Massiah v. Justices of the Peace Review Council, 2016 ONSC 6191

CITATION: Massiah v. Justices of the Peace Review Council, 2016 ONSC 6191

DIVISIONAL COURT FILE NO.: 316/15

DATE: 20161004

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MARROCCO A.C.J., NORDHEIMER & THORBURN JJ.

BETWEEN:

ERROL MASSIAH Applicant

– and –

THE JUSTICES OF THE PEACE REVIEW COUNCIL, THE LIEUTENANT GOVERNOR BY AND WITH THE ADVICE AND CONCURRENCE OF THE EXECUTIVE COUNCIL OF THE LEGISLATIVE ASSEMBLY and THE ATTORNEY GENERAL OF ONTARIO Respondents

COUNSEL:

R. Anand & H. Peglar, for the applicant

S. Hutchison & M. Gourlay, for the respondent, The Justices of the Peace Review Council

S. Blake & B. Kettles, for the respondents, The Lieutenant Governor by and with the advice and concurrence of the Executive Council of the Legislative Assembly and the Attorney General of Ontario

HEARD at Toronto: September 14 & 15, 2016

REASONS FOR JUDGMENT

NORDHEIMER J.:

[1] Errol Massiah applies for judicial review of the decisions and orders of a Hearing Panel (the “2012 Panel”) of the Justices of the Peace Review Council (“JPRC”) which resulted in his removal from the office of justice of the peace and which also denied him any compensation for his legal expenses. For the following reasons, I would dismiss the application save for the issue regarding the 2012 Panel’s decision not to recommend compensation for legal fees. I would set aside that decision and remit that issue only to the 2012 Panel for reconsideration.

Factual background

[2] In 2011, pursuant to the Justices of the Peace Act, R.S.O. 1990, c. J.4 (the “JPA”), the applicant was brought before a Panel (the “2011 Panel”) of the JPRC to defend allegations of judicial misconduct consisting of sexually inappropriate comments to female staff at an Oshawa courthouse between 2008 and 2010 (the “2011 Hearing”). Douglas Hunt, Q.C. acted as Presenting Counsel. At the end of the 2011 Hearing, on March 1, 2012, the panel concluded that some of the allegations had been proven. The applicant received a ten day suspension (without pay), was required to apologize to the complainants, and was ordered to complete gender sensitivity training.

[3] In late 2011, during the course of the 2011 Hearing, several employees at the Durham Region Provincial Offences Court (the “Whitby courthouse”), where the applicant also presided, contacted Mr. Hunt to say that the applicant had conducted himself in a similar manner at their workplace. Mr. Hunt had lawyers from his office interview the employees, had the interviews transcribed, and submitted the transcripts to the JPRC in a document titled “Complaint Respecting His Worship Justice of the Peace Errol Massiah”.

[4] In accordance with the JPA, a Complaints Committee was convened. The Complaints Committee determined that the new allegations should be held in abeyance pending the completion of the 2011 Hearing, to ensure that any investigation, such as interviewing of witnesses, would not in any way interfere with, or be perceived to be interfering with, the ongoing matter. After the 2011 Hearing was completed, the Complaints Committee carried out an investigation. The applicant was provided with an opportunity to respond in writing to the allegations which the Complaints Committee considered capable of supporting a finding of judicial misconduct. Thereafter, the 2012 Panel was convened to conduct a hearing on the allegations referred by the Complaints Committee. These complaints related to alleged conduct by the applicant between 2007 and 2010 at the Whitby courthouse.

[5] There were a number of preliminary issues raised by the applicant that led to a total of eight separate decisions by the 2012 Panel before the actual hearing got underway. Of those, two are worthy of mention because they tie into the complaints now made regarding the ultimate decisions. First, the applicant asserted that there was no valid “complaint” under the JPA because there was no written complaint from the affected individuals. The 2012 Panel rejected that contention and found that the report that had been submitted by Mr. Hunt constituted the necessary written complaint.

[6] Second, the applicant sought to have the complaint dismissed as an abuse of process. The allegation of an abuse of process included complaints of delay in bringing the allegations forward. The 2012 Panel rejected that motion. In the course of doing so, the 2012 Panel considered the issue of delay but held that, while fading memories might affect the credibility of witnesses, that was something to be taken into account when it came time for the 2012 Panel to consider and weigh the evidence.

