Did the Hearing Panel
violate the Principles of
Judicial Office, the Ontario Human
Rights Code and Art.15 of the
U.N. Basic Principles on the Role of Lawyers
in their treatment of me ?
1. The Notice of Hearing issued against my client raised allegations
that between 2007 and 2010 he made statements which were unwelcome,
vexatious and which created a poisoned work environment. In addition,
this Notice of Hearing asserted a pattern and history of conduct by virtue
of the findings in a prior proceeding involving allegations which came
subsequent in time to those in the Notice of Hearing. The allegations clearly
invoke rights under the Human Rights Code. Paragraph 5 of Appendix A
expressly stipulates that "the behaviour occurred in the workplace".
According to the Supreme Court of Canada's decision in Weber v. Ontario
Hydro [1995] 2 S.C.R. 929 disputes regarding conduct which occurred in
the workplace of employees covered by a collective agreement and
anti-harassment policy are within the exclusive jurisdiction of the labour
arbitrator appointed to hear grievances under their collective agreement.
Both the collective agreement(Ex.29) and the anti-harassment policy(Ex.26)
were made exhibits at the hearing on consent. In addition, the parties agreed that
the Region of Durham did not receive any grievances pertaining to my
client.
Furthermore, the assertion of a pattern and history of misconduct flowing
from acts prior in time to the allegations in the Notice of Hearing raises
an inference of an abuse of process if not an outright abuse of process on its
face. Our law is clear that an offence that takes place prior in time
to the imposition of a penalty can not be considered as a subsequent
offence and an aggravating factor on penalty.(see R v. Skolnick [1982] 2 S.C.R. 47)
2. Unless the law under the Human Rights Code has been amended
to deprive Justices of the Peace of the defences recognized in the
human rights jurisprudence, my client, like any other person in
Ontario, is permitted in law to avail himself of any and all statutory
defences provided under the Human Rights Code. Accordingly, the
defence of consent and "being well received" was clearly available to
him on the facts of the case against him and I had a duty to assert it.
Not a single person ever complained to him or to management regarding
his conduct - even though all of the staff were covered by a collective
agreement and an anti-harassment policy which provided them protection
from reprisal for asserting their rights. Clearly, the fact that the
Vaillencourt Hearing Panel made findings of misconduct in 2011/12
involving other individuals does not relieve the workers at the
Durham Court from establishing vexatious, unwelcome conduct on
my client's part. Asserting the lawful defence that his conduct was
"wel received" and "welcomed" does not mean that he does not understand
that vexatious and unwelcomed conduct is improper. Evidence that he
understood and undertook to recognize and apply the gender-boundry
sensitivity training ordered by the Chief Justice are found in abundance
in his response to the Complaints Committee which somehow was missing
in the Tribunal Record filed by the JPRC pursuant to the Judicial Review
Procedures Act. It would appear that the Hearing Panel overlooked this
relevant evidence and that it also did not make it to the Divisional Court.
3. The Hearing Panel expressly found in paragraph 207 of its liability decision
that my client "acted in a manner inconsistent with the Human Rights
Code" and that his conduct "resulted in a poisoned work environment"
at paragraph 205.
Hearing Panel Disregarded
Two Significant Cases on the Code:
In making these legal conclusions the Hearing Panel totally disregarded
the Ontario Court of Appeal decision in Johnson v. General Motors 2013
ONCA 502 - a binding authority on the nature and quality of evidence required for a
finding of a poisoned work environment and CHRC v. Canadian Armed
Forces 1999 Canlii 18902 (FC) - perhaps the leading authority on the meaning
of the term "unwelcome" - see also Sexual Harassment in the Workplace by Prof.
A.P. Aggarwal)
Hearing Panel Disregarded Training
Points Provided by Justice Develin
to the JPs(Ex.24):
Responsibility
Collateral Attack on Panel
Chaired by Justice Vaillancourt's
Disposition:
Indeed, it must be kept in mind that the allegations in these proceedings
pre-dated the disposition of the first Hearing Panel chaired by the learned
and respected Justice Vaillancourt where he made the following findings:
1. [24] However, Justice Massiah did not appreciate that his conduct
was inappropriate and unacceptable. A question for this panel
is whether he does in fact fully understand now.
[25] Any misunderstanding that he may have had about his position
of authority vis-a-vis the court staff surely has been brought home
to him through this public hearing.
[26] The Panel recognizes that the public nature of this hearing in and
of itself will act as a reminder that a repetition of the conduct of this
nature toward court staff will not be tolerated.
[28] We are confident that His Worship Massiah will not engage in this
type of conduct in the future.
[33] The Panel finds that Justice of the Peace Massiah has demonstrated
his willingness to address the aforementioned concerns and is capable
of rehabilitation.
[34] We accept Justice of the Peace Massiah's efforts as the beginning of an
ongoing process and not the ending.
Second Hearing Panel
Effectively Overrules First
Hearing Panel:
"The previous Hearing Panel concluded, based on the information presented at that
time, the public nature of the hearing would have brought home to His Worship any
misunderstandings about his position of authority in relation to female staff. That
belief was proven wrong by His Worship's testimony before us." (para 25 Reasons
for Disposition) It must be understood that the JPRC did not seek review of the
Vaillencourt Panel's disposition but this is exactly what they got and what a number
of the witnesses boldly acknowledged they wanted. Is this is an abuse of
process and a denial of natural justice and fairness under our law ?
Management's Investigation
Found No Evidence of Improper
Interaction with staff:
A management witness(JJ) whom I personally located well into the hearing
testified that when she heard of the first hearing it prompted her to do her
own investigation and that investigation turned up nothing against my client.
She went further - she testified that the staff enjoyed his comraderie.
Manager Not Aware of
My Client Creating A
Poisoned Work Environment:
Another management witness(LL )whom I personally located quite late in the
process testified that to her knowledge my client did not create a poisoned work
environment in the workplace which she managed.
Compliments/Acts Well
received by Three Witnesses:
At least two persons testified to accepting his comments to them as compliments
which were well received.(GG and KK) The Hearing Panel totally ignored or
overlooked the third witness discussed below.
Overlooked Evidence:
The Hearing Panel overlooked the evidence of the only defendant called to testify
at the hearing. This witness was called by the Respondent and not Presenting
Counsel. She testified that my client did not act inappropriately in any manner
with her and in fact increased her confidence in the administration of justice.
Curiously, this witness came to light as a result of information submitted by QQ
to the Presenting Counsel in the prior proceeding. QQ - who is described as
the Manager of Prosecution Office at the Whitby Court by the Hearing Panel
in its Reasons for Decision stated that he saw my client provide what he believed
to be his business card to a woman who had appeared before him. This person
told the investigators that he would prefer not to be called as a witness. He also
acknowledged that it would have been helpful to his claim that my client acted
inappropriately in court had he made contemporaneous notes of his observations and
ordered the court transcripts of those occasions.(see Testimony of QQ - July 18, 2014
p.64..)
QQ Demonstrates the Unreliability
of His Evidence:
Q. Because you said a couple of times over the course of years, impressions get
weaker and less clear and less reliable, you agree with that ?
A. I do.
Q. And in this particular case, I think you said that over all the time, your
recollections in general, have degraded somewhat ?
A. That's fair to say. You know what I really wish ? The the occurrence with the
business card, I wish I did not - - I wish I would have taken notes. Because we
can go to the horse's mouth, if you will, I'm sorry for the phrase. But if I would
have known that person's date, and the tier, we could - - well, someone could have
perhaps followed up, tracked that person down and interviewed her, which would
have been lovely.
Q. I'm going to suggest to you that was done ?
A. Oh.
Q. And as a result, Justice Massiah was advised that he didn't have to respond to this
allegation ?
A. Oh, is that right ?
Q. Yes. So, another thing you could have done is, you could have said to your
prosecutors, "you know what ? At any time that he looks someone up and down
in an inappropriate way, I want you to document that" ?
A. I could have done that, yes.
Q. And you did not do that ?
A. I have not.
Two More Witnesses Saw
No Evidence of Inappropriate
Conduct:
The Notice of Hearing alleged that my client commented on how DD looked. DD was
very clear in her testimony that it did not happen. The Hearing Panel found that she
did not recall the incident. DD, who worked with my client in court testified that she
did not at any time observe any inappropriate conduct on his part to anyone. The
other witness is not referred to by the Hearing Panel.
Overlooked Evidence:
Yet another witness called on behalf of my client was either overlooked or ignored
by the Hearing Panel. A witness called by the Respondent who worked in the
courthouse as an Administrative Clerk testified that she did not observe any
inappropriate conduct.
Delay Adversely Impacted
Reliability of the Evidence:
A prosecutor(HH) could not remember a comment supposedly made to her which
was in the Notice of Hearing. It was a third party NN who claimed to remember the
incident. NN herself was very clear in her testimony before the Hearing Panel that
in fact there was no intention to proceed with any complaint against my client at the
time of the incidents. She did not feel that there was enough cogency for a complaint
of that nature. Curiously, II testified that it was NN who called her and told her to
come forward and speak to Presenting Counsel. NN denied doing this.
"Not a Big Deal"
HH said she did not complain about a comment made to her in the Notice of Hearing
because in the grand scheme of things it was not a big deal.
