expected
to conduct themselves in exemplary fashion
– not just in court, but outside of it as well. As the Supreme Court
stated in Therrien (Re), 2001 SCC 35, [2001]
2 S.C.R. 3, at paras. 110-11:
[T]he personal qualities, conduct and image that a judge projects
affect those of the judicial system
as a whole and, therefore, the confidence that the public places in it. Maintaining
confidence on the part of the public in its justice system ensures its effectiveness
and proper functioning. But beyond that, public confidence promotes the general
welfare and social peace by maintaining the rule of law. In a paper written for its members,
the Canadian Judicial Council explains:
Public confidence in and respect
for the judiciary are essential to an effective judicial
system and, ultimately, to democracy founded on the rule of law. Many factors,
including unfair or uninformed criticism, or simple misunderstanding of the
judicial role, can adversely influence public confidence in and respect for the judiciary. Another
factor which is capable of undermining public respect and confidence
is any conduct of judges, in and out of court, demonstrating a lack of integrity. Judges should,
therefore, strive to conduct themselves in a way that will sustain
and contribute to public respect
and confidence in their integrity, impartiality,
and good judgment.
(Canadian
Judicial Council, Ethical Principles for
Judges (1998), p. 14)
The public will therefore
demand virtually irreproachable conduct from
anyone performing a judicial
function. It will at least demand that they give the appearance of that kind of conduct. They must be and must give the
appearance of being an example of impartiality, independence and integrity. What is demanded
of them is something far above
what is demanded of their fellow citizens.
16.
In a series of cases, Hearing
Panels of both the JPRC and OJC have refined the approach to determining judicial misconduct based on the
principles in Therrien. These developments
were synthesized by the Hearing Panel in Re
Douglas (OJC, 2006) as follows:
[8] Based on Re: Baldwin and Re: Evans, the test for judicial misconduct combines two related
concerns: (1) public confidence; and
(2) the integrity, impartiality and independence
of the judge or the administration of justice. The first concern requires that the Hearing
Panel be mindful
not only of the conduct
in question, but also of the appearance
of that conduct in the eyes of the public. As noted in Therrien, the public will at least demand
that a judge give the appearance of integrity, impartiality and independence. Thus, maintenance of public confidence in
the judge personally, and in the administration of justice generally, are central considerations in evaluating impugned conduct. In addition, the conduct must be such that it
implicates the integrity, impartiality or
independence of the judiciary or the administration of justice.
17.
The same standard that applies to judges applies
to justices of the peace. The Hearing Panel in Re Phillips (JPRC, 2013) had the following to say about
the test for judicial misconduct as applied to justices of the peace:
[12] Justices of the peace are judicial
officers. All are members of the Ontario Court of Justice
and perform significant judicial duties which impact on the people of Ontario. They preside in Provincial Offences Court judging
cases involving alleged violations of Provincial Statutes
such as: the Highway Traffic Act,
the Liquor
License Act, and the Environmental Protection Act. Justices
of the peace conduct
judicial interim release hearings and preside over criminal court assignment courts.
[13] The Justices of the Peace Review Council
approved the Principles of Judicial Office of
Justices of the Peace of the Ontario Court of Justice (the “Principles”) on December 7,
2007. The preamble to the Principles states
that:
“The justices of the peace of the Ontario Court of Justice recognize their duty to establish, maintain, encourage and uphold high
standards of personal conduct and professionalism so as to preserve the independence and integrity of their judicial
office and to preserve the faith and trust
that society places in the men and women who have agreed to accept the responsibilities
of judicial office.”
Section 1.2 of the Principles states
that “Justices of the peace
have a duty to follow the law.”
Section 3.1 of
the Principles provides that “Justices of the peace should maintain their personal
conduct at a level which will ensure the public’s trust and confidence.”
[14] In the Report of a Judicial
Inquiry Re: His Worship Benjamin
Sinai, released March 7, 2008, the Commissioner made the following comments regarding the important role that justices of the peace occupy in
relation to the public perception of the judicial system:
“It is clear that justices of the peace are very important judicial officers. Although they
are not required to have formal legal training before their appointment,
their decisions regarding bail, the issuance of search warrants and
Provincial Offence matters seriously impact the liberty and privacy of those who appear before them.
Indeed, for the vast majority of society who have contact with the court system, their
first and only contact would be to appear before
a justice of the peace.”
[15] As Justice Hogan stated in the Commission of Inquiry into the conduct of His Worship Justice of the Peace Leonard Blackburn: “It is the
justices of the peace who preside
in court on matters such as parking
tags, speeding tickets,
by-law infractions, and Provincial Offences.
