Some Words of Wisdom

"There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice."

Charles de Montesquieu




"The argument of public policy leads you from sound  law and is never argued but when all other points fail".

Burrough J. Richardson   v.  Mellish




"Truth can be distorted, subverted, or perverted for a time but it cannot be destroyed.
In time truth always come to light".

Ernest J. Guiste

Some Evidence on Panel's Conduct Allegation Regarding Delay in the Progress of the Proceedings and Inflammatory Comments..

Hearing Dates Scheduled
November 19th, 2013:

   Dates for the hearing in the matter were scheduled on November 19th, 2013 on the consent of the parties.  (see transcript of November 19th, 2013 at p. 69-84)

Panel's motion as
to their jurisdiction
to entertain abuse of
process motion:

   His Worship Massiah's motion materials asserting a lack of jurisdiction and abuse of process were properly served and filed and before the Hearing Panel on July 4th, 2013. On July 24th, 2013 His Worship Cuthbertson, on behalf of the Panel, raised a question of law which counsel for the parties were directed to address.

Excerpts of November 19th
2013 transcripts at p.93-94:

JUSTICE LIVINGSTONE:   The second issue would relate to our jurisdiction, the question put by His Worship on July 24th.  Our view, as we have told you on that, is if this Panel has no jurisdiction then everything else that might follow is a non-issue.  Does that make sense to both ?

MS. HENEIN:   Yes

JUSTICE LIVINGSTONE:   Do you want, Mr. Guiste, His Worship to state what it is he's asking you to focus on first off ?  Would that help ?

MR. GUISTE:   Let's try that again.

HIS WORSHIP CUTHBERTSON:   Simply put, sir, the complaints committee pursuant to section 11.1 considered a complaint or complaints, whatever it was.  It made a ruling pursuant to section 11.1(15)(c) that a formal hearing into the complaint be held by a hearing panel.

As I pointed out back in July, on July 24th, it is that committee that has the jurisdiction in law to dismiss the complaint if it is frivoulous, an abuse of process, or outside the jurisdiction of the complaints committee.  That's under 15(a).  Clearly, abuse of process is within the purview of that committee.

We are not the complaints committee.  It did its work, and the Review Council disbanded the complaints committee at the end of its work and established this hearing panel, a separate and distinct tribunal from the complaints committee.

We are asking counsel to assist us where the jurisdiction is under the Act or through any case law for us to sit in judgment of decisions made by the complaints committee.  And as Her Honour just stated we think this must be answered before the abuse of process issue is put before the Panel.  If we have no jurisdiction we cannot hear the abuse of process motion.

So we want to focus your minds to the same place we are as to the importance of this issue and the sequence, in our view, that should be followed to address it.  Is that helpful, sir ?

Consent time-table
set for parties to 
make written submissions
on Panel's jurisdiction
motion ( at p.92) Nov.19th):

MR. GUISTE:  Not unreasonable, but my friend Ms. Henein and I had agreed that I could provide my materials, that is on the recusal, if if I intend to do any further materials on the jurisdiction question by February 10th.  She in turn would respond by March 10th.  And if I had any reply to make I would do so by the 21st of March.  That works for both of us, if it works for the panel.

JUSTICE LIVINGSTONE:  That's fair.  If you two had already agreed on it I apologize for - - 

MR. GUISTE:  It's okay.  It was reasonable.

 Excerpts of April 9th, 2014
transcript at p.22:

JUSTICE LIVINGSTONE:   Thank you, Ms. King.  All right.  I believe then we're ready to address the Notice of Motion, the motion of the jurisdiction - - basically raised by us to some degree of the jurisdiction of this Hearing Panel to address the issues.

Scheduling Discussion
on April 9th:

   At the conclusion of the April 9th attendance the Hearing Panel indicated that it would reserve on its decision on whether or not it had jurisdiction to entertain His Worship's motion.  The Hearing Panel led by Justice Livingstone suggested the proceedings start at 9:30a.m. on April 28th unless there was strenuous objection.  Mr. Guiste indicated that his child care obligations made it impossible for him to attend at 9:30 a.m.

