Saturday, February 24, 2018

JP Counsel's Evidence on Why Human Rights Code Interpretation Error Not Raised in Divisional Court Reveals JP Not Heard on Fundamental Issue

JP's Rule 59 Motion

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;

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;

11(2)   Applicant's counsel: 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".


JP's Affidavit Sworn 
Nov. 22nd, 2017:

(51)    Although Presenting Counsel's Notice of Hearing, her written submissions to the Hearing Panel and the Hearing Panel's Decisions on Liability and its Decision on Jurisdiction and Alleged Abuses of Process founded the allegations of judicial misconduct against me on the Human Rights Code, the record of proceedings filed in this court does not reflect the place of the importance which the interpretation and application of the Code played in those decisions and was not addressed in this court despite my wishes.

JP's Affidavit Sworn
Dec.10th, 2017:

Judicial Misconduct
Grounded on Human
Rights Code:

(14)   Liability for judicial misconduct in my case before the JPRC was expressly based on the Human Rights Code of Ontario and indeed in their Decision on liability the Hearing Panel expressly found at paragraph 207 that I acted in a manner inconsistent with the Code.

(15)   The three first authorities relied upon by Presenting Counsel in their Book of Authorities on liability were three human rights cases including the Supreme Court of Canada's seminal decision in Janzen  v.  Platy Enterprises Ltd. [1989] 1 S.C.R. 1252.  Attached to this my affidavit and marked as Exhibit "C" is a true copy of the Index from Presenting Counsel's Book of Authorities on the liability phase of my hearing.

Appellate Counsel's 
Involvement at 
First Instance:

(16)   The areas in which appellate counsel assisted me during my hearing before the JPRC Hearing Panel was on the interpretation and application of the Code, my bias motion and my jurisdiction and abuse of process motion.

Test for "Vexatious", 
"Unwelcome" and "Poisoned
Work Environment":

(17)   The Notice of Hearing issued against me by the JPRC alleged that I made "vexatious", "unwelcome" comments to individuals and that I created a "poisoned work environment" for court staff.  This was an area where appellate counsel assisted my lawyers at first instance and supported their position that the adjudication of this conduct called for an objective test.  Attached to this my affidavit and marked as Exhibit "D" is a true copy of an e mail chain wherein appellate counsel affirmed his agreement on this legal point.

Exhibit "C"

Presenting Counsel's Book of Authorities
Index

1.  Smith  v.  Menzies Chrysler, 2009 HRTO 1936
2.  Janzen  v. Platy Enterprises Ltd. [1989] 1 S.C.R. 1252
3.  Professional Institute of the Public Service of Canada   v.  Communications, Energy and Paperworkers' Union of Canada, Local 3011, 2013 ONSC 2725 (Div Ct.)

Exhibit "D"  

E mail - appellate counsel to ejguiste@yahoo.com - Sunday, September 21, 2014 10:28 PM

I agree that the conduct must be unwelcome.  Some conduct will be acceptable regardless of the reaction of an oversensitive complainant.  Conversely, some conduct will be harassment even
though there is no overt objection by a stoic or unperceptive complainant.  In the middle is conduct where the reaction of the complainant will be largely determinative of whether it is harassment.


Appellate Counsel

Affidavit Affirmed
Jan. 3rd, 2018:

(36)   The applicant raised certain arguments about whether his conduct constituted sexual harassment.  He made these submissions, unsuccessfully, before the Hearing Panel, despite my advice as mentor to Mr. Guiste at the time.  The applicant and Mr. Guiste initially wanted to raise the same arguments on judicial review. I disagreed.

(37)   On September 22, 2015, I provided a written opinion outlining the problmes with advancing the failed human rights arguments.  A copy of my written opinion dated September 22n, 2015 is marked as Exhibit "F" to this affidavit.

Exhibit "F"

September 22, 2015

Dear Mr. Massiah:

I understand from my associate, Hayley Peglar, that you have requested further clairity regarding our opinion about arguments relating to the Ontario Human Rights Code (the "Code") and human rights/employment law jurisprudence advanced by your counsel before the Hearing Panel in this matter.

In our view, these arguments stand little chance of success.  The proceeding before the Hearing Panel was a judicial misconduct proceedings pursuant to the Justices of the Peace Act, and not an adjudication under the Code or a proceeding seeking damages in relation to Code violations.  The limitation period applicabale to a proceeding under the Code has no application to proceedings before the Justice of the Peace Review Counsel(sic) and cannot be used to bar a complaint regarding the conduct of a justice of the peace.  Where there are legitimate arguments concerning delay between the events in question and the ultimate hearing of the matter, these issues are separate and distinct from any limitations analysis involving the Code.

The hearing Panel's reference to the Code jurisprudence to contextualize and ground its analysis regarding the presence of a poisoned work environment does not import the limitation periods under the Code into the proceeding.  This jurisprudence appears to have been used by the Hearing Panel to consider whether the alleged conduct amounted to sexual harassment or judicial misconduct.  In our view there is nothing improper with this approach.

Similarly, there is no requirement that the individuals in question pursue remedies through their union and the associated grievance procedure before bringing a complaint to the JPRC.  First, the complainant in this case was found to be Doug Hunt.  Mr. Hunt was not subject to the various human rights policies in place or any collective agreement governing the court at 605 Rossland Road East.  Second, the individuals who raised individual complaints about your comments or conduct toward them were not required to pursue grievances or otherwise report the alleged harassment in accordance with any human rights policies in place. These individuals are not seeking personal remedies via the complaints process, and whether they are or are not entitled to a personal remedy is at most, tangentially related to the severity of the alleged judicial misconduct.

Finally, I note that these arguments were raised and rejected by the Hearing Panel in both the first and second proceeding.  These arguments were not challenged in the judicial review of the first proceeding.

Yours truly,

Appellate Counsel.


JP's Submission
to JPRC Hearing 
Panel:

(14)

(a)   Unwelcome

The first essential element of the test is to determine whether the conduct was desired or solicited.  As stated by Professor A. P. Aggarwal in his book Sexual Harassment in the Workplace, this is essential because "sexual conduct" becomes unlawful only when it is unwelcome.  Obviously consensual relationships, by definition, cannot be regarded as harassment.  In order to determine if the conduct is welcome or unwelcome, the Tribunal will look to the complainant's reaction at the time the incident occurred and assess whether she expressly, or by her behaviour, demonstrated that the conduct was unwelcome.  If the evidence shows that the complainant welcomed the conduct, the complaint will fail.

CHRC   v.  Canadian Armed Forces, 1999 Canlii 18902 (FC)

(26)  At the time the events now objected to, no one complained that they were unwelcome; no one informed management that the workplace was being poisoned or that they were being discriminated against.  Justice Massiah testified that he felt generally well received by the staff of the courthouse, and his testimony to this effect was supported by other witnesses such as Supervisor D and Ms etc.

(27) The question arises whether Justice Massiah "ought to have known that the comments and behaviour were unwelcome" as the statutory definition requires.

(28)   As Cronk, J.A.  stated for the Ontario Court of Appeal:

[66]   Workplaces become poisoned for the purpose of constructive dismissal only where serious wrongful behaviour is demonstrated.  The Plaintiff bears the onus of establishing a claim of a poisoned workplace.  As the trial judge recognized, the test is an objective one.  A Plaintiff's subjective feelings or even genuinely-held beliefs are insufficient to discharge this onus. There must be evidence that, to the objective reasonable bystander, would support the conclusion that a poisoned work environment had been created.

[67]   Moreover, except for particularly egregious, stand-alone incidents, a poisoned workplace is not created, as a matter of law, unless serious wrongful behaviour sufficient to create a hostile or intolerable work environment is persistent or repeated:  Bobb at para 85087; Canada (Canadian Armed Forces: (Re Frandke at paras 43-46.

