In its Decision of January 13th, 2017 the Court of Appeal for Ontario denied leave to appeal on both J.P. Massiah's motion seeking leave to appeal and the Justices of the Peace Review Council's seeking leave to appeal on the Divisional Court's order of a re-hearing on the issue of compensation.
It now appears that the appellate court decisions were rendered on a deficient "record of proceedings". Under the Judicial Review Procedures Act the tribunal subject to an application for judicial review must file its "Record of Proceedings" with the Divisional Court. Somehow, substantial parts of what the panel, Presenting Counsel and counsel acting for the J.P. at the JPRC proceedings, not counsel on appeal, agreed would be part of the "Record of Proceedings" was omitted from the "Record of Proceedings".
Having been involved in litigation for more than twenty-three years and acted as counsel at first instance I can only conclude that this omission was inadvertent but nevertheless highly significant to the reliability of the appellate courts' decisions on the issues before them. Keeping in mind the Divisional Court's finding that the decisions on liability and penalty were reasonable the issue of the deficiency of the record takes on a heightened degree of importance. Two significant items from what the parties agreed would be part of the record of proceedings which were not before the appellate courts were - 1. 5 volume of transcripts from the investigation conducted by the complaints committee and 2. copies of the notice of motion, facta and written submissions.
I will delineate below how the deficient record of proceedings is capable of adversely impacting the appellate courts considerations of the issue put before it.
The J.P acted in a
manner inconsistent
with the Human Rights
Code:
In their Decision on liability the hearing panel expressly found that the J.P. acted in a manner inconsistent with the Human Rights Code. (at para 207)
It is clear from Presenting Counsel's Notice of Hearing, written submissions and Book of Authorities and indeed the widespread publicity in the media that the gravamen of the judicial misconduct was conduct founded on the Human Rights Code. It is easy to see how the absence of material pointing to the significance of the Code in the "record of proceedings" may influence the scope of the litigation.
I have previously pointed out the legal authorities which the parties relied on before the Divisional Court. They did not rely on any human rights cases. As a litigation lawyer I can appreciate how this decision could have been shaped by the "record of proceedings".
Hryciuk Error:
It would also be crystal clear from the written submissions filed with the JPRC hearing panel that as early as June, 2013 the Hryciuk Error on the face of the Notice of Hearing prepared by Presenting Counsel and filed with the JPRC was raised as a bar to jurisdiction and was soundly dismissed by the panel in their Decision on Jurisdiction and Alleged Abuses of Process.
Frivolous Motions:
It would also be crystal clear from the motions records, facta and written submissions that all of the motions brought on behalf of the J.P. had merit even thought they were dismissed. However, the appellate courts did not have the necessary material before them and therefore could not properly adjudicate the hearing panel's conclusionary findings. They could only accept them or avoid them. They avoided them.
Impact of Omission:
A reviewing court expects that an inferior tribunal will provide it with a full copy of their record of proceedings when they are required so to do by statute. In this case a review of the "record of proceedings" filed before the appellate courts does not reveal the highly significant place that the Human Rights Code played in the findings of judicial misconduct.
It is safe to say that counsel acting for the parties also places reliance on the subject tribunal to furnish them and the court with a full and complete "record of proceedings."
I will demonstrate the type of significant information which was supposed to be in the "record of proceedings" but unfortunately was not and how it more likely than not lead to what I would describe as a premature finding that the hearing panel's decisions on liability and penalty were reasonable as that term is used by the Supreme Court of Canada in Dunsmuir v. New Brunswick.
Hryciuk Error:
The J.P. alleged that paragraphs 1-6 and 14 in the Notice of Hearing exceeded the complaint in writing. As such they could not have been made to the Review Council as a complaint in writing and therefore were not investigated by a complaints committee.