3 Witnesses Came Forward
to Increase Penalty from
First Hearing:
HH, QQ and II testified that they came forward in order to ensure that my client did
not get "a slap on the wrist." Each of them were essentially dissatisfied with the
penalty imposed by the Justice Vallencourt Hearing Panel. HH testified that it was her
understanding that the purpose of her interview/evidence to Mr. Hunt was to give
testimony in the first hearing to rebut my client's evidence which she read about in a
Law Times article. This admission regarding and increased penalty my co-counsel and
I argued contributed to the unreliability of the evidence. The Hearing Panel did not
consider this evidence and makes no mention of it anywhere.
Unavailability of Witnesses
with Relevant Evidence:
Another witness(AA) who testified in support of an allegation in the Notice of
Hearing that my client looked her up and down when she was introduced to him
by a third party could not remember the third party that introduced her.
Interestingly, the incident involving AA was not at the Provincial Offences Court
but at the court which was the subject of the first proceeding.
A witness(BB) who testified twice during the investigation stage to not having any
recollection regarding a touching incident and even went so far as to complain to
management about being pushed to complain suddenly remembered the incident on
taking the stand. At paragraph 128 of its Reasons for Decision on Liability the Hearing
Panel makes reference to one OO who was present at the incident involving BB.
Presenting Council did not call OO. OO testified during the investigation that
"I don't recall seeing anything." Although I insisted and Presenting Counsel
and the Panel agreed on the investigation transcripts forming part of the record
of the proceedings before the Hearing Panel they were not part of the tribunal
record before the Divisional Court. The Hearing Panel makes no reference to
her investigation evidence although relevant.
Yet another witness(CC) who had agreed to provide character evidence for my client at
his first hearing could not remember whether she informed my client's previous
lawyer about an inappropriate incident which she testified to. This witness
acknowledged that the passage of time adversely impacted her recollection. In
addition, she testified that her interpretation of my client's words and actions changed
after she heard about the result of the first hearing. This witness had exchanged e mails
with my client's former lawyer and in fact authored an e mail which gave a glowing
character reference which is totally inconsistent with her testimony at the hearing.
Staff complained
about client's cologne:
Management witnesses which my co-counsel and I called to testify at the
hearing confirmed that indeed they received a complaint regarding our
client's cologne and they quickly resolved it.
Judicial Office, the Ontario Human
Rights Code and Art.15 of the
U.N. Basic Principles on the Role of Lawyers
in their treatment of me ?
1. The Notice of Hearing issued against my client raised allegations
that between 2007 and 2010 he made statements which were unwelcome,
vexatious and which created a poisoned work environment. In addition,
this Notice of Hearing asserted a pattern and history of conduct by virtue
of the findings in a prior proceeding involving allegations which came
subsequent in time to those in the Notice of Hearing. The allegations clearly
invoke rights under the Human Rights Code. Paragraph 5 of Appendix A
expressly stipulates that "the behaviour occurred in the workplace".
According to the Supreme Court of Canada's decision in Weber v. Ontario
Hydro [1995] 2 S.C.R. 929 disputes regarding conduct which occurred in
the workplace of employees covered by a collective agreement and
anti-harassment policy are within the exclusive jurisdiction of the labour
arbitrator appointed to hear grievances under their collective agreement.
Both the collective agreement(Ex.29) and the anti-harassment policy(Ex.26)
were made exhibits at the hearing on consent. In addition, the parties agreed that
the Region of Durham did not receive any grievances pertaining to my
client.
Furthermore, the assertion of a pattern and history of misconduct flowing
from acts prior in time to the allegations in the Notice of Hearing raises
an inference of an abuse of process if not an outright abuse of process on its
face. Our law is clear that an offence that takes place prior in time
to the imposition of a penalty can not be considered as a subsequent
offence and an aggravating factor on penalty.(see R v. Skolnick [1982] 2 S.C.R. 47)
2. Unless the law under the Human Rights Code has been amended
to deprive Justices of the Peace of the defences recognized in the
human rights jurisprudence, my client, like any other person in
Ontario, is permitted in law to avail himself of any and all statutory
defences provided under the Human Rights Code. Accordingly, the
defence of consent and "being well received" was clearly available to
him on the facts of the case against him and I had a duty to assert it.
Not a single person ever complained to him or to management regarding
his conduct - even though all of the staff were covered by a collective
agreement and an anti-harassment policy which provided them protection
from reprisal for asserting their rights. Clearly, the fact that the
Vaillencourt Hearing Panel made findings of misconduct in 2011/12
involving other individuals does not relieve the workers at the
Durham Court from establishing vexatious, unwelcome conduct on
my client's part. Asserting the lawful defence that his conduct was
"wel received" and "welcomed" does not mean that he does not understand
that vexatious and unwelcomed conduct is improper. Evidence that he
understood and undertook to recognize and apply the gender-boundry
sensitivity training ordered by the Chief Justice are found in abundance
in his response to the Complaints Committee which somehow was missing
in the Tribunal Record filed by the JPRC pursuant to the Judicial Review
Procedures Act. It would appear that the Hearing Panel overlooked this
relevant evidence and that it also did not make it to the Divisional Court.
3. The Hearing Panel expressly found in paragraph 207 of its liability decision
that my client "acted in a manner inconsistent with the Human Rights
Code" and that his conduct "resulted in a poisoned work environment"
at paragraph 205.
Hearing Panel Disregarded
Two Significant Cases on the Code:
In making these legal conclusions the Hearing Panel totally disregarded
the Ontario Court of Appeal decision in Johnson v. General Motors 2013
ONCA 502 - a binding authority on the nature and quality of evidence required for a
finding of a poisoned work environment and CHRC v. Canadian Armed
Forces 1999 Canlii 18902 (FC) - perhaps the leading authority on the meaning
of the term "unwelcome" - see also Sexual Harassment in the Workplace by Prof.
A.P. Aggarwal)
Hearing Panel Disregarded Training
Points Provided by Justice Develin
to the JPs(Ex.24):
Responsibility
of our Court:
The Ontario
Court of Justice is legally responsible to ensure that our court
is free from discrimination and harassment.
Best Workplace Practices
Workplaces
should ensure that:
- there is a
policy in place together with a complaint process
- everyone is
aware of the policy
- training
occurs regularly
- if problems
arise, they are resolved promptly
Consequences
Harassment and discrimination may lead to:
- An informal complaint to the Local Administrative Justice of
the Peace (LAJ) or Regional Senior Justice of the Peace (RSJP)
- A formal complaint to the Justices of the Peace Review
Council
Penalties
Penalties can include: A warning – Suspension of duties with or
without pay
– Removal from office
Responding to Problems
If there is a problem:
speak to the harasser
- Discuss the problem with the LAJP, the RSJP, Senior Advisory
Justice of
the Peace Andrew Clark, or Associate Chief Justice Payne
- Report the problem to the Justices of the Peace Review
Council
Disregarded Mitigating
Factor on Penalty:
My co-counsel and I dutifully pointed out to the Hearing Panel in our written
submissions that none of Justice Develin's four points for Best Work Place
Practices were present in our client's workplace and this constituted a
mitigating factor on penalty.
Collateral Attack on Panel
Chaired by Justice Vaillancourt's
Disposition:
Indeed, it must be kept in mind that the allegations in these proceedings
pre-dated the disposition of the first Hearing Panel chaired by the learned
and respected Justice Vaillancourt where he made the following findings:
1. [24] However, Justice Massiah did not appreciate that his conduct
was inappropriate and unacceptable. A question for this panel
is whether he does in fact fully understand now.
[25] Any misunderstanding that he may have had about his position
of authority vis-a-vis the court staff surely has been brought home
to him through this public hearing.
[26] The Panel recognizes that the public nature of this hearing in and
of itself will act as a reminder that a repetition of the conduct of this
nature toward court staff will not be tolerated.
[28] We are confident that His Worship Massiah will not engage in this
type of conduct in the future.
[33] The Panel finds that Justice of the Peace Massiah has demonstrated
his willingness to address the aforementioned concerns and is capable
of rehabilitation.
[34] We accept Justice of the Peace Massiah's efforts as the beginning of an
ongoing process and not the ending.
Second Hearing Panel
Effectively Overrules First
Hearing Panel:
"The previous Hearing Panel concluded, based on the information presented at that
time, the public nature of the hearing would have brought home to His Worship any
misunderstandings about his position of authority in relation to female staff. That
belief was proven wrong by His Worship's testimony before us." (para 25 Reasons
for Disposition) It must be understood that the JPRC did not seek review of the
Vaillencourt Panel's disposition but this is exactly what they got and what a number
of the witnesses boldly acknowledged they wanted. Is this is an abuse of
process and a denial of natural justice and fairness under our law ?
Management's Investigation
Found No Evidence of Improper
Interaction with staff:
A management witness(JJ) whom I personally located well into the hearing
testified that when she heard of the first hearing it prompted her to do her
own investigation and that investigation turned up nothing against my client.
She went further - she testified that the staff enjoyed his comraderie.
Manager Not Aware of
My Client Creating A
Poisoned Work Environment:
Another management witness(LL )whom I personally located quite late in the
process testified that to her knowledge my client did not create a poisoned work
environment in the workplace which she managed.
Compliments/Acts Well
received by Three Witnesses:
At least two persons testified to accepting his comments to them as compliments
which were well received.(GG and KK) The Hearing Panel totally ignored or
overlooked the third witness discussed below.