General Motors of Canada Limited   v.  Johnson 2013 ONCA 502(Canlii)

Presenting Counsel's 
Submissions on Liability
to Hearing Panel:

Conclusion

[205]  Presenting Counsel submits that, as set out above, the evidence supports a finding that His Worship engaged in a course of conduct, including comments and conduct, towards female court staff, prosecutors and defendants that was known or ought to have reasonably been know to be unwelcome or unwanted, and the conduct resulted in a poisoned work environment that was not free of harassment.

[206]   ....In Presenting Counsel's submission, this pattern of conduct meets the Janzen definition of sexual harassment in that it was "unwelcome conduct of a sexual nature."

Critical Omission
in Hearing Panel
Liability Finding:

The JPRC Hearing Panel failed to address the following points of law in arriving at their liability finding:

1.  Were the Code allegations raised in the Notice of Hearing part of a complaint made in writing to the JPRC and investigated by a Complaints Committee ? (If not - can not hear them)

2.  Assuming that they were - Was the conduct "vexatious" as the Divisional Court and the Court of Appeal for Ontario have defined this term in this context ?

3.  Were the words or behaviour "unwelcome" as the Divisional Court and the Court of Appeal for Ontario have defined this term in this context ?

3.  Did JP Massiah create a "poisoned work environment" as the Divisional Court and the Court of Appeal for Ontario have defined this term ?


Observations and Analysis:

The Notice of Hearing, Presenting Counsel's submissions on liability, Presenting Counsel's Book of Authorities on the liability phase of the hearing, JP Massiah's written submissions on liability and the 2012 Hearing Panel's liability Decision all make it abundantly clear that the judicial misconduct in this case was grounded on the Human Rights Code. Presenting Counsel's Notice of Hearing asserted that JP Massiah's acts were "vexatious", "unwelcome" and that they caused a "poisoned work environment" in the workplace.

Appellate counsel is clear in his affidavit that his client wanted him to raise "certain arguments about whether his conduct constituted sexual harassment."  "I provided an opinion outlining the problems with advancing the failed human rights arguments."

Appellate counsel's written opinion to JP Massiah does not address the 2012 Hearing Panel's interpretation and application of the Code concepts of "vexatious", "unwelcome", and "poisoned work environment".  It addresses only two of several points raised by JP Massiah regarding the Code before the 2012 Hearing Panel.  Those two points are the argument that the Code limitation period ought to apply to the subject JPRC proceeding.  The other point was that complainants/witnesses ought to have employed the collective agreement and workplace harassment policies available to them.  If the opinion copied above is the basis for appellate counsel's claim that his client agreed with his advice then once again it appears that he may have failed to candidly address all of the facts with the client which would enable him to provide an informed decision on his advice.

The problem with JP Massiah's prosecution in this case is that for some reason JP Massiah's alleged judicial misconduct was firmly grounded in the Human Rights Code but he, unlike all other Ontarians, was denied the right to assert the defences provided by the Code. Although Presenting Counsel clearly asserted in both her Notice of Hearing and written submissions on liability that "this pattern of conduct meets the Janzen definition of sexual harassment in that it was "unwelcome conduct of a sexual nature" she strenuously argued that JP Massiah "continues to try to justify clearly inappropriate conduct".

In the absence of a complete version of the record of proceedings before the Divisional Court and appellate counsel's failure to raise the 2012 Panel's error in interpreting and applying the Human Rights Code language of "vexatious", "unwelcome" and "poisoned work environment" the Divisional Court's order in upholding the findings of liability as reasonable undeniably points to a less than fair, full and impartial hearing of JP Massiah's review of his removal from the Bench by a Superior Court.

NOTE:  This piece is published here to comment on an issue of public importance.  The Human Rights Code is quasi-constitutional legislation which must apply to all Ontarians consistently and in accordance with the law of the Province of Ontario.  JP Massiah is entitled to all of the defences available to Ontarians in defending allegations of judicial misconduct which were clearly founded on the Human Rights Code by Presenting Counsel after the Complaints Committee concluded its investigation.(see Appellate Counsel's Factum filed with ONCA)

The suggestion that JP Massiah had no defence to the allegations brought against him by Presenting Counsel's Notice of Hearing can only reasonably be made in the absence of a review of the full record of proceedings and not the abbreviated version which made its way before the Divisional Court in error.  Furthermore, the 2012 Hearing Panel's failure to properly adjudicate the preliminary motions advanced by JP Massiah, most particularly on his motions asserting bias and the jurisdiction and abuse of process meant that a judicial officer was compelled to answer to a Notice of Hearing which as appellate counsel properly recognized at the outset of his retainer - had a lack of commonality with the complaint.

It is the duty of the Attorney General for Ontario to uphold the law in Ontario.

About the author:

E.J. Guiste is a Catholic, African-Canadian lawyer based in the Greater Toronto Area.
He is counsel to JP Massiah on both the Divisional Court rehearing of his claim for
indemnification from the Attorney General for defending his office and his Rule 59 motion before the Divisional Court seeking to set aside that court's order upholding his removal from judicial office.

Thursday, February 22, 2018

JP's Bias Factum and Appellate Counsel's Affidavit on Rule 59 Motion Reveal Serious Issues Not Adjudicated by Divisional Court

Excerpts from JP Massiah's
Factum before JPRC 
Hearing Panel:

1.  (ii)   Do the particular facts with respect to the intake, investigation and adjudication of this matter give rise to a reasonable apprehension of bias ?

(iii)   Did the Chair of the Review Council have jurisdiciton to replace Ms. Blight from the Hearing Panel and if so - does this remedy concerns of reasonable apprehension of bias ?

(iv)   Do the matters raised in the Notice of Motion and supporting affidavit establish a reasonable apprehension of bias by the Hearing Panel ?

Presenting Counsel

[15]   "Presenting Counsel" is the name given to the lawyer retained by the Review Council to prosecute the case before the Hearing Panel....

[16]   It is Presenting Counsel who prepares the Notice of Hearing.

[17]   It is clear on the face of the Notice of Hearing that the 14 counts alleged go beyond the proper ambit of any complaint which could be said to have been received by the Review Council.


Arbitrariness/Bias:

[18]   In a letter dated January 14th, 2014 Presenting Council clearly and unequivocally stated that the "complainants" in this case are the witnesses who are expected to testify about the alleged misconduct by His Worship" in response to a specific question as to who was the complainant in this matter.

[19]   On April 19th, 2014 Presenting Counsel made the following submissions to the Hearing Panel on the writing requirement and who was the complainant:

"So our position in respect of s.10.2 is very simple.  There was a complaint, it was by a person and it was in writing, and a complainant is the person who puts the complaint in writing to the Justices of the Peace Review Council, in that case, in this case that was Mr. Hunt.  The people who were later
interviewed are the witnesses."

[20]   In their factum dated July 19th, 2013 Presenting Counsel made the following submission to the Hearing Panel on the issue of non-compliance by the complaints committee with the Requirements of s.10.2(3):

"In any event, even if the Review Council finds that there was not technical compliance with the in-writing requirement or the direction contemplated under s.10.2(3), Presenting Counsel submits that any non-compliance is minor and should not result in the loss of jurisdiction."

[22]  At paragraph 21 of their March 13th, 2014 submissions to the Hearing Panel Presenting Counsel made the following submission:

"A true jurisdictional defect in the chain of proceedings resulting in the hearing would arguable entitle the Panel to decline to conduct a hearing on the merits....So too in this case, the Hearing Panel, would arguably be entitled to find that a jurisdictional defect in the process leading to the hearing deprived it of jurisdiction or amounted to an abuse of process."

