Massiah v. Justices of the Peace Review Council, 2014 ONSC 3415
CITATION: Massiah v. Justices of the Peace Review Council, 2014 ONSC 3415
DIVISIONAL COURT FILE NO.: 449/13
DATE: 20140604
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, R. J. SMITH AND LEDERER J.
BETWEEN:
ERROL MASSIAH Applicant
– and –
JUSTICES OF THE PEACE REVIEW COUNCIL Respondent
Ernest J. Guiste, for the Applicant
Scott C. Hutchison and Christine Mainville, for the Respondent
Christopher Peter Thompson and Meagan Anne Williams, for the Attorney General for Ontario
HEARD at Toronto: June 4, 2014
ORAL REASONS FOR JUDGMENT
LEDERER J. (orally)
[1] Judicial Review is a discretionary remedy. The discretion employed, may, even should, account for the actions of the applicant. Here, the application was commenced eighteen months after the decision of the Justices of the Peace Review Council (“JPRC”) was released (April 2012 to October 2013) and was perfected only after twenty-one months had passed. In the circumstances, we do not accept that a reasonable explanation for this delay has been provided.
[2] The sanctions imposed by the JPRC have been complied with, including letters of apology from the applicant to the women affected by his inappropriate conduct.
[3] To allow the judicial review to continue in these circumstances, after this length of time, would detract from the efficacy of the efforts and responsibility of the JPRC to ensure public confidence in the administration of justice as conducted by Justices of the Peace. Apart from everything else, to allow this judicial review to proceed would stand as a potential, if not actual, repudiation of the apologies that were ordered and made, albeit eighteen months after the decision of the JPRC.
[4] Having considered the three criteria of: length of the delay, whether there is a reasonable explanation for the delay and prejudice as a result of the delay, we are satisfied that the application should be dismissed for delay.
[5] Nonetheless, we proceed to consider the judicial review on its merits. The application seeks to quash the decision of the JPRC, but in doing so does not rely on actions taken at the hearing or the substance of the decision it made. Rather, it refers to actions taken earlier in the process, being:
(i) the manner in which the complaint was made; and
(ii) the manner in which the investigation of the Complaints Committee was conducted.
[6] It is trite to observe that judicial review will not, generally, succeed where the applicant has failed to exercise all of his, her or its other remedies. One of the reasons for this principle is the hope that, as the matter proceeds through the steps set out, any errors in the process adopted will be corrected and, on this basis, can be set aside. In this situation, there is no basis remaining (if there was any in the first place) for the complaints the applicant now seeks to make with respect to the form of the complaint or the nature of the investigation.
[7] The legislation makes clear that a complaint may be made by “any person” and must be “in writing” (Justice of the Peace Act, R.S.O. 1990, c. J.4, s.10.2(1) and (2)). There is nothing that suggests that the ability to make a complaint is restricted to the “victim” or that the involvement of any “agents of the Attorney General” is restricted to advising complainants about the role of the JPRC, referring them to the JPRC or to explaining how a complaint is to be made (Justice of the Peace Act, R.S.O. 1990, c. J.4, s. 10.2(3)). The purpose of this section is not to limit the role of Ministry officials. It is designed to ensure that the process is open and public. The section obliges those officials to inform complainants of their rights and to refer them to the JPRC.
[8] The complaint made by the Acting Director of Court Operations in the Central East Region, which initiated the investigation of the Complaints Committee, was proper and appropriate and cannot form the basis for any request for judicial review.
[9] It is important to understand that the Complaints Committee conducted an investigation and not a hearing. The legislation authorizes counsel to be retained to assist a Complaints Committee (Justice of the Peace Act, R.S.O. 1990, c. J.4, s. 8(15)). There is nothing that prohibits this retainer from including the interviewing of witnesses on behalf of the Committee or interviews undertaken by the Acting Director of Court Operations in the Central East Region. This is not, in any way, demonstrative of an improper delegation of its responsibilities.
[10] As part of the investigation, the applicant was given the opportunity to respond, in writing, to the allegations that had been made. There is no requirement that an investigation include an interview of the person who is the subject of the complaint or that any response to the allegations be placed before those complaining. It is here that the fact that this is an investigation, not a hearing into the complaint, becomes significant. The obligation of the Complaints Committee is not to determine if the complaints are justified. The Committee may find the complaint frivolous, may seek to provide advice concerning the issues raised, may refer the complaint to the Chief Justice of the Ontario Court of Justice, or as here, order that a formal hearing be held (Justice of the Peace Act, R.S.O. 1990, c. J.4, s. 11(15)). The actions taken here fall properly within the context of an investigation. There has been no breach of natural justice and no denial of any right to a hearing by an unbiased decision-maker (audi alteram partem).
[11] Finally, the applicant complains that his counsel were ineffective and that this resulted in a breach of natural justice. It is said that he was denied a fair hearing. In the context of a civil proceeding, which this was, there is no right, in law, to “effective counsel”. Be that as it may, in this case, the challenge made was to the failure of counsel to object to what was said to be an improper complaint and an improper delegation of the investigation that was improperly conducted. Since we have found that these complaints are without substance, they cannot be taken to show any error on the part of counsel.
[12] The allegation goes on to say that there is a further failure in that his counsel did not conduct an independent investigation. Counsel, who acted on the hearing conducted by the JPRC, did take investigative steps in that he interviewed those he felt would be useful to the applicant. This is a matter of professional judgment.
[13] The decision of the Regional Senior Judge, not to assign the applicant to sittings before the recommendation of the Complaints Committee had been made, is authorized pursuant to s. 15(1) of the Justice of the Peace Act. The failure to object is not evidence of ineffective counsel and, in any event, is irrelevant to the application for judicial review. There is no merit in the submission that counsel was ineffective.
[14] For the reasons referred to, the application is dismissed. The Applicant shall pay costs in the amount of $35,000 all in with respect to the judicial review application and the motion to dismiss for delay.
[15] The motion by the Applicant pursuant to s. 21(5) is dismissed as moot. Applicant shall pay costs of that motion in the amount of $2,000 all in.
[16] Given the dismissal of the judicial review application, the two witnesses are relieved from any obligation to answer undertakings or further questions or interrogatories.
KITELEY J.
R. J. SMITH J.
LEDERER J.
Date of Reasons for Judgment: June 4, 2014
Date of Release: June 17, 2014
CITATION: Massiah v. Justices of the Peace Review Council, 2014 ONSC 3415
DIVISIONAL COURT FILE NO.: 449/13
DATE: 20140604
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, R. J. SMITH AND LEDERER J.
BETWEEN:
ERROL MASSIAH Applicant
– and –
JUSTICES OF THE PEACE REVIEW COUNCIL Respondent
ORAL REASONS FOR JUDGMENT
LEDERER J.
Date of Reasons for Judgment: June 4, 2014
Date of Release: June 17, 2014