Wednesday, April 18, 2018

Judicial Review:Some Insightful Quotes

[10]   An application for judicial review is not the same thing as an appeal.  Without getting too technical, it is sufficient to say that judicial review is a public law remedy by which the courts will oversee government decision-making even where the law does not provide an appeal to the unsuccessful party.  The common law and, now the Judicial Review Procedure Act provide for courts to become involved in processes of government in limited circumstances to ensure that certain fundamental rules of justice are maintained and to protect members of the public against government action that is inconsistent with established norms.

Zirger  v.  The Normal Farm Practices and Protection Board 2018 ONSC 2236 (Divisional Court)

"The very qualities which make the Agency well suited to determine questions within its area of specialization may lead it to overlook or underestimate general values which are fundamental to the legal order as a whole.  The generalist Court is ideally suited to check the specialist Agency at the point where these general values are threatened."

Peter W. Hogg - Judicial Review in Canada: How Much Do We Need It ?

"Where a tribunal fails to dispose of a matter before it in a manner permitted by the enabling legislation it is not functus officio.  When the said tribunal files a record of proceedings before a reviewing court which is incomplete for whatever reason neither the tribunal who fails to properly dispose of the matter or the reviewing court can be said to be functus officio - particularly in light of Rule 59 of the Rules of Civil Procedure.  Parties can not consent to make that which is relevant to the restoration of public confidence in the judicial removal process disappear."

E.J. Guiste - Applicant's Factum in Massiah v. JPRC et al at para 67

"Based on the record before it this Honourable Court found the subject tribunal's liability and penalty decisions to be reasonable."

"Judicial review is based on a tribunal's record of proceedings."

"The focus of this court's inquiry ought to be on the impact of the JPRC deficient record of proceedings on this court's order; the impact of Presenting Counsel's representation on the identify of the complainant on the fairness of the hearing; the impact of appellate counsel's failure to raise a litany of issues calling for a correctness standard of review; and lastly the overriding impact of the unconstitutionality of the challenged segments of the enabling legislation and the Procedures Document."

"Once approached from this point of view, the reality that this court's order of October 4th, 2016 must be set aside is inescapable since justice must be seen to be done. The appearance of bias and unfairness is just as important s the reality."

E.J. Guiste - Excerpts from Reply Factum in Massiah v. JPRC et al 

NOTE:  This piece is published here to draw attention to issues of public importance.  Judicial review is is not an appeal.  Judicial review is not a trial.  Judicial review is a unique procedure designed to provide the public with a forum and remedy for ensuring that government acts within the law.

Wednesday, April 11, 2018

New JPRC Panel Denies JP Public Hearing and "Rubber-stamps" Old Compensation Decision


  If it wasn't enough that the JPRC failed to inform the Divisional Court that the 2012 Hearing Panel which that court ordered to rehear the compensation issue in Massiah v.  JPRC ONSC no longer existed prior to the court's order of October 4th, 2016, resulting in a two-member panel actively considering the case for some nine months only to conclude that they were "unable to make a unanimous decision" in their decision of October 25th, 2017 - they have managed to do it again.


    Over JP Massiah's objections, the 2/3s of the 2012 Panel went on to recommend to the Chief Justice that she appoint a new panel to hear the compensation issue. JP Massiah properly advised them that their jurisdiction was spent and assuming they have jurisdiction he would go with a new panel.  JP Massiah also questioned the utility of the exercise since under the governing legislation the Attorney General is not obligated to pay on their recommendation as is required with Ontario Court of Justice judges by virtue of s.51.7(8) of the Courts of Justice Act.

   Once again Presenting Counsel supported this move and went even further.  Presenting Counsel argued in written submissions on the issue that JP Massiah's appeal lawyer at the Divisional Court agreed that this was the proper way to proceed.  Interestingly, JP Massiah's appellate counsel told a different story in his sworn affidavit dated January 3rd, 2018.  In an e mail to JP Massiah which is Exhibit Y on his affidavit he stated, "I told him I would want to put that before the Divisional Court, before we took out the order, because otherwise the hearing panel would think they had a binding direction to re-hear the costs issue." 

   JP Massiah's appeal lawyer and counsel for the JPRC and the Attorney General overlooked the necessity of seeking directions from the Divisional Court in order to comply with the Divisional Court's October 4th, 2016 order.   

   An October 17th, 2016 Law Times publication on the case suggests that JP Massiah's appeal lawyer was very much aware of the compliance problems flowing from the retirement of Justice Livingstone.  It reads: "Anand says the Divisional Court ruling on the compensation issue will cause some practical difficulties, since Justice Deborah Livingstone, who chaired the second review council panel, has since retired from the bench." (Legal bill covered for fired justice of the peace ?)

   Presenting Counsel once again argued for and obtained a departure from the traditional obligatory public hearing over JP Massiah's objections. JP Massiah's request to call viva voce evidence was objected to by Presenting Counsel and denied by the new hearing panel chaired by Justice Lahaie.


   Justice Lahaie went on to rule that she had in her possession all of the written submissions made to the 2/3 of the 2012 Panel and that no further evidence or submissions would be received.  Among the cases in her possession from the earlier submissions made by JP Massiah included a Court of Appeal Case - Re Lovering and Minister of Highways [1965] 2 O.R. 721 (ONCA).

   In Re Lovering and Minister of Highways [1965] 2 O.R. 721(1965 Canli 276 (ONCA) the Court of Appeal was faced with a situation where a tribunal which had been ordered to rehear an issue refused to allow a party to adduce evidence and proceeded to effectively rubber-stamp their initial decision. The Court of Appeal held as follows:

"It was wrong for the Board on a rehearing ordered by the Court to decided the case on the record already before it and to refuse to hear further evidence. The matter must be referred back again and on the further rehearing the Board should be differently constituted."

NOTE:  This piece is published here to draw attention to various issues of public importance which arise in this case. The first is that orders of our courts are to be respected unless appealed. The Divisional Court rehearing order was not complied with.  Why ?  If the 2/3s of the 2012 Panel who undertook to comply with the Divisional Court's order was unable to decide the issue was it open to them to do anything other than to render their decision and for JPRC to seek directions from the court ? Second, if a public hearing is the presumptive right on these matters - why was JP Massiah denied this fundamental right ?  Third, if there is no obligation on the Attorney General to follow the tribunal's recommendation for compensation for legal fees under the legislation - how does the Attorney General justify paying JP Massiah's lawyers on his first hearing directly for a similar case ?  What was different, if anything, the first time around ?