(April 9th, 2014 at p.165)

JUSTICE LIVINGSTONE:  Well, we're going to try to start at 9:30, Mr. Guiste, and I'd ask you to try to make your best efforts to get here for then and we'll see how we do on the first date of that order.  Thank you.

MR. GUISTE:  Can I just say this ?  I don't mind the panel - - I respect the panel making decisions, but when the panel expressly makes a decision in terms of a start time, when I clearly and unequivocally tell them about my parental obligations and you compel me to come at 9:30, in my respectful submission that'a a little bit unfair.

JUSTICE LIVINGSTONE:  Thank you for that.  We'll see you at 9:30 on April 28th.

Excerpt from affidavit and Exhibit A
to Christine Hennings
sworn affidavit in response
to bias motion:

2.   On April 12, 2014, Ms. Henein received an e mail from Mr. Guiste, counsel for His Worship Massiah, which was also copied to Ms. Marilyn King, Registrar of the JPRC.

3.   That email is attached as Exhibit A to this affidavit.

From: "ERNEST GUISTE"<ejguiste@yahoo.com
To: "Marie Henein" <mhenein@hhllp.ca>, "Marilyn(JUD)King"<marilyn.king?@ontario.ca>, "ERROL MASSIAH"<emassiah@rogers.com>

Ms. Henein:

I found a very helpful little piece on administrative law that I feel would be helpful to the panel in discharging their adjudicative responsibilities in this case.

The panel initiated the motion on whether or not they have jurisdiction to entertain the Applicant's motion.  The Procedures clearly give them the right to entertain such motions.

Is there any possibility of retaining counsel for the express purpose of advising the Panel of the administrative law principles that they must deal with in this case.  I feel it would be very helpful and would ensure fairness in the process and reliability in any rulings they make henceforth.

I request a written response to this request.

Sincerely,

Ernest J. Guiste.


Registrar's E mail 
Ex. 13A:

"The Hearing Panel has asked me to communicate the following to you.  The information will also be posted on the JPRC website shortly.

As you know, the Hearing Panel has reserved on its decision of jurisdiction to consider matters raised in the motion brought by His Worship in which he argues that there is no valid complaint and that there has been an abuse of process.

Pursuant to section 8(15), the Panel has engaged counsel, Mr. Brian Gover of Stockwoods LLP, to assist it on matters of law.  The Panel will not be issuing its decision before Monday, April 28th.  The appearance on that date will be for the matter to be spoken to.  As no evidence will be called on that date, the start time will be 10 a.m.

Marilyn

Marilyn E. King, Registrar

Excerpt of April 28th, 2014
transcript (at p. 4-5):

JUSTICES LIVINGSTONE:   And to be brief, the reason we have determined it is appropriate to engage independent counsel to provide us with a legal opinion is because of a point raised by you, Mr. Guiste, on April 9th and I will refer specifically to the transcript, so we are all clear, the transcript from April 9th at page 78, line 8, and I don't know if you wish to have that in front of you, but Mr. Guiste had stated in his submission that: "this case provides a splendid opportunity for us to fix the Justices of the Peace Review Council.  There are some serious flaws in terms of procedural integrity of investigations and the like, and some good may come out of this." Our view is, as a result of that comment, it is clear that the entire procedure is of concern and, if so, we wanted to ensure that we had an independent opinion in respect of the administrative law which applies in this hearing.

Excerpt of Panel
Addendum para 5:

   On April 9th, 2014, Mr. Guiste referred to the complainant whose complaint was the subject of the 2012 hearing that resulted in findings of judicial misconduct by Mr. Massiah.  Despite findings by that Hearing Panel in 2012, based on evidence presented before it, Mr. Guiste stated to this Panel that, "So for example, if Ms. [redacted] decides that she doesn't like His Worship and she decides, okay, well, what I'm going to do is I'm going to round up five people and I'm going to record their - whatever they have to say and send it to the Justices of the Peace Review Council, that calls into question the integrity of the process."

Excerpt of April 9th
transcript (at p.120-121):

MS. FOSTER (Ms. Blight's replacement by the Chief Justice):   I was going to bring up the same points that His Worship did, because it's very clear when one is on the Council that a complaint can come from anybody.  You have said several times talking here about fairness to His Worship and that I appreciate and I understand.