[24]   On April 9th, 2014 Presenting Counsel made the following submission of law to the Hearing Panel on s.11.1(1):

"So this is a mandatory provision.  The hearing is mandatory when a complaints committee makes that disposition, which it did in this case.  It does not contemplate any review of how the complaints committee came to that disposition or whether it was reasonable and fair in doing so. It does not give the Hearing Panel any ability to second-guess the disposition that was made by the complaints committee."

Error in Legal Submission
To Hearing Panel by
Presenting Counsel:

[23]   At paragraph 24 of their March 13th, 2014 submissions Presenting Counsel made the following erroneous legal submission to the Hearing Panel regarding the legal holding in Hryciuk   v.  Ontario 31 O.R. (3d) 1 (ONCA):

"...If the statutory scheme was complied with - i.e. a person made a written complaint to the Council; the complaint was investigated by a complaints committee; the complaints committee determined that as a result of its investigation that there were allegations of judicial misconduct which had a basis in fact which, if believed, could result in a finding of judicial misconduct; the particulars of the allegations against the respondent which would be the subject of the hearing were set out in a Notice of Hearing; and the Complaints Committee had jurisdiction to order those allegations to a hearing - then the Hearing Panel can be satisfied that it has the jurisdiction to proceed to hear the evidence in relation to those allegations."


Missing from Presenting Counsel's
Hryciuk Instruction to the JPRC
Panel:

At no time during the proceedings does Presenting Counsel ever clearly inform the Hearing Panel that their jurisdiction to entertain complaints regarding JP Massiah's conduct is limited to complaints made to the Review Council in writing which were subsequently investigated by a Complaints Committee who then referred them for hearing.  This is precisely what Madame Justice Abella held in Hryciuk  v.  Ontario 1996 Canlii 4013 (ONCA).  By prefacing the instruction with "if" this and that - "then the hearing panel can be satisfied that it has the jurisdiction to proceed to hear the evidence in relation to those allegations" it invited speculation on this crucial point. It may have also confused the Hearing Panel when followed up by the submission that holding the hearing was mandatory and that they had no jurisdiction to overrule the Complaints Committee.

Surprisingly, Presenting Counsel and the Hearing Panel relied upon the decision which was overturned by the Court of Appeal in Hryciuk surpa on the penalty phase of the hearing.

JP Massiah raised
Hryciuk supra as a
bar to jurisdiction and
abuse of process:

On the other hand, JP Massiah clearly advised the JPRC Hearing Panel very early in the process that the Notice of Hearing drafted by Presenting Counsel goes beyond the ambit of anything which could be considered a complaint to the Review Council in both his Jurisdiction and Abuse of Process Motion and his Bias Motion.


JPRC Hearing Panel Undertook 
to Address Some Issues in "Due
Course" and others During
the Abuse of Process Motion:

Presenting Counsel's Conduct

[55]   ....Submissions from Presenting expressing concern that the public's confidence and the public interest may be impacted by events taking place during the judicial disciplinary process would not exceed his or her jurisdiction, and will be assessed in due course by this Hearing Panel.

[56]    The Applicant has filed another motion that there was no valid complaint and that there has been an abuse of process ("Motion for Abuse of Process").  The Applicant has inserted some of the grounds in that motion in his factum on this motion.  A decision from the Panel is pending on its jurisdiction to consider the grounds raised in the Motion for Abuse of Process.  It would, therefore, be inappropriate for the Panel to proceed to adjudicate upon grounds raised in the Motion for Abuse of Process as if that decision were not pending.


Hryciuk Error Flowing
from Presenting Counsel's
Notice of Hearing Unaddressed
by JPRC Hearing Panel:

The legal argument by JP Massiah that the Notice of Hearing drafted and filed by Presenting Counsel in his hearing exceeded anything that could be considered a complaint to the JPRC was never adjudicated by the 2012 Hearing Panel.  The closest that Hearing Panel comes to addressing this question is to say in it's Decision of Jurisdiction and Alleged Abuses of Process the following:

[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.

This addresses part of JP Massiah's articulated concerns about the impropriety of the Notice of Hearing which the Hearing Panel clearly understood to be a bar to jurisdiction when it wrote the following in it's Decision on Jurisdiction and Alleged Abuses of Process:

[6]   Counsel for His Worship argued that the legislative requirements under s.10.2 of the Act were not followed at the time of the purported complaint(s).  As well, His Worship was of the view that the Complaints Committee exceeded its authority in the investigations it undertook.  In addition, His Worship submitted that the Notice of Hearing was improper.  If any of these concerns proves to be valid, then this Panel would not have jurisdiction to proceed.

Parties Before Divisional
Court Likewise Do Not
Address the Hryciuk Error
on the Face of the NOH:

Although the Notice of Application for Judicial Review at paragraph 3(v) filed with the Divisional Court clearly raises the Hryciuk error on the face of the Notice of Hearing drafted by Presenting Counsel this issue is not pursued by JP Massiah's appellate counsel.

Presenting counsel made two references to Hryciuk supra in her factum before the Divisional Court. The first reference is found at p.22 of her factum. She pointed out that "Out of reasons for fairness to the Applicant, the new investigation and hearing could not proceed until the prior hearing had been completed in April, 2012."  The second reference was to justify the increased penalty from the first proceeding.  Presenting Counsel wrote the following in her Divisional Court factum:

[78]  This was an entirely reasonable approach.  To pretend as if the first hearing had never happend would be to give the Applicant an undeserved windfall owing to the fact that the two hearing happened to proceed separately.  Holding separate hearing was, under the Court of Appeal's holding in Hryciuk, necessary in order to accord the Applicant procedural fairness in light of the Whitby allegations having arisen which the first hearing was already underway. But there is no reason why this manner of proceeding should preclude the second panel from weighing the first panel's findings in its assessment of the appropriate disposition to restore public confidence in the judiciary.

The Attorney General for Ontario and the Executive Council of the Legislative Assembly, who were the responding party in Hryciuk did not address the Hryciuk error in their factum.


Divisional Court Decision
Understandably Silent
on Hryciuk etc.:

Not surprisingly the Divisional Court decision makes no reference to the following legal authorities from the Court of Appeal for Ontario made reference to by the JPRC Hearing Panel in its Decision on Jurisdiction and Alleged Abuses of Process:  1. Hryciuk  v.  Ontario;  2.  Ontario College of Pharmacists  v.  Neil Katzman and 3. Sazant  v.  The College of Physicians and Surgeons of Ontario.

The Divisional Court did not adjudicate on the Hryciuk error on the face of the NOH drafted by Presenting Counsel.

Hryciuk Error Raised
For First time on 
ONCA Leave Motion
Without Objection:

JP Massiah's Factum


[9]  The JPRC's factum at paragraphs 36 and 37 mistates His Worship's position and the specific findings of the 2012 Panel that violated the Hryciuk decision of this court.

[10]   The JPRC does not mention Hryciuk at all in responding to paragraphs 17, 24, 25 and 61 to 70 of the moving party's factum.  The JPRC asserts, however, that the only evidence put forward by the moving party and mentioned by the 2012 Panel is Ms.  M's, recounting how the low cut blouse of a female human resources official, and His Worship's attention to it, made her feel uncomfortable.

[11]   This is one category of allegation that was not screened by the Complaints Committee, regardless of whose witness gave evidence "unexpectedly" about it.

[12]   Paragraphs 24 and 25 of the moving party's factum cite specific allegations that were dismissed by the Complaints Committee and then admitted in evidence and relied upon by the 2012 Panel.

[13]   Paragraphs 17, 61 and 62 of the moving party's fctum cite at least seven broad, general allegations that were introduced by Presenting Counsel in the notice of hearing for the first time after the investigation by the Complaints Committee, and on which the 2012 Panel made findings of misconduct.  