The author, E.J. Guiste is currently counsel to JP Massiah in his efforts to remedy what he, his client and many observers see and believe to be a miscarriage  of justice and a glaring lack of consistency, fairness, impartiality and independence in the complaint process involving Ontario's justices of the peace. Any error in this publication ought to be brought to the writer's attention and it will be dealt with.     

Saturday, April 7, 2018

Copy of JP Massiah's Notice of Motion Asserting a Miscarriage of Justice

                                                                              Divisional Court File No. 316/15  

Applicant/Moving Party




          The Applicant, Errol Massiah, will bring a motion before the Divisional Court on a date to be fixed by the Registrar at 130 Queen Street West, Toronto, Ontario


Rule 59.06(1), 59.06(2(a)(b) of the Rules of Civil Procedure, s.6(1) and 10 of the Judicial Review Procedures Act and s.20(d) of the Statutory Power Procedures Act and s.52(1) of the Constitution Act, 1982, including the Constitutional Principle of Judicial Independence

The Motion is for:

1.      An order amending, setting aside, varying or suspending 
the Divisional Court’s order of October 4th, 2016 upholding 
the findings of judicial misconduct and the recommendation to 
the Attorney General for the Applicant’s removal from judicial 
office by a Hearing Panel of the Justices of the Peace Review 
Council and Order in Council 546/2015 dated April 29, 2015;

2.      An order admitting the Applicant’s proposed fresh evidence;

3.      An order declaring appellate counsel for the Applicant in Divisional Court File No. 316/15 to have been in a personal conflict of interest on five fundamental grounds thereby depriving the Applicant of the right to counsel or the effective assistance of counsel rendering this Honourable Court’s orders and decision void or voidable;

4.      An order declaring the said Appellate Counsel to have provided ineffective counsel to the Applicant thereby depriving the Applicant of his constitutional right to a fair and impartial hearing of the review by a Superior Court of his removal from judicial office;
5.      An Order declaring that Presenting Counsel exceeded the statutory ambit of her duties as Presenting Counsel under the Justices of the Peace Review Council’s Procedures Document and in so doing deprived the Hearing Panel with the effective assistance of counsel and or improperly interfered with the Applicant’s right to counsel and   his right to defend his judicial office as is his constitutional right so to do;  

6.      An order declaring Henein Hutchison LLP to be in a conflict of interest and consequently disqualified from defending the decisions of the Justices of  the Peace Review Council Hearing Panel’s decisions in this matter since the challenged acts and omissions flow from their discharge of the function of Presenting Counsel before the Hearing Panel and the filling of the tribunal’s record of proceedings and it is for the Attorney General of Ontario to exercise his common law, constitutional and statutory jurisdiction under the Ministry of the Attorney General Act in the public interest;

7.      An order appointing a Case Management Judge to oversee and direct the proceedings between the parties.

 The Grounds for the Application are:

Decisions found to be Reasonable

1.      By order dated October 4th, 2016 a Divisional Court panel upheld an Order in Council dated April 29th, 2015 removing the Applicant from office as a Justice of the Peace finding the recommending tribunal’s liability and penalty decisions were reasonable and directing a rehearing for his claim for compensation of his legal costs with directions;

Decision Based on Admittedly
Deficient Record of Proceedings

2.      The legal soundness of that decision by the Divisional Court panel is undermined by the fact that the subject tribunal failed in its duty to file its complete record of proceedings with the court pursuant to the Judicial Review Procedures Act, the Statutory Powers Procedures Act and an order or agreement by the hearing panel itself expressly delineating the content of the “record for any further applications which could follow our decision”;

3.      Appellate counsel for the Applicant though recognizing the patent deficiency in the record of proceedings and alerting JPRC counsel to the deficiency relied upon the JPRC’s counsel’s undertaking to file the investigation transcripts as vol. 8-12 of their Application Record and he and all counsel proceeded with filing their facta and books of authorities with this court prior to delineating and resolving the issue of the record of proceedings contrary to this court’s established jurisprudence thereby depriving the Applicant of a fair hearing in this Honourable Court;

4.      The record of proceedings filed by the tribunal and Appellate Counsel for the Applicant with the Divisional Court lacked the following relevant documents:

1.      The Applicant’s written answer to the
         Complaints Committee’s notice of
         allegations from their investigation;

2.      The five volume investigation transcripts
         filed by the Applicant with the Hearing Panel
         and relied upon by the them in their Decision 
         of January 12th, 2015 at para 66;

 3.      Applicant’s sworn affidavit filed March 28th
          2014; (see para 142 of above-noted decision)

4.      Written submissions of the parties on jurisdiction 
          and abuse of process motion; (as above at para 3)

5.      Written submissions of the parties on liability;
         (see para 6 Reasons for Decision dated January 12, 2015)      

 6.      Written submissions of the parties on penalty;
           (see Decision on Disposition at para 28)

 7.      All facta, books of authorities, responding facta
          per Chair’s pronouncement October 8th, 2014

5.      The deficient record of proceedings filed with the court prevented the court from inquiring into “the qualities that make the decisions reasonable” and to inquire into the “existence of justification, transparency and intelligibility within the decision-making process and whether the decisions fall within a range of possible, acceptable outcomes which are defensible in law” as mandated by established and binding legal principles on this Honourable Court.                      
6.      The incomplete record prevented the Divisional Court from assessing both the correctness and reasonableness of various interlocutory motions brought on behalf of the Applicant challenging the following salient legal points reflected in the subject tribunal’s Decision on the Motion to Ban Publication, Decision on The Motion for Disclosure and Particulars, Decision on Bias and Decision on Jurisdiction and Alleged Abuses of Process,:

1.      Whether an interim publication ban should issue pending the 
         Hearing Panel’s adjudication of the Applicant’s and the 
         Hearing Panel’s motions on Jurisdiction and their 
         determination of who is the complainant;

 2.      Whether Presenting Counsel failed to discharge
          its mandatory disclosure obligation under paragraphs 10 and 
          11 of the Procedures Document by disclosing the name and 
          contact information for only those witnesses she intended to 
          call rather than all witnesses known to have knowledge of 
          the relevant facts – i.e. the 20 other witnesses interviewed by 
          the Complaints Committee during the investigation and the 
          “complainant” Mr. Doug Hunt who was not interviewed and 
          not called as a witness;
3.      Whether the Notice of Hearing was improper in that
          it exceeded the document determined to be the “complaint” 
          some 19 months after its issuance and material aspects of it 
          were never investigated by the Complaints Committee and 
          relied on propensity evidence and a “history of judicial
          misconduct” in paragraph 14 when the current allegations 
          pre-dated or were concurrent with the Applicant’s first 
          disposition and did not follow it;

