Tuesday, May 23, 2017

Ontario's Two-Tier Justice System Failing Many and Needs Reform

  That Ontario's justice system is facing serious challenges which brings untold daily
suffering  to many in our communities is a reality that demands a head-on non-political
response from our law and policy-makers. From its inception,  Ontario's justice system
has evolved from and remains a two-tier system - one for the powerful and one for the
powerless.  Compelling evidence of this two-tier system is reflected in the recent and
lamentable history in the legal profession to admit women and African-Canadians.
In both cases, our law and policy-makers had to take bold and affirmative legislative
action in order for women and African-Canadians to enjoy the right to practice law in
Ontario.

   It has been more than twenty years since our government received the Report of the
Commission on Systemic Racism in the Ontario Criminal Justice System and the
serious and pervasive inequality suffered by African-Canadians in Ontario's
criminal justice system has increased rather than abated.  What is wrong ?

   Reform of Ontario's human rights adjudication system promised to decrease delay
and bring about a fairer and more efficient system.  In the Ontario's government's
most recent round of consultations with "stake-holders" in the process the African-
Canadian Legal Clinic and others have been consistent in their lament that the
current system continues to fail the needs of complainants - African-Canadian or
otherwise.  What is wrong ?

   The job of fixing Ontario's two-tier justice system may be a challenging one but
it is not impossible.  It starts with political will and compassion.  The late great
former Chief Justice of the Supreme Court of Canada, Mr. Justice Bora Laskin,
once said that "law without compassion is void."  I understand the late
Chief Justice to mean that the essence of law is that we must do onto others as
we would have them do onto us. It means that our application of law ought to
uplift the dignity of all of us rather than score political points while we trample
on the human dignity of our fellow brothers and sisters.

About the writer:

Ernest J. Guiste is a Catholic, African-Canadian rights litigation lawyer whose
practice of law and vision is influenced by the likes of the late Justice Thurgood
Marshall and civil rights lawyer, Charles Houston. Mr. Guiste represents clients
of limited means and others in criminal, human rights, administrative law and
high-handed wrongful dismissals and removal from statutory or public office.  



 

 

 

 


Sunday, May 21, 2017

Did Hearing Panel's Uncertainty About their Jurisdiction Cause Delay and Increase the Cost of JP's Defence in Removal Case ?




Presenting Counsel Improperly
Invoked Sexual Harassment
and Human Rights Code 
As Misconduct Ground:

7.   The evidentiary record is crystal clear.  Presenting Counsel in hearing 1 submitted
five will-says.  None of them used the term sexual harassment, vexatious, unwelcome
or poisoned work environment.  The five volume investigation transcripts reveal that the
terms vexatious, unwelcome, poisoned work environment and conduct in violation or
inconsistent with the Human Rights Code is not raised by Mr. Hunt or any witness.
[H.W. Massiah's Submissions on Re-Hearing on Compensation]


H.W. Massiah's 
Sworn Affidavit:

9.   .....The Hearing Panel had my counsel provide work for its benefit on its motion.
The Hearing Panel's own jurisdictional questions was not resolved until around July
7th, 2014 causing me to incur significant legal costs not typically incurred in these
proceedings.

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


Excerpt from 
Bill of Costs:

June 3rd, 2013 - July 4th, 2013

- Initial client interview, fact-gathering and legal research
- Preparation, drafting and service of NOA raising jurisdiction and abuse of process,
including meeting with client and co-counsel
- Attend hearing on July 4th, 2013

Total: 10 hrs @ $575

July 5th - July 24th, 2013( - July 24th, Panel asserts jurisdiction question)

- Preparation, contd. fact-gathering, legal research on juris, fairness, natural justice,
abuse of process, draft factum, compile Book of Authorities, - serve and file same
- Study Presenting Counsel motion record, factum and BOA and draft Reply factum
- Communications t and fr clnt, co-counsel and Association of Justices of the Peace
on Ontario
- Revue TorStar article on case
- Prep for July 24th, attendance and attendance (10a - 1:15 p)

Total: 60 hrs @ $575


JPRC Procedures Document

19.   The Hearing Panel shall, as soon as is reasonably possible, appoint a time
and a place for the hearing of submissions by both sides on any motion brought
pursuant to section 18, and shall, as soon as is reasonable, render a decision thereon.

The Hearing Panel's Decision on Jurisdiction and Alleged Abuses of Process was
rendered January 12th, 2015.  This was  a whole year and half or 18 months after I
initiated the motion.