[7] Over seven days in July 2014, the 2012 Panel heard evidence from a number of people employed at the Whitby courthouse who either experienced, or witnessed, inappropriate, sexual conduct by the applicant. Presenting Counsel called thirteen witnesses at the hearing. The applicant called six witnesses, and also gave evidence on his own behalf. Written and oral submissions were also subsequently provided by counsel.

[8] The evidence heard by the 2012 Panel can be conveniently gathered into four different categories:

(i) Inappropriate interaction with female staff members;

(ii) Inviting court staff into chambers when not fully dressed;

(iii) Inappropriate conduct in courtroom;

(iv) Unwanted touching of an employee.

[9] The 2012 Panel heard from various witnesses regarding each of these categories of conduct. In terms of the first category, the evidence was that the applicant would make inappropriate comments to some females and would look at them in a suggestive manner. This conduct was directed at both Provincial prosecutors and court staff. Relating to the second category, the 2012 Panel heard that the applicant would change in his chambers with the door open and that staff members would enter his chambers, only to be confronted with the applicant in a state of undress. The 2012 Panel also heard that the applicant would, on some occasions, change in the hallway outside of his chambers. The third category related to allegations that the applicant adopted an attitude towards attractive female defendants, when he was presiding in the courtroom, that was markedly different from the attitude that he exhibited towards other defendants. The applicant would demonstrate a particular interest in these female defendants and, unlike with other defendants, would often refer to them by their first names. In terms of the fourth category, the applicant put his hands on the shoulders of a female staff member, while she was seated at her desk, and also said something to her. The female staff member said that the applicant’s actions made her feel very uncomfortable.

[10] The applicant explained, in his evidence, that making positive comments on a woman’s appearance was part of his “management style”. He also said that his conduct reflected his positive attitude and that no one had ever raised any issue with him to suggest that his conduct was inappropriate or was, in any way, not appreciated by anyone.

[11] On January 12, 2015, the 2012 Panel released its decision on the allegations. The 2012 Panel found that each of the categories of misconduct had been proven. In that regard, it is important to point out that the standard of proof to be employed by a hearing panel, under the JPA, is proof on a balance of probabilities. It is not proof beyond a reasonable doubt. In reaching its conclusions, the 2012 Panel said:

There is, in our view, credible cogent evidence from the many witnesses previously referenced which proves, on the balance of probabilities, that between May 30, 2007 and August 23, 2010, at the Whitby courthouse, His Worship engaged in a course of conduct, which included both sexualized comments and conduct towards female court staff, a female prosecutor, and female defendants, that was known or ought reasonably to be known to be unwelcome, unwanted and inappropriate. There is compelling evidence that proves a pattern of such conduct by His Worship towards women in the workplace which made them feel uncomfortable, uneasy, embarrassed and offended.

[12] In reaching its conclusions, the 2012 Panel expressly rejected the applicant’s explanations for his conduct. The 2012 Panel said:

His Worship’s evidence that his compliments, which we accept objectified and sexually harassed women, were simply part of his “management style” demonstrated complete lack of insight or callous disregard for the women in his workplace. Given his depth of experience working in the area of human rights law, and his position as a judicial officer, His Worship would have known or ought to have known that such behaviour could cause offence, harm, discomfort and/or undermine the dignity of female staff and prosecutors.

[13] Following both written and oral submissions on the question of disposition, on April 28, 2015, the 2012 Panel released its decision. The 2012 Panel concluded that only a recommendation for the Applicant’s removal could restore public confidence. The 2012 Panel said:

When we consider the extent and duration of His Worship Massiah’s misconduct, and his testimony, before us, which demonstrated a complete lack of insight into the gravity of his misconduct even after a previous public hearing, we conclude that the dispositions set out in paragraph 11.1(10) (a) to (f) are not sufficient to restore public confidence in His Worship Massiah or in the judiciary in this case.

The next day, the applicant was removed from office by Order in Council O.C. 546/2015.

[14] Lastly, after the 2012 Panel’s conclusions on the allegations, and its penalty disposition, the applicant sought compensation for the legal fees he had incurred in the course of the hearing. The applicant claimed legal costs relating to the preliminary motions in the amount of $500,000.00, and $116,000.00 in legal costs for the hearing proper. On June 16, 2015, the 2012 Panel dismissed the applicant’s request for compensation. The 2012 Panel held that “ordering compensation in this case is wholly and completely inappropriate”.