 4.      Whether the Complaints Committee exceeded its
           authority in the investigations it undertook;

 5.      Whether the Applicant’s acts and omissions in his
          interactions with court staff met the objective test
          established by both this court and the Court of  Appeal 
          for Ontario for findings of “vexatious”, “unwelcome” 
          and creating a “poisoned work environment” and the 
          conclusion that he “acted in a manner inconsistent  
          with the Human Rights  Code”;

 6.      Whether the Hearing Panel exhibited a reasonable
          apprehension of bias against the Applicant and his
          counsel, Ernest J. Guiste both during and post
          hearing when the Chair of the Hearing 
          Panel retweeted a Toronto Sun article published 
          the day following their release of the Compensation 
          Decision and Addendum entitled “Fired JP Loses 
          Bid to Have Taxpayers Pay Legal Fees – 
          Lawyer’s Conduct to be Reviewed.
7.      The incomplete record deprived the Applicant of the ability to raise serious legal errors involving the interpretation and application of the Human Rights Code and this court’s decision in Hryciuk  v. Ontario 31 O.R. (3d) 1 – indeed although Presenting Counsel relied upon human rights authorities to ground liability against the Applicant before the Hearing Panel the issue of the interpretation and application of the Code is not in the record filed with the court and consequently not addressed by the parties before the court to the Applicant’s detriment;

8.      The incomplete record also impacted the nature and quality of assistance the Respondents and particularly the Attorney General could provide to the court with the important question of whether the tribunal’s decisions were within jurisdiction and in compliance with the rules of natural justice, fairness and the law of Ontario – especially the Human Rights Code - pursuant to the Attorney General’s statutory duty under s.5(c) and (i) of the Ministry of the Attorney General Act;

9.      Through no fault of the Applicant this most Honourable Court’s decision and order on his judicial review application was conducted in a manner which is contrary to The Rule of Law and in particular in contravention of the well established tradition and principle of the Open Court Doctrine – as relevant portions of the record of proceedings clearly relied upon by the subject tribunal were not before the court. 

Fresh Evidence

10.    Conflict of Interest:

Applicant’s Appellate

(1)     Applicant’s appellate counsel’s retainer was contingent upon his conduct of a conflict of interest search which was never done;

(2)     Applicant’s appellate counsel relationship with a former 
panel member who voluntarily recused herself from the Hearing 
Panel on account of the Applicant’s concerns about bias 
compromised his defence of the Applicant and her reliance on 
the Hearing Panel’s disposition in a case she was adjudicating 
without acknowledgment that the disposition decision was under 
review by this Honourable Court destroyed the necessary 
appearance of transparency and fairness in the proceedings;

(3)     Applicant’s appellate counsel mentored counsel, Ernest J. Guiste at the proceedings before the Hearing Panel and received the appellate referral from Mr. Guiste, who both appellate counsel and his law firm have had a solicitor-client relationship with on four separate retainers, including the following:

1.  (1990) Academic appeal – University of Windsor
2.  (        )  Poponne   v.  Guiste
3.  (2002) Walsh  v. 1124660 Ontario Limited 2002 Canli 4980 
4.   (2016) Green  v. Guiste

          and as a result the Applicant reasonably understood that appellate counsel was duty-bound to vigorously defend all the allegations made by the Hearing Panel against Mr. Guiste and himself or decline his retainer;

(4)     Applicant’s appellate counsel failed to disclose to him that in and around 2008 he had been appointed by the Government of Ontario as the Chair, Board of Directors of the Human Rights Legal Support Centre attached to the Human Rights Tribunal to advocate on behalf of victims of discrimination and harassment;

(5)     Failed to inform the Applicant of his decision in a case which sitting as a Board of Inquiry under the Human Rights Code which objectively compromised his ability to advocate the Human Rights Code issues forcefully on behalf of the Applicant, namely, Hom et al  v.  Impact Interiors et al BOI Decision #93-058.

11.    Ineffective Assistance
          of Counsel:

Applicant’s Counsel:

1.     overlooked or refused to take the 
        Applicant’s instruction to raise bias 
        as a ground of review;

2.     overlooked or refused to take the 
        Applicant’s instruction to challenge
        the Hearing Panel’s error in its 
        interpretation and application of the 
        Human Rights Code principles of 
        “vexatious”, “unwelcome” and  
        “poisoned work environment”;

3.      overlooked or refused to take the
         Applicant’s instruction to challenge
         the Hearing Panel’s erroneous interpretation
         and application of Hryciuk  v. Ontario;

4.      Although he prepared a memorandum on the
         flagarent excesses of Presenting Counsel
         in the discharge of her office and received
         the Applicant’s authorization to assert those
         clear excesses as a breach of natural justice
         adversely impacting his fair hearing rights –
         he failed to advance this ground of error;

5.      Although recognizing a clear deficiency in 
         the “Record of Proceedings filed by counsel 
         for the JPRC and the need to supplement 
         it, proceeded to serve and file a factum and 
         reply factum on behalf of the Applicant 
         without first resolving the issue of the 
         sufficiency of the record in accord with 
         this court’s jurisprudence;
6.      Entered into an unauthorized agreement 
         with counsel for the JPRC to surpress 
         documents referred to and relied upon by 
         the Hearing Panel in making its decisions 
         from the “record of proceedings” to not 
         only the Applicant’s detriment but the court 
         and public’s detriment as the Applicant’s 
         removal from judicial office is presumptively 
         a matter of public importance and consequently 
         this agreement is of no force or effect being 
         in contravention of the Open Court Principle;

7.      Failed to seek costs on behalf of the Applicant
         despite knowing of his impecunious state.
Presenting Counsel
Conflict of Interest:             
12.    On April 14th, 2017 the Applicant learned that current Presenting Counsel, Ms. Marie Henein’s spouse was a law partner of the complainant, former Presenting Counsel, Mr. Doug Hunt, in and around the material time of Mr. Hunt acting as Presenting Counsel before Justice Vallencourt and the date of his report to his instructing counsel, Ms. Marilyn King, Registrar and Counsel to the JPRC thereby tainting the objective requirement of fairness in the proceedings contrary to law;

Fresh Evidence that “Complainant”
Former Assistant Attorney General
For Ontario:

13.    On April 14th, 2017 the Applicant learned that prior to going into the private practice of law the “complainant”, prior Presenting Counsel, Mr. Hunt was Assistant Deputy Attorney General for Ontario;

Ineffective Assistance of
Counsel by Presenting Counsel:

14.    Appointed Presenting Counsel exceeded the jurisdiction granted by the JPRC Procedures Document in the execution of her public duty  and deprived the Applicant of a fair and impartial hearing of the complaint initiated by prior Appointed Presenting Counsel, Mr. Hunt.