Overlooked Evidence:
The Hearing Panel overlooked the evidence of the only defendant called to testify
at the hearing. This witness was called by the Respondent and not Presenting
Counsel. She testified that my client did not act inappropriately in any manner
with her and in fact increased her confidence in the administration of justice.
Curiously, this witness came to light as a result of information submitted by QQ
to the Presenting Counsel in the prior proceeding. QQ - who is described as
the Manager of Prosecution Office at the Whitby Court by the Hearing Panel
in its Reasons for Decision stated that he saw my client provide what he believed
to be his business card to a woman who had appeared before him. This person
told the investigators that he would prefer not to be called as a witness. He also
acknowledged that it would have been helpful to his claim that my client acted
inappropriately in court had he made contemporaneous notes of his observations and
ordered the court transcripts of those occasions.(see Testimony of QQ - July 18, 2014
p.64..)
QQ Demonstrates the Unreliability
of His Evidence:
Q. Because you said a couple of times over the course of years, impressions get
weaker and less clear and less reliable, you agree with that ?
A. I do.
Q. And in this particular case, I think you said that over all the time, your
recollections in general, have degraded somewhat ?
A. That's fair to say. You know what I really wish ? The the occurrence with the
business card, I wish I did not - - I wish I would have taken notes. Because we
can go to the horse's mouth, if you will, I'm sorry for the phrase. But if I would
have known that person's date, and the tier, we could - - well, someone could have
perhaps followed up, tracked that person down and interviewed her, which would
have been lovely.
Q. I'm going to suggest to you that was done ?
A. Oh.
Q. And as a result, Justice Massiah was advised that he didn't have to respond to this
allegation ?
A. Oh, is that right ?
Q. Yes. So, another thing you could have done is, you could have said to your
prosecutors, "you know what ? At any time that he looks someone up and down
in an inappropriate way, I want you to document that" ?
A. I could have done that, yes.
Q. And you did not do that ?
A. I have not.
Two More Witnesses Saw
No Evidence of Inappropriate
Conduct:
The Notice of Hearing alleged that my client commented on how DD looked. DD was
very clear in her testimony that it did not happen. The Hearing Panel found that she
did not recall the incident. DD, who worked with my client in court testified that she
did not at any time observe any inappropriate conduct on his part to anyone. The
other witness is not referred to by the Hearing Panel.
Overlooked Evidence:
Yet another witness called on behalf of my client was either overlooked or ignored
by the Hearing Panel. A witness called by the Respondent who worked in the
courthouse as an Administrative Clerk testified that she did not observe any
inappropriate conduct.
Delay Adversely Impacted
Reliability of the Evidence:
A prosecutor(HH) could not remember a comment supposedly made to her which
was in the Notice of Hearing. It was a third party NN who claimed to remember the
incident. NN herself was very clear in her testimony before the Hearing Panel that
in fact there was no intention to proceed with any complaint against my client at the
time of the incidents. She did not feel that there was enough cogency for a complaint
of that nature. Curiously, II testified that it was NN who called her and told her to
come forward and speak to Presenting Counsel. NN denied doing this.
"Not a Big Deal"
HH said she did not complain about a comment made to her in the Notice of Hearing
because in the grand scheme of things it was not a big deal.
3 Witnesses Came Forward
to Increase Penalty from
First Hearing:
HH, QQ and II testified that they came forward in order to ensure that my client did
not get "a slap on the wrist." Each of them were essentially dissatisfied with the
penalty imposed by the Justice Vallencourt Hearing Panel. HH testified that it was her
understanding that the purpose of her interview/evidence to Mr. Hunt was to give
testimony in the first hearing to rebut my client's evidence which she read about in a
Law Times article. This admission regarding and increased penalty my co-counsel and
I argued contributed to the unreliability of the evidence. The Hearing Panel did not
consider this evidence and makes no mention of it anywhere.
Unavailability of Witnesses
with Relevant Evidence:
Another witness(AA) who testified in support of an allegation in the Notice of
Hearing that my client looked her up and down when she was introduced to him
by a third party could not remember the third party that introduced her.
Interestingly, the incident involving AA was not at the Provincial Offences Court
but at the court which was the subject of the first proceeding.
A witness(BB) who testified twice during the investigation stage to not having any
recollection regarding a touching incident and even went so far as to complain to
management about being pushed to complain suddenly remembered the incident on
taking the stand. At paragraph 128 of its Reasons for Decision on Liability the Hearing
Panel makes reference to one OO who was present at the incident involving BB.
Presenting Council did not call OO. OO testified during the investigation that
"I don't recall seeing anything." Although I insisted and Presenting Counsel
and the Panel agreed on the investigation transcripts forming part of the record
of the proceedings before the Hearing Panel they were not part of the tribunal
record before the Divisional Court. The Hearing Panel makes no reference to
her investigation evidence although relevant.
Yet another witness(CC) who had agreed to provide character evidence for my client at
his first hearing could not remember whether she informed my client's previous
lawyer about an inappropriate incident which she testified to. This witness
acknowledged that the passage of time adversely impacted her recollection. In
addition, she testified that her interpretation of my client's words and actions changed
after she heard about the result of the first hearing. This witness had exchanged e mails
with my client's former lawyer and in fact authored an e mail which gave a glowing
character reference which is totally inconsistent with her testimony at the hearing.
Staff complained
about client's cologne:
Management witnesses which my co-counsel and I called to testify at the
hearing confirmed that indeed they received a complaint regarding our
client's cologne and they quickly resolved it.
3. My first task on taking up my retainer was to challenge the Hearing Panel's
jurisdiction to entertain the "complaint" as that term is used in the Justices
of the Peace Act and the common law jurisprudence on this point in accordance
with my duty as a lawyer - especially one defending a judicial officer where I
understand the law to provide for strict compliance with statutory
requirements in order to preserve and respect the constitutional
principle of judicial independence.
Hearing Panel sought
Direction on the law
from counsel for the
parties:
understand the law to provide for strict compliance with statutory
requirements in order to preserve and respect the constitutional
principle of judicial independence.
Hearing Panel sought
Direction on the law
from counsel for the
parties:
4. The Hearing Panel's response was to initiate their own motion and invite the
counsel for the parties to assist them in determining whether they had the
jurisdiction to entertain my motion and to provide the relief I sought.
5. In asserting their motion the Hearing Panel made it abundantly clear that
the hearing and consideration of the other aspect of the motion I raised,
namely, abuse of process could not be adjudicated until the issue of their
jurisdiction was resolved.
Panel Disregarded Opinion
Sought from Independent Counsel:
A. Later in the proceedings the Hearing Panel retained prominent lawyer,
Brian Gover to advise them on the issues raised in my motion client's and their
own. The Hearing Panel appears to have disregarded Mr. Gover's opinion
on the complaint in writing issue. The Hearing Panel clearly disregarded
Mr. Gover's opinion on abuse of process where he cited Blencoe v.
B.C. Human Rights Commision to them as a basis of abuse of process.
Neither the Hearing Panel or Presenting Counsel make any reference to
Blencoe v. B.C. Human Rights Commission although the legal principle
from that case was the cornerstone of the abuse of process argument
myself and my co-counsel, Mr. House advanced in defence.(This breach
of natural justice and fairness would not be evident to a reviewing
court who did not have access to the written submissions and
authorities which were before the Hearing Panel.)
Prejudice/Damage to Client's Reputation:
6. While the proceedings were going on between July and November, 2013
my client's reputation was taking a vicious and unjustified tarnishing in the
local print media.
Motion for Interim
Publication Ban:
In accordance with my duty I initiated a motion seeking
an interim publication ban until the question of the legality of the "complaint"
was resolved. That motion was heard by a Hearing Panel composed
of Justice Livingstone, His Worship Cuthbertson and Ms. Blight in
November, 2013 and decided by a Hearing Panel composed of Justice
Livingstone, His Worship Cuthbertson and Ms. Foster in April, 2014.
Raised Reasonable Apprehension
of Bias pursuant to my duty as
as lawyer:
Panel Disregarded Opinion
Sought from Independent Counsel:
A. Later in the proceedings the Hearing Panel retained prominent lawyer,
Brian Gover to advise them on the issues raised in my motion client's and their
own. The Hearing Panel appears to have disregarded Mr. Gover's opinion
on the complaint in writing issue. The Hearing Panel clearly disregarded
Mr. Gover's opinion on abuse of process where he cited Blencoe v.
B.C. Human Rights Commision to them as a basis of abuse of process.
Neither the Hearing Panel or Presenting Counsel make any reference to
Blencoe v. B.C. Human Rights Commission although the legal principle
from that case was the cornerstone of the abuse of process argument
myself and my co-counsel, Mr. House advanced in defence.(This breach
of natural justice and fairness would not be evident to a reviewing
court who did not have access to the written submissions and
authorities which were before the Hearing Panel.)
Prejudice/Damage to Client's Reputation:
6. While the proceedings were going on between July and November, 2013
my client's reputation was taking a vicious and unjustified tarnishing in the
local print media.
Motion for Interim
Publication Ban:
In accordance with my duty I initiated a motion seeking
an interim publication ban until the question of the legality of the "complaint"
was resolved. That motion was heard by a Hearing Panel composed
of Justice Livingstone, His Worship Cuthbertson and Ms. Blight in
November, 2013 and decided by a Hearing Panel composed of Justice
Livingstone, His Worship Cuthbertson and Ms. Foster in April, 2014.