Incidentally, a motion brought by my co-counsel, Mr. House and I seeking production
of the Bill of Costs for the work of both Presenting Counsel, Mr. Hunt and Ms. Henein
was denied by the Hearing Panel.


Analysis:

The fact is the cost of H.W. Massiah's defence would have been 70 hrs plus preparation
for the hearing of some nine days plus submissions on liability, penalty and compensation.

But for the Hearing Panel initiating its own motion where it asked counsel for the
parties to assist it in determining whether it had the jurisdiction to 
entertain the jurisdiction and abuse of process motion initiated on behalf 
of H.W. Massiah, the Hearing Panel could have adjudicated the motion and
commenced the hearing in and around July, 2013. In fact, the facta filed by both
H.W. Massiah and Presenting Counsel argue that the hearing could commence and
the adjudication of the motions could follow the evidence.

The record of proceedings is clear.  The hearing was delayed until July 15th, 2014 not on
account of anything which H.W. Massiah or his counsel did but because of 
the following acts and omissions of the Hearing Panel and Presenting Counsel:

1.  The Hearing Panel was clear in stating that it could not and would not consider
the abuse of process issue until it had fully determined its jurisdictional question.

2.   After sitting on the Hearing Panel on July 4th, 24th, 29th, November 4, Ms.
Margot Blight, disclosed that she had sat in judgment of H.W. Massiah on the
Registrar, Marilyn King's own complaint alleging purjury and she later voluntarily
recused herself on or about February 12th, 2014.  Ms. Blight was replaced by
Ms. Lenore Foster in April, 2014;

3.   The Hearing Panel retained Mr. Brian Gover to advise them on two jurisdictional
questions which they raised. He provided his opinion on May 23rd, 2014
(see Exhibit 17)

4.  It was not until July 7th, 2014 that the Hearing Panel was finally in a position to start
the hearing;

5.   Presenting Counsel did not provide contact information for her witnesses until April,
2014;

6.  Significant disclosure in the form of the contact information for two of the
management witnesses called on behalf of H.W. Massiah was still outstanding after
Presenting Counsel started its case on July 15th, 2014;

7.  Three relevant items of disclosure sought by H.W. Massiah on his Particulars and
Disclosure Motion, namely, 1.  copy of the applicable collective agreement;  2. copy
of any discrimination and harassment policy covering the staff in question and; 3.
copies of any grievances filed by the staff touching on harassment which were denied
by the Hearing Panel were much later in the proceedings entered as exhibits with the
consent of Presenting Counsel.


NOTE:  This piece is published here as a community service to share information on
an issue of public importance. The removal from office of a judicial officer is an issue
of public importance.  A judicial officer's right to defend their office is also an issue of
public importance.  Another issue of public importance at play in this particular case is
the right of lawyers to defend their clients without threat of penalty, prejudice or
censorship for so doing.




Friday, May 19, 2017

"Submissions from all counsel on those issues have been instructive" - 2012 Panel on Panel's Jurisdiction Questions

                                                          File No. 22-041/11

JUSTICE OF THE PEACE REVIEW COUNCIL


IN THE MATTER OF a complaint respecting
JUSTICE OF THE PEACE Errol Massiah
Justice of the Peace in the
Central East Region


NOTICE OF MOTION

          TAKE NOTICE THAT the His Worship Justice of the Peace Massiah intends to bring a preliminary motion before the Panel on July 4th, 2013 at 10 a.m. at 1 Queen Street East in the City of Toronto.

The Grounds for the Application are:



1.           None of the purported complaints comply with the express requirement in s.10.2(2) of the Justices of the Peace Act that they be in writing;

2.      Consequently, the Review Council had no jurisdiction to establish a complaints committee, the committee had no jurisdiction to investigate and to order a hearing before a hearing panel;

3.      All of the current purported complaints pre-date the disposition rendered on the Applicant’s prior proceeding and are consequently subsumed in that disposition;

4.      The manner and tone of the purported investigation carried out by the committee was so void of fairness and integrity that it represents an abuse of process at common law.
   
The following documentary evidence will be relied upon:
  
1.      The record of proceedings to date including interview transcripts;

2.      Such further evidence that the Panel may consider relevant.

             The Applicant may be served with documents related to this motion at the office of his solicitors of record, Eugene Bhattacharya, Barrister and Solicitor, 295 Matheson Blvd., East, Mississauga, Ontario, L4Z 1X8 pursuant to the Rules.