15.    In addition, Presenting Counsel provided an incorrect instruction to the Hearing Panel on the interpretation and application of the Human Rights Code, Hryciuk  v. Ontario and the source of their jurisdiction being her Notice of Hearing as distinct from the complaint under s. 11.1(10) of the Justices of the Peace Act – instructions which the Hearing Panel followed and improperly applied in finding that the Applicant committed judicial misconduct and that this misconduct required a recommendation for his removal from office.

Non-Compliance with
Mandatory Statutory

16.    During the Applicant’s hearing before the JPRC Hearing Panel, the issue of who is the “complainant” and whether the mandatory requirements prescribed by the Justices of the Peace Act, and Procedures Document were complied with was a central issue before the Hearing Panel as is evident in their Decision on Jurisdiction and
Alleged Abuses of Process.

(a)     The JPRC Hearing Panel ruled on January 12th, 2015 – some 20 months after the Notice of Hearing was issued on May 31st, 2013 that former Presenting Counsel, Mr. Hunt, was the complainant. Current Presenting Counsel did not call former Presenting Counsel, Mr. Hunt, to testify that in submitting a report to his instructing counsel, the Registrar, Ms. Marilyn King, he intended to make a complaint about the Applicant’s judicial conduct. Further, current Presenting Counsel failed to provide the Applicant with Mr. Hunt’s name and particulars pursuant to her disclosure obligations.

(b)     Current Presenting Counsel told the Applicant that the “complainants” in his case were witnesses who would be come to testify in a letter dated January 14th, 2014, which letter was part of the Applicant Motion Record on his motion asserting a reasonable apprehension of bias. Accordingly, the Applicant cross-examined witnesses on this information to his detriment – the Hearing Panel ruling that their intention was not relevant as Mr. Hunt was the complainant.

(c)     After the findings of liability, disposition and compensation, the Registrar and Presenting Counsel’s instructing counsel, Ms. King, prepared an affidavit sworn August 19th, 2016 in which she deposed that she – as distinct from the Complaints Committee, complied with one of the two mandatory requirement of notice to complainants, namely that the “complaint” was proceeding to a hearing and that his evidence may be required and although this evidence was never properly made part of the “record of proceedings” before this Honourable Court, resulted in an amendment to the Applicant’s factum.

(d)     The JPRC has not disclosed an acknowledgment of receipt of the “complaint” from the Complaints Committee to date and the Complaints Committee never filed a “report” with the JPRC contrary to both mandatory requirements stipulated by s.11(3) and 11(18) of the Justices of the Peace Act.

17.    The Applicant, who conscientiously believes himself to have been wrongly removed from his judicial office and to be a victim of a “miscarriage of justice” desires the fastest and most economically efficient resolution of his legal matters in the public interest;

18.    The proposed fresh evidence meets the criteria set out by the Supreme Court of Canada in R  v. Palmer [1980] 1 S.C.R. 759;          

19.    Rule 1.04(1), 1.04(2), s.6(1) and s.10 of the Judicial Review Procedures Act, s.20(d) of the Statutory Procedures Act, s.5(c) (i) of the Ministry of the Attorney General Act, The Human Rights Code, The Justices of the Peace Act and The Procedures Document, The Constitution Act, 1982 and the Constitutional Principle of Judicial Independence, U.N. Basic Principles on the Independence of the Judiciary para 1, 2, 12, 17, 18, 19, and 20, and U.N. Basic Principles on the Role of Lawyers para 1, 14, 15, 18, 19.

The following documentary evidence will be relied upon:

1.      Divisional Court’s order dated October 4, 2016 and Reasons

2.      JPRC Hearing Panel Decisions on Liability, Penalty and Compensation;

3.      JPRC Hearing Panel Interlocutory Decisions on Publication 
Ban, Disclosure and Particulars, Bias, Jurisdiction and Abuse of Process

4.      Complaints Committee’s Investigation Transcripts

5.      Registrar’s Letter to Applicant providing notice of allegations and inviting a written answer;

6.      Applicant’s written Answer to Complaints Committee

7.      Notice of Hearing issued May 31st, 2013 by JPRC

8.      Order in Council 546/2015

9.      JPRC’s Motion Record RE: Fresh Evidence

10.    Presenting Counsel’s list of authorities and written submissions inviting liability before Hearing Panel based on the Human Rights Code(The Code)

11.    Presenting Counsel’s list of authorities and written submissions inviting removal based on The Code and the Hryciuk Removal Decision which was overturned by the Court of Appeal for Ontario on the very basis which the Applicant was asserting       before the Hearing Panel and which appellate counsel failed to raise in this Honourable Court;

12.    Presenting Counsel’s erroneous instruction on the interpretation and application of Hryciuk v.  Ontario 31 O.R. (3d) 1 (ONCA) at para 24 of their March 13th, 2014 submissions which instruction was relied upon by the Hearing Panel and appellate counsel overlooked;

12.    JPRC’s list of authorities before this Honourable Court;

13.    Excerpt of the October 8th, 2014 transcript where Presenting   Counsel acknowledged that paragraph 14 of the Notice of   Hearing she drafted was intended to be for disposition;

14.    JPRC’s Motion Record Re: Fresh Evidence dated August 23, 2016 and supporting affidavits

15.    Sworn affidavit of Mr. Errol Massiah and exhibits thereto

16.    Such further evidence or documents which this Honourable Court may permit.

Time Estimate:  

1-2 days (could change with case-management and admissions by the Respondents 
and appellate counsel)  

September 20th, 2017                                                            

E.J. Guiste (LSUC # 34970C)
L6W 3W8
(416) 364-8908
(416) 364-0973 FAX
Counsel for the Applicant

Henein Hutchison LLP
235 King Street East, 3rd Floor
Toronto, Ontario
M5A 1J9

Tel.(416) 368-500 – Fax (416) 368-6640
Ms. M. Henein, Mr. S. Hutchison and Mr. M. Gourlay
Presenting Counsel and Counsel for the JPRC
In the Court Proceedings to Date


Ministry of the Attorney General for Ontario
Crown Law Office – Civil Law
720 Bay Street, 8th Floor
Toronto, Ontario
M7A 2S9

Tel. (416) 326-4155 – Fax (416) 326-4181
Ms. Sara Blake, and Mr. Brent Kettles
Counsel for the Lieutenant Governor
In Council and the Attorney Gene

NOTE:  This is a copy of the legal document which was filed with the Divisional Court asserting a miscarriage of justice and requesting that Court to set aside its Order of October 4th, 2016. It is published here on account of its public interest value.  These issues ought never to be litigated in private. The public has not only a right to know but a right to see the court documents and especially the record of proceedings.