Raised Reasonable Apprehension
of Bias pursuant to my duty as
as lawyer:
7. As the proceedings went on it became clearer and clearer to me that there
were legitimate issues pointing to a reasonable apprehension of bias displayed
by the Hearing Panel and indeed aspects of institutional bias in the complaint
process itself. The Hearing Panel made it clear to me that these issues
would not be considered in their deliberations unless I raised them
squarely in a motion.
would not be considered in their deliberations unless I raised them
squarely in a motion.
8. I brought a motion on behalf of my client asserting a reasonable apprehension
of bias and institutional bias in the complaint process being very careful to avoid
asserting any actual bias on the part of the Hearing Panel or other participants in the
process.
9. The Hearing Panel displayed a strong displeasure to this motion and appeared to
receive it as an allegation of actual bias against them. The following is an
excerpt of the Justice of the Peace Member's comments on the record directed to me
during the adjudication of this motion:
Transcript of May 28th 2014
Justice of the Peace Member of Panel:
First of all, thank you for that time to compose myself. Just on that point,
I am mindful of the phrase of crossing the rubicon and all of its
implications. And I suggest to everyone in this hearing room that they
too should be mindful of the penalties of crossing the rubicon. Of course,
I refer to Roman history where a general who is thinking of committing
a coup d d'etat when he crossed the rubicon with his army, there was no
mistake as to his intentions. That's my understanding of history, and I
just put that comment out for consideration by those who need to do so.
I am, however, going to move on.
Crossing the Rubicon
(From Wikipedia)
The idiom "Crossing the Rubicon" means to pass a point of no return,
and refers to Julius Caesar's army's crossing of the Rubicon River
(in the north of Italy) in 49 BC, which was considered an act of
insurection and treason. Julius Caesar uttered the famous phrase
"alea iacta est" - the die is cast - as his army marched through the
shallow river."
What I said on May 27, 2014
about the focus of the motion:
MR. GUISTE: In the interest of ---so we don't get carried away and we
don't get into irrelevant considerations, it's our position
on the motion that we're not asserting that any member
the Panel has an actual malice or impropriety against
His Worship. We are simply stating and asserting that
the appearance of fairness, justice must be seen to be
done. That in light of all the transgressions that are
indicated - - you're all good people, but that those
transgressions raise in the minds of reasonable people
a reasonable apprehension of bias. So it's not actual.
MR. GUISTE: My role in this case is as an advocate representing the
Justice of the Peace. I have a duty to raise each and
every argument and right that he has. At times as an
advocate we're put in the unenviable role of asserting
things like bias, making objections strenuously,
repetitively, but in my respectful submission, that goes
with the territory. When the advocate raises an issue of
bias, it is not that he doesn't respect the Tribunal, it is
because he has a duty in law to advance his client's
interests and to ensure that His Worship Massiah's
constitutional right to a fair hearing before an impartial
Tribunal is respected. There has been a lot of discussion
about conduct, and at the end of the day the advocate must
stand strong, stand firm in the representation of his or her
client.
A Catholic Lawyer's Prayer
The JP Member of the Panel's words had a profound and lasting impression on me.
It brought home to me how vulnerable lawyers who forcefully and
dutifully assert their clients' rights are. I was so impacted by his words that it
motivated me to write a prayer - first titled The Lawyer's Prayer and later A Catholic
Lawyer's Prayer some three days later. The following two paragraphs from
this prayer are instructive:
"Almighty God the discharge of my duty as a lawyer may give rise to observers
and their supporters who wish to silence and harm me. Almighty God protect
me from that cause."
Almighty God I understand as a student of history that there is always a price
which accompanies the fearless pursuit of justice and The Rule of Law.
Almighty God protect me from that agenda.
April 9th, 2014 Dismissal
What I said on May 27, 2014
about the focus of the motion:
MR. GUISTE: In the interest of ---so we don't get carried away and we
don't get into irrelevant considerations, it's our position
on the motion that we're not asserting that any member
the Panel has an actual malice or impropriety against
His Worship. We are simply stating and asserting that
the appearance of fairness, justice must be seen to be
done. That in light of all the transgressions that are
indicated - - you're all good people, but that those
transgressions raise in the minds of reasonable people
a reasonable apprehension of bias. So it's not actual.
MR. GUISTE: My role in this case is as an advocate representing the
Justice of the Peace. I have a duty to raise each and
every argument and right that he has. At times as an
advocate we're put in the unenviable role of asserting
things like bias, making objections strenuously,
repetitively, but in my respectful submission, that goes
with the territory. When the advocate raises an issue of
bias, it is not that he doesn't respect the Tribunal, it is
because he has a duty in law to advance his client's
interests and to ensure that His Worship Massiah's
constitutional right to a fair hearing before an impartial
Tribunal is respected. There has been a lot of discussion
about conduct, and at the end of the day the advocate must
stand strong, stand firm in the representation of his or her
client.
A Catholic Lawyer's Prayer
The JP Member of the Panel's words had a profound and lasting impression on me.
It brought home to me how vulnerable lawyers who forcefully and
dutifully assert their clients' rights are. I was so impacted by his words that it
motivated me to write a prayer - first titled The Lawyer's Prayer and later A Catholic
Lawyer's Prayer some three days later. The following two paragraphs from
this prayer are instructive:
"Almighty God the discharge of my duty as a lawyer may give rise to observers
and their supporters who wish to silence and harm me. Almighty God protect
me from that cause."
Almighty God I understand as a student of history that there is always a price
which accompanies the fearless pursuit of justice and The Rule of Law.
Almighty God protect me from that agenda.
April 9th, 2014 Dismissal
of my child-care obligation
concerns:
On April 9th, 2014 the Chair of the Hearing Panel expressly invited the comments
on her suggestion that we commence the proceedings at 9:30 on the next date. I
told the Hearing Panel that my child care obligations prevented me from making
it prior to 10 .a.m. The Hearing Panel summarily dismissed my concerns on that
day. Days later, the Hearing Panel decided to retain Independent Counsel and the
Registrar sent out a letter that on account of that we would start the following day
at 10 a.m.
"Thanks for the speech
Mr. Guiste. I have heard
the speech":
On April 9th, 2014 the Hearing Panel invited counsel to make further oral
submissions on the issue of their jurisdiction to entertain the preliminary
motion asserting lack of jurisdiction and abuse of process. While Presenting
was making submissions I sought to make an objection. The Hearing Panel
took some time in attending to my objection. When they finally allowed
me to articulate my objection the Chair of the Hearing Panel stated to me
in a matter of factly manner, "Thanks for the speech Mr. Guiste. I have
heard the speech." (see April 9th, 2014 transcripts)
MR. GUISTE: Reasonable observers looking at this and the totality of
the proceedings would see the sarcasm and disrespect.
"Thanks for that speech" to a man of African-Canadian
descent, it strikes at the - what is the word ? A
stereotype of the black man on a soap box giving
speeches on the street corner.
CHAIR OF THE PANEL: With great respect, Mr. Guiste, that I take is your
position, but if you say the word speech at all
reflects any racism by this panel, we are offended.
MR. GUISTE: I am suggesting to you that the context in which that was said,
Thank you Mr. Guiste for that speech", I'm a man of African-
Canadian descent and I'm very familiar with my history, and
and that when individuals of European descent in power want
to exert their power, it is not uncommon to resort to that type
of stereotyping. Whether you did it or not, I don't know. I'm
saying to you that I, as lawyer representing an African-
Canadian man who is the subject of judicial misconduct
proceedings and I'm trying to discharge my duty, that this
is a possible interpretation of that. Whether you intended it
Madam 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 is the reasonable person fully informed going to come
to a conclusion on.
Later on in the proceedings at p.158 the Chair again referred to my
submissions as a speech saying, "At the outset of my response to your
speech, Mr. Guiste, I said the Panel knows what it's here to do and
that's to deal with the issue of jurisdiction."
The Chair went on to ask me - "Was there something unclear with that ?
I responded: Ms. Henein stood up and now it's been clarified, so I think
we're good now.
CHAIR OF THE PANEL:
I'm happy you feel that way. Thank you.
Toronto Sun and
Michele Mandel - lawyer
"must be reigned in":
On April 10th, 2014 Michele Mandel of the Toronto Sun wrote an article entitled
"Judge Can't Take Judgment" in which she starts of with the following lead
sentence: "The irony seems apparent to everyone but Justice of the Peace
Masiah and his zealous counsel." Later on in her article she indicates that
Presenting Counsel "warned the panel that "extensive public expenses are being
incurred and Massiah's lawyer must be reigned in or "this will turn into a never-
ending inquiry."
Mr. Jeffry House Joins Defence Team:
On or about June 9th, 2014 Mr. Jeffry House joined the defence team as my co-
counsel. I recommended to my client that Mr. House join me in defending him.
Mr. House has expertise in the area of disclosure in the administrative law
context having decided a significant human rights case involving disclosure
issues prior to me becoming a lawyer, namely, Christian v. Northwestern
General Hospital (1983) 20 CHRR D/492 upheld 20 CHRR D/498 (Div Crt).
His first order of business was to assist me in bringing a motion for disclosure and
particulars. The Hearing Panel made a decision on that motion on or about June
12th, 2014 and it shows his name as co-counsel.