But you have never kind of indicated the fairness to people on the other side.  If you deny a complaint being hearing or if a complaint is being made by somebody or indicated to somebody else, and that is quashed, I would suggest to you that people would find the same indication of unfairness in a complaint not being heard as you have indicated against His Worship Massiah.

MR. GUISTE:   Well, I don't think so.  I think the process - - if you visit the website, you will see that it is very clear that it contemplates a complainant writing their own complaint in writing, it says so, and I suspect that the rationale for that is when you have other people bringing complaints on behalf of others, how do you ensure for fairness ?

So for example, Ms. X, if Ms. X decides that she doesn't like His Worship and she decides okay, well, what I'm going to do is I'm going to round up five people and I'm going to record their - - whatever they have to say and send it to the Justices of the Peace Review Council, that calls into question the integrity of the process.

If an individual has a grievance against a judicial officer, believe me, they know how to and they will execute on their own.  They do not need another party who is part of the governmental apparatus to assist them.  And that's the problem here.  Who is bringing these ?

Excerpt of April 9th
transcript at p.107-108:

...So it's analogous to this situation here.  You are guardians of the process.  You are given the statutory duty and mandate to look at the process and say, does this accord with natural justice and fairness ?  If he wasn't treated fairly, it's your duty to say okay, well, as much as we don't like Justice Massiah, we have to treat him in accordance with law.  And that's what this is a about.

JUSTICE LIVINGSTONE:   Well, I presume you are saying that facetiously.  You're not suggesting that we don't like His Worship ?

MR. GUISTE:   No, no, absolutely not.

JUSTICE LIVINGSTONE:  Thank you.


NOTE: Care has been taken to assure the accuracy of the excerpts of the transcripts and evidence cited in this post. If there is any error do not hesitate to alert that writer and correction will be made promptly.  Interested persons are encouraged to secure the transcripts of the proceedings to review the record for themselves.

Some Evidence on Panel's Conduct Allegation Regarding Delay - Concern for Appearance of Reasonable Apprehension of Bias

Excerpts from
Presenting Counsel's 
May 20th, 2014
written submissions on
Applicant's Bias Motion:

4.   These proceedings have repeatedly been delayed by the Applicant.  There is significant public interest in having this matter proceed in a timely manner.

5.   This hearing commenced with a set date on July 4, 2013.  The Applicant's preliminary motion was set to be heard on July 29.  Evidence was to be heard and the hearing proper concluded that fall.  Instead, the Applicant brought an ill-founded and untimely application for a publication ban that caused the hearing of his motion to be delayed.  Just before the proceedings were to resume in November, counsel informed the Panel that he was otherwise occupied in a Superior Court trial and that the remainder of the 2013 dates would have to be rescheduled.  Co-counsel was no longer available to conduct the hearing because the Applicant had made an allegation of incompetence against him, requiring his withdrawal.


Hearing Panel's 
question of law
on their jurisdiction:

   The Hearing Panel led by His Worship Cuthbertson posed the following question on statutory interpretation to the parties on July 24th, 2013 at p.77 line 5:

"Where is our authority as a tribunal established by the Review Council to sit in judgment of the decisions made by the complaints committee ?

   The Hearing Panel through Justice Livingstone acknowledged at p.77 line 14 that this would take some work on the part of counsel when she stated:

"So, we thought we'd throw that out to you today knowing it's going to take some work, and I invite my co-panelists to comment further as they wish but it would seem to us to be a very important consideration in the concerns raised by Mr. Guiste."

Panel Member Margot Blight's
Disclosure on November 19th, 2013:

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 advise the parties that I sat as the lawyer member of the complains committee.


Excerpts from Presenting Counsel's
February 12, 2014 letter to the
Hearing Panel Regarding Ms. Blight
Ex 16:

   "As you are aware, Mr. Guiste is bringing a motion for the recusal of Ms. Blight from the Hearing Panel on the basis of a claim that there is a reasonable apprehension of bias.  While I do not agree with the assertion that there is any basis for actual bias, having considered the legislative framework and the JPRC Procedures, Presenting Counsel does agree that there may be a potential concern about the risk of an appearance of bias if Ms. Blight remains on the Panel."