The J.P. also alleged in paragraph 3a of his Amended Notice of Motion that: "All of the allegations cited in the Notice of Hearing stem from the improper investigation carried out by the complaints committee and not from complaints advanced by complainants pursuant to the Act. The hearing panel dismissed this ground in its Decision on Grounds to be Argued on the Motion Alleging Abuse of Process on the basis that the Divisional Court Decision in Massiah v. JPRC 2014 ONSC 3415 foreclosed this ground. Surprisingly, the hearing panel overruled itself and entertained this ground again and dismissed it in their Decision on Jurisdiction and Alleged Abuses of Process. (see A.5 paragraphs 44-68)
In its Decision (surpa) the hearing panel wrote:
11b 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 assist 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.
66. Therefore, we find that the investigators for the Complaints Committee had the authority to gather the information about the new allegations and to provide the results to the Committee. The transcripts from the witness interviews conducted in 2012 during the investigation were filed as part of the Record by His Worship.
68. As a result, allegations from the Investigators' Report were properly incorporated in the Notice of Hearing.
Investigators' Report
Not Part of Record
Before Appellate
Courts:
Unfortunately, the document identified by the Hearing Panel as the "Investigators' Report", i.e. the five volume of transcripts, which the hearing panel expressly acknowledged that the J.P. filed as part of the Record was never in the possession of the appellate courts(Divisional Court and Court of Appeal for Ontario) for their review and was not cited before the Divisional Court in support of a claim of Hryciuk Error.
Appellate counsel for the Applicant, not the writer, before the Divisional Court did point out that what the Hearing Panel identified as the "Investigator's Report" is not such a report at all. He wrote, "What the Panel referred to as the "Investigators Report" was in fact five volumes of transcripts of the Investigators' interviews. This point by appellate counsel for the JP was in reference to the clear failure of the JPRC to comply with the clear mandatory statutory requirements imposed by their enabling statute, the Justices of the Peace Act, s.11.1(18). That section reads:
Report
(18) The complaints committee shall report to the Review Council on its decision and, except where it orders a formal hearing, it shall not identify the complainant or the justice of the peace who is the subject of the complaint in the report.
In the absence of reviewing the five volume investigation report the Divisional Court could not have given judicious consideration to the very important question of statutory compliance. The same is true of the Court of Appeal's consideration of any Hryciuk error raised there.
This piece of evidence would show that paragraphs 1-6 and 14 were never a part of the complaint or the Hunt Report as the hearing panel referred to it at times. These are the pleadings of Presenting Counsel unilaterally invoking the Human Rights Code. It would also show that the majority of items on the Notice of Hearing stemmed not from a complaint in writing as required by the Act and Hryciuk (supra) but from the investigation itself and from Presenting Counsel's pleading.
Impact on Parties:
The impact of this omission on the parties is reflected in their facta and Books of Authorities. The Hryciuk Error raised before the hearing panel is not addressed by either of the parties before the Divisional Court. It is understandable that the Divisional Court would not address an issue not put before it and which the "record of proceedings" in its possession does not disclose.
The proceedings before the Court of Appeal for Ontario would understandably suffer the same impediment in the absence of a full and proper "record of proceedings. While the parties seem to address the Hryciuk issue more forcefully at the Court of Appeal for Ontario as is evident from the stated questions for appeal and the legal authorities relied upon that court too did not have the Investigators' Report, as the hearing panel improperly refers to it. Accordingly, the Court of Appeal would not be able to see the following:
1. paragraphs 1-6 and 14 were never part of the Hunt Report/complaint;
2. the J.P. did not receive notice of these allegations until the service of the Notice of Hearing;
3. the J.P. properly objected to the Notice of Hearing as early as June, 2013;
4. the touching incident involving BB did not crystalize to a touching until the hearing.
In two separate interviews during the investigation this witness never confirmed a
touching yet it was in the Notice of Hearing;
5. particulars 7(b), 7(c), 7(d), 7(e), 7(f), 8(a), 8(b), 8(c), 8(d), and 10 came not from a complaint in writing but from the excessive investigation carried out;
6. In the absence of the Investigators' Report the Court of Appeal could not provide meaningful appellate review to the following items in the factums of the main parties:
JPRC Factum
B) Whether the Divisional Court erred by upholding findings that were based on specific allegations dismissed by the Complaints Committee or were not considered or pre-screened by the Complaints Committee.
at Para 38
Ultimately, this proposed ground of appeal boils down to an argument that findings of misconduct were made against Mr. Massiah in circumstances he had no fair opportunity to respond. He was aware of the allegation that he was leering and ogling at female court staff, prosecutors and defendants and given the opportunity to respond.