Jun 28th, 2013                                                               

ERNEST J. GUISTE
Trial & Appeal Lawyer
245 Yorkland Blvd., Suite 302
Toronto, Ontario
M2J 4W9

(416) 364-8908
(416) 364-0973 FAX
Co-counsel for the Applicant

Henein & Associates
445 King Street West, Suite 202
Toronto, Ontario
M5V 1K4

Ms. Marie Henein


AND TO:

Justices of the Peace Review Council
31 Adelaide Street East
Toronto, Ontario
M5C 2J3
Ms. Marilyn E. King, Registrar   - E mail marilyn.king@ontario.ca


Independent Counsel's Opinion
Exhibit 17

STOCKWOODS barristers

May 23, 2014

Dear Ms. King:

As you know, the Hearing Panel has asked us for independent legal advice 
(in accordance with s.8(15) of the Justices of the Peace Act) concerning 
two issues, which arise in the context of a motion brought by Mr. Guiste 
on behalf of Justice of the Peace Massiah, and on which the parties have 
filed written submissions.  The question in relation to which the Hearing Panel
seeks independent advice on are as follows:

1.   What is the extent of the jurisdiction (if any) of this Hearing Panel of the 
Justices of the Peace Review Council to review and/or grant relief 
concerning decisions or actions taken by the Complaints Committee ?

2.   What is the extent of the jurisdiction (if any) of the Hearing Panel to 
consider whether there is a valid complaint under s.10.2 of the Justices 
of the Peace Act ("JPA or "Act"), or is the Hearing Panel mandated only 
to proceed with a hearing once it has been ordered by the Complaints 
Committee under s.11(15)(d) of the JPA ?


We therefore conclude, based on this jurisprudence as well, that 
the Hearing Panel has jurisdiction to consider the specific 
issue of the sufficiency of the "complaint" within the meaning 
of s.10.2, both in assessing whether it has jurisdiction to convene 
the hearing, or as part of a broader consideration of whether an 
"abuse of process" has occurred."

Brian Gover 

            

Hearing Panel's
Decision on Threshold
Jurisdiction Questions:


25)   We accept that the Hearing Panel has jurisdiction to consider the 
specific issue of the sufficiency of the "complaint" within the meaning of 
s.10.2 in assessing whether it has jurisdiction to conduct the hearing.

26)   The Hearing Panel has previously received materials and written submissions in
preparation for the abuse of process and fairness motion filed by His Worship.

27)   In response to the jurisdiction question raised by the Panel, in our view, both
Presenting Counsel and Counsel for His Worship also provided materials and or oral
submissions related to the abuse of process and fairness motion. As well, Mr. Gover
also commented on abuse of process and fairness issues in his legal opinion.
Submissions from all counsel on those issues have been instructive.

28)   However, the abuse of process and fairness motion has not been fully argued by
Presenting Counsel and Counsel for His Worship, as yet.  That motion is scheduled to be
heard shortly.  In our view, it would be premature for us to make any ruling on those
matter now.

29)   As a result, it is only the narrow issues framed in the two questions the Hearing
Panel posed to Mr. Gover (see para 18) on which the Hearing Panel has ruled in this
decision.


Excerpts from Presenting
Counsel Submissions of 
May 1st, 2017:


2.   This was, at its core, a relatively straightforward hearing that Mr. Massiah's counsel,
Mr. Guiste, chose to conduct in an extraordinarily un-straightforward and vexatious
manner.

29.   The part of the process conducted by Mr. Guiste served no benefit either to
Mr. Massiah or to the public at large.


NOTE: This piece is published in order to draw attention to an issue of public
importance. The removal of a judicial officer in the free world and in Ontario
is an issue of public importance.  The right to defend and the independence of
the bar are also issues of fundamental importance. This post is shared with the
community in the spirit that justice must be seen to be done.

Wednesday, May 17, 2017

Presenting Counsel's Delay Allegation Against JP and Counsel in JP Removal Case


November 19th, 2013 Transcript
(p.44-45)


   Following Ms. Margot Blight's revelation that she sat in judgment of the subject JP on a
complaint alleging purjury initiated by the Ms. Marilyn King, the Registrar and counsel
for the Justices of the Peace Review Council, Presenting Counsel stated the following
about adjourning the proceedings on that day:

"However, I think, in fairness this has just been brought to the attention of
Mr. Guiste and Justice of the Peace Massiah.  I can indicate that if I were 
in his position I would want an opportunity to review all those materials 
and to make submissions before the panel.