The issues

[15] The applicant has raised eight separate categories of errors which he says that the 2012 Panel made in arriving at the conclusions that it did. In my view, those alleged errors can be effectively reduced to four:

(a) the 2012 Panel did not have jurisdiction to entertain the complaint;

(b) the 2012 Panel erred in its conduct of the hearing including considering improper evidence and failing to give proper consideration to various factors including delay;

(c) the 2012 Panel erred in its consideration of the appropriate penalty to be imposed;

(d) the 2012 Panel considered irrelevant factors in declining to recommend compensation for the applicant’s legal costs.

Before considering the asserted errors, however, I should briefly deal with the proper standard of review.

Standard of review

[16] It is not clear if there is any real disagreement between the parties over the standard of review. However, since there is no express agreement on the subject, I consider it prudent to address the issue. The 2012 Panel must be correct in terms of its understanding of the legal principles to be applied and it must also be correct in terms of ensuring that its conduct of the hearing complies with the principles of natural justice. However, the 2012 Panel’s application of those legal principles; its consideration and evaluation of the evidence; and its conclusions on the allegations, the appropriate penalty and the issue of compensation for legal fees, all attract a standard of review of reasonableness.

[17] On that point, I adopt the general approach to a review of a disciplinary hearing that has recently been enunciated in Groia v. The Law Society of Upper Canada (2016), 2016 ONCA 471, 131 O.R. (3d) 1 (C.A.) at para. 58, (substituting the JPRC for the Law Society/Appeal Panel):

The presumption of reasonableness review applies in this case. The questions at issue here concern the Appeal Panel’s determination whether Mr. Groia’s impugned conduct constituted professional misconduct within the meaning of the Act - the Law Society’s ‘home’ statute - and the Conduct Rules, and whether the Appeal Panel erred in fashioning an appropriate penalty and costs award. The scope of the Law Society’s jurisdiction to discipline lawyers for in-court incivility involves an interpretation of the Act and the Conduct Rules. These are matters squarely within the Appeal Panel’s specialized expertise and the Law Society’s regulatory mandate under the Act.

A. Jurisdiction

[18] The applicant contends that the 2012 Panel did not have any jurisdiction to pursue the allegations made against him because there was no written complaint filed with the JRPC. The applicant relies on s. 10.2(2) of the JPA that provides that a complaint “must be made in writing”. The applicant extrapolates from this statutory requirement that the actual complainant must make the complaint in writing in order to give the JRPC jurisdiction.

[19] I do not accept that contention for a number of reasons. First, there is nothing in the JPA that establishes that requirement. The JPA does not say that the complaint must be made by the person who was the victim of the alleged conduct, nor does it provide that that person must file the written complaint. It simply states that, if there is a complaint, it must be made in writing. Second, s. 10.2(1) says that “any” person may make a complaint about the conduct of a justice of the peace. Again, that statutory provision is not restricted to the person directly affected by the conduct. Third, holding, as the applicant would have us do, that the section is to be interpreted as requiring the actual victim of the conduct, to be the person who must file the written complaint, would greatly restrict the ability of the JRPC to review the conduct of justices of the peace. It would be an interpretation that is directly contrary to the principles of statutory interpretation, including the principle set out in s. 64(1) of the Legislation Act, 2006, S.O. 2006, c. 21, Sch. F, which reads:

An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects

[20] In my view, the clear intention of s. 10.2 of the JPA is to allow any person, who becomes aware of possible misconduct by a justice of the peace, to draw that conduct to the attention of the JPRC while, at the same time, requiring a measure of procedural formality to the complaint mechanism by ensuring that only written complaints are accepted. This latter requirement would, among other things, serve to ensure that the nature of the complaint is clear to the recipient of the complaint and is not subject to interpretation depending on who might receive, and record, any complaint made orally.

[21] The report provided by Mr. Hunt not only complies with the stated requirements of s. 10.2, it also, because of its detail, provided both the JPRC and the applicant with a full understanding of the nature of the complaints that had been made.

[22] Consequently, I see no merit in the jurisdiction issue raised by the applicant. I would, in passing, note that this same issue was raised in an earlier judicial review application by this same applicant and it was similarly rejected by this court in that case: see Massiah v. Justices of the Peace Review Council, [2014] O.J. No. 2877 (Div. Ct.) at para.7.