These are the day-to-day type of “judicial” issues that
confront most people. It is therefore quite probable that a great number of the public will form judgments
of our justice system based on their experiences with
a justice of the peace.”
18.
In sum, justices of the peace
are expected to conduct themselves with probity and integrity no less than judges. Manifestly, conduct that
amounts to sexual harassment falls
below the standard which the public is entitled to expect of justices of the peace.
Issue to be Adjudicated
under the Act:
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...
Issue Independent Counsel
Identified for Adjudication:
"It is therefore necessarily the case that the Hearing Panel must have the
power to consider the content of, and the legislative requirement applicable to,
a "complaint" within the meaning of the JPA, since ultimately it is a
"complaint" which the Hearing Panel is adjudicating."
(Ex. 17 - Opinion of Mr. Brian Gover, Independent Counsel)
Issue Decided by Panel:
[72] ....Therefore, the Notice of Hearing with its particulars, dated July 4, 2013
and filed as Exhibits 1A and 1B, provides our jurisdiction over this hearing.
(Decision on Jurisdiction and Alleged Abuses of Process)
[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.
(Reasons for Decision - Liability)
The fundamental flaw in using
the Human Rights Code to
Ground Liability Against
Judicial Officers:
The Notice of Hearing expressly states that "The behaviour occurred in
the workplace at the Courthouse or at a location or event related to the
workplace." Whose "workplace" is the Notice of Hearing referring to ?
This question is important because if it the judicial officer's workplace
then we have a situation where what could reasonably be construed as an
agent of the executive branch unilaterally imposing or interfering with
the terms and conditions of tenure of judicial officers. Indeed, the
negotiation of salaries, pensions and other benefits involving justices
of the peace is conducted through an independent body separate from
the Attorney General. How then can the Justices of the Peace Review
Council unilaterally impose terms and conditions on justices of the peace
? Although highly relevant to what took place here, this point requires
no further elaboration because Presenting Counsel suggests in their
written submissions that it is the staff workplace.
If it is the staff's workplace the flaw does not resolve itself.
The harassment provisions in the Code apply to employment
relationships. The duty to provide a harassment-free workplace is on
employers. Justices of the peace and indeed all judicial officers are not
in any employment relationship with court staff. In order to get this
piece of legislation to apply to justices of the peace the Human Rights
Code would require amendment. All of the legal authorities relied
upon by Presenting Counsel and indeed the hearing panel involved
employment relationships.
However, let us assume for the purpose of argument that the
Justices of the Peace Review Council or Presenting Counsel acting
on their behalf could impose a duty on justices of the peace using
the Human Rights Code Code to provide a harassment free workplace
for court staff. Upon whose shoulders does the obligation to
implement a harassment policy touching on the interactions of justices
of the peace and court staff fall ? What if there is no such policy ?
Should not those Code allegations be investigated before the justice
of the peace is subject to a hearing for judicial misconduct ? The
Code based allegations in Re Massiah 2015 were not investigated
by anyone. Notice of them came though the Notice of Hearing
issued May 31st, 2013. It is clear that they were not part of any
written complaint to the JPRC.
Could this new unilateral duty imposed on justices of the peace
superceade the express statutory obligation of the court staff
employers to provide a harassment free workplace for their
employees ? I submit not. In Massiah 2012 and 2015 both court staff
were unionized employees covered by collective agreements and
anti-harassment policies. In neither case was the right to grieve
under the collective agreement used. In Massiah 2012 an attempt was
made to proceed under the existing workplace harassment policy but
the allegation were untimely and therefore the judicial misconduct
provisions of the Justices of the Peace Review Council was used.
Collective Agreement
and Employer Harassment
Policy Entered in Evidence
on Consent*:
J.P. Massiah called three management witnesses in his defence to
the Code allegations of unwelcome, vexatious conduct alleged to
have created a poisoned work environment. None of them were aware
of him creating a poisoned work environment and all of them testified to
him having a positive relationship with staff. Both the applicable
collective agreement and employer anti-harassment policy were entered
as exhibits on the hearing at J.P. Massiah insistence and with Presenting
Counsel's consent.
Employer Investigation
Found No Evidence*:
The main staff manager testified that when she heard of the first
proceedings she conducted her own investigation among her staff
and found no evidence. Another manager testified that J.P. Massiah
has said to her that she lost weight and she looks good and she received
this not as harassment but as a compliment. The main staff manager
testified that the staff enjoyed a sense of comradery with J.P. Massiah
and indeed were eager to work with him.