However, in its Compensation Decision the Hearing Panel attributes the Disclosure
and Particulars motion solely to me and simply cuts and pastes what Presenting
Counsel had to say about it in their written submissions without any independent
analysis.
Excerpts from the Reply Submission
Which the Hearing Panel Refused
for Filing:
Disclosure/Particulars
him with a list of witnesses by June 14 2013. (Respondent’s Disclosure
Request Documents – Nov.13, 2013 letter to PC) A witness list was provided
in April, 2014. Contact information for two witnesses called by the
Respondent was provided until after the hearing commenced.
Post-Hearing Motion seeking
Leave to Address Latent Revelation
of Inconsistencies and Ambiguities in
the Evidence:
By Notice of Motion dated November 7, 2014 Mr. House and I initiated a
motion seeking leave of the Hearing Panel to among, other things, address
a latent revelation of an inconsistency in the hearing transcript of what a
witness testified to before them, before the Complaints Committee and in
the Notice of Hearing.
Once again, without any independent analysis the Hearing Panel simply cut
and paste Presenting Counsel's submissions and attributed the bringing of this
motion solely to me.
Post-Hearing Motion seeking
Leave to Address two questions
on jurisdiction which were
inadvertently not addressed
earlier:
By Notice of Motion dated November 17th, 2014 Mr. House and I initiated a motion
seeking leave of the Hearing Panel to entertain the following two questions of law
which were inadvertently not raised earlier: 1. Does the Review Council have
jurisdiction to order a hearing under s.11(15) (c) of the Justices of the Peace Act ?
and 2. Is the Supreme Court of Canada's pronouncement in Weber v. Ontario
Hydro binding on the Hearing Panel to the extent that some or all of the allegations
involve claims capable of being resolved under the collective agreement or the
Durham Region harassment policy and therefore the Hearing Panel lacks jurisdiction
to entertain them ?
Once again, the Hearing Panel simply cut and paste Presenting Counsel's
submissions without any independent analysis of its own, dismissed the
motion and no only singled me out for the bringing of this motion - they
went further. They issued an order dated November 18, 2014
November 18th, 2014
Contempt Finding ?:
33. In accordance with section 23(1), in order to control and prevent any further
abuse of this process, we order that there is no further opportunity for His
Worship Massiah and his counsel Mr. Guiste to make recommendations or
re-examine any witness in relation to this Hearing. We direct that Mr. Guiste
is to cease sending e mails, or correspondence or any further motions about
the evidence or the law to the Panel. The Hearing Panel has reserved its
decisions and we rely on counsel to respect the process and await our
determinations in due course.
Order Prohibiting me from
Discharging Function as
Lawyer Contrary to Law:
No court or administrative authority before whom the right to counsel is
recognized shall refuse to recognize the right of a lawyer to appear before it
for his or her client unless that lawyer has been disqualified in accordance
with national law and practice and in conformity with these principles.
Art. 15 Basic Principles on the Role of Lawyers
(United Nations)
Hearing Panel Endorsement
of Mr. House Another Cut
and Paste:
23. Once the hearing of evidence commenced, the hearing was conducted
appropriately and effectively by Mr. Massiah's co-counsel, Mr. House.
Compensation Decision
42. To be clear, Presenting Counsel recognizes that the hearing proper, as
opposed to the pre-hearing motions, was conducted appropriately by Mr. House.
Presenting Counsel Submissions dated
May 25, 2015
Compensation Decision and
Addendum released June 16, 2015
"Panel directs the Registrar to provide a copy of this Addendum to the Law Society
Upper Canada for its consideration."
Tor-Sun and Michele Mandel
"Fired JP loses bid to have taxpayers
pay legal fees - Lawyer's conduct to
be reviewed: (June 17, 2015 )
"While the council had no issues with House, they complained Guiste
repeatedly delayed the proceedings, made "frivolous and meritless"
motions as well as "egregious, inflammatory comments" in which he
accused the panel of impropriety and racism."
Deborah Livingstone@dresdengirrl
Deborah Livingstone @ dresdengirrl Retweeted - JP fired over lecherous behaviour
loses bid to have taxpayers pay $600,000 in legal fees. - 6:02 PM - 17 Jun 2015
My Pyrrhic Victory
On June 18, 2014, after hearing submissions from counsel on how to adjudicate the
abuse of process motion I initiated. The Chair of the Hearing Panel agreed with me
that this motion ought to be held in abeyance after all of the evidence was in. She
said to me, " So, it's a Pyrrhic victory to some extent, Mr. Guiste. I agree with you
that we can adjourn the abuse of process motion argument itself from today."
Pyrrhic Victory
(Wikipedia, the free encyclopedia)
A Pyrrhic victory is a victory with such devastating cost that it is tantamount to
defeat. Someone who wins a Pyrrhic victory has been victorious in some way;
however, the heavy toll negates any sense of achievement or profit.
(another term for this would be "hallow victory".
July 15th, 2014:
CHAIR OF PANEL: Sorry, Mr. Guiste, you're hot, you want to take your
jacket off ?
Mr. GUISTE; Yes, please.
CHAIR OF PANEL: I'm sorry. We're all in the same room, we're all hot,
I don't think it's appropriate. I'm old-fashioned, Mr. Guiste, I've told you
that for a year.
Principles of Judicial Office
(Ontario Court of Justice)
1.1 Judges must be impartial and objective in the discharge of their judicial duties.
Commentaries
Judges should not be influenced by partisan interests, public pressure or fear or
criticism. Judges should maintain their objectivity and shall not, by words or
conduct, manifest favour, bias or prejudice towards any party or interest.
3. The Judge in the Community
3.1 Judges should maintain their personal conduct at a level which will ensure
the public's trust and confidence.
3.2 Judges must avoid any conflict of interest, or the appearance of any conflict
of interest, in the performance of their judicial duties.
Commentaries
Judges must not participate in any partisan political activity.
3.3 Judges must not abuse the power of their judicial office or use it inappropriately.
Law Society Act.
- s.12(2) - Attorney General for Ontario is a Bencher by virtue of his/her office.
- s. 13(1) - Attorney General guardian of the public interest
Courts of Justice Act
- s.44(2) stipulates that "part-time" judges require the consent of the Attorney General to sit.
An overview of Michele Mandel's
Involvement and Coverage of the Case:
July 24, 2013 - Justices of the Peace Appear before Review Council
"It was almost dizzying, a revolving door of Justices of the Peace accused of behaving badly."
Alleged History and Pattern
of Conduct:
"In light of the nature of the conduct set out above, alleges the notice of hearing,
"the range of women who were recipients of your conduct and your history of
judicial misconduct of a similar nature at a different courthouse, your conduct
demonstrates a pattern of inappropriate conduct toward women in the justice system."
"His lawyer, Ernest Guiste, has filed a motion to have these latest allegations tossed
because they weren't made in writing and they predate those of Massiah's last public
inquiry that has already resulted in his being penalized, making it "devoid of natural
justice and fairness."
Five New Complainants:
"In her response, presenting counsel Marie Henein said the five new complainants
in Whitby came forward in the fall of 2011 after reading abut Massiah's ongoing
case in the Law Times and there's no statute of limitations on complaints."
Push for Removal:
"Massiah's motion to have the hearing dismissed won't be argued until November.
If it goes ahead and these new allegations upheld, this Your Worship should face
the ultimate penalty: a recommendation that he be removed from his lofty bench."
April 10, 2014 - Oshawa JP's Sexual Harassment Hearing Lags
"The irony seem apparent to everyone but Justice of the Peace Errol Massiah and
his zealous counsel."
"The Durham region JP - accused once again of sexually harassing female court staff
-- is not only collecting his $122,635 annual salary, despite not working since 2010,
but his lawyer Ernest Guiste is tying up his second complaint hearing with motions,
challenges and endless accusations that the judge and her panel are biased."
"Yet, Massiah claims he's the victim of an abuse of process ? Pot meet kettle."
Alleged History and Pattern of
Conduct:
"In light of the nature of the conduct set out above", alleges the May, 2013
notice of hearing, "the range of women who were recipients of your conduct
and your history of judicial misconduct of a similar nature at a different court
house, your conduct demonstrates a pattern of inappropriate conduct toward
women in the justice system."
"When Massiah's lawyer wasn't complaining about bias, he was trying to revisit
the first investigation and hearing, though he was reminded again and again that
he was straying off topic."
Guiste must be reigned in ?
"They've already had five hearing dates to deal with this case --with 20 more on the
calendar. After a day spent just arguing jurisdictional issues, lawyer Matthew
Gourlay--who along with well-known solicitor Marie Henein is "presenting counsel",
akin to a trial's prosecutors - warned the panel that "extensive public expenses are
being incurred" and Massiah's lawyer must be reigned in or "this will turn into a
never-ending inquiry."
"Guiste was outraged. "The question is whether he is getting a fair hearing,
he complained, again. "You want this rammed though. Guilty. Done. That's
not why we're here."
January 13, 2015 - Time to Give JP the Boot
Push for Removal
"The JPRC can issue a reprimand, suspend a JP for up to 30 days without pay or
recommend to the Attorney General that he be removed from office. That hearing
is scheduled for March."
"The penalty seems pretty obvious....Massiah has had his suspension; it's time for
the heave-ho."