You appreciate how strongly I have been opposed to the adjournment on the
basis that the abuse of process should have been going, but things arise 
through no fault of anyone. This has arisen.  I hesitate to take an 
aggressive position and push this matter forward without allowing you 
the opportunity to have not only Mr. Guiste's submissions but 
my submissions and the law on this area, because my position will be no 
recusal is appropriate,  and I want to be able to give you the law, because 
there is law on this."


On November 19th, 2013 the proceedings were adjurned to April 9th, 2014
@ 10 A.M. and the parties along with the Hearing Panel scheduled the following
hearing dates: April 9th, 28th, 30th, May 27th, 29th, June 3rd, 4th, 11th, 12th,
18th, 19th, July 15th, 16th, 17th, 18th, 28th, 29th, 30th, 31st.  The transcript
reveals that Presenting Counsel stated the following:

MS. HENEIN:  Those dates are all agreeable.  I'd ask for what its worth 
that the hearing dates be marked preemptory.


Submissions of Presenting Counsel
RE: Applicant's Bias Motion:

4.   These proceedings have repeatedly been delayed by the Applicant.
There is a 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 wold 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.

6.  Now we are in late May 2014 and he has brought yet another motion which
threatens to further delay the hearing of his original motion, not to mention the
hearing on the merits. The pattern is clear.

7.   Maintaining public confidence in the judiciary is the overriding purpose of the
judicial conduct regime.  Public confidence would be undermined if efforts 
by the Applicant to derail the proceedings with meritless motions are 
not met with the appropriate response.  For these reasons, the motion should
be dismissed without need for further evidence or argument.


JPRC Procedures Document:

4.   The duty of legal counsel engaged under this Part shall not be to seek a particular
order against a respondent, but to see that the complaint against the 
justice of the peace is evaluated fairly and dispassionately to the end of 
achieving a just result.


NOTE: This piece is written as a community service to draw attention to an issue of
public importance.  The removal of a judicial officer is an issue of public importance
in the free world and also in Ontario. The right to defend one's judicial office is a
well recognized right in the free world. This piece is published in the spirit that
Justice Must Be Seen to Be Done.

Tuesday, May 16, 2017

Delay in JP Removal Case Falls at the Feet of Hearing Panel: Nov.19th, 2013 Transcript Reveals



1.   Presenting Counsel's Notice of Hearing issued May 31st, 2013;

2.   Notice of Motion Asserting Lack of Jurisdiction and Abuse of Process
filed June 28th, 2013;

3.   First attendance - July 4th, 2013

4.   July 24th, 2013 - Hearing Panel raises question of law going to jurisdiction
requesting the help of counsel for the parties to resolve the question -
namely - Does the Hearing Panel have jurisdiction to review and overrule
decisions of the Complaints Committee ?;

5.   JP raises concerns about adverse publicity in press from Toronto Star and
Toronto Sun while the issue of the legality of the "complaint" is still to be
decided on. JP initiates motion seeking an interim publication ban on the
allegations in the Notice of Hearing etc. until the issue of the legality of the
complaints are adjudicated. This motion is argued on November 4th, 2013
before a panel composed of Justice Livingstone, H.W. Cuthbertson and high
profile management human rights lawyer and Law Society Tribunal adjudicator,
Ms. Margot Blight;

6.   November 19th, 2013 - Ms. Margot Blight discloses that she sat on a
Complaints Committee involving a complaint brought by the Registrar and
Counsel for the Justices of the Peace Review Council alleging that he provided
false evidence before the Vallencourt Hearing Panel.  As a result of this
disclosure and the issues arising from it, Presenting Counsel made the following
statement in support of an adjournment of the proceedings:

"However, I think, in fairness, this has just been brought to the attention 
of Mr. Guiste and Justice of the Peace Massiah.  I can indicate that if I 
were in his position I would want the opportunity to review all those 
materials and to make proper submissions before the panel.

You appreciate how strongly I have been opposed to the adjournment on the basis
that the abuse of process should have been going, but things arise through 
no fault of anyone. This has arisen. I hesitate to take an aggressive 
position and push this matter forward without allowing you the 
opportunity to have not only Mr. Guiste's submissions but my 
submissions and the law on this area, because my position will be no 
recusal is appropriate, and I want to be able to give you the law, because 
there is law on this" (at p.44-45)

7.   H.W. Cuthbertson stated on November 19th, 2013:

"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.  As 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 ?