No Grievance
or Complaint*:
The employer confirmed and the parties agreed that no grievance was
ever filed with respect to J.P. Massiah's conduct with court staff.
"I was well-received"
J.P. Massiah testified that he was well-received - meaning he
understood that he enjoyed a good relationship with the staff and
that no one brought home to him that his conduct was objectionable.
This is a finding which the panel chaired by respected Ontario Court
of Justice Judge Vallencourt made in the first proceeding. This is
a critical legal point because the supposedly "new" allegations
brought up in the May 31st, 2013 Notice of Hearing were not
"new" at all. They either pre-dated or occurred at the same time
as the matters adjudicated by the panel chaird by Justice
Vallencourt. A reasonable observer concerned about the public
purse may well ask why the JPRC would decide to re-litigate
this issue if there were other options than litigating. A reasonable
observer concerned about fairness may well see the decision to
re-litigate in all of the circumstances as an abuse of process.
Law on "unwelcome",
"vexatious" and
"poisoned work environment"
Not Applied:
Both Presenting Counsel and the hearing panel somehow overlooked
the clear binding authorities in Ontario calling for an objective test to
determine "unwelcome" and "poisoned work environment" - electing
instead to place reliance on a power-point training session conducted by
an OCJ judge at a training session for justices of the peace.
( see Thamses Valley District School Board v. Elementary Teacher's
Federation of Ontario 2011 ONSC 1021; Stadnyk v. Canada [2000]
F.C.J. No. 1225 (Fed.C.A.); Crep it Up ! v. Hamilton 2004 ONSC 6721
; General Motors Canada Ltd. v. Johnson 2013 ONCA 502;
Farias v. Chung 2005 HRTO 22 Canli)
Analysis of Reference to the Code
or Code Principles in the Proceedings:
Before the JPRC Panel
Panel's Reasons for Decision: 27
Panel's Decision on Jurisdiction and Alleged Abuses of Process:13
Decision on Disposition: 8
Total: 48
Divisional Court/Court of Appeal
Applicant's Factums Divisional Court: 0
JPRC Factum Divisional Court: 0
Attorney General Factum Divisional Court:0
Divisional Court Decision: 0
Court of Appeal Decisions: 0
Total:0
Courts Not at Fault:
The Divisional Court and the Court of Appeal for Ontario can not
be faulted for coming to conclusions they did based on the "record of
proceeding" before them. Once an application for judicial review
is served and filed the law places a duty on the subject tribunal to file
the "record of proceedings" with the Divisional Court. Naturally, the
facta filed by the parties will be based on this "record of proceedings".
Of course, an applicant could hardly make this complaint if it were
represented by the same counsel throughout the proceedings.
Presenting Counsel's written submissions on liability - a copy of which
is posted above, was not in the "record of proceedings" although the parties
and the Hearing Panel expressly acknowledged that it would be.
Supreme Court of Canada
Has Pronounced on this Issue:
In Chandler v. Alta. Association of Architects [1989] the
Supreme Court of Canada held that a tribunal which makes a
decision in the purported exercise of its power which is a
nullity, may thereafter enter upon a proper hearing and render
a valid decision. Chief Justice Dickson and Wilson and Sopinka
JJ stated:
"In this proceeding the Board conducted a valid hearing until it came
to dispose of the matter. It then rendered a decision which is a
nullity. It failed to consider disposition on a proper basis and should
be entitled to do so. The Court of Appeal so held."
"On the continuation of the Board's original proceedings, however,
either party should be allowed to supplement the evidence and make
further representations which are pertinent to disposition of the matter
in accordance with the Act and Regulation. This will enable the appellants
to address, frontally, the issue as to what recommendations, if any, the
Board ought to make." ( at p.863-64]
Other Flaws with
JPRC Decisions:
1. The Chair of the Panel was a part-time Ontario Court of Justice Judge
who requires the consent of the Attorney General to sit as a judge and
therefore lacks the requisite independence under the Constitution;
2. The Hearing Panel contained two temporary members both of
whom were judicial officers when the Procedures Document allows
for only one "to fill out a panel".
*All of these items were entered on consent after the Hearing Panel
dismissed the motion for particulars and disclosure.
NOTE: This piece is published for the sole purpose of drawing attention to an issue of
public importance. The removal of a judicial officer in the free world is an issue of public
importance. The interpretation and application of the Human Rights Code of Ontario
is an issue of public importance. Many young men and women gave their lives in order
that we may enjoy the fundamental freedoms of judicial independence and the Rule of
Law. The Human Rights Code must apply to all residents of Ontario in the same way.