April 28, 2015 - Give JP the Boot for Sexual Harassment, Panel Recommends
April 28, 2015 - JP Wants Legal Costs Covered in Sexual Harassment Case
"The hopefully soon to be ex-justice of the peace Errol Masiah has an
incredible amount of nerve - the Durham jurist has already banked $500,000
in taxpayers' money and now wants even more of our hard earned cash."
"It seems likely Massiah will be given the boot by Queen's Park - but not
before he tries to drain still more from the public purse. House told the
JPRC that his client will be asking for reimbursement of his legal costs
as they were three years ago....Just add it to his running tab."
"In May 2013, he was served notice that he'd have to appear before a second
disciplinary hearing. Endless motions by his lawyer Ernest Guiste about abuse
of process and lack of jurisdiction delayed the start for a year, all while Massiah
kept banking those paycheques. Witnesses finally began their testimony last
summer and submissions were completed by the fall. But after the disciplinary
panel began to deliberate, they accused Massiah's lawyer of trying to further
delay the process by inundating them with 40 e mails attempting to reopen the
hearing."
The Tribunal Record:
The Judicial Review Procedures Act requires a tribunal whose decision is the
subject of an application for judicial review to file a copy of the tribunal record
with the Divisional Court. I fought valiantly to ensure that a proper record was
kept of the proceedings because I sensed that judicial review would be necessary
to ensure that the proceedings were conducted in accordance with law. It has always
been my position that there were serious irregularities in both the investigation and
hearing process in this case which any lawyer representing a client is duty-bound
to argue. Below are excerpts from the first instance proceedings in which both
Presenting Counsel and the Chair of the Hearing Panel regarding the scope of the
tribunal record:
Presenting Counsel
At p.161 line 5 - "My friend seems to be under the impression that that
means they're lost from the record and they don't form any part of the
Panel's consideration or the case, that's obviously untrue. All of the
factums, and motions records, and notices of motion that have been filed in
this proceeding are before you and will be preserved as part of the record
of this proceeding and there's simply no need to mark them as exhibits."
Chair of Panel
At p. 162 ln 1 - "Thank you, Mr. Guiste. The Panel considered the issue of what is
properly filed as an exhibit and what is not required to be filed as an exhibit.
And generally the Panel is of the view that any materials filed, such as Mr. Gourlay
referred to, facta, books of authorities, responding facta et cetera, are not technically
filed as exhibits, they are part of of the record....They remain part of the
record for any further applications which could follow our decision,
but they are not evidence per se and therefore would not be filed.....
At p. 163 ln 13 - "With respect to the facta with respect to abuse of process,
for which you have argued it only makes sense for fairness and for the
integrity of the process that we be informed by having them, we have
them. They are part of the record. They do not need to be filed as exhibits."
The Tribunal Record Filed with
the Divisional Court:
The Tribunal Record filed with the Divisional Court in this case did not have the
following portions of the record:
1. Respondent's Written Submissions on liability - Part I - Jurisdiction - Part II -
Abuse of Process and Part III - The Merits;
1A. Respondent's Appendix A to Part I of Written Submissions on liability;
2. Presenting Counsel's Written Submissions on Liability along with Reply;
3. Respondent's Written Submissions on Penalty - including Asserted Facts
from Decision of First Hearing Panel, investigation and hearing;
4. Presenting Counsel's Reply on Penalty;
5. Respondent's Written Submissions on Indemnification;
6. Presenting Counsel's Written Submissions on Compensation
7. Respondent's Motion re leave to consider transfer;
8. Presenting Counsel's Response re leave to consider transfer
9. Respondent's Answer to the Complaints Committee - where he acknowledged
the need to respect boundaries in accordance with the training ordered by
the Chief Justice moving forward and that some of the allegations mirrored his
manner of communication and was consistent with his prior manner of interaction;
10. 5 volume of transcripts from Complaints Committee investigation; (This was
to demonstrate that the Notice of Hearing drafted by Presenting Counsel
clearly went beyond the "complaint" in asserting vexatious, unwelcome
and conduct constituting a "poisoned work environment" - items which
were not pre-screened by the Complaints Committee per Hryciuk
v. Ontario (ONCA) ;
11. All motion records - facta - books of authorities;
12. Reply Submissions on Compensation which was refused for filing. (to support
breach of natural justice and fairness in the Compensation Decision since the
panel effectively adopted Presenting Counsel's submissions hollus bolus without
independent analysis or answer from me.)
Dunsmuir v. New Brunswick
[2008] 1 S.C.R. 190:
"A court conducting a review for reasonableness inquires into the qualities that make
a decision reasonable. Reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making process and
with whether the decision falls within a range of possible, acceptable outcomes which
are defensible in respect of the facts and the law."
"Record of Proceedings"
s.10 Judicial Review
Procedure Act:
"When notice of an application for judicial review of a decision made in exercise or
purported exercise of a statutory power of decision has been served on the person making
the decision, such person shall forthwith file in the court or use on the application the
record of the proceedings in which the decision was made."
JPRC Participation in
JR Proceedings:
[65] It is well established that a tribunal whose decision is challenged in judicial review
proceedings should not appear to defend the merits of its decision. As stated by
the Supreme Court of Canada in Northwestern Utilities Ltd. v. Edmonton (City)
[1979] 1 S.C.R. at p. 709:
"Such active and even aggressive participating can have no other effect than to
discredit the impartiality of an administrative tribunal either in the case where
the matter is referred back to it, or in the future proceedings involving similar
interests and issues or the same parties. The Board is given a clear opportunity
to make its point in its reasons for its decision, and it abuses one's notion of
propriety to countenance its participation as a full-fledged litigant in this court,
in complete adversarial confrontation with one of the principles in the contest
before the Board itself in the first instance."
[61] Finally, I think it important if an administrative tribunal seeks to make
submissions on a judicial review of its decision, it pay careful attention
to the tone with which it does so. Although this is not a discrete basis
upon which its standing might be limited, there is no doubt that the
tone of the proposed submissions provides the background for the
determination of that issue. A tribunal that seeks to resist a judicial
review application will be of assistance to the court to the degree its
submissions are characterized by the helpful elucidation of the issues,
informed by its specialized position, rather than by the aggressive
partisanship of an adversary.
Goudge J.A. in Ontario (Children's Lawyer) v. Ontario (Information and
Privacy Commissioner) 75 O.R. (3d) 309 (ONCA)
Conclusion:
A proper review of the record in this case will show that I lived up to my
duty as a lawyer in accordance with law and established legal principles.
As a Catholic lawyer it is my duty to follow my faith and act accordingly
in the discharge of my duties as a lawyer. As a man of African-Canadian
background who so happens to be a lawyer I have the inalienable right to
correct anyone who calls into question my work as an advocate by referring
to my submissions in a racially insensitive and stereotypical manner.
If that is a sin I will answer to God Almighty when that time comes.
Part III of my defence forthcoming.
NOTE: This piece is written for the sole purpose of drawing attention to an issue of
public importance. An issue of public importance arose in the matter of the referral of
Ernest Guiste to the LSUC when the Hearing Panel decided to make a public referral
asserting professional misconduct against one of two lawyers representing a judicial
officer - one of African-Canadian racial background and the other of European-
Canadian racial background - in circumstances where the conduct they cite in
referring only the African-Canadian lawyer was in fact not exclusive to the
African-Canadian lawyer thereby appearing to base their decision to report on
irrelevant considerations inconsistent with current public policy in current day Ontario.
It is not lost on me that a disproportionate number of the justices of the peace who have
been denied the right to full indemnification are three African-Canadian men, and one
Aboriginal woman. some may say that this is simply a coincidence. I say it is
something which requires careful review and study by the authorities. History
shows us that where there is no struggle there is no progress.
"Thanks for the speech
Mr. Guiste. I have heard
the speech":
On April 9th, 2014 the Hearing Panel invited counsel to make further oral
submissions on the issue of their jurisdiction to entertain the preliminary
motion asserting lack of jurisdiction and abuse of process. While Presenting
was making submissions I sought to make an objection. The Hearing Panel
took some time in attending to my objection. When they finally allowed
me to articulate my objection the Chair of the Hearing Panel stated to me
in a matter of factly manner, "Thanks for the speech Mr. Guiste. I have
heard the speech." (see April 9th, 2014 transcripts)
MR. GUISTE: Reasonable observers looking at this and the totality of
the proceedings would see the sarcasm and disrespect.
"Thanks for that speech" to a man of African-Canadian
descent, it strikes at the - what is the word ? A
stereotype of the black man on a soap box giving
speeches on the street corner.
CHAIR OF THE PANEL: With great respect, Mr. Guiste, that I take is your
position, but if you say the word speech at all
reflects any racism by this panel, we are offended.
MR. GUISTE: I am suggesting to you that the context in which that was said,
Thank you Mr. Guiste for that speech", I'm a man of African-
Canadian descent and I'm very familiar with my history, and
and that when individuals of European descent in power want
to exert their power, it is not uncommon to resort to that type
of stereotyping. Whether you did it or not, I don't know. I'm
saying to you that I, as lawyer representing an African-
Canadian man who is the subject of judicial misconduct
proceedings and I'm trying to discharge my duty, that this
is a possible interpretation of that. Whether you intended it
Madam 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 is the reasonable person fully informed going to come
to a conclusion on.
Later on in the proceedings at p.158 the Chair again referred to my
submissions as a speech saying, "At the outset of my response to your
speech, Mr. Guiste, I said the Panel knows what it's here to do and
that's to deal with the issue of jurisdiction."