Friday, April 6, 2018

JP Massiah's Reply Factum on Motion to Set Aside Order Upholding Removal

                                                                         Divisional Court File No. 316/15

B E T W E E N:

- and -






Trial & Appellate Advocacy
2 County Court Blvd., Suite 494
Brampton, Ontario
L6W 3W8

Ernest J. Guiste (LSUC # 34970C)
Tel. (416) 364-8908
Fax (416) 364-0973 fax
E mail –

Counsel for the Applicant, His Worship Massiah

1.         The Applicant asserts his right to reply granted by Justice Kitley in her order of December 1st, 2017.  This reply will address the Respondents’ and the Intervenor.

2.         The following points raised by the subject Tribunal(JPRC) invite a reply:
                        1.  No conflict of interest or “ineffective assistance on the part 
                  of Presenting Counsel;
                        2.   No “bias” on the part of the Hearing Panel;
                        3.   No “agreements” were made behind the Applicant’s back;
                        4.   The Divisional Court record was not “incomplete”;
                        5.   No general right to “effective assistance of counsel” in 
                  civil cases;
                        6.   No “facts arising after” the order was made;
                        7.   The test under Rule 59.06;
                        8.   No basis for adjudication of constitutional issue.

3.         The following points raised by the Attorney General for Ontario and others invite a reply:

                        1.   Allegation of absence of notice to federal government;
                        2.   Scope of constitutional remedy sought;  and
                        3.   Abdication of the role of the Attorney General per 
                  Ministry of the Attorney General Act;

4.         The following points raised by the Intervenors invite a reply:
                        1.   Conflict, incompetence of counsel and ineffective 
                  assistance are not relevant on a Rule 59.06 motion absent 
                        2.   Two allegations are incomprehensible: human rights 
                  experience and responding to inquiry by the Law Society of 
                  Upper Canada when asked to do so;
                        3.   Application of R  v.  Widdifield (1995) 25 OR (3d) 161;
                        4.   Application of Sherman  v  Manley 19 O.R. (2d) 531;
                        5.   Application of Stewart  v.  CBC 1997 Canli 12318

5.         Both Respondents and the Intervenor in this case have overlooked at least seven fundamental points which materially impact the utility of their submissions in the adjudication of this motion and Constitutional Question.  Those fundamental points are the following:

           1.         The subject tribunal is adjudicative in nature;

           2.         The subject tribunal has no privative clause;

           3.         Based on the record before it this Honourable Court
                       found the subject tribunal’s liability and penalty
                       decisions to be reasonable;

           4.         All of the issues which the Applicant asserts were not                                                      adjudicated by this Honourable Court  call for a 
             correctness standard of review;

           5.         The subject tribunal confirmed in writing in March, 
                       2017 that it has in fact retained the portions of the 
                       record of proceedings which was not filed with this 
                       Honourable Court; and

           6.         The complaint to the Law Society of Ontario against 
                       the Applicant’s lead counsel by the subject tribunal 
                       was made by the Justices of the Peace Review Council, 
                       who is a party to this application making it unnecessary 
                       and inappropriate for their investigator to have had the 
                       sorts of communications evidenced in the record with 
                       Appellate counsel just prior to compilation of his 
                        Application Record and Factum;

           7.         The law in Ontario is clear that the appearance of bias is as
                        important as the reality and bias renders the results of any
                        proceeding, including the hearing before this Honourable
                        Court a nullity.                       
6.         The subject tribunal has two adjudicative bodies, namely, the complaints committee and the panel.  Under s.11(15) the former shall order that a formal hearing into the complaint be held by a hearing panel and under s.11.1(10) the panel may “dismiss the complaint, with our without a finding that it is unfounded or, if it upholds the complaint, it may (g) recommend to the Attorney General that the justice of the peace be removed from office”…
7.         There is no privative clause in the Justices of the Peace Act.

8          The federal Attorney General was properly served and they declined to participate.

                                                            Letter Filed with Court

9.         This Honourable Court concluded the following on the adjudication of the judicial review in this matter:
            [61]      For these reasons, I conclude that the decision of the
                         2012 Panel that the applicant had engaged in misconduct
                          is a reasonable one.  The 2012 Panel’s conclusion that the
                          applicant had to be removed from his judicial office, in
                          light of the nature of the misconduct, is also a reasonable
                           one. The decision of the 2012 Panel not to recommend
                           compensation for legal fees is not, however, one that can
                            stand given that it based on a flawed premise. 
Record of Proceedings Clearly
Defined before Hearing Panel

10.       Presenting Counsel – Mr Gourlay:

            My friend seems to be under the impressions that means they’re
            lost from the record and that they don’t form any part of the
            panel’s consideration or the record of the case, that’s obviously
            untrueAll of the factums, and motion records, and notices
            of motion that have been filed in this proceeding are before
            you and will be preserved as part of the record of this proceeding
            and there’s simply no need to mark them as exhibits.

            Justice Livingstone:

            And generally the Panel is of the view that any materials filed,
            such as Mr. Gourlay referred to, facta, books of authorities,
            responding facta, et cetera, are not technically filed as
            exhibits, they are part of the recordThey remain part of the
            record for any further applications which could follow our
            decision, but they are not evidence per se and therefore would
            not be filed.

                    October 8th, 2014 Transcript – Applicant’s Afd. Nov.22/17
Hearing Panel Decisions
Clearly Cite Documents
Omitted from Record
Before Divisional Court:

Investigation Transcripts

11.       [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.

                           Decision on Jurisdiction and Alleged Abuses of Process

2012 Hearing Panel’s
Delineation of Jurisdiction
A.2 Overview of the Reports
12.       [11]      For ease of understanding, the Panel sets out the following descriptions of the two Reports which were involved in determining and documenting allegations of judicial misconduct in this case:

a.         The Hunt Report is the document submitted by the 
 Review Council by Mr. Douglas Hunt, Q.C....
 This report contains a cover-page from Mr. Hunt’s 
 law office and “will States” from five people at the 
 Whitby courthouse.

b.         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 

 [67]      We further conclude that the Complaints Committee had the authority
               to consider the new allegations in those transcripts within its 
               mandate under s.11(7) of the Act and pursuant to the ruling in 
               Sazant, (supra), as an extension of the complaint filed by 
               Mr. Hunt.