"As was indicated on the last hearing date, Ms. Blight was a member of a Complaints Committee that investigated a complaint about His Worship's conduct and testimony during the prior JPRC hearing. In private, that Committee investigated an allegation about His Worship that related to the same JPRC hearing that is referenced in paragraph 14 of the allegations set out in the Notice of Hearing.  In particular, the prior investigation conducted by Ms. Blight and the other members of that Committee related to whether or not His Worship had perjured himself in the previous hearing.  Although the Complaints Committee concluded that there was no for proceeding with the complaint, His Worship's credibility and previous testimony in relation to evidence given during that hearing was considered by the Complaints Committee of which Ms.  Blight was a member"


Registrar's E mail
Exhibit 13A:

"The Hearing Panel has asked me to communicate the following information to you.  The information will also be posted on the JPRC website shortly.

As you know, the Hearing Panel has reserved on its decision on the question of jurisdiction to consider matters raised in the motion brought by His Worship in which he argues that there is no valid complaint and that there has been an abuse of process.

Pursuant to section 8(15), the Panel has engaged counsel, Mr. Brian Gover of Stockwoods LLP, to assist it on matters of law.  The Panel will not be issuing its decision before Monday, April 28th.  The appearance on that date will be for the matter to be spoken to.  As no evidence will be called on that date, the start time will be 10.a.m.

Marilyn

Marilyn E. King, Registrar

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/              

Some Evidence on Panel's Conduct Allegation:30 Points from HW Massiah's Public Hearing You May Not Have Known

 
     In this post I wish to bring to light the following 30 salient aspects of this most intriguing little case.

1.  Complaint by Senior
     Management of the
     Ministry of the Attorney
     General:

     The current allegations before the Justices of the Peace Review Council Hearing Panel take their genesis from an investigation conducted by a senior Ministry of the Attorney General manager under the auspices of that employer's Workplace Discrimination and Harassment Prevention Policy in August, 2010. According to the investigation report's author the complaints under the WDHPP policy were out of time and therefore her report was forwarded to the Justices of the Peace Review Council as a complaint by this senior manager. The subject employees themselves did not initiate a complaint to the Justices of the Peace Review Council.

2.   Complaints under the WDHPP policy must be initiated within a two year period.  Those allegations were beyond the limitation period prescribed by this policy.

3.   All of the employees involved in the initial prosecution of HW Massiah were covered by a collective agreement which provided protections from discrimination and harassment contrary to the Human Rights Code.

4.   The union played no role in the investigation and complaint initiated by management.

5.   The initial complaint of judicial misconduct against HW Massiah dealt with allegations taking place between 2008 and August, 2010 and involved court staff at 50 Bond Street and 272 King Street in Oshawa.

6.   A public hearing into the initial complaint of judicial misconduct against HW Massiah was heard by a Hearing Panel between September - October, 2011.  He was found liable and received a reprimand, a 10 day suspension and gender/boundary sensitivity training.

Presenting Counsel
sends a "Report"
to the Justices of the
Peace Review Council:

7.   While that hearing was going on five court employees from the court at Rosalyn Street          contacted the lawyer prosecuting HW Massiah with "new information" regarding HW Massiah.
That lawyer interviewed those five persons and forwarded summaries of their information to the
Justices of the Peace Review Council.

8.    The Justices of the Peace Review Council appointed a Complaints Committee to investigate and that body interviewed some 33 persons.

9.     The Complaints Committee uncovers some 14 or so allegations through their investigation.

10.   s.10.2 of the Justices of the Peace Act mandates that a complaint of judicial misconduct against a justice of the peace must be in writing and submitted to the Review Council.  This information is also prominently and clearly articulated on the JPRC website and in their literature.

11.   Other than a senior manager from MAG in the first prosecution and Presenting Counsel (from first proceedings - Mr. Hunt) in the current prosecution, not a single member of the public has ever brought their own complaint in writing to the Justices of the Peace Review Council against HW Massiah.

12.   On or about May 31st, 2013 the Justices of the Peace Review Council issued a Notice of Hearing alleging that between May, 2007 and August, 2010 HW Massiah made unwelcome acts and comments of a sexual nature to court staff, leered at litigants and created a poisoned work environment.