B. The conduct of the hearing

[23] There are two main aspects to the applicant’s complaint under this heading. One is that the 2012 Panel received evidence regarding allegations that the applicant had been expressly told he would not have to respond to. The other is that the 2012 Panel did not adequately consider the issue of delay in evaluating the evidence and reaching its conclusions despite its earlier ruling that it would.

[24] In terms of the first aspect, the applicant had faced a broader range of allegations when the complaint was first received. However, after the complaint had been investigated, certain of the specified allegations were found not to justify review by a formal hearing. The applicant was told, therefore, that he did not have to respond to certain of the allegations that had been made. However, during the course of the evidence before the 2012 Panel, some of the witnesses made reference to the incidents that underlay some of these other allegations. Counsel for the applicant objected to this evidence. The 2012 Panel cautioned Presenting Counsel that only evidence that related to the allegations that were before the 2012 Panel for determination ought to be elicited.

[25] The matter arose for a second time, a short time later, but in a different context. Again, a witness made reference to an event that underlay one of the allegations that the applicant had been told that he did not need to respond to. Counsel for the applicant renewed his objection. In this instance, however, the 2012 Panel did not refuse to accept the evidence. The 2012 Panel did so expressly on the basis that the evidence, while not relevant to an allegation that it had to consider, was relevant both to put the witness’ evidence into context and as part of the necessary narrative.

[26] In any trial, hearing or like proceeding, it is not realistic to attempt to compartmentalize a witness’ evidence. Like the situation here, sometimes a witness must be permitted to give evidence that, while not strictly relevant to the issue to be determined, is nonetheless necessary for the purpose of explaining why the witness thought something or did something. It may also be necessary to properly follow the chronology of events. That is why, for example, sometimes witnesses are permitted to give hearsay evidence that would otherwise be clearly inadmissible. What the adjudicator cannot do, however, is use that evidence to make an adverse finding.

[27] It was under this principle that the 2012 Panel allowed some small portions of evidence to be presented from one or two witnesses. For example, in one instance it permitted a witness to give evidence regarding a specific event that underlay an allegation that the applicant had been told he did not have to respond to. The witness was permitted to give the evidence, not for the purpose of establishing that allegation, but rather for the purpose of explaining why that event, coupled with other events that she recounted, had caused her to view the applicant’s overall conduct as sexual or suggestive in nature. That is an example of allowing evidence to be adduced for the purpose of putting a witness’ evidence in its proper context.

[28] I cannot find any error in the manner that the 2012 Panel dealt with these few instances. What is most important is that the 2012 Panel did not use this evidence to make a finding of misconduct respecting an event that the applicant had been expressly told that he did not have to respond to. Indeed, much of this evidence was not even referred to by the 2012 Panel in its decision. At the same time, though, one has to appreciate that the 2012 Panel was obligated to make findings regarding some allegations that were general in nature. One allegation, for example, was:

You displayed improper and/or offensive conduct and made inappropriate, sexual and/or offensive comments directed at females that made persons working in the justice system feel uncomfortable, uneasy or embarrassed.

[29] As may be apparent from the above example, the 2012 Panel was required to examine and make findings regarding the overall conduct of the applicant. It therefore had to consider individual events that were not, individually, matters to which the applicant was obliged to respond but which were collectively relevant to the broader allegations. In light of that reality, I cannot find any substantive error in the way in which the 2012 Panel approached these individual pieces of evidence.

[30] In terms of the delay aspect, the applicant had brought a pre-hearing motion alleging that the proceeding amounted to an abuse of process. Delay was raised as part of that motion although I note that delay was not, by itself, relied upon by the applicant as justifying a stay of the hearing. In the course of its decision dismissing the abuse of process motion, the 2012 Panel noted that the impact of delay would be more appropriately dealt with in the 2012 Panel’s evaluation and weighing of the evidence. Specifically, in its decision on the abuse of process motion, the 2012 Panel said:

The ability of each witness, including His Worship, to recall events and provide accurate testimony on events of years ago is an issue to be assessed when we consider and weigh the evidence on its merits. In our opinion, a passage of time that may cause memory to fade does not, however, form a basis to conclude there has been an abuse of process. No legal basis or actual prejudice on the facts of this case was presented which counters that view. (para. 119)