                          Decision on Jurisdiction and Alleged Abuses of Process  
                          Applicant Motion Record – Relevant Docts – Tab

JPRC Serves Fresh Evidence
Motion on Eve of Hearing:

13.       After all of the facta and Books of Authorities of the parties were served and filed with the Divisional Court the JPRC served a “Respondent’s Motion Record Re: Fresh Evidence”. Although the Notice of Motion seeks the following orders: 1. An order that the 5-volume “investigation transcripts” filed by the Applicant at the hearing below be added to the Record of the Proceedings as Volumes 8, 9, 10, 11, and 12; and 2. An order that these five volumes be sealed and not accessible to the public - the two supporting affidavits in the Motion Record deal solely with a letter which the Registrar and Counsel to the JPRC deposed in an affidavit was sent to Mr. Doug Hunt in satisfaction of part of the Complaint Committee’s mandatory statutory obligation.
                                                   JPRC Fresh Evidence Motion Record
                                                   Applicant’s Supplemental Affidavit – Ex. A

14.       On the eve of the hearing, appellate counsel acting for the Applicant wrote a letter to this Honourable Court consenting to the inclusion of a letter into the record which the JPRC maintains was sent to the complainant, Mr. Hunt, but which letter was not before the 2012 Panel. Appellate counsel amended page 15 of his factum to incorporate this “fresh evidence”.

                                                   Mr. Anand’s September 13, 2016 letter and
                                                    Enclosure – Supplemental Record             

15.       The only order rendered by the Divisional Court Panel on the Applicant’s judicial review application is the order rendered on October 12th 2016.  No order was made admitting any fresh evidence.
                                   Divisional Court Reasons for Judgement
                                  Applicant’s Motion Record – Relevant Docts – Tab

Correctness Standard
Of Review:

16.       There is no dispute that Appellate Counsel for the Applicant was specifically asked to raise the following legal issues before this Honourable Court: bias on the part of the hearing panel, bias and excess of jurisdiction on the part of Presenting Counsel, Chief Justice’s lack of jurisdiction to appoint a replacement for the Law Society of Ontario’s nominee and to appoint two temporary members – the status of whom were not known until after the Attorney General tabled the seventh Annual Report of the JPRC in the legislature in June 2015, error in the interpretation and application of the Ontario Human Rights Code concepts of “vexatious”, “unwelcome”, and “poisoned work environment” and error in the interpretation and application of Hryciuk  v. Ontario.

                                                            Raj Anand’s sworn affidavit
                                                            Applicant’s supporting affidavits
                                                            Registrar’s e mail dated Dec.4th/15
                                                            Raj Anand undertakings – Tab 2 p.10
Panel Composition
17.       There is no doubt that the advice given the Applicant by Mr. Anand on this point is clearly in error.  Mr. Anand refused to raise it because he was of the view that it was not raised below when in fact it could not have been raised until the disclosure by the Registrar to him and counsel for the JPRC by way of her e mail dated December 4, 2015 – almost twelve months after the liability decision and some nine months after the penalty decision and some eight months after the Order-In-Council.

                                                            Raj Anand Affidavit – Exhibit II
                                                            Raj Anand undergakings

Bias by JPRC Panel
Re Law Society Nominee
18.       Once again, there is no doubt that the advice given by Mr. Anand on this point is clearly in error.  Mr. Anand advised the Applicant that he would not raise this issue in this Honourable Court because it was not raised before the Hearing Panel. The Hearing Panel’s decision on the Applicant’s bias motion makes Mr. Anand’s error on this point irrefutable.

                                                Raj Anand Affidavit – para 12
                                                JPRC Bias Decision
                                                Applicant’s Motion Record – Relevant Doct

Power of Chief Justice
To Replace Law Society
19.       Once again, Mr. Anand’s justification for not raising this issue in this Honourable Court is based on his erroneous understanding of what was raised before the 2012 Hearing Panel. The error in his understanding is found in his affidavit sworn January 3rd, 2018 – well after the November 15th, 2016 referenced by JPRC counsel as his cut-off for fresh evidence.

                                                            As above
Presenting Counsel’s
Latent Admission on
SPPA Interpretation

20.       By way of letter dated February 1st, 2017 to the remainder of the 2012 Hearing Panel, well after the November 15th, 2016 cut-off date proposed by JPRC counsel, JPRC counsel makes a latent admission that s.4.2.1(1) “does not apply to a circumstance like this because it empowers the chair (with the consent of the parties) to decide that a hearing will be conducted by a “panel of one person”, not to add one person to an already existing panel of two.  Likewise, s.4.2.1(2) allows a case to be decided by a reduced panel even where there is a “statutory requirement in another Act that a proceeding be heard by a panel of a specified number of persons”, provided that all parties consent.  Again, this is about enabling a tribunal to constitute a smaller panel than normally required, not about adding a member to a panel that has already been constituted.”   This is the SPPA provision which the 2012 Hearing Panel relied upon to erroneously conclude that the Chief Justice had the juris to replace The Law Society nominee.

                                       Presenting Counsel’s Submission on Re-Hearing
                                       Exhibit I – Applicant’s Further Supporting Afd
                                       JPRC Panel Decision on Bias – para 31

Presenting Counsel Bias
Excess of Jurisdiction
21.       Mr. Anand clearly acknowledged in the Notice of Application for Judicial Review he issued that there was a lack of commonality between the “complaint” and the matters taken up in the Notice of Hearing.  He clearly entertained the idea as late as November, 2015 that the manner in which Presenting Counsel presented the case exceeded her statutory authority under the Procedures Document and most importantly deprived the Applicant of a fair hearing. This irregularity in the proceedings was advanced in the Draft Factum at paragraph 61 but abandoned after contact from the Law Society of Upper Canada investigator and his finalizing of the Application Record and Factum on or about January 13th, 2016.

                             Notice of Application for Judicial Review
                             Applicant’s Motion Record – Relevant Docts – Tab
                             Memorandum on Presenting Counsel Conduct
                             Applicant’s Further Supporting Afd – Exhibit B
                             Weir Foulds Accounts billing LSUC contacts
                              Applicant’s Main Factum Contains summary

22.       Mr. Anand candidly acknowledged in both his sworn affidavit and under cross-examination that the Association of Justices of the Peace of Ontario expressed interest in seeking intervention before this Honourable Court and “Marie’s conduct might be part of the hook.”

                                  Raj Anand Affidavit – Exhibit FF
                                  Transcript of Mr. Anand’s Cross-Exam  - at p.11-12

Mr. Anand on
Cross-Exam –
Feb. 8th, 2018
Presenting Counsel


Q.        ….So I am suggesting to you that that Notice of Application for Judicial Review does not raise bias involving Ms. Henein.

A.        I believe you are right, although, again, I would not necessarily characterize it as a bias issue, Ms. Henein’s conduct.

Q.        How about an issue going to trial fairness ?

A.        Yes, it could have been characterized that way.

Q.        So Mr. Massiah was of the view that Marie Henein’s conduct interfered with his trial fairness rights, and communicated that to you ?