8.   On November 19th, 2013 the proceedings were adjourned to April 9th, 
2014* @ 10: A.M. and the parties along with the Hearing Panel scheduled 
the following future hearing dates: April 9th, 28th, 29th, 30th, May 27th, 
29, June 3, 4, 11, 12, 18, 19, 20, July 15, 16, 17, 18, 28, 29, 30, 31.  

Presenting Counsel stated the following at p.80 line 23:

MS. HENEIN:  Those dates are all agreeable. I'd ask for what it's worth, 
that the hearing dates be marked preemptory.  


The transcript at p.69 line 22 shows the following:

JUSTICE LIVINGSTONE:  All right.  So the first dates that we're looking at 
are in April. Do you have dates in April, Mr. Guiste ?

MR. GUISTE:  I have the whole of April available.

JUSTICE LIVINSTONE:  Anything else ?  Thank you all very much.  And we will
see you in 2014.

---Whereupon the proceedings adjourned at 1:38 p.m.


Margot Blight Recusal:

9.   By way of letter to the Hearing Panel dated February 12th, 2014 Presenting Counsel
stated, inter alia:

"Although the Complaints Committee concluded that there was no basis 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....

   ...I want to be clear that as Presenting Counsel, we take the unequivocal position that
Ms. Blight has displayed no actual bias, nor has she acted inappropriately in any manner
whatsoever.  However, in my role as Presenting Counsel, I must also be 
mindful of the principle that justice must be seen to be done.

   In light of these concerns and issues, coupled with the fact that there is a grave concern
that both this motion by Mr. Guiste, and any outcome of the motion may serve to
protract the hearing unduly and thereby undermine the public in the complaints process,
it is counsels' joint respectful submission that the appropriated manner to deal with this
circumstance, which was not known to the Hearing Panel r to counsel until it was
properly raised by Ms. Blight, is to allow Ms. Blight to recuse herself and have her
position replaced immediately by another JPRC community member."

*The parties agreed on their availability for April 9th,

10.  In and around May 23rd, 2014 the Hearing Panel retained high profile lawyer, Brian
Gover, to provide them legal advice on two jurisdictional questions they raised. Mr.
Gover submitted an opinion dated Mary 23rd, 2014 and the Hearing Panel invited
counsel for the parties to comment on his opinion to them by way of written submissions.

11.  On May 27, 28th and 29th, 2014 the Hearing Panel heard the JP's motion seeking to
quash the Notice of Hearing issued by Presenting Counsel, on among other grounds,
the Hyrciuk Error on the face of the Notice of Hearing

12.   In its Decision on Threshold Jurisdictional Questions dated June 6th, 2015 the
Hearing Panel decided it had jurisdiction to grant the relief sought in the JP's motion.

13.  Following the release of the Decision on Threshold Jurisdiction Questions the
Hearing Panel invited the parties to provide them further submissions on the impact
of the Divisional Court's decision on a judicial review decision involving the JP's
first case.

14.  On July 7th, 2014 the Hearing Panel ruled that it would consider and adjudicate the
abuse of process and jurisdiction motion on the full evidentiary record.

NOTE:  This piece is published here a community service in keeping with the
fundamental principle that Justice Must Be Seen to Be Done. The removal of a
judicial officer is a matter of public importance in the free world. It has been
suggested that the proceedings were delayed by the JP or his counsel, the
author, and the evidence does not support this contention.  

Monday, May 15, 2017

Representation by Presenting Counsel and Case Law Points to Merit in JP's Particulars and Disclosure Motion



Presenting Counsel's Representation:


   "The complainants in this case are the people who are expected to testify about the alleged misconduct by His Worship." (Presenting Counsel's Letter dated January 14, 2014)


January 2nd, 2014

VIA: FAX

HENEIN HUTCHISON LLP
445 King Street West, Suite 202
Toronto, Ontario
M5V 1K4

Attention:  Ms. Marie Henein, Esq.

Dear Ms. Henein:

RE: PUBLIC INQUIRY - REQUEST FOR DISCLOSURE

   I note that you have yet to make full disclosure to enable Justice Massiah to
respond to the case he has to meet despite requests by myself and Mr. Bhattacharyea.

