The JP's Sworn Evidence on Compensation Re-Hearing Unchallenged and Uncontradicted

Excerpts From
JP's Affidavit Sworn
March 19th, 2017:

2.         I swear this affidavit for three reasons. 

3.         Firstly, the hearing panel on the court ordered rehearing of my claim for compensation has elected to depart from the public hearing format provided by the Procedures Document for the adjudication of claims for compensation and has provided no answer to my requests for guidance on how evidence will be received by them on the rehearing since it was my intention to give viva voce evidence. 

4.         Secondly, both the Divisional Court panel and the 2012 Panel, as the Divisional Court has identified it in its Reasons have made conclusionary and incorrect findings against me on the issue of my compensation claim which I must correct at this time.

5.         Thirdly, as an evidentiary foundation for the motions which the JPRC has publicly acknowledged receipt of.

2012 Panel Did Not

Adjudicate Issue The

JPA Authorized them to:

6.         Although my lawyers and Independent Counsel retained to advise the Hearing Panel 

advised them that it was a “complaint” which they were to adjudicate under the Act they went 

on to adjudicate the particulars in Presenting Counsel’s Notice of Hearing instead contrary to the opinion they received from Independent Counsel in Exhibit 17.

Human Rights Code

Relied upon by

Presenting Counsel:

7.         Because Presenting Counsel’s Notice of Hearing raised issues involving the Human Rights Code I felt compelled to retain additional counsel who was not only versed in Human Rights Law but had skill in the areas of Administrative and Constitutional law.  I therefore retained Mr. Ernest J. Guiste.

8.         Mr. Guiste’s challenged the propriety of the Notice of Hearing drafted by Presenting Counsel and the jurisdiction of the Hearing Panel to hear the matter for want of a “complaint” pursuant to the legislation in a motion brought pursuant to the Procedures Document and which motion was entertained by the Hearing Panel and Presenting Counsel.

9.         The Hearing Panel raised its own jurisdiction question i.e. whether they had the jurisdiction to entertain the motion brought on my behalf.  The Hearing Panel had my counsel provide work for its benefit on its motion.  The Hearing Panel’s own jurisdictional question was not resolved until around July 7^th, 2014 causing me to incur significant legal costs not typically incurred in these proceedings.

10.       To compound matters, the Hearing Panel did not adjudicate the question of whether the Hunt Report was a complaint until January 12^th, 2015.  Once again, causing me to incur significant legal fees to defend my office.  I am not aware of a similar case in which a judicial officer was required to defend judicial misconduct allegations which were made public before a determination was made as to their legality.

11.       I am in possession of an affidavit sworn by the Registrar and Counsel to the JPRC, Ms. Marilyn King on August 19^th, 2016 containing a letter which she deposed she wrote to Mr. Hunt to satisfy the mandatory reporting requirement called for by the Justices of the Peace Act.  Attached to this affidavit and marked as Exhibit A is a true copy of Marilyn King’s sworn affidavit and letter.

12.       Mr. Guiste expressly raised the non-reporting point before the Panel on November 19^th, 2013,  again in his Reply submissions on the Hearing Panel’s question on jurisdiction at p.5 and then both Mr. House and Mr. Guiste raised it again in their written submissions on Jurisdiction and this letter was never placed before the Panel. 

13.       I instructed Mr. Guiste to seek a publication ban once I saw the beating that my 

reputation was taking in the local press and the question of the legality of the “complaint” 

against me was unresolved at the time.  I am not aware of any other judicial officer being 

punished for brining(sic) a motion seeking in interim publication ban in the circumstances 

in which I found myself.

14.       I instructed Mr. Guiste to bring a motion asserting a reasonable apprehension of bias for, among other reasons, the fact that the Notice of Hearing issued by Presenting Counsel contained allegations which were not first made to the Review Council and investigated by a Complaints Committee as mandated by the Court of Appeal in Hryciuk  v. Ontario.

15.       I instructed Mr. Guiste to bring a motion seeking particulars and disclosure in advance of the hearing.  My best recollection is that by the time this motion was brought Mr. House was part of my defence team. There was still important outstanding disclosure when the hearing commenced in that Presenting Counsel failed to provide me with contact information for two of the management witnesses I called.  Mr. Guiste somehow tracked them down.