[31] The applicant complains that, having made that statement, the 2012 Panel never expressly dealt with the issue of delay. I do not agree. First, I do not read the decision of the 2012 Panel on the abuse of process motion as saying that it would deal with the delay issue as a discreet head of relief. Rather, the 2012 Panel simply indicated that it was a factor to be considered in assessing the evidence of the various witnesses. Contrary to the applicant’s submission, the 2012 Panel did, with respect to certain witnesses, make comment regarding the passage of time as it related to the quality of the witness’ evidence. In those few instances where it was a relevant consideration, the 2012 Panel referred to other evidence that corroborated the witness’ evidence, in whole or in part, and thus provided the 2012 Panel with a level of comfort in accepting that witness’ evidence, notwithstanding any impact resulting from delay. There is nothing improper in the manner by which the 2012 Panel dealt with this issue.

[32] Lastly on this point, the 2012 Panel carefully reviewed the evidence and explained, in detail, why it accepted the evidence that it did and why that evidence led to the conclusion that the misconduct had been made out. Again, I cannot find any proper basis to conclude that the decision of the 2012 Panel was, in any way, unreasonable in that regard.

C. The penalty

[33] The applicant complains that the penalty of removal from office was excessive. He points to the fact that the penalty imposed on him on by the 2011 Panel had been a ten day suspension (without pay), apologies to the complainants, and gender sensitivity training. The applicant says that to move from that penalty to one of removal, for what he contends are essentially the same type of complaints, and ones that pre-dated the complaints determined by the 2011 Panel, is disproportionate.

[34] On this issue, I start with the observation that the objective to be achieved through a disposition recommended by a body, that is considering a discipline issue involving a person holding judicial office, is different than is the objective to be achieved, for example, in sentencing an accused person or suspending the privileges of a person who holds a license to engage in an activity. In the latter situation, the sentencing objectives are principally offender centric. In other words, in that situation, the focus is chiefly, but not exclusively, on the accused person.

[35] The objective is different when considering a disposition involving the holder of judicial office. The objective in such cases is principally directed at maintaining or restoring public confidence in the integrity of the judiciary. This object is described in Ruffo v. Conseil de la magistrature, 1995 49 (SCC), [1995] 4 S.C.R. 267 where Gonthier J. said, at para. 68:

The Comité’s mandate is thus to ensure compliance with judicial ethics in order to preserve the integrity of the judiciary. Its role is remedial and relates to the judiciary rather than the judge affected by a sanction.

[36] The Panel in this case employed that objective in deciding on the appropriate disposition. As the Panel said in its reasons on disposition:

Accordingly, in assessing the conduct of justices of the peace, the role of a Hearing Panel under section 11.1 of the Act is remedial and relates to the judiciary in general rather than the specific justice of the peace affected by a sanction. As such, the role of the Hearing Panel in addressing judicial misconduct is not to punish a part, i.e., the individual justice of the peace who stands out by conduct that is deemed unacceptable but, rather to preserve the integrity of the whole, i.e., the entire judiciary itself. (para. 9)

[37] Against that backdrop, I start by pointing out that the applicant’s argument regarding the disparity between the two dispositions ignores certain salient facts. First, the applicant’s submission that the disposition made by the 2011 Panel was “binding” on the 2012 Panel is misguided. While the factual findings made by the 2011 Panel are binding on the 2012 Panel, (for example, that the applicant engaged in specific instances of misconduct), the disposition has no such effect. The 2012 Panel was required to arrive at a disposition that was appropriate on the facts before it and, in that regard, the 2012 Panel was not constrained by the disposition made by the 2011 Panel. Second, the 2011 Panel was not privy to the misconduct allegations that were before the 2012 Panel. It would be complete speculation to try and guess what the 2011 Panel would have decided was the appropriate disposition if the full panoply of misconduct had been before it. Third, the 2011 Panel made certain observations regarding the impact that they expected that their disposition would have on the applicant. The 2012 Panel found that those aspirations had not been borne out by the conduct of the applicant in the hearing before it. To the degree that the 2011 Panel had given the applicant the “benefit of the doubt” in terms of its expectation that his understanding and “education”, regarding the failings in his conduct, would be brought home to him by its decision, the 2012 Panel found that the applicant had not, in fact, gained the hoped for realization, or insight, from the earlier proceeding.