This publication is not a criticism of the appellate court decisions. The two issues raised here
were not before them. Both courts have well established jurisprudence on these issues.
Issue to be Adjudicated
under the Act:
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...
Issue Independent Counsel
Identified for Adjudication:
"It is therefore necessarily the case that the Hearing Panel must have the
power to consider the content of, and the legislative requirement applicable to,
a "complaint" within the meaning of the JPA, since ultimately it is a
"complaint" which the Hearing Panel is adjudicating."
(Ex. 17 - Opinion of Mr. Brian Gover, Independent Counsel)
Issue Decided by Panel:
[72] ....Therefore, the Notice of Hearing with its particulars, dated July 4, 2013
and filed as Exhibits 1A and 1B, provides our jurisdiction over this hearing.
(Decision on Jurisdiction and Alleged Abuses of Process)
[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.
(Reasons for Decision - Liability)
The fundamental flaw in using
the Human Rights Code to
Ground Liability Against
Judicial Officers:
The Notice of Hearing expressly states that "The behaviour occurred in
the workplace at the Courthouse or at a location or event related to the
workplace." Whose "workplace" is the Notice of Hearing referring to ?
This question is important because if it the judicial officer's workplace
then we have a situation where what could reasonably be construed as an
agent of the executive branch unilaterally imposing or interfering with
the terms and conditions of tenure of judicial officers. Indeed, the
negotiation of salaries, pensions and other benefits involving justices
of the peace is conducted through an independent body separate from
the Attorney General. How then can the Justices of the Peace Review
Council unilaterally impose terms and conditions on justices of the peace
? Although highly relevant to what took place here, this point requires
no further elaboration because Presenting Counsel suggests in their
written submissions that it is the staff workplace.
If it is the staff's workplace the flaw does not resolve itself.
The harassment provisions in the Code apply to employment
relationships. The duty to provide a harassment-free workplace is on
employers. Justices of the peace and indeed all judicial officers are not
in any employment relationship with court staff. In order to get this
piece of legislation to apply to justices of the peace the Human Rights
Code would require amendment. All of the legal authorities relied
upon by Presenting Counsel and indeed the hearing panel involved
employment relationships.
However, let us assume for the purpose of argument that the
Justices of the Peace Review Council or Presenting Counsel acting
on their behalf could impose a duty on justices of the peace using
the Human Rights Code Code to provide a harassment free workplace
for court staff. Upon whose shoulders does the obligation to
implement a harassment policy touching on the interactions of justices
of the peace and court staff fall ? What if there is no such policy ?
Should not those Code allegations be investigated before the justice
of the peace is subject to a hearing for judicial misconduct ? The
Code based allegations in Re Massiah 2015 were not investigated
by anyone. Notice of them came though the Notice of Hearing
issued May 31st, 2013. It is clear that they were not part of any
written complaint to the JPRC.
Could this new unilateral duty imposed on justices of the peace
superceade the express statutory obligation of the court staff
employers to provide a harassment free workplace for their
employees ? I submit not. In Massiah 2012 and 2015 both court staff
were unionized employees covered by collective agreements and
anti-harassment policies. In neither case was the right to grieve
under the collective agreement used. In Massiah 2012 an attempt was
made to proceed under the existing workplace harassment policy but
the allegation were untimely and therefore the judicial misconduct
provisions of the Justices of the Peace Review Council was used.
Collective Agreement
and Employer Harassment
Policy Entered in Evidence
on Consent*:
J.P. Massiah called three management witnesses in his defence to
the Code allegations of unwelcome, vexatious conduct alleged to
have created a poisoned work environment. None of them were aware
of him creating a poisoned work environment and all of them testified to
him having a positive relationship with staff. Both the applicable
collective agreement and employer anti-harassment policy were entered
as exhibits on the hearing at J.P. Massiah insistence and with Presenting
Counsel's consent.
Employer Investigation
Found No Evidence*:
The main staff manager testified that when she heard of the first
proceedings she conducted her own investigation among her staff
and found no evidence. Another manager testified that J.P. Massiah
has said to her that she lost weight and she looks good and she received
this not as harassment but as a compliment. The main staff manager
testified that the staff enjoyed a sense of comradery with J.P. Massiah
and indeed were eager to work with him.
No Grievance
or Complaint*:
The employer confirmed and the parties agreed that no grievance was
ever filed with respect to J.P. Massiah's conduct with court staff.