13.    His Worship Massiah did not commit any new infractions following his April, 2012 disposition by a Hearing Panel chaired by Justice Vailencourt.  The "new" infractions in the current proceedings all pre-dated the April, 2012 disposition.

14.   Not a single member of the public(litigants before the court) was called to testify that HW Massiah leered or conducted himself inappropriately in court.

15.   In fact, HW Massiah called a member of the public who court staff had identified in their interview with Presenting Counsel in the first case as having inappropriate interaction with HW Massiah and she had nothing but praise for his court conduct.

16.   HW Massiah called three members of Durham Region management and they had no knowledge of him causing a poisoned work environment for their employees. In fact, one manager testified that most of the witnesses enjoyed a sense of comradery with him.

17.   Current Presenting Counsel agreed to an admission that between 2007 and 2010 no grievance was filed with the Region of Durham with respect to HW Massiah.

18.   Several witnesses admitted that the passage of time adversely impacted their recollection on material points.

19.   A few of the witnesses candidly admitted that they were motivated to come forward on account of their concern that HW Massish may "get a slap on the wrist."

20.  One witness(HH) testified that she did not complain at the time of the "loooking good" occurrence in 2010,"Because truly in the whole scheme of things it was fairly minor in nature."  This same witness, HH, did not remember material points in the "lady in red "allegation addressed at paragraphs 113-117 of the Panel's Decision on Liability.

21.  Examination of another witness went like this:

Q.   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 fair to say.

22.  Examination of another witness revealed the following:

Q.   So, in terms of the specifics, do you know what the comments were about ?

A.   No. I can't remember specifics.  I just remember the impression that was left with me.

Q.  Did anyone approach you particularly about how they felt in terms of Justice of the Peace Massiah's interactions with them ?

A.   Yes it was BB

Q.   And what did she -

A.   I can't remember any of the specifics about it.

23.  One witness testified that she was surprised at the fact that people were coming forward with complaints.  The following is a synopsis of her evidence on this point:

Q.   ...You said that you were surprised that some of the complainants have come forward, because they never seemed to have a problem with it at the time --

A.   That is correct

Q.  -- do you remember saying that ?

A.   Yes, I do.

Q.  What did you mean by that ?

A.   With the clerks in particular, it always seemed to be a laughing, great funny time with His Worship.  I didn't see anybody complaining.  I didn't see anybody coming back later and saying, "oh, wow, he said....I don't remember there ever being any problem with any kind of jokes, I mean...

24.   On one of the particulars on which HW was found liable - he is said to have given a clerk(AA) he was introduced to an up and down stare when introduced to her in 2007.  This is how her evidence went:

Q.    Are you able to describe the circumstances and any details of that meeting ?

A.   I remember being by the Bail Court.  There was two Bail Courts side by side, I was in the back hallway.  I was not working in Bail Court that day, I was working for another justice.  And I remember someone introducing me, I don't remember who that was.  But I do remember the introduction.

Q.   And other than the introduction where you say his eyes wandered, if I can put it that way, every
other interaction with Justice Massiah was professional and appropriate ?

A.   Yes, I would say it was.

25.   The only member of the public who testified regarding their experience in appearing before His Worship Massiah had noting but praise for the manner in which he conducted himself in court while dealing with her case.  The following is some of her evidence:

Q.   Now, in the period of time that you were in His Honour's court, did he say anything inappropriate to you ?

A.   No

Q.   Did he ogle you ?  Do you know what I mean by that ?

A.  Yes.  No, he did not.

Q.   How about leering, winking, undressing you with his eyes ?

A.   No, no

Q.   Was there anything about the way the he comported himself in your case that was offensive to you in any way ?

A.   No, nothing he did.

Q.  In your view, does the reputation of the administration of justice, is it lowered by what happened or raised ?

A.   Raised.

Allegation that Mr. Guiste delayed
the proceedings:

26.   In order to expedite the hearing Mr. Guiste and Ms. Henein agreed that allowing Ms. Margot Blight to voluntarily recuse herself from the panel would expedite the process and avoid a possible quashing of the proceedings.  Ms. Blight sat on the panel from July 4th, 2013 to February 12th, 2014 and revealed on November 19th, 2013 that she sat on a previous Complaints Committee which dealt with a judicial misconduct complaint against HW Massiah.

