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Notice of Public Hearing into the Question of Whether to Recommend Compensation for Mr. Errol Massiah

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The Issue to Be Determined:

In a decision on April 28, 2015, after a hearing into a complaint, a Hearing Panel of the Review Council recommended to the Attorney General that His Worship Errol Massiah be removed from office. On June 18, 2015, Mr. Errol Massiah filed an application to the Divisional Court for judicial review of the decisions and orders of the Hearing Panel that resulted in his removal from the office of justice of the peace and which also denied him any compensation for his legal expenses.

The Divisional Court dismissed the application save for the issue regarding the Panel’s decision not to recommend compensation for legal fees (Divisional Court in Massiah v. Justices of the Peace Review Council, 2016 ONSC 6191).

The Divisional Court ordered:

[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.

Motions for leave to appeal filed by Mr. Massiah and by the Review Council were dismissed by the Court of Appeal for Ontario.

Since the time of the earlier hearing, the Honourable Deborah Livingstone, who was a member of the Hearing Panel, has retired. She was no longer able to preside in the matter. The two remaining members of the Panel were unable to reach a unanimous decision. A new Hearing Panel was established to consider whether or not to recommend to the Attorney General that Mr. Massiah be compensated for his legal costs.

The members of the newly constituted Hearing Panel are the Honourable Justice Diane Lahaie (Chair), Her Worship Liisa Ritchie and Ms. Jenny Gumbs. The Panel will consider the written submissions filed by Mr. Guiste on behalf of Mr. Massiah on March 24, 2017 and the submissions filed by Presenting Counsel on May 1, 2017. 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 JPRC hearing.

The Panel will provide its decision in writing on the question of whether it should make a recommendation to the Attorney General that Mr. Massiah should be compensated for his legal costs.

Background:

The Hearing Panel determined that Counsel for Mr. Massiah would have 30 days until Friday, March 24, 2017 to provide their written submissions on the question of compensation. Presenting Counsel were given 30 days from the receipt of Mr. Massiah’s submissions, until Monday, April 24, 2017, to provide their written submissions.

On April 19, 2017, Mr. Massiah filed a motion seeking leave to adduce fresh evidence of a conflict of interest. In response to the new motion, on April 19th Presenting Counsel requested an extension of time of one week to file their submissions on the basis that they needed to review the new motion and determine what, if any, response would be required. On April 20, 2017, the Hearing Panel granted an extension of time until May 1, 2017 for Presenting Counsel to file their written submissions on the compensation issue.

On April 20, 2017, Mr. Guiste sent an email to the Registrar, asking her to take matters to the Hearing Panel for their adjudication in relation to the Panel’s decision to grant Presenting Counsel’s request for an extension of time.

On April 21, 2017, Mr. Jeffry A. House, one of the two co-counsel retained by Mr. Massiah, requested that he be removed from the record. On April 27, 2017, Mr. House was asked on behalf of the Panel, whether he had consulted with Mr. Massiah on his request. On May 1, 2017, Mr. House withdrew his request to be removed from the record.

On April 27, 2017, Mr. Guiste sent an email to the Registrar, requesting that she bring concerns set out in the email to the Hearing Panel. He said that Mr. Massiah is entitled to a right to reply and he made comments in relation to the role of Presenting Counsel. The Registrar sent a letter informing Mr. Guiste that if the Registrar forwarded his email to the Panel, the Registrar may be contravening the Panel’s rulings. Mr. Guiste was informed that if he sought to have the Hearing Panel adjudicate on legal questions or sought a decision from the Panel, he should use a proper legal format.

On May 3, 2017, Mr. Guiste faxed a motion on behalf of Mr. Massiah seeking leave to bring a motion to reply to the Hearing Panel’s enquiry on Mr. House’s request for removal from the record and to reply to Presenting Counsel’s submissions. In the motion, Mr. Guiste informed the Panel that Mr. Massiah had terminated Mr. House’s retainer and of his email of April 27th.

On May 5, 2017, Mr. House sent a letter to the Registrar asking that his name be removed from the record.

Submissions were received from both parties on the question of whether the Hearing Panel should make a recommendation to the Attorney General that Mr. Massiah should be compensated for his legal costs and, if so, what the amount of compensation should be.

The Hearing Panel was not able to reach a unanimous decision. The Panel issued a decision, No Unanimous Decision Regarding Compensation, to inform the parties of the options to resolve the matter and to invite submissions from the parties on the options by November 24, 2017. Mr. Massiah did not agree to the option available under s. 4.2.1(2) of the Statutory Powers Procedures Act whereby the Chief Justice may have appointed one person to replace the former Chair of the Hearing Panel, if both parties consented. Presenting Counsel was willing to consent. Mr. Massiah was not. In the absence of Mr. Massiah’s consent, the Panel decided that it would, therefore, request that, pursuant to s. 11.1(1) of the Justices of the Peace Act, the Chief Justice appoint a new three member Hearing Panel to re-consider the request for a recommendation for compensation of legal costs, in accordance with the Divisional Court’s ruling. The Panel’s decision informing the parties of that decision is posted under Public Hearings Decisions, 2017.

Decisions on Motions:

Counsel for Mr. Massiah sent a “Massiah – Notice of Constitutional Question” on February 16, 2017.

On March 6, 2016 the Panel issued a decision, Decision on Jurisdiction in Relation to a Notice of Constitutional Question. The Panel held:

10) The Divisional Court remitted one limited matter for reconsideration. We must correct an analytical error and apply the analysis that has been set out by that Court to decide whether to recommend that Mr. Massiah should be compensated for some, all or none of his legal costs. We have no jurisdiction to go further than that.