J.P. Massiah
Reply Factum
at Para 8
(3) The 2012 Panel's Breach of the Hryiciuk Principles Goes Well Beyond the Evidence of His Worship's Own Witness
9. The JPRC's factum at paragraphs 36 and 37 misstates His Worship's position and the specific findings of the 2012 Panel that violated the Hryciuk decision of this court.
10. The JPRC does not mention Hryciuk at all in the responding paragraphs 17, 24, 25 and 61 to 70 of the moving party's factum. The JPRC asserts, however, that the only evidence put forward by the moving and mentioned by the 2012 Panel is JJ's recounting the low cut blouse of a female human resources official, and His Worship's attention to it, made her feel uncomfortable.
11. That is one category of allegation that was not screened by the Complaints Committee, regardless of whose witness gave evidence "unexpectedly" about it.
12. Paragraphs 24 and 25 of the moving party's factum cite specific allegations that were dismissed by the Complaints Committee and then admitted in evidence and relied on by the 2012 Panel.
13. Paragraphs 17, 61 and 62 of the moving party's factum cite at least seven broad, general allegations that were introduced by Presenting Counsel in the notice of hearing for the first time after the investigation by the Complaints Committee, and on which the 2012 Panel made findings of judicial misconduct.
NOTE: This piece is published here as a community service in light of the public importance of the subject matter. The removal from office of a judicial officer is an issue of public importance in the free world and indeed in Ontario. Having acted for the JP at the first instance proceedings I have an insight into the very significant legal issues involved in this case which they would not otherwise have access to from the media as our media reports on results only. Transparency in the adjudication of these issues of public importance is what separates us from those countries which one U.S. President referred to as the "Axis of Evil" and yet others as "Banana Republics".
It now appears that the appellate court decisions were rendered on a deficient "record of proceedings". Under the Judicial Review Procedures Act the tribunal subject to an application for judicial review must file its "Record of Proceedings" with the Divisional Court. Somehow, substantial parts of what the panel, Presenting Counsel and counsel acting for the J.P. at the JPRC proceedings, not counsel on appeal, agreed would be part of the "Record of Proceedings" was omitted from the "Record of Proceedings".
Having been involved in litigation for more than twenty-three years and acted as counsel at first instance I can only conclude that this omission was inadvertent but nevertheless highly significant to the reliability of the appellate courts' decisions on the issues before them. Keeping in mind the Divisional Court's finding that the decisions on liability and penalty were reasonable the issue of the deficiency of the record takes on a heightened degree of importance. Two significant items from what the parties agreed would be part of the record of proceedings which were not before the appellate courts were - 1. 5 volume of transcripts from the investigation conducted by the complaints committee and 2. copies of the notice of motion, facta and written submissions.
I will delineate below how the deficient record of proceedings is capable of adversely impacting the appellate courts considerations of the issue put before it.
The J.P acted in a
manner inconsistent
with the Human Rights
Code:
In their Decision on liability the hearing panel expressly found that the J.P. acted in a manner inconsistent with the Human Rights Code. (at para 207)
It is clear from Presenting Counsel's Notice of Hearing, written submissions and Book of Authorities and indeed the widespread publicity in the media that the gravamen of the judicial misconduct was conduct founded on the Human Rights Code. It is easy to see how the absence of material pointing to the significance of the Code in the "record of proceedings" may influence the scope of the litigation.
I have previously pointed out the legal authorities which the parties relied on before the Divisional Court. They did not rely on any human rights cases. As a litigation lawyer I can appreciate how this decision could have been shaped by the "record of proceedings".