27.   Unfortunately, subsequent developments in the hearing, including statements by her replacement and others on the panel made it necessary to later bring a motion asserting a reasonable apprehension of bias.

28.   Again, in order to expedite the hearing Mr. Guiste and Ms. Henein agreed that if Mr. Guiste elected to proceed with a motion challenging the independence of Mr. Gover to act as Independent Counsel to the panel this would be done in writing and pursuant to an agreed upon timetable and if not this would end that issue.  The panel agreed to this plan.

29.   A motion asserting a lack of jurisdiction and abuse of process was filed with the panel in July, 2013.  At that time the panel raised a question of law to the parties regarding their jurisdiction to entertain this motion. The panel ultimately retained Independent Counsel to provide them with a legal opinion on their concerns.  Mr. Gover's opinion letter is dated May 23rd, 2014.

30.   The hearing panel invited counsel to make written submissions to them on the issues of jurisdiction and the impact of the Divisional Courts June 6th, 2014 decision between May 23rd, 2014 and July 8th, 2014.  The hearing panel acknowledged the novelty of the legal issues raised and acknowledged that counsels' submissions were helpful to them.  The hearing started July 15th, 2014.

Some More Evidence on Paragraph 5(6) of Panel's Addendum re Discrimination

Panel's Addendum paragraph 5(6)

"Mr. Guiste made comments to suggest that this panel was discriminating against Mr. Massiah and his counsel during this process."


Excerpts of transcript of
April 9th, 2014 - pages 118 - 129:


JUSTICE OF THE PEACE CUTHBERTSON:  Sir, would you narrow that ?  My question was, where is the section that says it must be the complainant ?  You said there was something here that alludes to that.

MR. GUISTE:  "The complaints committee shall report in a timely manner to the complainant that it has received the complaint and it shall report in a timely manner to the complainant on its disposition of the matter."

Sir, this didn't happen here.

JUSTICE OF THE PEACE CUTHBERTSON:

Well, sir, you are digressing.  Would you address the issue I have asked, please.  Is there a section in the Act that specifically says the complaint has to come from the complainant ?  You suggest to me there is other than 10.2 sub (1), which you and I may have different interpretations of that.

MR. GUISTE:  Well, I am putting to you that a proper reading of the whole and the objective of the legislation, and then when it requires them to report in a timely manner to the complainant, and a requirement in writing, and furthermore - furthermore - I will invite you to look at the Justices of the Peace Review Council's own website and the language in there is very clear, a letter in writing.

So can this Council put information out on its website that is consistent with what I am saying when I'm representing this African-Canadian gentleman, Justice of he Peace, and then all of a sudden by whim, oh, it doesn't apply to you.  That's the problem.  That's the problem.

JUSTICE OF THE PEACE CUTHBERTSON:  Thank you, sir.

MR. GUISTE:  So, I place reliance on the Council's own public proclamation with respect to the interpretation and the jurisdiction issue.  I didn't write their website.  I didn't write their annual report.  I am just a little African Canadian lawyer that advocates for justice for people and fairness.  That's all I do.

JUSTICE OF THE PEACE CUTHBERTSON:  Thank you, sir.

MS. FOSTER:  I was going to bring up the same points that His Worship did, because it's very clear when one is on the Council that a complaint can come from anybody.  You have said several times talking here about fairness to His Worship and that I appreciate and understand.

But you have never kind of indicated the fairness to people on the other side.  If you deny a complaint being heard or if a complaint is being made by somebody or indicated to somebody else, and that is quashed, I would suggest to you that people would find the same indication of unfairness in a complaint not being heard as you have indicated against His Worship Massiah.

MR. GUISTE:   Well, I don't think so.  I think the process - - and if you visit the website, you will see that is is very clear that it contemplates a complainant writing their own complaint in writing, it says so, and I suspect that the rationale for this is when you have other people bringing complaints on behalf of others, how do you ensure for fairness ?

So for example, Manager X, if Manager X decides that she doesn't like His Worship and she decides okay, well, what I'm gong to do is I'm going to round up five people and I'm going to record their - - whatever they have to say and send it to the Justices of the Peace Review Council, that calls into question the integrity of the process.