11) From his materials, Mr. Massiah seeks to argue that the provisions of the Justice of the Peace Act (JPA) and the Procedures of the Justice of the Peace Review Council (Procedures) breached certain aspects of Mr. Massiah’s judicial independence when he was a justice of the peace. Further, Mr. Massiah wishes to argue issues surrounding the making of a complaint under the JPA and/or the Procedures.

12) We respectfully remind Mr. Massiah that the Divisional Court has made its ruling which is now binding on the parties and this Panel. That Court dismissed his application in relation to all matters except for the narrow issue remitted for this Panel to reconsider based on the analysis set out by the Court.

13) This Panel will not permit Mr. Massiah to re-litigate the hearing now. To allow otherwise would be for us to lend support to a collateral attack on the review court’s and appellate court`s rulings.

DECISION
14) In conclusion, for the reasons cited above, this Hearing Panel declines to consider the Notice of Constitutional Question filed by Mr. Massiah on 16 February, 2017.

On March 8, 2017, Counsel for Mr. Massiah emailed two documents to the Registrar called Motions raising arguments about disclosure, the members of the Hearing Panel, the role of the Registrar, the Record that was before the Divisional Court, the earlier decisions made by the Hearing Panel, the retirement of the Honourable Deborah Livingstone and appearing to suggest that the Registrar may wrongly use confidential information of both the Ontario Judicial Council and the Justices of the Peace Review Council.

On March 13, 2017, Counsel for Mr. Massiah filed two Motions and a Notice of Intention to File a Motion.

On March 30, 2017, the Panel issued on a decision: Motion for Disclosure of Appointment Letters; a Motion Asserting Bias or Reasonable Apprehension of Bias, Conflict of Interest and Breach of Procedures by Presenting Counsel; and, Notice of Intention to Bring a Motion Seeking a Re-opening of the Findings of Liability and Penalty. The Panel ruled:

  1. In summary, we provide the following rulings on the two Motions filed before us:
    1. Our jurisdiction is narrow and only as permitted by the Divisional court ruling (see our decision of 6 March 2017). As a result, we decline to further consider Motion 1;
    2. We will not allow re-litigation or new litigation of matters beyond our jurisdiction as ordered by the Divisional Court (see our decision of 6 March 2017). As a result, we decline to further consider Motion 2;
    3. To avoid an abuse of process, Mr. Massiah is to file no more motions without leave from this Hearing Panel.
    4. We will not consider the Notice of Motion of 6 March 2017 indicating an intention to file a motion seeking remedies beyond our jurisdiction.

On May 10, 2017, the Hearing Panel issued three decisions, including a Decision on Motion (#1) for Leave to Respond to Mr. House’s Letter on or about April 19, 2017; Motion (#2) for Leave to Reply to Presenting Counsel’s Submissions of May 1, 2017 in which the Panel removed Mr. House from the record on the basis that he is no longer retained. The Panel ruled that it was not necessary to hear further submissions in that regard and did not grant leave to Mr. Massiah on Motion #1. On Motion #2, the Panel denied Mr. Massiah’s request for leave to reply to Presenting Counsel’s submissions on compensation.

The Panel also issued its Decision on Leave to Bring a Motion to Admit Fresh Evidence; and, its Response to Mr. Guiste’s Emails to the Registrar Seeking Adjudication by the Hearing Panel. The Panel determined that Mr. Massiah was attempting to re-litigate or newly litigate matters from the first hearing and did not grant Mr. Massiah’s motion to admit fresh evidence. The Panel declined to render decisions based upon email requests sent to the Registrar after its decision that Mr. Massiah is to file no more motions without leave from the Panel.

The decisions are posted on the link Public Hearings Decisions 2017.

Notice of Application for Judicial Review and Motion to Try to Re-Open the Decision of the Court of Appeal for Ontario

On May 18, 2017, Mr. Guiste, counsel for Mr. Massiah, filed a further application for judicial review in the Divisional Court seeking to reopen the matters that were previously decided by the Divisional Court, and seeking an order to quash all of the Hearing Panel’s decisions to date.

On June 27, 2017, Mr. Guiste filed a motion in the Court of Appeal for Ontario seeking to reopen his earlier motion for leave that was dismissed on January 13, 2017.

Mr. Massiah filed a motion that was heard on August 23, 2017, to try to “transfer” his Court of Appeal motion to the Divisional Court. The Divisional Court explained to Mr. Massiah that the Court of Appeal could not transfer the motion to the Divisional Court. Mr. Guiste agreed to withdraw the motion. This motion was dismissed as abandoned. Costs were ordered against Mr. Massiah in the amount of $1500. Counsel filed a notice of abandonment of the earlier motion filed in the Court of Appeal.

Mr. Guiste has filed a motion in Divisional Court seeking to set aside the Divisional Court decision of October 4, 2016 that upheld the findings of judicial misconduct and the recommendation of the Attorney General for Mr. Massiah’s removal from judicial office. Mr. Massiah seeks to adduce fresh evidence, argues that the record before the Divisional Court was deficient, and asserts that counsel who represented him on the judicial review was ineffective and had a conflict of interest. The Divisional Court has granted the lawyer and his firm intervenor status. The Divisional Court also established a timetable for materials to be filed and scheduled Mr. Massiah’s motion to be heard on April 3, 2018. Mr. Massiah was ordered to pay costs of the motion to the intervenors in the amount of $2500.

An update on these matters will be posted on this website after the decision has been rendered by the Court.