Appellate Counsel's
Affidavit of January
3rd, 2018:

(46)   ...I advised the applicant that his case was not like Hryciuk, and that the decision of the Court of Appeal in Sazant   v.  The College of Physicians and Surgeons of Ontario, 2012 ONCA 727 applied squarely to his circumstances.

(47)    The applicant felt that Hryciuk applied to prevent the JPRC from considering anything that was not specifically stated in the Hunt Report.  I explained to him that in his case, unlike Hryciuk, he had notice of all of the allegations in the five volumes of transcripts from the investigation.  Accordingly, it was my view that the Hryciuk case would not apply, and that the issue would be determined in accordance with Sazant.

(50)   I did not refer to the Hryciuk case in the Divisional Court, because the facts of the case were completely distinguishable, and because I was concerned about the application of the Sazant case.  These considerations were different on the motion for leave to appeal, as I believed that it might be possible that the Court of Appeal would find a conflict in the law between its decisions in Hryciuk and Sazant, and that this would be a basis for granting leave to appeal.*

(51)   ....The applicant approved of the final version of the factum, which reflected my advice on the Hryciuk arguments and on other issues.

Key Observation:

Appellate counsel does not cite or make reference to Sazant (surpa) anywhere in his leave to appeal facta to the Court of Appeal.  *In leave to appeal motions it is a ground for leave and indeed a part of the Rules of Civil Procedure dealing with motions for leave to appeal interlocutory orders to show that there are conflicting decisions on a point of law.  If this is the advice that appellate counsel provided and the client agreed to it - there is most clearly a lack of congruence between that advice and agreement and what appellate counsel actually put before the Court of Appeal in his facta and what he failed to put before the Divisional Court.  If it doesn't apply at Divisional Court how can it apply on a leave to appeal motion before the Court of Appeal ?  Why wasn't the conflict between Hryciuk and Sazant which appellate counsel deposes in his affidavit that he advised JP Massiah about raised in the facta before the Court of Appeal ?

NOTE:  This piece is published here to draw attention to an issue of public importance. Members of the public in Ontario rely upon lawyers to advise them on law and to represent them in legal proceedings.  In order for the administration of justice to function members of the public place great trust in their lawyers to guide them. A client's approval or agreement to a lawyer's advice is only as good as the advice itself.

About the author:  E.J. Guiste was lead counsel to JP Massiah at the proceedings before the JPRC Hearing Panel which started in June, 2013 and concluded in June, 2015.  Following the Divisional Court judicial review hearing he acted for JP Massiah on the compensation rehearing for some 13 months before the "depleted version" of the 2012 Panel decided that they could not decide the compensation issue.  E.J. Guiste is now counsel for JP Massiah on a Rule 59 motion where he has been instructed to seek to have the Divisional Court's order of October 4th, 2016 upholding JP Massiah's removal from office be set aside, on among other grounds, ineffective assistance of counsel.

Wednesday, February 21, 2018

Lack of Fairness Plagues JP Massiah Div Court Ordered Rehearing

   13 months after the Divisional Court ordered the Justices of the Peace Review Council's (JPRC)2012 Panel to rehear JP Massiah's claim that the Attorney General of Ontario indemnify him for his costs in defending the legal proceedings initiated against him, that portion of the proceeding continues to be delayed by serious procedural irregularities.  They include the following:

1.   The Chair of the original Hearing Panel, Justice Livingstone, a per diem judge of the Ontario Court of Justice "fully retired" in August, 2016 and the parties before the Divisional Court failed to inform the court of this material fact.

2.   The two remaining members of the 2012 Panel sat on the case for 13 months before coming to the lamentable conclusion that they were unable to come to a decision on compensation.  That is correct they were unable to decide the compensation issue they said.  Clearly, their two member status did not prevent them from dismissing at least 3 motions, including a Constitutional Question raised before them.

3.   By letter dated December 19, 2017 the Registrar and Counsel to the JPRC advised the parties that Chief Justice Maisoneuve appointed a "newly constituted" Hearing Panel chaired by Justice Lahaie of the Ontario Court of Justice.

4.   In the above-noted letter, the Registrar and Counsel for the JPRC states, "The Panel will have available to it the same materials available to the Panel that preceded it, including the decision of the Divisional Court, transcripts of the hearing, and decisions rendered during the hearing.

JP Massiah's Response
Dated Dec.19th, 2017

5.    The following response was submitted on behalf of JP Massiah:

1.   JP Massiah desires an opportunity to provide viva voce evidence to the Hearing Panel;
2.   The constitutional defect in the enabling legislation makes any recommendation a hallow and ineffective remedy when compared to the Courts of Justice Act which applies to judges -- the AG must follow that recommendation. The AG need not follow any recommendation here.  This is a very serious problem.
3.   Presenting Counsel also has no role in the issue of compensation under both the Act and the Procedures Document.  In fact, in Mr. Massiah's first case you the Registrar did all of the adjudication on this point.
  

JP Massiah's Request
For Leave to Be Heard
Dated Feb.16th, 2018:

1.  JP Massiah sought the new panels leave to review the original record of proceedings to satisfy himself of its completeness;
2.  JP Massiah sought leave to be heard from the new Hearing Panel on the question of - How does the Hearing Panel propose we address the fact that the Attorney General for Ontario need not act on any recommendation made on this rehearing ?
3.  JP Massiah cautioned the new Hearing Panel that the constitutional defects in the enabling legislation make this process a total waste of public funds in all of the circumstances.
4.   "In making this request I am placing reliance on the Procedures Document which expressly calls for independence between Presenting Counsel, the Hearing Panel and the JPRC.  It is contrary to the principles of fairness and due process for my client's requests to be pre-screened and effectively adjudicated by a lawyer who retains and instructs Presenting Counsel.  I am very sorry but that is the reality."


NOTE:  This piece is published here to draw attention to an issue of public importance. All litigants before Ontario's administrative tribunals are entitled to a fair and impartial hearing from an unbiased tribunal. Judicial officers who are parties before such tribunals and in particular this tribunal are entitled to a public hearing and have the right to give viva voce evidence. They also have an unrestricted right to review the tribunal's record of proceedings for completeness and to obtain copies to make their case. Why is JP Massiah being denied these fundamental rights afforded to all other Ontarians ?


About the author:  E.J. Guiste is a Catholic, African-Canadian lawyer based in the Greater Toronto Area.  He acted for JP Massiah at the initial JPRC hearing.  He is currently acting for JP Massiah on the Divisional Court ordered rehearing of the compensation issue and on a Rule 59 motion seeking to set aside the October 4th, 2016 order which upheld his removal from office. Among the grounds being advanced for the setting aside of the order upholding his removal is the failure of his appellate counsel to raise the manifest reasonable apprehension of the bias in the hearing stemming from the following sources:  1. Lack of congruence between the complaint and the Notice of Hearing(NOH) with the NOH containing several particulars not made to the Review Council in any written complaint and not investigated by the Complaints Committee; 2.  Presence of Law Society of Upper Canada nominee who ultimately removed herself from the Hearing Panel with an acknowledgement by Presenting Counsel that her continued presence on the Hearing Panel "may be a potential concern about the risk of an appearance of bias if Ms. Blight remains on the Panel." sitting on the Hearing Panel for 7 months thereby tainting the balance of the Hearing Panel;  3.  Chief Justice replacing her without statutory jurisdiction to do so; 4.  Presenting Counsel exceeding the statutory role prescribed for her office by the JPRC Procedures Document thereby denying JP Massiah a fair hearing; 5.  Appellate counsel before the Divisional Court failing to raise bias as a ground for review.

Further Note:  It is acknowledged that appellate counsel, Presenting Counsel and the Attorney General for Ontario vigorously and strenuously deny all JP Massiah's claims and assert that he was treated fairly and had a full and fair hearing as is the right of all Ontarians.