If an individual has a grievance against a judicial officer, believe me, they know how to and they will execute on their own.  They do not need another party who is part of the governmental apparatus to assist them.  And that's the problem here.  Who is bringing these ?  Presenting Counsel in another case.

MS. FOSTER:   Your're saying that Mr. Hunt is part of the governmental apparatus ?

MR. GUISTE:  He's part of the statutory process.  He was presenting another case.

MS. FOSTER:   And the complaints couldn't be part of that, that's clear.

MR. GUISTE:   Which complaints ?

MS. FOSTER:   The new complaints could not be part of it.

MR. GUISTE:   No, no, they couldn't.  But what he should have done - - what he should have done is say individuals, here is the Justices of the Peace Review Council, here is their address, here is their phone number, here is a contact, go over there, make your letter of complaint, send it to them and they'll deal with; if you can't write, you will let them know and they will accommodate you.

So Justice Cuthbertson, the issue of whether they can write or not, that's a non-issue.  that's a non-issue.  If they can't write, they will call the Justices of the Peace Review Council, they might be deaf, whatever, they will find - - they are obligated under the Human Rights Code, they can't discriminate against them, they have to accommodate them.  So that's a non-issue.

But the writing requirement is a very serious one, and all I'm saying is you can't suck and blow.  You can't say on your websites, this has to be in writing, signed letter.  You can't say in your annual report, and when this African Canadian Justice of the Peace comes, oh the law is changed for you.  It doesn't look good.  It's not right.

JUSTICE LIVINGSTONE:   Thank you, Mr. Guiste.  It is now five to 1:00.  I think what we'll do is take a break now and then return.  The panel had hoped to conclude the argument by 4:30 today.  I'm not sure if that will restrict you, Mr. Gourlay or Ms. Henein, to any great degree.  I am suggesting we return at - - 2:15 too little time for you ?  Two ?  Mr. Guiste, two o'clock ?

MR. GUISTE:   Yes, that's fine with me.

JUSTICE LIVINGSTONE:   All right.  Se we shall recess until 2:00 p.m.  Thank you very much.

LUNCHEON RECESS AT 12:58 - -

UPON RESUMING AT 2:04 - -

MR. GUISTE:  Ms. Foster, are we ready ?

JUSTICE LIVINGSTONE:  We are ready.

MR. GUISTE:   I wanted to address an important question that you asked about the rights of complainants and do they have any rights of fairness in this process.

JUSTICE LIVINGSTON:   You are not finished your argument, I gather, Mr. Guiste ?

MR. GUISTE:   Well, she raised the question and I don't think I properly addressed it and I just wanted an opportunity to address it.  If that's okay with everybody.

JUSTICE LIVINGSTONE:   Yes.

MR. GUISTE:   Yes.  Ms. Foster, you indicated that what about the fairness interests of the complainants in this process and I think that's an important question.  And you will recall that I passed this out, and what it demonstrattes is that calls were made to presenting counsel, "N", "E", "G", "D", "P" were the people.  It went and was submitted to the JPRC.  The complaints committee concluded "N" had no bais; "E" had no basis, "G" had no basis, "D" had no basis; the only one that they found had some basis was "P".

Thirty-three persons were interviewed.  In the context of interviewing those 33 persons, information was gleaned by the investigators soliciting, what is it that you know that's appropriate, et cetera, et cetera  - - inappropriate.  And 14 counts were laid.

So at the end of the day the question that arises from that is, are these complainants ?  They didn't make a letter of complaint to the Justices of thePeace Review Council, they were gleaned by virtue of an investigation that stemmed from this one issue with "P" where 33 people are investigated.

You will recall that I used a term "fishing epedition" and I used it in reference to that.  It will be my submission that it's inappropriate for the investigators to seek out information, oh, what do you know about Justice Massiah ?  Did he ever do this to you ?  Did he ever do that ?  And that's what happended here.  So that's what I'm saying.

So it's not as if they are complainants that went to court and had a legitimate grievance with his conduct and wrote in a complaint letter.  Those people I surely respect that they have an interest in the integrity of the process.

But these types of irregulariteis cast a dark shadow on the legitimacy of this process and I hope I have clarified.