   The Procedures and in particular s.10 places a much broader obligation on you.  It states - "names and addresses of all witnesses known to have knowledge of the relevant facts and any statements taken from witnesses and summaries of any interviews with the witness before the hearing."  S. 11 states that you "shall provide, prior to the hearing, all non-privileged documents in its possession relevant to the allegations in the Notice of Hearing. S. 12 states that the hearing panel may prevent you from calling evidence which does not comply with the disclosure obligation.  Accordingly, please provide full disclosure of this information as soon as possible....

   I trust that this is satisfactory.

Ernest J. Guiste.
(Disclosure Request Documents filed with JPRC)


Transcript of June 11, 2014
Motion for Particulars/Disclosure
at p.183-

MR. GUISTE:  Now, the employment files, my friend had a lot to say about.
And, of course, intelligent minds have often differed in cases.  In this case, as well
as other cases, and in life generally, spouses differ, everybody has the potential to
differ on fundamental points.

   What I heard my friend says was that somehow the need to look at the employment files is somehow totally unfounded.

JUSTICE LIVINGSTONE:  They are third party records not in the possession of presenting counsel, that was her point with respect to what they are.

MR. GUISTE:   Yes.

JUSTICE LIVINGSTONE:   And that if you seek them, there is a procedure in law to do so for which the threshold is relevancy.

MR. GUISTE:   Yes, so - -

JUSTICE LIVINGSTONE:   Those were her submissions in a nutshell, and that's my understanding of the law.

MR. GUISTE:  All right.  Well, as I understand it, the procedures here provide for,
if I may.  At page 14, parties to the hearing:

"The enabling procedures state that the hearing panel shall determine 
who are  the parties to the hearing."

   This is a very serious legal point.  You'll recall that in the evidence
before you, Presenting Counsel has stated in her letter that the witnesses 
that will be called are the complainants.

   As well as, Presenting Counsel also told us that Mr. Hunt is a complainant.  All of the
information sent, they're complainants.

   So under the enabling legislation, and your procedures require you, so I will be asking
the panel to make a determination as to who are the parties.  Is is my submission 
that the individuals are in fact parties, based on the representations of 
Presenting Counsel, they are parties to the proceeding.

   The parties to this proceeding are the subject, Justice of the Peace,
His Worship Massiah, and all of the persons that my friend has indicated have
evidence to give with respect to his alleged misconduct.

   As such, they are not third parties.  So my friend's theory with respect to 
that, I submit to you as a principle of law, and stemming from your own 
enabling procedures, is that they are parties.  And if they are parties, they 
way you do that is, you seek their consent and authorization, they sign it, 
we get their employment file.

   Because the employment file, I submit, is relevant to the issue of, they're making
allegations with respect to misconduct.  And their information with respect to their
conduct is ripe for His Worship Massiah to challenge and confront.  At paragraph 50 of
the Defaso case, they say:

"The commission submits that the board has no power to order disclosure from the
complainant's doctors because they are not parties to the proceeding.  Is is not necessary
to determine whether the disclosure provison in the board's rules in Section 5.4 of the
Statutory Procedures Act confer power to order disclosure by non-parties.  Because I
think the order in question is confined to imposing disclosure obligation on a party,
the complainant, and not on her doctors who are the parties(sic.)"

   So here, the disclosure obligation is as Ms. Henein told you, the complainants. They
are parties to the proceeding.

JUSTICE LIVINGSTONE:   That's your position.  But the section you referred to
suggests it's the hearing panel who determines who are the parties, correct ?

MR. GUISTE:   Well, I'm suggesting to you that the law, when you read the legislation,
it indicates that a complainant and a Justice of the Peace are the subject of the hearing.
The complainant brings forward allegations, the Justice of the Peace defends his
integrity, and his credibility and his reputation.

   In this case you have evidence before you, that presenting counsel has submitted
before you, here in court - - - well, not court, but here at this hearing, that the persons
that are coming to give evidence, these people are complainants. If they are
complainants, it is my submission that they are parties.  If they are parties, you don't
need a third-party application.

JUSTICE LIVINGSTONE:  Right, I heard that.

MR. GUISTE:  If we do need, alternatively, a third-party application, I make the
request to the panel, that that request be accommodated in all of the circumstances,
because there are very real and serious issues of fairness that arise from that.
And it is one thing to --- and the courts have commented on this quite often.
That it is not right or proper to, in the interest of efficiency and expedience, 
to trump fundamental procedural rights.