Hryciuk Error:
It would also be crystal clear from the written submissions filed with the JPRC hearing panel that as early as June, 2013 the Hryciuk Error on the face of the Notice of Hearing prepared by Presenting Counsel and filed with the JPRC was raised as a bar to jurisdiction and was soundly dismissed by the panel in their Decision on Jurisdiction and Alleged Abuses of Process.
Frivolous Motions:
It would also be crystal clear from the motions records, facta and written submissions that all of the motions brought on behalf of the J.P. had merit even thought they were dismissed. However, the appellate courts did not have the necessary material before them and therefore could not properly adjudicate the hearing panel's conclusionary findings. They could only accept them or avoid them. They avoided them.
Impact of Omission:
A reviewing court expects that an inferior tribunal will provide it with a full copy of their record of proceedings when they are required so to do by statute. In this case a review of the "record of proceedings" filed before the appellate courts does not reveal the highly significant place that the Human Rights Code played in the findings of judicial misconduct.
It is safe to say that counsel acting for the parties also places reliance on the subject tribunal to furnish them and the court with a full and complete "record of proceedings."
I will demonstrate the type of significant information which was supposed to be in the "record of proceedings" but unfortunately was not and how it more likely than not lead to what I would describe as a premature finding that the hearing panel's decisions on liability and penalty were reasonable as that term is used by the Supreme Court of Canada in Dunsmuir v. New Brunswick.
Hryciuk Error:
The J.P. alleged that paragraphs 1-6 and 14 in the Notice of Hearing exceeded the complaint in writing. As such they could not have been made to the Review Council as a complaint in writing and therefore were not investigated by a complaints committee.
The J.P. also alleged in paragraph 3a of his Amended Notice of Motion that: "All of the allegations cited in the Notice of Hearing stem from the improper investigation carried out by the complaints committee and not from complaints advanced by complainants pursuant to the Act. The hearing panel dismissed this ground in its Decision on Grounds to be Argued on the Motion Alleging Abuse of Process on the basis that the Divisional Court Decision in Massiah v. JPRC 2014 ONSC 3415 foreclosed this ground. Surprisingly, the hearing panel overruled itself and entertained this ground again and dismissed it in their Decision on Jurisdiction and Alleged Abuses of Process. (see A.5 paragraphs 44-68)
In its Decision (surpa) the hearing panel wrote:
11b 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 assist 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.
66. Therefore, we find that the investigators for the Complaints Committee had the authority to gather the information about the new allegations and to provide the results to the Committee. The transcripts from the witness interviews conducted in 2012 during the investigation were filed as part of the Record by His Worship.
68. As a result, allegations from the Investigators' Report were properly incorporated in the Notice of Hearing.
Investigators' Report
Not Part of Record
Before Appellate
Courts:
Unfortunately, the document identified by the Hearing Panel as the "Investigators' Report", i.e. the five volume of transcripts, which the hearing panel expressly acknowledged that the J.P. filed as part of the Record was never in the possession of the appellate courts(Divisional Court and Court of Appeal for Ontario) for their review and was not cited before the Divisional Court in support of a claim of Hryciuk Error.
Appellate counsel for the Applicant, not the writer, before the Divisional Court did point out that what the Hearing Panel identified as the "Investigator's Report" is not such a report at all. He wrote, "What the Panel referred to as the "Investigators Report" was in fact five volumes of transcripts of the Investigators' interviews. This point by appellate counsel for the JP was in reference to the clear failure of the JPRC to comply with the clear mandatory statutory requirements imposed by their enabling statute, the Justices of the Peace Act, s.11.1(18). That section reads:
Report
(18) The complaints committee shall report to the Review Council on its decision and, except where it orders a formal hearing, it shall not identify the complainant or the justice of the peace who is the subject of the complaint in the report.
In the absence of reviewing the five volume investigation report the Divisional Court could not have given judicious consideration to the very important question of statutory compliance. The same is true of the Court of Appeal's consideration of any Hryciuk error raised there.