[38] This last point is of some considerable importance to the disposition that the 2012 Panel made. It is a point that was made by the 2012 Panel not once, not twice, but three times during the course of their reasons on disposition:

… there was no forthright, unequivocal or convincing acknowledgement by His Worship during this hearing of the inappropriateness of his acts found to demonstrate misconduct or of the impact of his actions upon the women subjected to that misconduct. Nor was there convincing evidence that he felt remorse for those impacts. (para. 25)

We acknowledge that, in his testimony, His Worship expressed some regrets about his conduct, and claimed to have gained insight about his conduct.

Our findings were, however, that from His Worship’s testimony before us, there was cogent evidence that His Worship's view of his conduct has not changed to any degree, even after it was found by the previous Hearing Panel that similar actions and comments constitute judicial misconduct. (paras. 28-29)

Yet, he still fails to appreciate or acknowledge that there is a court hierarchy and the implications that hierarchy has on those who work in the justice system. He continues to be unable or unwilling to acknowledge the distinction between appropriate and inappropriate conduct in the workplace and the impact that inappropriate conduct and commentary has on both recipients and observers. (para. 51)

[39] While the applicant challenges these findings by the 2012 Panel, he has failed to demonstrate that those findings are not borne out by the evidence and thus are unreasonable. The 2012 Panel heard the evidence of the applicant and were entitled to draw the conclusions that they did. The panel was not obliged to accept the applicant’s evidence that his view of his conduct had changed and matured.

[40] The 2012 Panel had also made a finding regarding the manner in which the applicant had given evidence before it that necessarily weighed heavily on their conclusion as to the appropriate disposition. In its reasons on the merits, the 2012 Panel had said:

In all of these aspects, we find His Worship’s evidence to be problematic. His testimony was replete with inconsistency, an air of insincerity, and efforts to adjust his testimony to minimize the inappropriateness of his conduct. We do not accept that he is a credible witness or that his evidence was reliable. (para. 174)

[41] The 2012 Panel referred back to this finding towards the end of its decision on disposition. I agree with counsel for the JPRC that it is difficult to see how, in light of this finding, that is amply supported by the evidence, the 2012 Panel could have achieved the necessary goal of restoring and maintaining the integrity of the judiciary, if it permitted the applicant to remain in his position as a justice of the peace. It is tough to see how the applicant could be seen as being able to carry out his duties of adjudicating matters affecting members of the public, in light of this devastating attack on his own credibility.

[42] It bears repeating that the role of a judicial office holder is different than any other professional position. It was described in Re Therrien, 2001 SCC 35, [2001] 2 S.C.R. 3 by Gonthier J., at para. 108:

The judicial function is absolutely unique. Our society assigns important powers and responsibilities to the members of its judiciary. Apart from the traditional role of an arbiter which settles disputes and adjudicates between the rights of the parties, judges are also responsible for preserving the balance of constitutional powers between the two levels of government in our federal state. Furthermore, following the enactment of the Canadian Charter, they have become one of the foremost defenders of individual freedoms and human rights and guardians of the values it embodies: [citation omitted]

[43] The 2012 Panel carefully considered the options available to it in terms of disposition. The 2012 Panel recognized that removal from office was the most serious disposition and one that:

… should only be imposed in circumstances where the judicial officer’s ability to discharge the duties of office is irreparably compromised such that he or she is incapable of executing judicial office. (para. 14)

[44] The 2012 Panel was faced, however, with its earlier findings regarding the applicant’s conduct including that the conduct had created a poisoned work environment; that it had been repeated over a number of years; and that it had occurred both inside and outside of the courtroom. Perhaps most important was the fact that the 2012 Panel had concluded that the applicant was still unwilling to acknowledge the wrongfulness of his conduct.

[45] On this latter point, the applicant asserts that the 2012 Panel punished him for failing to admit his guilt. He points to the decision in Watt v. Law Society of Upper Canada, [2005] O.J. No. 2431 (Div. Ct.) as an example where this court overturned a decision of an appeal panel of the Law Society for just that error. I do not agree with that basic assertion. I first note that the core complaint involved in Watt was entirely different than are the complaints here. In any event, the 2012 Panel did not punish the applicant for contesting the allegations. Rather, having concluded that the misconduct had occurred, it found that the applicant did not have insight into his misconduct and, therefore, the 2012 Panel could not have any faith that the misconduct would not be repeated. It was the failure of the appeal panel in Watt to consider the evidence that Mr. Watt would not re-offend that led this court to overturn the appeal panel’s finding in that case. That is the exact opposite of the situation here.