The Chair went on to ask me - "Was there something unclear with that ?
I responded: Ms. Henein stood up and now it's been clarified, so I think
we're good now.
CHAIR OF THE PANEL:
I'm happy you feel that way. Thank you.
Toronto Sun and
Michele Mandel - lawyer
"must be reigned in":
On April 10th, 2014 Michele Mandel of the Toronto Sun wrote an article entitled
"Judge Can't Take Judgment" in which she starts of with the following lead
sentence: "The irony seems apparent to everyone but Justice of the Peace
Masiah and his zealous counsel." Later on in her article she indicates that
Presenting Counsel "warned the panel that "extensive public expenses are being
incurred and Massiah's lawyer must be reigned in or "this will turn into a never-
ending inquiry."
Mr. Jeffry House Joins Defence Team:
On or about June 9th, 2014 Mr. Jeffry House joined the defence team as my co-
counsel. I recommended to my client that Mr. House join me in defending him.
Mr. House has expertise in the area of disclosure in the administrative law
context having decided a significant human rights case involving disclosure
issues prior to me becoming a lawyer, namely, Christian v. Northwestern
General Hospital (1983) 20 CHRR D/492 upheld 20 CHRR D/498 (Div Crt).
His first order of business was to assist me in bringing a motion for disclosure and
particulars. The Hearing Panel made a decision on that motion on or about June
12th, 2014 and it shows his name as co-counsel.
However, in its Compensation Decision the Hearing Panel attributes the Disclosure
and Particulars motion solely to me and simply cuts and pastes what Presenting
Counsel had to say about it in their written submissions without any independent
analysis.
Excerpts from the Reply Submission
Which the Hearing Panel Refused
for Filing:
Disclosure/Particulars
27. The witness statement summaries
contemplated were follow-up interview
material and this was a proper request to
make. Other relief was sought and
the
Hearing Panel denied the relief. This in
and of itself does not make the
bringing of such a motion frivolous and vexatious. Disclosure motions are
lost every day by very
able counsel.
him with a list of witnesses by June 14 2013. (Respondent’s Disclosure
Request Documents – Nov.13, 2013 letter to PC) A witness list was provided
in April, 2014. Contact information for two witnesses called by the
Respondent was provided until after the hearing commenced.
Post-Hearing Motion seeking
Leave to Address Latent Revelation
of Inconsistencies and Ambiguities in
the Evidence:
By Notice of Motion dated November 7, 2014 Mr. House and I initiated a
motion seeking leave of the Hearing Panel to among, other things, address
a latent revelation of an inconsistency in the hearing transcript of what a
witness testified to before them, before the Complaints Committee and in
the Notice of Hearing.
Once again, without any independent analysis the Hearing Panel simply cut
and paste Presenting Counsel's submissions and attributed the bringing of this
motion solely to me.
Post-Hearing Motion seeking
Leave to Address two questions
on jurisdiction which were
inadvertently not addressed
earlier:
By Notice of Motion dated November 17th, 2014 Mr. House and I initiated a motion
seeking leave of the Hearing Panel to entertain the following two questions of law
which were inadvertently not raised earlier: 1. Does the Review Council have
jurisdiction to order a hearing under s.11(15) (c) of the Justices of the Peace Act ?
and 2. Is the Supreme Court of Canada's pronouncement in Weber v. Ontario
Hydro binding on the Hearing Panel to the extent that some or all of the allegations
involve claims capable of being resolved under the collective agreement or the
Durham Region harassment policy and therefore the Hearing Panel lacks jurisdiction
to entertain them ?
Once again, the Hearing Panel simply cut and paste Presenting Counsel's
submissions without any independent analysis of its own, dismissed the
motion and no only singled me out for the bringing of this motion - they
went further. They issued an order dated November 18, 2014
November 18th, 2014
Contempt Finding ?:
33. In accordance with section 23(1), in order to control and prevent any further
abuse of this process, we order that there is no further opportunity for His
Worship Massiah and his counsel Mr. Guiste to make recommendations or
re-examine any witness in relation to this Hearing. We direct that Mr. Guiste
is to cease sending e mails, or correspondence or any further motions about
the evidence or the law to the Panel. The Hearing Panel has reserved its
decisions and we rely on counsel to respect the process and await our
determinations in due course.
Order Prohibiting me from
Discharging Function as
Lawyer Contrary to Law:
No court or administrative authority before whom the right to counsel is
recognized shall refuse to recognize the right of a lawyer to appear before it
for his or her client unless that lawyer has been disqualified in accordance
with national law and practice and in conformity with these principles.
Art. 15 Basic Principles on the Role of Lawyers
(United Nations)
Hearing Panel Endorsement
of Mr. House Another Cut
and Paste:
23. Once the hearing of evidence commenced, the hearing was conducted
appropriately and effectively by Mr. Massiah's co-counsel, Mr. House.
Compensation Decision
42. To be clear, Presenting Counsel recognizes that the hearing proper, as
opposed to the pre-hearing motions, was conducted appropriately by Mr. House.
Presenting Counsel Submissions dated
May 25, 2015
Compensation Decision and
Addendum released June 16, 2015
"Panel directs the Registrar to provide a copy of this Addendum to the Law Society
Upper Canada for its consideration."
Tor-Sun and Michele Mandel
"Fired JP loses bid to have taxpayers
pay legal fees - Lawyer's conduct to
be reviewed: (June 17, 2015 )
"While the council had no issues with House, they complained Guiste
repeatedly delayed the proceedings, made "frivolous and meritless"
motions as well as "egregious, inflammatory comments" in which he
accused the panel of impropriety and racism."
Deborah Livingstone@dresdengirrl
Deborah Livingstone @ dresdengirrl Retweeted - JP fired over lecherous behaviour
loses bid to have taxpayers pay $600,000 in legal fees. - 6:02 PM - 17 Jun 2015
My Pyrrhic Victory
On June 18, 2014, after hearing submissions from counsel on how to adjudicate the
abuse of process motion I initiated. The Chair of the Hearing Panel agreed with me
that this motion ought to be held in abeyance after all of the evidence was in. She
said to me, " So, it's a Pyrrhic victory to some extent, Mr. Guiste. I agree with you
that we can adjourn the abuse of process motion argument itself from today."
Pyrrhic Victory
(Wikipedia, the free encyclopedia)
A Pyrrhic victory is a victory with such devastating cost that it is tantamount to
defeat. Someone who wins a Pyrrhic victory has been victorious in some way;
however, the heavy toll negates any sense of achievement or profit.
(another term for this would be "hallow victory".
July 15th, 2014:
CHAIR OF PANEL: Sorry, Mr. Guiste, you're hot, you want to take your
jacket off ?
Mr. GUISTE; Yes, please.
CHAIR OF PANEL: I'm sorry. We're all in the same room, we're all hot,
I don't think it's appropriate. I'm old-fashioned, Mr. Guiste, I've told you
that for a year.
Principles of Judicial Office
(Ontario Court of Justice)
1.1 Judges must be impartial and objective in the discharge of their judicial duties.
Commentaries
Judges should not be influenced by partisan interests, public pressure or fear or
criticism. Judges should maintain their objectivity and shall not, by words or
conduct, manifest favour, bias or prejudice towards any party or interest.
3. The Judge in the Community
3.1 Judges should maintain their personal conduct at a level which will ensure
the public's trust and confidence.
3.2 Judges must avoid any conflict of interest, or the appearance of any conflict
of interest, in the performance of their judicial duties.
Commentaries
Judges must not participate in any partisan political activity.
3.3 Judges must not abuse the power of their judicial office or use it inappropriately.
Law Society Act.
- s.12(2) - Attorney General for Ontario is a Bencher by virtue of his/her office.
- s. 13(1) - Attorney General guardian of the public interest
Courts of Justice Act
- s.44(2) stipulates that "part-time" judges require the consent of the Attorney General to sit.
An overview of Michele Mandel's
Involvement and Coverage of the Case:
July 24, 2013 - Justices of the Peace Appear before Review Council
"It was almost dizzying, a revolving door of Justices of the Peace accused of behaving badly."
Alleged History and Pattern
of Conduct:
"In light of the nature of the conduct set out above, alleges the notice of hearing,
"the range of women who were recipients of your conduct and your history of
judicial misconduct of a similar nature at a different courthouse, your conduct
demonstrates a pattern of inappropriate conduct toward women in the justice system."
"His lawyer, Ernest Guiste, has filed a motion to have these latest allegations tossed
because they weren't made in writing and they predate those of Massiah's last public
inquiry that has already resulted in his being penalized, making it "devoid of natural
justice and fairness."
Five New Complainants:
"In her response, presenting counsel Marie Henein said the five new complainants
in Whitby came forward in the fall of 2011 after reading abut Massiah's ongoing
case in the Law Times and there's no statute of limitations on complaints."
Push for Removal:
"Massiah's motion to have the hearing dismissed won't be argued until November.
If it goes ahead and these new allegations upheld, this Your Worship should face
the ultimate penalty: a recommendation that he be removed from his lofty bench."
April 10, 2014 - Oshawa JP's Sexual Harassment Hearing Lags
"The irony seem apparent to everyone but Justice of the Peace Errol Massiah and
his zealous counsel."