This piece of evidence would show that paragraphs 1-6 and 14 were never a part of the complaint or the Hunt Report as the hearing panel referred to it at times. These are the pleadings of Presenting Counsel unilaterally invoking the Human Rights Code. It would also show that the majority of items on the Notice of Hearing stemmed not from a complaint in writing as required by the Act and Hryciuk (supra) but from the investigation itself and from Presenting Counsel's pleading.
Impact on Parties:
The impact of this omission on the parties is reflected in their facta and Books of Authorities. The Hryciuk Error raised before the hearing panel is not addressed by either of the parties before the Divisional Court. It is understandable that the Divisional Court would not address an issue not put before it and which the "record of proceedings" in its possession does not disclose.
The proceedings before the Court of Appeal for Ontario would understandably suffer the same impediment in the absence of a full and proper "record of proceedings. While the parties seem to address the Hryciuk issue more forcefully at the Court of Appeal for Ontario as is evident from the stated questions for appeal and the legal authorities relied upon that court too did not have the Investigators' Report, as the hearing panel improperly refers to it. Accordingly, the Court of Appeal would not be able to see the following:
1. paragraphs 1-6 and 14 were never part of the Hunt Report/complaint;
2. the J.P. did not receive notice of these allegations until the service of the Notice of Hearing;
3. the J.P. properly objected to the Notice of Hearing as early as June, 2013;
4. the touching incident involving BB did not crystalize to a touching until the hearing.
In two separate interviews during the investigation this witness never confirmed a
touching yet it was in the Notice of Hearing;
5. particulars 7(b), 7(c), 7(d), 7(e), 7(f), 8(a), 8(b), 8(c), 8(d), and 10 came not from a complaint in writing but from the excessive investigation carried out;
6. In the absence of the Investigators' Report the Court of Appeal could not provide meaningful appellate review to the following items in the factums of the main parties:
JPRC Factum
B) Whether the Divisional Court erred by upholding findings that were based on specific allegations dismissed by the Complaints Committee or were not considered or pre-screened by the Complaints Committee.
at Para 38
Ultimately, this proposed ground of appeal boils down to an argument that findings of misconduct were made against Mr. Massiah in circumstances he had no fair opportunity to respond. He was aware of the allegation that he was leering and ogling at female court staff, prosecutors and defendants and given the opportunity to respond.
J.P. Massiah
Reply Factum
at Para 8
(3) The 2012 Panel's Breach of the Hryiciuk Principles Goes Well Beyond the Evidence of His Worship's Own Witness
9. The JPRC's factum at paragraphs 36 and 37 misstates His Worship's position and the specific findings of the 2012 Panel that violated the Hryciuk decision of this court.
10. The JPRC does not mention Hryciuk at all in the responding paragraphs 17, 24, 25 and 61 to 70 of the moving party's factum. The JPRC asserts, however, that the only evidence put forward by the moving and mentioned by the 2012 Panel is JJ's recounting the low cut blouse of a female human resources official, and His Worship's attention to it, made her feel uncomfortable.
11. That is one category of allegation that was not screened by the Complaints Committee, regardless of whose witness gave evidence "unexpectedly" about it.
12. Paragraphs 24 and 25 of the moving party's factum cite specific allegations that were dismissed by the Complaints Committee and then admitted in evidence and relied on by the 2012 Panel.
13. Paragraphs 17, 61 and 62 of the moving party's factum cite at least seven broad, general allegations that were introduced by Presenting Counsel in the notice of hearing for the first time after the investigation by the Complaints Committee, and on which the 2012 Panel made findings of judicial misconduct.
NOTE: This piece is published here as a community service in light of the public importance of the subject matter. The removal from office of a judicial officer is an issue of public importance in the free world and indeed in Ontario. Having acted for the JP at the first instance proceedings I have an insight into the very significant legal issues involved in this case which they would not otherwise have access to from the media as our media reports on results only. Transparency in the adjudication of these issues of public importance is what separates us from those countries which one U.S. President referred to as the "Axis of Evil" and yet others as "Banana Republics".
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