A.        I think the discussion was more about complying with the rules and statutes, as to the proper role of presenting counsel, but it would certainly relate to fairness as well.

                                           Transcript of Cross-Exam – R.Anand p.12-13

Presenting Counsel
Abandoned Impartiality
Q.        Now, in the paragraph starting with, “Presenting Counsel abandoned impartiality”, you don’t take issue with the point that presenting counsel is supposed to be impartial in the presentation of these cases; do you ?

A.        I don’t take issue with that.
                                                            As above at ln 133 p.31        

Presenting Counsel
Misrepresentation on
Identity of Complainant

25.       In April 2017, well after Presenting Counsel’s proposed fresh evidence cut-off date, the Applicant learned that Presenting Counsel, Marie Henein’s spouse was a law partner of former presenting counsel, Mr. Hunt at the material time of his carriage of my first proceeding and the delivery of his Hunt Report to the JPRC.  Presenting Counsel had informed his counsel in response to a direct question as to the identity of the complainant and she responded that it was the witnesses, causing him to rely upon this representation in his conduct of his defence only for the panel to determine that the intention of the persons said to be the complainants was not relevant as Mr. Hunt was the complainant.

                     Applicant’s sworn affidavit
                     E mail to Ms. Henein and Response – Exhibits
                     Decision on Jurisdiction and Alleged Abuses of Process
                     Applicant’s Motion Record – Relevant Docts – Tab 5     

Applicant held to
Higher Standard than
Other witness
Q.        It says here that, “Inconsistencies abounded in this proceeding”; is that a fair characterization of the evidence ?

A.        Yes.

Q.        And that it appeared, when you look at the reasons and the record, that Mr. Massiah was held to a higher standard than the other witnesses ?

A.        That was the argument that we were considering making.

Q.        But that’s a fair assessment of the Record of Proceedings, that Mr. Massiah was held to a higher standard than all the other witnesses ?

A.        That was certainly an arguable position…..

Q.        The record revealed that.

A.        ….for us to take.

                                                            As above ln 141 p.33 -34

Interpretation and
Application of Human
Rights Code

27.       Mr. Anand’s sworn affidavit of January 3rd, 2018 reveals that he provided deficient, inconsistent or incorrect legal advice to the Applicant on the issue of the interpretation and application of the Code concepts of “vexatious”, “unwelcome” and “poisoned work environment”.  The advice in his September 22, 2015 opinion letter to the Applicant, Exhibit F on his affidavit, stands in stark contradiction to his opinion in his e mail dated September 21, 2014 – Exhibit D in the Applicant’s Further Supporting Affidavit dated December 10th, 2017 and the jurisprudence from this court and the Court of Appeal on this issue.

                                        Raj Anand’Affidavit – Opinion – Tab F
                                        Raj Anand’s e mail Sept. 21st, 2014 – Exhibit D
                                        Applicant’s Further Supporting Affidavit

Interpretation and
Application of Hryciuk

28.       Well after JPRC counsel’s proposed cut-off date for fresh evidence, Mr. Anand curiously embraces Hryciuk  v. Ontario (1996) 31 O.R. (3d) 1 (ONCA) as a basis seeking leave to appeal on behalf of the Applicant although he failed to raise it in this Honourable Court.

                           Factum of the Applicant (ONCA)
                           Reply Factum of the Applicant (ONCA)
                           Applicant’s Further Supporting Affidavit – Tabs J-K

Raised by Mr. Anand

29.       Mr. Anand clearly asserted in this Honourable Court that the constitutional principles of judicial independence and security of tenure were engaged in the Applicant’s removal from judicial office.

                                   Applicant’s Facta in this court and ONCA
                                   Applicant’s Motion Record – Filed Filed Here
                                   Applicant’s Further Supporting Afd, (ONCA) – Tab J-K

30.       The Applicant deposed in his affidavit and on re-examination at his cross-exam on his affidavits that Mr. Anand and his associate did not fully explain things to him in order to enable him to make an informed decision on the matters he wanted him to agree to.

                                 Applicant’s Responding Affidavit  - para 7, 27-28
                                 Transcript of cross-exam of Applicant – p.171-191

31.       The Law Society’s investigator did not write to Mr. Anand requesting information from him.

                                         Raj Anand’s billings for LSUC contacts

32.       The information which Mr. Anand maintains that The Law Society of Upper Canada sought from him could easily have been obtained by them through a letter to the complainant or by checking with the Divisional Court office.

33.       In the proceedings before the 2012 Hearing Panel the Applicant expressly relied upon the principles of res judicata and issue estoppel as part of the abuse of process motion the 2012 Hearing Panel heard and dismissed and went so far as to characterize the second proceeding as a collateral attack on the decision and disposition of the 2011 Panel. This was not reflected in the record filed in this Honourable Court or the facta.

                                         Applicant’s Motion Record – Docts Not Filed
                                         Applicant’s submissions on abuse of process

34.       In his written submission on liability which were not filed in this Honourable Court the Applicant expressly relied upon findings of fact made by the 2011 Panel including the finding that he was not aware that his conduct was improper, no one had brought it to his attention that his conduct was of concern, this was his first offence,  he had learned his lesson and that he would not re-offend.

                                         As above – Submissions on Liability

35.       In its decision of October this Honourable Court expressly found that the factual findings of the 2011 Panel are binding on the 2012 Panel. 

                                         Reasons for Decision – at para 37

36.       In his written submissions on liability the Applicant pointed out the irreconcilable dispositions in Re Kowarsky and Re Obakata.  In Obakata the justice of the peace committed a sexual assault on a fellow justice of the peace – grabbing her breast and forcefully twisting her nipple and this conduct did not warrant removal from the Bench.  In Re Kowarsky, a justice of the peace who went through the same training session as the Applicant actually stated to a court clerk while seated on the Bench in open court – “Madame Clerk, I am ready for my blow job now.”  The Notice of Hearing in that case revealed that this justice of the peace had a habit of hugging and kissing staff he had not seen for some time. Again, in Re Kowarsky the justice of the peace was not removed from office.  In both instances reprimands were ordered

                                          As above
                                                PART III - THE ISSUES & LAW:
1.         Is Presenting Counsel in a conflict of interest, exceeding their statutory 
            jurisdiction or otherwise  lacking standing to defend the reasonableness 
            of the JPRC  Hearing Panel’s decisions ?