"The Durham region JP - accused once again of sexually harassing female court staff
-- is not only collecting his $122,635 annual salary, despite not working since 2010,
but his lawyer Ernest Guiste is tying up his second complaint hearing with motions,
challenges and endless accusations that the judge and her panel are biased."
"Yet, Massiah claims he's the victim of an abuse of process ? Pot meet kettle."
Alleged History and Pattern of
Conduct:
"In light of the nature of the conduct set out above", alleges the May, 2013
notice of hearing, "the range of women who were recipients of your conduct
and your history of judicial misconduct of a similar nature at a different court
house, your conduct demonstrates a pattern of inappropriate conduct toward
women in the justice system."
"When Massiah's lawyer wasn't complaining about bias, he was trying to revisit
the first investigation and hearing, though he was reminded again and again that
he was straying off topic."
Guiste must be reigned in ?
"They've already had five hearing dates to deal with this case --with 20 more on the
calendar. After a day spent just arguing jurisdictional issues, lawyer Matthew
Gourlay--who along with well-known solicitor Marie Henein is "presenting counsel",
akin to a trial's prosecutors - warned the panel that "extensive public expenses are
being incurred" and Massiah's lawyer must be reigned in or "this will turn into a
never-ending inquiry."
"Guiste was outraged. "The question is whether he is getting a fair hearing,
he complained, again. "You want this rammed though. Guilty. Done. That's
not why we're here."
January 13, 2015 - Time to Give JP the Boot
Push for Removal
"The JPRC can issue a reprimand, suspend a JP for up to 30 days without pay or
recommend to the Attorney General that he be removed from office. That hearing
is scheduled for March."
"The penalty seems pretty obvious....Massiah has had his suspension; it's time for
the heave-ho."
April 28, 2015 - Give JP the Boot for Sexual Harassment, Panel Recommends
April 28, 2015 - JP Wants Legal Costs Covered in Sexual Harassment Case
"The hopefully soon to be ex-justice of the peace Errol Masiah has an
incredible amount of nerve - the Durham jurist has already banked $500,000
in taxpayers' money and now wants even more of our hard earned cash."
"It seems likely Massiah will be given the boot by Queen's Park - but not
before he tries to drain still more from the public purse. House told the
JPRC that his client will be asking for reimbursement of his legal costs
as they were three years ago....Just add it to his running tab."
"In May 2013, he was served notice that he'd have to appear before a second
disciplinary hearing. Endless motions by his lawyer Ernest Guiste about abuse
of process and lack of jurisdiction delayed the start for a year, all while Massiah
kept banking those paycheques. Witnesses finally began their testimony last
summer and submissions were completed by the fall. But after the disciplinary
panel began to deliberate, they accused Massiah's lawyer of trying to further
delay the process by inundating them with 40 e mails attempting to reopen the
hearing."
The Tribunal Record:
The Judicial Review Procedures Act requires a tribunal whose decision is the
subject of an application for judicial review to file a copy of the tribunal record
with the Divisional Court. I fought valiantly to ensure that a proper record was
kept of the proceedings because I sensed that judicial review would be necessary
to ensure that the proceedings were conducted in accordance with law. It has always
been my position that there were serious irregularities in both the investigation and
hearing process in this case which any lawyer representing a client is duty-bound
to argue. Below are excerpts from the first instance proceedings in which both
Presenting Counsel and the Chair of the Hearing Panel regarding the scope of the
tribunal record:
Presenting Counsel
At p.161 line 5 - "My friend seems to be under the impression that that
means they're lost from the record and they don't form any part of the
Panel's consideration or the case, that's obviously untrue. All of the
factums, and motions records, and notices of motion that have been filed in
this proceeding are before you and will be preserved as part of the record
of this proceeding and there's simply no need to mark them as exhibits."
Chair of Panel
At p. 162 ln 1 - "Thank you, Mr. Guiste. The Panel considered the issue of what is
properly filed as an exhibit and what is not required to be filed as an exhibit.
And generally the Panel is of the view that any materials filed, such as Mr. Gourlay
referred to, facta, books of authorities, responding facta et cetera, are not technically
filed as exhibits, they are part of of the record....They remain part of the
record for any further applications which could follow our decision,
but they are not evidence per se and therefore would not be filed.....
At p. 163 ln 13 - "With respect to the facta with respect to abuse of process,
for which you have argued it only makes sense for fairness and for the
integrity of the process that we be informed by having them, we have
them. They are part of the record. They do not need to be filed as exhibits."
The Tribunal Record Filed with
the Divisional Court:
The Tribunal Record filed with the Divisional Court in this case did not have the
following portions of the record:
1. Respondent's Written Submissions on liability - Part I - Jurisdiction - Part II -
Abuse of Process and Part III - The Merits;
1A. Respondent's Appendix A to Part I of Written Submissions on liability;
2. Presenting Counsel's Written Submissions on Liability along with Reply;
3. Respondent's Written Submissions on Penalty - including Asserted Facts
from Decision of First Hearing Panel, investigation and hearing;
4. Presenting Counsel's Reply on Penalty;
5. Respondent's Written Submissions on Indemnification;
6. Presenting Counsel's Written Submissions on Compensation
7. Respondent's Motion re leave to consider transfer;
8. Presenting Counsel's Response re leave to consider transfer
9. Respondent's Answer to the Complaints Committee - where he acknowledged
the need to respect boundaries in accordance with the training ordered by
the Chief Justice moving forward and that some of the allegations mirrored his
manner of communication and was consistent with his prior manner of interaction;
10. 5 volume of transcripts from Complaints Committee investigation; (This was
to demonstrate that the Notice of Hearing drafted by Presenting Counsel
clearly went beyond the "complaint" in asserting vexatious, unwelcome
and conduct constituting a "poisoned work environment" - items which
were not pre-screened by the Complaints Committee per Hryciuk
v. Ontario (ONCA) ;
11. All motion records - facta - books of authorities;
12. Reply Submissions on Compensation which was refused for filing. (to support
breach of natural justice and fairness in the Compensation Decision since the
panel effectively adopted Presenting Counsel's submissions hollus bolus without
independent analysis or answer from me.)
Dunsmuir v. New Brunswick
[2008] 1 S.C.R. 190:
"A court conducting a review for reasonableness inquires into the qualities that make
a decision reasonable. Reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making process and
with whether the decision falls within a range of possible, acceptable outcomes which
are defensible in respect of the facts and the law."
"Record of Proceedings"
s.10 Judicial Review
Procedure Act:
"When notice of an application for judicial review of a decision made in exercise or
purported exercise of a statutory power of decision has been served on the person making
the decision, such person shall forthwith file in the court or use on the application the
record of the proceedings in which the decision was made."
JPRC Participation in
JR Proceedings:
[65] It is well established that a tribunal whose decision is challenged in judicial review
proceedings should not appear to defend the merits of its decision. As stated by
the Supreme Court of Canada in Northwestern Utilities Ltd. v. Edmonton (City)
[1979] 1 S.C.R. at p. 709:
"Such active and even aggressive participating can have no other effect than to
discredit the impartiality of an administrative tribunal either in the case where
the matter is referred back to it, or in the future proceedings involving similar
interests and issues or the same parties. The Board is given a clear opportunity
to make its point in its reasons for its decision, and it abuses one's notion of
propriety to countenance its participation as a full-fledged litigant in this court,
in complete adversarial confrontation with one of the principles in the contest
before the Board itself in the first instance."
[61] Finally, I think it important if an administrative tribunal seeks to make
submissions on a judicial review of its decision, it pay careful attention
to the tone with which it does so. Although this is not a discrete basis
upon which its standing might be limited, there is no doubt that the
tone of the proposed submissions provides the background for the
determination of that issue. A tribunal that seeks to resist a judicial
review application will be of assistance to the court to the degree its
submissions are characterized by the helpful elucidation of the issues,
informed by its specialized position, rather than by the aggressive
partisanship of an adversary.
Goudge J.A. in Ontario (Children's Lawyer) v. Ontario (Information and
Privacy Commissioner) 75 O.R. (3d) 309 (ONCA)
Conclusion:
A proper review of the record in this case will show that I lived up to my
duty as a lawyer in accordance with law and established legal principles.
As a Catholic lawyer it is my duty to follow my faith and act accordingly
in the discharge of my duties as a lawyer. As a man of African-Canadian
background who so happens to be a lawyer I have the inalienable right to
correct anyone who calls into question my work as an advocate by referring
to my submissions in a racially insensitive and stereotypical manner.
If that is a sin I will answer to God Almighty when that time comes.
Part III of my defence forthcoming.
NOTE: This piece is written for the sole purpose of drawing attention to an issue of
public importance. An issue of public importance arose in the matter of the referral of
Ernest Guiste to the LSUC when the Hearing Panel decided to make a public referral
asserting professional misconduct against one of two lawyers representing a judicial
officer - one of African-Canadian racial background and the other of European-
Canadian racial background - in circumstances where the conduct they cite in
referring only the African-Canadian lawyer was in fact not exclusive to the
African-Canadian lawyer thereby appearing to base their decision to report on
irrelevant considerations inconsistent with current public policy in current day Ontario.
It is not lost on me that a disproportionate number of the justices of the peace who have
been denied the right to full indemnification are three African-Canadian men, and one
Aboriginal woman. some may say that this is simply a coincidence. I say it is
something which requires careful review and study by the authorities. History
shows us that where there is no struggle there is no progress.
No comments:
Post a Comment