  And I would submit to you, that those records are highly relevant to these proceedings.

   The other point I wish to bring to your attention from the Defasco case is the
importance of discovery.


Decision of the Motion For 
Disclosure and Particulars:

13.   Counsel for His Worship seeks employment files and collective agreements**
applicable to the employee witnesses, copies of harassment-type complaints 
made by witnesses since 2007, the discipline record of justices of the 
peace witnesses and copies of all discrimination and harassment policies
applicable in the workplaces of the witnesses**.

14.   Presenting Counsel argues that all such information is, firstly, not relevant and,
secondly, would be classified as third party records, requiring and O'Connor application
(R  v. O'Connor [1995] 4 S.C.R. 411)  Clearly, all of these documents are not in
Presenting Counsel's possession.

18.  Furthermore, Mr. Guiste's submission that such documents are, in fact, not third
party records is innovative, but also without merit.  He suggests that under s.11(8) of
the Justices of the Peace ACt we, the Hearing Panel, can determine who are the parties,
and thereby should determine that all of the witnesses are parties.  We decline to name
the witnesses as parties.   To do so makes no sense.

19.   Presenting Counsel described Mr. Guiste's request for disclosure as a fishing
expedition.  We agree.  His Worship is entitled to all non-privileged documents in
the possession of Presenting Counsel relevant to the allegations in the Notice of
Hearing (Justice of the Peace Review Council Procedures Document, para 11.
Emphasis added.)

OHRC   v.   DOFASCO
[2001] O.J. No. 4420 (ONCA)

Held:  The board made no error by not confining its order to documents on which
the complainant intended to rely to support her case. The recognized purpose of
discovery include not only enabling a party to know the case he or she has 
to meet but, also, to obtain documents which may enable the party either 
to advance his or her own case or damage the case of the adversary.

[38]   As far as history is concerned, it was the generally held view that administrative
tribunals did not have an inherent power to order pre-hearing disclosure of documents
(see Mullan, Administrative Law (Toronto: Irwin Law, 2001) at p.242) but this could
be subject to a tribunal's duty, in some cases, to order pre-hearing disclosure as part
ot its duty to give effect to principles of natural justice or procedural fairness: Ontario
(Human Rights Commission)    v.  Ontario (Baord of Inquiry into Northwestern General
Hospital*) (1993), 115 D.L.R. (4th) 279 (Ont. Div Ct.); Howe  v.
Institute of Chartered Accounts of Ontario (Professional Conduct Committee) 1994,
19 O.R. (3d) 483, 118 D.L.R. (4th) 129 (C.A.), Laskin J.A. dissent.


*OHRC  v. Ontario (Jeffry House) Board of Inquiry
[1993] O.J. No. 3380 67 O.A.C. 72 (Div Crt)

   *One of my co-counsel, Mr. House's little known claim to fame is his ground-breaking
decision while sitting as a Board of Inquiry in what has come to be known as the
Northwestern General Hospital Systemic Discrimination Case. This was the case in
which several African-Canadian nurses brought allegations of discrimination and
systemic discrimination based on race against this hospital and its administrators.

   Recognizing the seriousness of the allegations, Mr. House wrote:

   "The case before me involves the allegation that that a hospital, along with certain
named individuals, practices systemic discrimination based upon colour, race and
associated unlawful bases.  In doing so, it is alleged, they excluded those so discriminated
against from positions which they were otherwise entitled to.  While I have been told no
more of the allegations that this, it appears to me that the allegations are very serious
indeed, with the potential, if made out, to ruin reputations, and case a pall over the
future career prospects of anyone found to have so discriminated."

   At paragraphs 22 and 23 is what the learned judges of the Divisional Court said
about Mr. House's application of R  v. Stinchcombe:

22.   ....It does not take a quantum leap to come to the conclusion that in the appropriate
case, justice will be better served in proceedings under the Human Rights Code when
there is complete information available to the Respondents.

23.   R  v. Stinchcombe also recognized that the "fruits of the investigation" in the
possession of the Crown "are not the property of the Crown for use in securing a
conviction but the property of the public to be used to ensure that justice be done."
(p.331).  We are of the opinion that this point applies with equal force to the
proceedings before a Board of Inquiry and that the fruits of the investigation are
not the property of the Commission.

