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Legal Profession - Masters or justices of the peace - Removal or disqualification - Bias, conflict of interest or misconduct

Thursday, December 01, 2016 @ 7:00 PM  

Application by Massiah for judicial review of decisions and orders of a 2012 Hearing Panel of the Justices of the Peace Review Council (JRPC). In 2011, a Hearing Panel of the JRPC addressed allegations of judicial misconduct against Massiah. The allegations consisted of sexually inappropriate comments to female staff at an Oshawa courthouse between 2008 and 2010. The 2011 Panel concluded that some of the allegations had been proven. Massiah received a ten day suspension (without pay), was required to apologize to the complainants and was ordered to complete gender sensitivity training. In 2012, another Hearing Panel of the JRPC was convened to conduct a hearing on subsequent allegations of inappropriate sexualized comments and conduct by Massiah towards female court staff, a female prosecutor and female defendants at a Whitby courthouse. The 2012 Panel found that the misconduct had been proven on a balance of probabilities and that only a recommendation for Massiah’s removal could restore public confidence. After the 2012 Panel rendered its decision, Massiah sought compensation for the legal fees he had incurred in the course of the hearing. He claimed $500,000 in legal costs relating to preliminary motions and $116,000 in legal costs for the hearing itself. The 2012 Panel dismissed the applicant’s request for compensation, ruling that ordering compensation would be “wholly and completely inappropriate”. On judicial review, Massiah submitted that the 2012 Panel erred in its determination that it had jurisdiction to entertain the complaint. He asserted that there was no valid complaint under the Justices of the Peace Act (JPA), as there was no written complaint filed with the JRPC from the affected individuals. Massiah also submitted that 2012 Panel erred in its consideration of the appropriate penalty to be imposed and considered irrelevant factors in declining to recommend compensation for his legal costs.

HELD: Application allowed in part. There was no merit to Massiah’s contention that the 2012 Panel did not have jurisdiction to pursue the allegations made against him. The clear intention of s. 10.2 of the JPA was to allow any person who became aware of possible misconduct by a justice of the peace to draw that conduct to the attention of the JPRC, while also requiring a measure of procedural formality to the complaint mechanism by ensuring that only written complaints were accepted. The statutory provision was not restricted to the person directly affected by the alleged misconduct. The report provided to the 2012 Panel complied with the stated requirements of s. 10.2 and provided both the JPRC and Massiah with a full understanding of the nature of the complaints that had been made. The decision that Massiah had engaged in misconduct was a reasonable one, as was the conclusion that Massiah had to be removed from his judicial office in light of the nature of the misconduct. However, the decision not to recommend compensation for legal fees could not stand, as it was based on the flawed premise that where there had been a finding of judicial misconduct, there was a presumption that compensation would not be made. The Court determined that such a presumption did not exist and that there were not any cogent reasons for such a presumption to exist. Rather, there were compelling reasons for an opposite approach. Accordingly, the question of compensation was remitted back to the 2012 Panel for a fresh determination.