"I was well-received"
J.P. Massiah testified that he was well-received - meaning he
understood that he enjoyed a good relationship with the staff and
that no one brought home to him that his conduct was objectionable.
This is a finding which the panel chaired by respected Ontario Court
of Justice Judge Vallencourt made in the first proceeding. This is
a critical legal point because the supposedly "new" allegations
brought up in the May 31st, 2013 Notice of Hearing were not
"new" at all. They either pre-dated or occurred at the same time
as the matters adjudicated by the panel chaird by Justice
Vallencourt. A reasonable observer concerned about the public
purse may well ask why the JPRC would decide to re-litigate
this issue if there were other options than litigating. A reasonable
observer concerned about fairness may well see the decision to
re-litigate in all of the circumstances as an abuse of process.
Law on "unwelcome",
"vexatious" and
"poisoned work environment"
Not Applied:
Both Presenting Counsel and the hearing panel somehow overlooked
the clear binding authorities in Ontario calling for an objective test to
determine "unwelcome" and "poisoned work environment" - electing
instead to place reliance on a power-point training session conducted by
an OCJ judge at a training session for justices of the peace.
( see Thamses Valley District School Board v. Elementary Teacher's
Federation of Ontario 2011 ONSC 1021; Stadnyk v. Canada [2000]
F.C.J. No. 1225 (Fed.C.A.); Crep it Up ! v. Hamilton 2004 ONSC 6721
; General Motors Canada Ltd. v. Johnson 2013 ONCA 502;
Farias v. Chung 2005 HRTO 22 Canli)
Analysis of Reference to the Code
or Code Principles in the Proceedings:
Before the JPRC Panel
Panel's Reasons for Decision: 27
Panel's Decision on Jurisdiction and Alleged Abuses of Process:13
Decision on Disposition: 8
Total: 48
Divisional Court/Court of Appeal
Applicant's Factums Divisional Court: 0
JPRC Factum Divisional Court: 0
Attorney General Factum Divisional Court:0
Divisional Court Decision: 0
Court of Appeal Decisions: 0
Total:0
Courts Not at Fault:
The Divisional Court and the Court of Appeal for Ontario can not
be faulted for coming to conclusions they did based on the "record of
proceeding" before them. Once an application for judicial review
is served and filed the law places a duty on the subject tribunal to file
the "record of proceedings" with the Divisional Court. Naturally, the
facta filed by the parties will be based on this "record of proceedings".
Of course, an applicant could hardly make this complaint if it were
represented by the same counsel throughout the proceedings.
Presenting Counsel's written submissions on liability - a copy of which
is posted above, was not in the "record of proceedings" although the parties
and the Hearing Panel expressly acknowledged that it would be.
Supreme Court of Canada
Has Pronounced on this Issue:
In Chandler v. Alta. Association of Architects [1989] the
Supreme Court of Canada held that a tribunal which makes a
decision in the purported exercise of its power which is a
nullity, may thereafter enter upon a proper hearing and render
a valid decision. Chief Justice Dickson and Wilson and Sopinka
JJ stated:
"In this proceeding the Board conducted a valid hearing until it came
to dispose of the matter. It then rendered a decision which is a
nullity. It failed to consider disposition on a proper basis and should
be entitled to do so. The Court of Appeal so held."
"On the continuation of the Board's original proceedings, however,
either party should be allowed to supplement the evidence and make
further representations which are pertinent to disposition of the matter
in accordance with the Act and Regulation. This will enable the appellants
to address, frontally, the issue as to what recommendations, if any, the
Board ought to make." ( at p.863-64]
Other Flaws with
JPRC Decisions:
1. The Chair of the Panel was a part-time Ontario Court of Justice Judge
who requires the consent of the Attorney General to sit as a judge and
therefore lacks the requisite independence under the Constitution;
2. The Hearing Panel contained two temporary members both of
whom were judicial officers when the Procedures Document allows
for only one "to fill out a panel".
*All of these items were entered on consent after the Hearing Panel
dismissed the motion for particulars and disclosure.
NOTE: This piece is published for the sole purpose of drawing attention to an issue of
public importance. The removal of a judicial officer in the free world is an issue of public
importance. The interpretation and application of the Human Rights Code of Ontario
is an issue of public importance. Many young men and women gave their lives in order
that we may enjoy the fundamental freedoms of judicial independence and the Rule of
Law. The Human Rights Code must apply to all residents of Ontario in the same way.
This publication is not a criticism of the appellate court decisions. The two issues raised here
were not before them. Both courts have well established jurisprudence on these issues.
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