** Subsequent to the Hearing Panel's finding that the motion had no merit
Presenting Counsel consented to the collective agreement being filed as 
Exhibit 29 on October 8th, 2014 and the Region of Durham Harassment 
Policy as Exhibit 26 on July 28, 2014.  Disclosure of the persons who sat
on Complaints Committees involving my client have yet to be disclosed.
Interestingly, a Hearing Panel in Re Foulds (2017) recently ordered such
disclosure. In the recent re-hearing of the compensation issue the 
Registrar and counsel for the Justices of the Peace Review Council, 
Ms. Marilyn King advised me that documents evidencing the appointment
of H.W. Cuthbertson and Justice Livingstone as "temporary members" 
of the Review Council were not public documents and therefore not 
subject to disclosure.

The decisions ordering removal were made by a panel composed of two
"temporary members". This salient fact was not disclosed by the JPRC
until some time after the decisions when the Registrar amended the 
Annual Report. As it stands judicial officers in Ontario can be subject
to removal by persons whose status with the Review Council is unknown
to the judicial officer and the public until some time in the future. The 
Toronto Star has written on this problem but not on this specific
point.


NOTE: This is piece is published here as a community service in accordance with the
fundamental principle That Justice Must Be Seen To Be Done. The removal of a
judicial officer in the free world and in Ontario is an issue of public importance.





Friday, May 12, 2017

Bill of Costs filed with JPRC in JP Removal Case: Part 3 - Motion for Particulars and Disclosure

Disclosure motion – fact-gathering – review investigation transcripts – review case law and Procedures Document – draft NOM – amend NOM – draft factum  - Attend hearing June 11th, 2014 – (10:01 a – 4:36 p) – Attend hearing June 12th, 2014 (2:00 p – 2:21 p)
Total:  15 hrs @ $575                




Justices of the Peace Review Council


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 Errol Massiah


Before:    The Honourable Justice Deborah K. Livingstone, Chair Justice of the Peace Michael Cuthbertson
Ms. Leonore Foster, Community Member


Hearing Panel of the Justices of the Peace Review Council


 DECISION ON THE MOTION FOR DISCLOSURE AND PARTICULARS



Counsel:

Ms. Marie Henein                                              Mr. Ernest J. Guiste
Mr. Matthew Gourlay                                         Trial and Appeal Lawyer
Henein Hutchison, LLP                                    Mr. Jeffry A. House
Presenting Counsel                                          Counsel for His Worship Errol Massiah



Excerpt of June 11th, 2014 Transcript 

@ p.8:


MR. GUISTE:

The Disclosure Motion, you'll recall that we have filed a disclosure requests documents, and the applicant's motion record.  In the interim, I must inform the panel as well, His Worship has included Mr. Jeffry House as co-counsel who will be assisting me, and Mr. Osborne Barnwell will not longer be assisting.  Mr. House, unfortunately, is in a criminal proceeding today, but I understand he will be able to be here tomorrow.  And we have had a lot of discussions with respect to our next steps, et cetera, et cetera.


Excerpt of Bill of Costs
Filed by Mr. House:

14 - May - 15

email: ejguiste@yahoo.com

Justice Errol Massiah
c/o Ernest Guiste
Barrister & Solicitor
245 Yorkland Blvd
North York, ON M2J 4W9

STATEMENT OF ACCOUNT

DATE                       SERVICE                                                                          TIME                           FEE
16 - Jun-14             meet with client and co-counsel to discuss case


Excerpt of H.W Massiah's
sworn affidavit dated March 
19th, 2017 filed with the JPRC :

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


Excerpt of July 16, 2014 
transcript at p.200:

JUSTICE LIVINGSTONE:  Thank you very much for that.  Anything from your side, Mr. House.

MR. GUISTE:  Yes, thank you, Your Honour, I understand that Ms. JJ is retired, I believe ?

JUSTICE LIVINGSTONE:  Ms. JJ.

MR. GUISTE:  Yes, Ms. JJ. Clearly it seems to me that her evidence is necessary and proper. And hence, we don't have any particulars to contact her.  So I'd like to make that known and make arrangements.

JUSTICE LIVINGSTONE: Thank you.

NOTE: These documents were either filed with the JPRC or issued by them. They are published here as a community service in accordance with the fundamental principle that Justice Must be Seen to Be Done.  These documents clearly call into question the Hearing Panel's finding in the first Compensation Decision at paragraph 24 (v).