Friday, February 16, 2018

Post Hearing Agreement Between Counsel at Divisional Court and Submissions on Re-Hearing Exposes Key Omission in Divisional Court Order


Presenting Counsel
and Appellate Counsel
Agreement:


Following the retirement of the Chair of the original Hearing Panel in August, 2016 and the Divisional Court's order of October 4th, 2016 ordering a re-hearing on JP Massiah's compensation claim, Presenting Counsel and JP Massiah's appellate counsel agreed that the proper way to proceed was for the two remaining members of the "2012 Panel" to hear the compensation claim referred back to the original Hearing Panel for re-hearing.

Non-Compliance with
Divisional Court Order ?

Unfortunately, counsel for the parties before the Divisional Court did not inform the Divisional Court that the original Hearing Panel had lost its chair, Justice Livingstone although this fact was known by all parties before the court at the time of the hearing on September 14th, 2016.  The re-hearing matter proceeded to be adjudicated by the two remaining members over JP Massiah's objections only for that Hearing Panel to issue a decision claiming they are unable to come to a decision thirteen months after they received the case from the Divisional Court.  Readers and followers will recall that JP Massiah and E.J. Guiste have to date been blamed by both the Hearing Panel and Presenting Counsel for delaying these proceedings - indeed culminating in the Hearing Panel's referral of a complaint against E.J. Gusite to the regulator, The Law Society of Upper Canada.(as they were then known)

The two-member Hearing Panel then posed the following two options to Presenting Counsel and JP Massiah:  1.  Chief Justice appoint a judge to join and chair the Hearing or 2.  The Chief Justice appoint a fresh new Hearing Panel.

Presenting Counsel's Submissions
Dated February 1st, 2017:

"We take the position 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 their 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."

JPRC Panel
Decision of Bias:

Readers will remember that on this motion JP Massiah strenuously argued that the Chief Justice had no jurisdiction to replace The Law Society of Upper Canada's nominee, Ms. Margot Blight and that her sitting on the Hearing Panel for some seven months tainted the entire Hearing Panel. This fact is reflected in the Hearing Panel's Decision on the Motion Alleging Bias at paragraph 4 in the following words;

4(1)   An order that the Hearing Panel recuse itself;

4(2)   Alternatively, an order quashing the Notice of Hearing as the Chief Justice has exceeded her jurisdiction in replacing Ms. Blight.


The Hearing Panel disagreed stating:

[31]   Therefore, pursuant to s.4.2.1(2) of the SPPA, having received the consent of both parties to appoint a new Panel member when Ms. Blight recused herself, the Chief Justice acted within the statutory authority, when she appointed Ms. Foster to this Hearing Panel, so it could continue with a quorum.


Appellate Counsel's Answer
As to Why Lack of Juris of 
Chief Justice to Replace
LSUC nominee not raised 
in Divisional Court:

At paragraph 12 of an affidavit affirmed January 3rd, 2018 served on JP Massiah's
Rule 59 Motion currently before the Divisional Court this is what his appellate
counsel had to say about why this was not raised before the Divisional Court:

(12)   The only issue concerning Ms. Blight that was relevant to the judicial review application was the manner in which she recused herself from the proceeding below.  The applicant and Mr. Guiste wanted to argue that her aborted appearance on the Hearing Panel poisoned the entire panel, and therefore all of its members should have recused.  I explained that this issue could not be raised on judicial review because it was not raised before the Hearing Panel.  To the contrary, the parties agreed at the time that the proper resolution of the issue was for Ms. Blight to recuse herself, and no further issue was raised by Mr. Guiste.  Accordingly, it was my view that an ex post facto challenge on the ground of bias was sure to fail.....The Applicant accepted my advice that this argument should not be advanced in the judicial review application.


Divisional Court Reasons:

[15]   ....In my view, those alleged errors can be effectively reduced to four:

(a)   the 2012 Panel did not have jurisdiction to entertain the complaint;
(b)   the 2012 Panel erred in its conduct of the hearing including considering improper evidence and failing to give proper consideration to various factors including delay;
(c)   the 2012 Panel erred in its consideration of the appropriate penalty to be imposed;
(d)   the 2012 Panel considered irrelevant factors in declining to recommend ccompensation for the applicant's legal costs.

[18]   The applicant contends that the 2012 Panel did not have any jurisdiction to pursue the allegations made against him  because there was no written complaint filed with the JPRC.

[62]   The application for judicial review is allowed only to the extent that the decision of the 2012 Panel, not to recommend compensation for legal fees, is set aside and that single issue is remitted back to the 2012 Panel for reconsideration.


Conclusion:

Two Points Not
Adjudicated by
Divisional Court

The two distinct issues flowing the The Law Society of Upper Canada's nominee on the Hearing Panel, namely, reasonable apprehension of bias founded on the poisoned or tainted well theory of bias and the jurisdiction of the Chief Justice to replace her once she stepped down were not adjudicated by the Divisional Court.  The JPRC Hearing Panel clearly erred in interpreting the Statutory Powers Procedures Act as Presenting Counsel recently pointed out in their Compensation Submissions dated February 1st, 2017 and they bypassed the "poisoned well" argument of bias asserting a reasonable apprehension of bias against the entire Hearing Panel.  Two profound errors calling for a standard of correctness.

Appellate Counsel before the Divisional Court did not raise this specific bias and jurisdiction argument because on his own affirmed evidence(dated January 3rd, 2018) that it was not raised before the JPRC Hearing Panel and he reasoned that he would be raising it afresh before the Divisional Court.  However, appellate counsel is clearly wrong on this point.  The JPRC Decision on Bias and the factum filed on behalf of JP Massiah is clear on this point.  That factum was not part of the record of proceedings filed by the JPRC and appellate counsel despite the Hearing Panel's very clear delineation of the scope of the record on October 8th, 2014.  The Divisional Court's decision in Roberts  v.  College of Nurses of Ontario 1999 Canlii 18725 is clearly cited in support of The Law Society of Upper Canada nominee tainting the remainder of the Hearing Panel. The Hearing Panel clearly finds that the the s.4.2.1(2) of the S.P.P.A grants the Chief Justice jurisdiction to appoint a new panel member to replace The Law Society of Upper Canada nominee. 

Appellate counsel maintains today that JP Massiah accepted his advice and in responding to his claims of conflict of interest and ineffective assistance of counsel, "All of these allegations are false".

Can a client properly accept counsel's advice to his or her detriment when counsel is clearly mistaken on a fact material to the advice and agreement ?  This is among the questions which the Divisional Court will be asked to answer on JP Massiah's Rule 59 motion.

Amending Setting Aside 
or Varying Order

Amending 

59.06(1)   An order that contains  an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended in the proceeding.

Setting Aside or Varying

59.06(2)   A party who seeks to,

(a)   have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;

may make a motion in the proceeding for the relief claimed.


NOTE: This piece is published here to draw attention to issues of public importance raised in the removal of JP Massiah from the Bench and the referral of his lead counsel, E.J. Guiste to the Law Society of Upper Canada. Two issues were raised on the bias motion before the JPRC Hearing Panel which touched on the Law Society of Upper Canada nominee.  The first issue was that she had tainted the balance of the Hearing Panel. It was Ms. Blight who folded her arms and disconnected from my submissions when I mentioned the term "kangaroo court". The Panel was later asked to delineate what, if any, misconduct was committed and the Chair clearly stated - "Mr. Gusite this Panel has no issue with your conduct" or words to that effect.  However, later on in the process the issue of "kangaroo court" was cited by the Chair in reference to alleged misconduct and later it was a prominent part of the referral to The Law Society Of Upper Canada.  The second issue was that the Chief Justice had no jurisdiction to replace Ms. Blight.  The Hearing Panel addressed the lack of jurisdiction point but failed to adjudicate on the "poisoned well" claim of bias advanced through the Divisional Court case of Roberts   v.  College of Nurses of Ontario 1999 Canlii 18725 (Div Crt).