16.       I did not claim legal costs relating to the preliminary motions in the amount of $500,000 and $116,000 for the hearing proper as suggested by Presenting Counsel and determined by the Divisional Court at paragraph 14 of their Decision.   Mr. Guiste was and continues to be my lead counsel.  Although he allowed Mr. House to examine the witnesses, he continued to do all of the fact-gathering, legal research and the bulk of the written submissions.  It is noteworthy that the Bill of Costs was not part of the “record of proceedings” filed by the JPRC at Divisional Court.

           

17.       Following the hearing of evidence and prior to a decision being rendered I instructed my defence team to bring a motion seeking the Hearing Panel’s leave to address inconsistencies in the testimony given by material witnesses before the Hearing Panel and during their investigation interviews and to address two further jurisdiction issues  - 1. The Notice of Hearing states that the Review Council ordered my hearing when it had no such jurisdiction and a copy of an order was never produced and 2. The applicability of Weber  v. Ontario since the staff were unionized and covered by a collective agreement which addressed their concerns.

18.       I incurred further costs of roughly $130,000 to appellate counsel, Raj Anand of Weir & Foulds LLP in pursuing judicial review and leave to appeal of the Panel’s decisions.

19.       I have been without income now for close to two years.

20.       I would not have been able to defend my office but for Mr. Guiste and Mr. House agreeing to defer their fees and disbursements until I am indemnified by the Attorney General in accordance with the practice I came to understand and expect from past practice.

21.       Had it been made clear to me that in accepting the appointment to become a Justice of the Peace that I would be subject to complaints not only from the public but from within the statutory regime established to deal with such complaints itself and that I would have to defend my office at my own cost I would not have accepted the appointment.

Excerpt from Presenting 

Counsel's Submissions

of May 1st, 2017:

16.   In this respect, Presenting Counsel reiterates the submissions made at the initial compensation hearing in respect of Mr. Massiah's litigation conduct.  That conduct includes the episodes enumerated at para 5 of the Addendum.

31.   In an affidavit dated March 19, 2017, Mr Massiah appears to state that he has not acutualy paid his counsel to date.  Rather, his counsel agreed to "defer their fees and disbursements until I am indemnified by the Attorney General in accordance with the practice I came to understand and expect from past practice."

2012 Panel's Position on

Counsel's Conduct on 

November, 19, 2013 a p.49:

MR. GUISTE:  But it's related to the main issue, and I would ask for leave that we address 
it now, get it out of the way and deal with the other issue.  Because when it involves my 
conduct then it calls into question my ability to act fearlessly in the representation of my 
client.  So I think it's important to clarify that.

JUSTICE LIVINGSTONE:   Your conduct isn't an issue with this Panel, Mr. Guiste.  
What is at issue with this Panel, right  now, is what has been raised about Ms. Blight's 
involvement in the subcommittee in relation to a previous different complaint.

2012 Panel Compensation
Decision - Counsel's Conduct:

30.   The conduct of Mr. Massiah's lawyer, Mr. Guiste, is not relevant to this decision.

Presenting Counsel and 

complainant, Mr. Hunt's

Public Statement on the

issue of indemnification:

"Lawyer Doug Hunt, who presented the case against Massiah in his first hearing, said that compensation of legal fees for JP's was "an important issue that obviously needs to be looked at.

The government does not pay the legal costs of citizens who are acquitted, let alone someone who is found guilty", he said.

But, Hunt said it is important JPs have access to resources to defend themselves against allegations brought forward by the government. (see TorStar - Taxpayers billed for guilty justices' legal fees - 

Nov.20, 2014)

NOTE:  This piece is published here because the removal of a judicial officer in the free world and in Ontario is an issue of pubic importance.  The ability of a judicial officer to defend himself or herself against complaints of judicial misconduct is a part of our fundamental justice in Ontario. The right of counsel to defend their client's fearlessly and without threat of censorship and punishment without due process of law is perhaps as fundamental in our law as the right of freedom of expression. It is published in the spirit that Justice Must be Seen to Be Done.