2.         Is there another party who can defend the decisions of the JPRC 
            Hearing Panel ?

3.         Does there exist any principled reason why the constitutionality of 
            the conflict between the provisions in the Justices of the Peace Act 
            and the Procedures Document which have the effect of granting 
            Presenting Counsel an unfettered discretion to send the Applicant to 
            a public hearings for matters which did not arise from a complaint in 
            writing to the Review Council and which have not been investigated 
            by a Complaints Committee can not be considered and  adjudicated on 
            this motion ?

4.         Can counsel for the parties on a judicial review in the context of a 
            judicial removal from office agree to excise relevant documents 
            from the record of proceedings, which exclusions are capable of 
            calling into question the reasonableness and transparency of the 
            decisions being reviewed ?

5.        In the context of adjudicating a Rule 59 motion in the context of a 
           judicial review – particularly one involving constitutional rights 
           like judicial independence,  judicial security of tenure, the right to 
           counsel and the independence of the Bar, does evidence pointing to 
           the incorrectness of the order of the subject tribunal and the reviewing 
           court when combined with the misguided leave to appeal initiated by 
           appellate counsel in this case and the failure of the Respondents to 
           inform this court of the retirement of per diem judge Livingstone 
           establish “facts   arising or discovered after it was made” ?

6.        Is it in the public interest for this court to hold that clients can agree to 
          such acts by the lawyer retained to represent them or would the public 
          be better served by a finding that the lawyer has failed to discharge his 
          duty of candour to the client  or that the Respondents have failed to 
          discharge  their duty to the court in detailing and marshalling the 
          issues for adjudication ?


38.       In Ontario   v.  Ontario Power Generation [2015] 3 S.C.R. 147 the 
Supreme Court provided guidelines for the very important issue of the 
propriety of Presenting Counsel before the JPRC Hearing Panel compiling 
the record of proceedings on this judicial review application and then fully 
defending the decisions of the 2012 Hearing Panel in this Honourable Court.  
The court said that the following factors are relevant in informing the court’s 
exercise of discretion: statutory provisions addressing the structure, processes 
and role of the particular tribunal and  the mandate of the tribunal - that is, 
whether it is adjudicative or non-adjudicative.

39.       The subject tribunal in this case is adjudicative, has no privative clause 
and most clearly delineates the role of Presenting Counsel in the Procedures 
Document – clearly circumscribing that role to “see that the complaint against 
the justice of the peace is evaluated fairly and dispassionately to the end of 
achieving a just result.”  The Procedures Document further stipulates that 
Presenting Counsel’s purpose is to “preparing and presenting the case against 
the respondent.”  That function is now spent.

Function of
Attorney General
40.       5.         The Attorney General,
                         (c)        shall superintend all matters connected with the 
                                     administration of justice in Ontario;
                          (i)        shall superintend all matters connected with judicial 

                                                            Ministry of the Attorney General Act

41.       In this instant case the Attorney General is available to defend the 
decisions of the JPRC a tribunal which comes under that office’s jurisdiction 
and a party who has been involved in the litigation as a party from the outset.

42.       A Rule 59 motion involving a judicial review application is materially 
different from a Rule 59 motion flowing from the typical civil action for 
negligence or the like.  In a civil action there are at least two parties to the 
action which are contesting a claim between them.  The claim is for all intents 
and purposes a private dispute between two or more litigants.  An application 
for  judicial review – particularly involving the removal of a judicial officer is 
a very public matter calling for the utmost of fairness, transparency and strict 
adherence to constitutional rights.

43.       The role of counsel for the parties and the court must always be 
mindful of the very public aspect of the proceedings.  It is doubtful whether 
even if the subject tribunal had a privative clause whether it could cloak 
itself in the garb of Presenting Counsel in preparing and filing its record of 
proceedings under the Judicial Review Procedures Act and then take the 
position that whatever deficiency is in its record of proceedings was arrived 
at by agreement of the parties,  particularly where they have subsequently 
acknowledged the deficiency and they are in fact in possession of the full 
and proper record.

44.       Judicial Review is based on a tribunal’s record of proceedings.  
Our courts count on a rely on counsel representing the parties to act in 
accordance with the highest standards in ensuring that matters like the 
case at bar are adjudicated fairly and in accordance with law. 

45.       The constitutional flaws in the enabling legislation and Procedures 
Document combined with the litany of procedural irregularities in this case 
call for strong judicial leadership and guidance in ensuring that justice is 
seen to be done.

46.       The Justices of the Peace Review Council, the Attorney General 
for Ontario and the Intervenors must not be seen to profit from their 
indiscretions – even if inadvertent.  As this case clearly illustrates 
mutual mistake and inadvertence as distinct from fraud on the court 
can have the very same impact on a litigant’s legal rights and the 
legal legitimacy of a courts finding that decisions by a tribunal were 

47.       The focus of this court’s inquiry ought to be on the impact of the 
JPRC deficient record of  proceedings on this court’s order; the impact 
of Presenting Counsel’s representation on the identity of the complainant 
on the fairness of the hearing; the impact of Mr. Anand’s failure to raise 
litany of issues calling for a correctness standard of review; and lastly the 
overriding impact of the unconstitutionality of the challenged segments of 
the enabling legislation and the Procedures Document.

48.       Once approached from this point of view, the reality that this court’s 
order of October 4th, 2016   must be set aside is inescapable since justice must 
be seen to be done.  The appearance of bias and unfairness is just as important 
as the reality.

49.       The three cases cited by the Intervenor do not provide this court 
with any guidance on the issues before it.  The rights and issues involved 
on this motion are unique and warrant careful judicial scrutiny.

50.       The nature of the issues raised on this motion are public issues 
which transcend the parties and any costs award ought to judiciously 
consider the wisdom of the impact of a costs award on a lower level 
judicial who is merely seeking to have the law of Ontario respected.

                                                PART IV - ORDER REQUESTED
           51.        The Applicant repeats and relies upon the orders previously requested noted but notes that it is only the problematic segments of the JPA and Procedures Document (permitting the conflict between the “complaint” and “notice of hearing” ) and the absence of an obligation to pay clause in the portion dealing with the recommendation for compensation that are 
                        the object of constitutional challenge.

                                                            ALL OF WHICH IS RESPECTFULLY SUBMITTED.
March 22nd, 2018
                                                                        E. J. Guiste, for the Applicant


1.         Ontario  v.  Ontario Power Generation [2105] 3 S.C.R. 147 (headnote only)


1.         Ministry of the Attorney General Act, R.S.O. ch M.17 – s.5

NOTE: This legal document was filed in the Divisional Court in support of JP Massiah's motion seeking to set aside, vary or amend that court's Order of October 4th, 2016.  It is published here for the sole purpose of drawing attention to an issue of public importance - the removal of a judicial officer and the contention that he was the victim of a miscarriage of justice.