Democracy and the The Rule of Law works best when clients and the people impacted by legal decisions are fully aware and informed.  An instruction from a client is only worth something if the lawyer has properly discharged the duty of condour owed to that client in putting them in a position where what ever instruction they give is an informed decision.

About the author:

E.J. Guiste is a Catholic, African-Canadian lawyer based in the Greater Toronto Area.
His work involves criminal and civil litigation - including professional discipline
and employment law.  He was counsel to JP Massiah at first instance and on the
compensation re-hearing. He continues to act for JP Massiah because his conscience
tells him that JP Massiah is a victim of a serious miscarriage of justice.  His
representation of JP Massiah motivated him to write "A Catholic Lawyer's Prayer"
- a piece where he looks to God for protection from those who may wish to harm him
for doing his work.




Saturday, February 10, 2018

Prof. Wooley, Ms. Marie Henein and the late Mr. Edward Greenspan Address Civility Regulation by Regulator


Regulators  Selective 
in Enforcement:

"If you look at the civility cases, you do not see lawyers from government, you do not see lawyers from large commercial law firms, you do not see lawyers from the more frankly powerful aspects of the profession."    (Prof. Allice Wooley (Law Times Dec.17th, 2012))


Trial Judge and Adjudicators
in the Best Position to Censure:

"The Law Society may have the legal jurisdiction to initiate disciplinary proceedings against a counsel for alleged uncivil conduct in the face of the court.  But it should never exercise that jurisdiction where, as in this case, the trial judge was in the best position to censure the alleged misconduct but declined to do so.  The Law Society does not enhances its reputation by selectively prosecuting defence counsel for alleged misconduct in the face of the court, but not prosecutors.  And such prosecutions will have a chilling effect on advocates."  (The late Mr. E. Greenspan and L.David Roebuck - The Horrible Crime of Incivility - Globe & Mail - August 2, 2011)

Conduct which Puts the Profession
and Legal System in Disrepute and 
Conduct which Impacts Trial Fairness 
Warrants Regulator Attention:


"There have been incidents of incivility that warrant attention.  This is the behaviour at the extreme end of the scale - the lawyer throwing a cup of coffee at another lawyer, the lawyer swearing in court, the lawyer who is drunk at a client meeting.  Really bad behaviour.  Not merely a question of tone, a persistently unfounded legal argument or the odd intemperate comment...Only when bad conduct, rudeness and acrimony distracts from the real focus of the justice system, interferes with its proper functioning and undermines participation in and use of the justice system does it become a problem warranting the regulator's attention."  (Marie Henein - 5 Big ideas - get a grip on civility - Precedent - October 12, 2012)


About the author:

E.J. Guiste is a Catholic, African-Canadian lawyer who practices criminal and civil litigation - both trial and appeal - at all levels of court, including the Supreme Court of Canada.  Mr. Guiste was lead counsel to former Justice of the Peace Massiah in his judicial misconduct hearing before a Hearing Panel of the Justices of the Peace Review Council.  Mr. Guiste's arguments that his client was denied a fair hearing on account of a reasonable apprehension of bias emanating from the office of Presenting Counsel, the Registrar and Counsel of the JPRC, Ms. Marilyn King and the Hearing Panel were improperly adjudicated by the Hearing Panel and summarily dismissed with a finding that he and Mr. Massiah delayed the hearing with frivolous motions. Notwithstanding the fact that Mr. Guiste had a co-counsel at all times - he was singled out by the Hearing Panel for referral to the regulator.**

Just prior to embarking on the hearing, the Chair of the Hearing Panel, now fully retired Justice Livingstone made the following comments to Mr. Guiste and his judicial officer, client:

1.   After receiving his submissions on an objection - "Thanks for the speech Mr. Guiste we have heard the speech."  After Mr. Guiste objected to this stereotypical commentary from her it was asserted wrongly in an Addendum to the Compensation Decision, which denied a recommendation that Mr. Massiah be indemnified for the costs of his defence, that Mr. Guiste accused the panel of being racist towards him and his client, His Worship Massiah. (see April 9th, 2014 and May 28, 2014 transcript)  In fact, what Mr. Guiste said on April 9th, 2014 was the following:

"Whether you intended it Madame Justice, I don't know and I take your word that you didn't intend it that  way, but that's not the test.  The test is, what a reasonable person fully informed going to come to a conclusion on."

[23]   Mr. Guiste now alleges that the use of the word "speech", by way of a sarcastic comment to him, would cause a reasonable observer to believe that the Chair of the Hearing Panel was biased - demonstrating a disrespect to both His Worship and his counsel and their racial heritage, stereotyping Mr. Gusite as a black man on a soap box. The Hearing Panel finds such an assertion completely offensive.  (Hearing Panel's Bias Decision)

2.   After reluctantly agreeing to proceed with the two main motions brought on behalf of Mr. Massiah as a blended hearing - namely jurisdiction and abuse of process stating: "It was a Pyrhric Victory Mr. Guiste".

Pyrhric Victory:  A Pyrrhic Victory is a victory that inflicts such a devastating toll on the victor that it is tantamount to defeat.  Someone who wins a Pyrrhic Victory has been victorious in some way, though the heavy toll negates a true sense of achievement or profit. (Wikipedia)

Etymology:  Pyrrhic Victory is named after king Pyrrhus of Epirus, whose army suffered irreplacable casualties in defeating the Romans at the Battle of Heraclear in 280 BC and the Battle of Asculum in 279 BC, during the Pyrrhic War.(Wikipedia)

3.   The Hearing Panel concluded that the use of the the word "soul brother" in reference to His Worship Massiah by a witness was not a racialized term "but reminiscent of a style of speaking which the phrase "soul brother" connotes."

4.   At paragraph 163 of their Decision on Liability - "His testimony, and his demeanor while testifying, painted a picture of a man who is arrogant and who perceived himself to be appealing to women."

5.   The Hearing Panel failed to consider every single case - 16 in total referred to it by His Worship Massiah's counsel on the Compensation application without reasons for so doing.

6.   The Hearing Panel denied H.W. Massiah a recommendation for compensation for his legal costs due to alleged delay and what they concluded to be frivolous motions even though every motion brought on his behalf would appear to have been brought with their leave as is required by 14(4) of the JPRC Procedures Document and the delay was occasioned by two factors other than his defence.

   The first is the recusal of the Law Society of Upper Canada, nominee on the panel, Ms. Margot Blight.  Ms. Blight sat on the Hearing Panel from June, 2013 to November 19th, 2013 - some five days of hearing until it dawned on her that she had sat on a Complaints Committee which investigated the JPRC's Registrar and Counsel's own complaint alleging purjury against H.W. Massiah during his first hearing.

   The second is the Panel's own questions on its jurisdiction which went unresolved until July 7th, 2014 - a week before the commencement of the hearing.   

NOTE: This post is published here to draw attention to some issues of public importance. The first is that it is in the public interest for lawyers to raise objections to bias and unfairness in the proceedings against their clients regardless of who the perpetrators are. The fact that a perpetrator is respected and has a stellar reputation does not immunize them from erring in that regard.  Secondly, a lawyer who fails to raise bias and unfairness in a legal proceeding which adversely impacts his client does a disservice to both his or her client and the administration of justice.  Lastly any decision made against an individual - including a judicial officer of African-Canadian racial background under these circumstances, is not only suspect but devoid of natural justice and fairness and the recognized hallmarks of legality.  It can never be in the public interest or the interests of justice for a lawyer to consciously decide not to raise bias where bias is in abundance because "I was very concerned that the argument would be ill-received by the court, and that it could have negative consequences for the application."(Appellate Counsel's sworn affidavit at paragraph 97)

**Mr. Guiste wrote "A Catholic Lawyer's Prayer" sensing at the time the Hearing Panel's contempt and bias for his client's right to a fair and impartial hearing and their disdain for him in advocating on his behalf.  It is a must read for all advocates who believe in The Rule of Law and the right and duty of counsel to defend their clients FEARLESSLY.