MS. FOSTER:  I appreciate your answer in regard to that.  I appreciate your questions. I think I was asking a question in relation to your comments that if complaints were heard, that it was unfair or people would think it was unfair to His Worship;;  the same - - I would suggest to you that the same applies if complaints are disregarded for whatever reason, people would feel that they weren't being investigated properly.  So there would be a perception on the part of the public that there was an unfairnes to those people who perhaps had reason to complain.

MR. GUISTE:   We must be very careful because we must not assume they are complainants.  We must be mindful of how this came to be, and what I'm saying is if investigators go out and they say Mr. Gusite, what can you tell me Mr. Massiah has done that's inappropriate ?  Has he ever done this to you ?  Has he ever done that to you ?

MS. FOSTER:   I understand what you're saying.

MR. GUISTE:  Thats wrong.  So that was my point. The other point I wanted to raise was the website.  It says:

"How are complaints process ?"

No, actually, before that:

"Making a complaint."

I want it to be very clear, this is not my website.

"If you have a complaint of misconduct about a justice of the peace in Ontario, you must state your complaint in a signed letter.  The letter of complaint should include the date, time and place of the court hearing and as much detail as possible about why you feel there was misconduct..  If your complaint involves and incident outside the courtroom, you will need to provide as much information as you can about what you feel was misconduct on the part of the justice of the peace."

And then:

"How are complaints processed ?

When the Justices of the Peace Review Council receives your letter of complaint, the Review Council will write to you to let you know your letter has been received.  A three-member complaint committee of the Review Council will investigate your complaint and gather whatever information it deems necessary to complete its investigation; for example, copies of transcripts of a hearing.  Each complaint committee is make up of a judge, a justice of the peace and a lawyer member of the Review Council.  Every complaint is investigated by the Review Council."

Later on it indicates:

"Regardless of what decision is made about a complaint, the person who made the complaint and the justice of the peace about whom the complaint is made, will be advised in writing of the decision of the Review Council."

As I indicated earlier, those are two salient mandatory provisions, that the Complaints Committee has to acknowledge receipt of a complaint, to write the complainant; it didn't happen here.  And they also have to inform them where it's going, is it going to a hearing , and so on and so forth.

In this case, as is illustrated from here, the matters on the notice of hearing were not from letters of complaints from individuals or anybody.  They arrived as a result of the 33 people that were interviewed in the context of the investigation by investigators asking them, have you ever been the recipient of inappropriate conduct by Justice Massiah ?  Tell us about it.  And on and on and on.  That's wrong.  Thank you very much.

JUSTICE OF THE PEACE CUTHBERTSON:   Actually, a question sir.  The website that you just read from.

MR. GUISTE:  Yes.

JUSTICE OF THE PEACE CUTHBERTSON:   It would be helpful, I think, if that was printed and tendered as an exhibit.

MR. GUISTE:   I will do that.  I thought I had a copy with me, but what I will do is I'll make a copy and submit it, please.  That's a good point.

JUSTICE OF THE PEACE CUTHBERTSON:   With the agreement, of course, of presenting counsel.

MS. HENEIN:   No difficulty with that.


Excerpt of transcript of 
April 28th, 2014 at p.
4 - 5:


JUSTICE LIVINGSTONE:   And to be brief, the reason we have determined it is appropriate to engage independent counsel to provide us with a legal opinion is because of a point raised by you, Mr. Guiste, on April 9th, and I refer specifically to the transcript, so we are all clear, the transcript from April 9th, line 8, and I don't know if you wish to have that in front of you, but Mr. Guiste has stated in his submissions that:

"....this case provides a splendid opportunity for us to fix the Justices of the Peace Review Council.  There are some serious flaws in terms of the procedural integrity of investigations and the like, and some good may come of this."

Our view is, as a result of that comment, it is clear that the entire procedure is of concern and, if so, we wanted to ensure that we had independent opinion in respect of the administrative law which applies in this hearing.



NOTE:  Care has been taken to ensure the accuracy of these excerpts.  If there is any error kindly bring it to my attention and I undertake to correct same forthwith.  Interested persons should refer to the actual transcripts from the Justices of the Peace Review Council.