Saturday, January 27, 2018

Court of Appeal on the Lawyer's Duty to Raise Bias or Unfairness in the Trial Process

Amato   v.  Pesek 2010 ONCA 708


[7]  As this court said before, trial counsel are in the best position to gauge whether a trial judge is overstepping the bounds of propriety and improperly interfering with the conduct of the trial.  While not fatal, a failure to object constitutes powerful evidence that neither the appellants nor their counsel felt that the trial judge was improperly interfering with the conduct of the trial as they now suggest.

[8]   Mr. McCarthy, for the appellants, forcefully submitted that we should not place undue emphasis on the failure of trial counsel to object.  He observed that it is difficult for counsel to object to the conduct of a trial judge and counsel often feel constrained from doing do.

[9]   Much as we appreciate Mr. McCarthy's submission, there are times when trial counsel can be expected to raise objections, especially when they feel that a trial judge is exceeding the bounds of judicial propriety and taking up the cause of one of the parties.   Polite but firm objections, in these circumstances, are entirely appropriate.  Counsel should not feel constrained for fear of judicial censure.  In this regard, we note that defence counsel was not shy to object when he felt the need to do so.  The record disclosed several occasions in which he forcefully but politely, registered his disagreement with the trial judge.


Application to Re Massiah 2015 (JPRC)

Compensation Decision (June 16, 2015)

[25]   Mr. Massiah's conduct of this proceeding is considered in the context of the factors referred to in Re Foulds, namely that in cases of serious misconduct, compensation should be the exception rather than the rule even when the defence was conducted entirely appropriately.

[26]   In our view, awarding compensation for legal fees in a judicial disciplinary process where the proceedings were conducted in the manner described above would be an affront to the public confidence in the judiciary and in the administration of justice.  His conduct of the case did nothing to expedite the proceedings; in fact, we have found it prolonged the hearing unduly.

[30]   **The conduct of Mr. Massiah's lawyer, Ernest Guiste, is not relevant to this decision.  We have set out concerns about Mr. Guiste's conduct in an Addendum.

Addendum

[1]   In our decision regarding Mr. Massiah's request for a recommendation for compensation of his legal costs, reference was made to the conduct of Mr. Massiah during the proceedings.  That conduct encompassed procedural steps take by Mr. Massiah, through one of his counsel, Mr. Guiste.  While we recognize that Mr. Guiste would have been acting on the instructions of Mr. Massiah, nonetheless Mr. Guiste, as a lawyer, must bear responsibility for the inefficient and unprofesssional manner in which he filed submissions, continued to amend submissions, and contributed to delay in the progress of the proceedings.

(6)   Mr. Guiste made comments to suggest that the Panel was discriminating against Mr. Massiah and his counsel during this process.

         On April 9, 2014, Mr. Guiste said, "but the writing requirement is a very serious one, and all I'm saying is you can't suck and blow.  You can't say on your website, this has to be in writing, signed letter.  You can't say in your annual report, and when this African Canadian Justice of the Peace comes, oh the law is changed for you.  It doesn't look good. It's not right."

         On May 28, 2014, after the Chair of the Panel said, 'Thank you for that speech" to Mr. Guiste, he responded,, "To a man of African Canadian descent, it strikes at the - what is that word ?  A stereotype of the black man on a soap box giving speeches on the street corner."  As we remarked at that time, the Panel was offended at the suggestion that we are racist.  Mr. Guiste responded by saying, "I am suggesting to you that the context in which that was said, "Thank you, Mr. Guiste, for that speech", I am a man of African-Canadian descent and I'm very familiar with my history, and that when individuals of Europen descent in power want to exert their power, it is not uncommon to resort to that type of stereotyping."


Summary

[6]   In our view, comments such as those cited above, were unprofessional and inappropriate and exemplified conduct which did nothing to advance Mr. Massiah's defence.  **We did not consider the inappropriate conduct or comments of Mr. Guiste in deciding the issues in this hearing or in our reasons on the request regarding compensation.(emphasis added) However, this judicial disciplinary process plays an important role in preserving and restoring public confidence in the administration of justice. Such conduct and comments from a lawyer cannot be overlooked.  This Panel directs the Registrar to provide a copy of this Addendum to the Law Society of Upper Canada for its consideration.

Dated:  June 16, 2015


June 17, 2015

Toronto Sun

"Fired JP Loses Bid to Have Taxpayers pay Legal Fees - Lawyers Conduct to be Reviewed"

Twitter

Deborah Livingstone Retweeted - 6:02 PM - 17 2015 - JP fired over lecherous behaviour loses bid to have taxpayers pay $600,000 in legal fess. Via @MandelSun.bitly/1JVmYkL


January 13, 2016 - Excerpts
from Applicant's Factum
at Divisional Court:

87.   Second, the Panel considered three irrelevant factors in denying compensation.  The Panel grounded its decision on compensation on "prior findings of similar misconduct" **and on the conduct of the applicant's counsel, Mr. Guiste.(emphasis added)

88.   The Panel incorrectly relied on "prior findings of similar misconduct", despite acknowledging that "findings in this hearing pre-dated the prior finding" and that this was a "novel situation".  The unique circumstances that there were two proceedings, instead of one, and one was technically before the other - should not be used against the applicant to deny compensation that would otherwise be appropriate.

89.   **The Panel further erred by unduly focusing on the conduct of one of the applicant's counsel.  While it is clear from the Compensation Decision, and its addendum, that the Panel took issue with Mr. Guiste's conduct of the preliminary motions, the Panel provided no justification for denying compensation for legal services provided by Mr. House.  The Panel found that the hearing was conducted "appropriately and effectively by...Mr. House."  Presenting Counsel similarly acknowledged Mr. House's appropriate conduct of the proceeding.  Yet, without explanation, the Panel denied any compensation to the applicant with respect to Mr. House's legal costs.


Presenting Counsel's Submissions
on Compensation Rehearing (May 1st, 2017)

24.   The "Grand Total of Fees and Disbursements is then stated as $770,360.16.  It is not clear from his shambolic "Bill of Costs" whether Mr. Massiah is actually seeking compensation for the entire amount.  Presenting Counsel will proceed on the assumption that he is.

29.   The part of the process conducted by Mr. Guiste served no benefit either to Mr. Massiah or to the public at large.  As noted above, counsel's approach was prolix and often irrelevant and redundant. A reasonable member of the public would not accept that this litigation conduct should be paid for out of the public purse.

34.   Presenting Counsel submits that if the Panel is inclined to make a recommendation for compensation, it should direct that the recommendation not include any costs associated with the pre-(or post) hearing motions. These were precisely the kind of unmeritorious and unnecessary steps referred to by Nordheimer J in the passage above.

36.   Indeed, Mr. Massiah seems to interpret the previous grant of compensation as a sign that he would be indemnified for any and all expenses incurred in the second hearing.  He received a generous public benefit the first time around; therefore, he should expect to receive a benefit many times greater the second time.  If that was in fact the subjective belief of Mr. Massiah or his counsel, it was not a reasonable belief.


Excerpt from Appellate Counsel's
Memo on Presenting Counsel's
Conduct of the hearing:

Presenting Counsel Acted as Prosecutor
and Tainted the Proceeding

   "The Hearing Panel erred in its Decision and Penalty by accepting submission from Presenting Counsel which were outside the proper scope of Presenting Counsel's role and which amounted to a prosecution of the applicant.  Accepting these submissions amounted to an abuse of process"(emphasis added)....

    ...."Presenting Counsel abandoned impartiality and stepped into the role of prosecutor by accusing the applicant of being "untruthful" in his evidence in the Second Proceeding.  Although the Hearing Panel did conclude that there were inconsistencies and an "air of insincerity" in the applicant's testimony, they did not find that he was untruthful.  Inconsistencies abounded in this proceeding, and yet, Presenting Counsel did not accuse the other witnesses of being "untruthful"."

Excerpt from Appellate Counsel's 
Sworn Affidavit on Rule 59 
Motion:

77.   The applicant complains in his affidavit sworn December 10, 2017 that I failed to include copies of motion materials, including facta, which were filed on the numerous motions before the Hearing Panel.  He claims that these documents would have disclosed a reasonable apprehension of bias because he believed the motions were well founded. (emphasis added) I did not share this view.

93.    In his affidavit sworn December 10, 2017, the applicant describes a memo from Ms. Peglar 'delineating serious excesses in the discharge of the function of Presenting Counsel, and questions why I did not raise this issue on the application for judicial review."  The memo in question consists of a draft argument that Presenting Counsel abandoned impartiality and stepped into the role of prosecutor.  I do not agree that this memo discloses "serious excesses".  The purpose of the memo was to develop a potential argument that her conduct affected the fairness of the hearing.(emphasis added)

95.   When we were preparing the initial draft of our factum, I asked Hayley Peglar to develop an argument based on the conduct of presenting counsel.  I remained skeptical of this strategy, but I wanted to examine whether a tenable argument could be made. Ms. Peglar prepared the memorandum that was forwarded to the applicant on November 8th, 2015.

97.   I was never persuaded that this was a compelling argument.(emphasis added)  I advised the applicant of my view on many occasions.  I was very concerned that the argument would be ill-received by the Court, and that it could have negative consequences for the application.(emphasis added)  I explained the issues in great detail in a meeting with the applicant on November 18, 2015, as reflected in the notes marked as Exhibit "J" to this affidavit.

**The JPRC Panel disregarded more than 10 legal authorities submitted by counsel for their consideration.  At least four of the cases were binding upon them from the Supreme Court of Canada and the Ontario Court of Appeal. The JPRC Panel took the unprecedented step of making findings amounting to contempt of court and a referral to the Law Society of Upper Canada without providing counsel with any opportunity to answer contrary to established legal principles.  H.W. Massiah had two lawyers one African-Canadian and one Anglo-American-Canadian.  The JPRC Panel singled out the African-Canadian lawyer for non-payment and referral to the Law Society of Upper Canada - as it was known then.


About the author:

E.J. Guiste is a Catholic lawyer of African-Canadian racial background based in the GTA. He is counsel to the judicial officer, H.W. Massiah, on a motion seeking to set aside the Divisional Court's dismissal of his judicial review application seeking to set aside the Order-in-Council removing him from office.  Part of the foundation for the motion is that Mr. Massiah was denied the undivided loyalty of his appeal lawyer on his judicial review application at Divisional Court.  Another fundamental part of the motion is that bias and Presenting Counsel's conduct in the drafting of the Notice of Hearing and presenting the case denied him of a fair and impartial hearing and that Presenting Counsel's defence of those acts and omissions at the Divisional Court denied him of a fair and impartial hearing of the judicial review application.

This piece is published here for the sole purpose of drawing attention to an issue of public importance.  Our system of justice can not operate unless litigants like H.W. Massiah can have full confidence in their lawyers to raise every lawful argument in defence of their clients without fear that legitimate legal arguments of bias and abuse of process "would be ill-received by the Court."

Saturday, January 20, 2018

The Lawyer's Key Duty: Undivided Loyalty to A Client's Cause

   Bodies which regulate the legal profession in Canada and elsewhere all correctly proclaim that they do so in the public interest.  Their purpose is to ensure that the lawyers whom they regulate discharge their duties to their clients i.e. the public in a manner that is in the public interest and most importantly consistent with The Rule of Law.

Conflict of 
Interest:

   One of the cardinal rules of legal ethics is that lawyers must avoid conflicts of interests.  Sometimes what is a conflict of interest is plain and obvious.  A criminal lawyer who represented a client in the past and then joins the Crown's office would be in a conflict if he or she was called upon to prosecute the former client.  The rationale underlying this prohibition is that the lawyer would have obtained confidential information from the client which he or she could use against the former client.

    What about a lawyer and his law firm which has acted for a lawyer-client previously* and is then called upon to represent a client referred to him by the said former lawyer-client on an appeal matter, where subsequent to entering into the retainer,  claims ranging from civil wrongdoing to professional misconduct are raised against the former lawyer-client and the referred client in the referred client's case ?

   What if the referred client is of the view that all of the allegations against him and the former lawyer-client - his trial counsel are unfounded and motivated by bias ?

   What if the lawyer accepting the referral is an elected member of the regulatory body regulating the profession and sits as an adjudicator on its disciplinary body ?   

    Is the lawyer and the law firm accepting the referral at liberty to partake in the governing bodies investigation of the referring lawyer during the course of the subject retainer without the consent of either client ?

Divided Loyalty:

   The questions posed above are weighty and unprecedented.  While they may or may not be of the same importance to regulators and academics, I would submit that they are highly important to the members of the public who retain lawyers to protect their legal rights. Members of the public want and crave the undivided loyalty of their lawyers when engaged in litigation - especially public litigation involving the state.  A lawyer who has a loyalty or interest to any party or third party in a proceeding labours under a serious handicap which necessarily impairs his or her ability to properly defend a client.

Duty of "Candour":

Definition:  1.   the state or quality of being frank, open, sincere in speech or expression; candidness.
2.   freedom from bias; fairness, impartiality.  3.   Obsolete. kindliness.  4.  Obsolete purity.


In R  v. Neil [2002] S.C.R. 631 Justice Binnie determined that an aspect of the duty of loyalty involves a duty of condour with the client on matters relevant to the retainer.

In his May 7, 2013 piece entitled Duty of Candour, Law Society of Ontario Bencher and adjudicator Mr. Malcolm Mercer, wrote the following on this subject:  "Fifth, being in a position of accepting a legal obligation of confidentiality is not an excuse for lack of candour but rather a real problem.  The House of Lords put this nicely in Hilton  v. Barker Booth and Eastwood:  ..."if a solicitor puts himself in a position of having two irreconcilable duties....it is his own fault."


Consent:

   Can client's consent to a lawyer's breach of loyalty and candour ?  Law Society of Ontario Bencher and adjudicator, Mr. Malcolm Mercer stated the following in his piece of the Duty of Candor referenced above:

"Third, candour probably can't be waived.  We know that actual conflicts, as opposed to potential conflicts, can be waived.  Where representation will be materially impaired by a conflict, the conflict is not waivable.  A client can only accept the risk of material impairment.  If clients cannot agree to impaired representation for conflicts, the same should be true for candour.  It follows that clients must have the information required to effectively instruct counsel and act on advice given by counsel. Further, the client must have the information required to assess whether the fiduciary acted properly."


"Consent" Defined:
(LSO Rules of Professional
Conduct)

    means fully informed and voluntary consent after disclosure

(a)   in writing, provided that, where more than one person consents, each signs the same or a separate document recording the consent, or

(b)   orally, provided that each person consenting receives a separate written communication recording their consent as soon as practicable.

*What if the law firm and lawyer are actually acting for the said former client and referring client on an existing matter - making the referring lawyer an existing client ?

About the author:

E.J. Guiste is a trial and appeal lawyer based in the Greater Toronto Area. He defends professionals, judicial officers and students in regulatory proceedings before tribunals and all levels of court on professional misconduct, judicial misconduct and academic misconduct and actions against academic institutions for breaches of the Human Rights Code and other civil wrongs.