[46] In the end result, the 2012 Panel concluded:

The sexual harassment of women in the courthouse by His Worship Errol Massiah, who has demonstrated through his testimony before us a refusal or inability to accept that sexually inappropriate conduct by a justice of the peace towards women in the workplace is not acceptable, is so manifestly and profoundly destructive of the judicial role and integrity in the judiciary that public confidence requires him to be removed from office. (para. 65)

[47] In light of the factual findings that the 2012 Panel made, based on the evidence that it heard, I cannot find that the 2012 Panel’s conclusion on disposition is unreasonable.

D. Compensation

[48] The final issue is the applicant’s challenge to the 2012 Panel’s decision not to recommend that he be compensated for his legal costs associated with the hearing. Section 11.1(17) of the JPA provides that a panel:

… may recommend that the justice of the peace be compensated for all or part of the cost of legal services incurred in connection with the hearing.

Unlike the 2012 Panel’s other conclusions, this aspect does pose a problem.

[49] In my view, the 2012 Panel started from a flawed premise, that is, that where there has been a finding of judicial misconduct, the presumption should be that compensation will not be made. Specifically, the 2012 Panel said:

… it is only in exceptional circumstances that the public purse should bear the legal costs of a judicial officer who has engaged in judicial misconduct.

The 2012 Panel adopted this presumption from an earlier decision of a different Hearing Panel of the JPRC in Re Foulds (JPRC, July 21, 2013).

[50] I do not accept that any such presumption exists nor do I find any cogent reasons why such a presumption should exist. Rather, there are compelling reasons for the opposite approach.

[51] First, and as noted above, dismissal of a judicial officer is a matter of public importance. The considerations to be taken into account in dismissing a judicial officer include not only the conduct of the individual, but its effect on the justice system as a whole. The principal objective of the complaint process is to restore and maintain public confidence in the integrity of the judiciary, not to punish the judicial officer holder, although punishment may result.

[52] Second, where a Provincial Attorney General makes a complaint against a federally appointed judicial officer, a hearing is mandatory.[^1] While the same provision does not apply in the case of judges of the Ontario Court of Justice or of justices of the peace, the prospect of a complaint emanating from the Government is, nonetheless, a real one. This possibility is of some significance given that one of the most important roles performed by a judicial officer is to stand between the state and the citizen, in terms of the application of government powers. This role is referenced in the earlier statement I quoted above from Re Therrien. Judicial officers are therefore exposed not only to the vagaries of complaints by citizens but also to those of government.

[53] Thirdly, judicial office holders, by the very nature of their duties, and the decisions that they make, naturally attract criticism and animosity. It is an easy matter for someone, or some group, to make a complaint regarding something that a person, who holds judicial office, does, says, or decides. While there are screening mechanisms to ensure that only complaints that appear to have a requisite degree of validity, and that are related to judicial conduct rather than judicial decisions, are permitted to proceed beyond the stage of the initial complaint, the impact on the holder of a judicial office, where a hearing is called, is significant, as this case and others have amply demonstrated.

[54] Fourthly, there is a serious risk that, if we hold to a presumption that a judicial officer holder will not be compensated for their legal expenses, where a finding of misconduct is made, those persons will then face the judicial equivalent of the Gordian Knot. On the one hand, the person can choose to defend themselves but with the knowledge that, if the adjudicator decides against them, they will not only lose their position but may effectively bankrupt themselves and their family in the process. That result arises from the reality that the legal expenses associated with responding to a complaint, and participating in such a hearing, are likely to be significant. Few judicial office holders would be able to self-fund those expenses. On the other hand, that same person, in order to avoid those dire financial consequences, may simply decide that it is easier, and financially safer, to simply resign their office. In doing so, though, they leave the allegations unanswered and consequently, in most persons’ minds, admitted to. If that is the knot that a judicial officer holder faces, it means that the mere fact of a complaint becomes, in and of itself, a threat to judicial independence, because it may lead to one of two undesirable results. Either the judicial office holder, for reasons other than the merits of a particular complaint, acquiesces in their removal from office or they may choose to avoid decisions that will subject them to criticism.

[55] The legal expenses issue is not a fanciful one. In this case, for example, the applicant incurred legal fees in excess of $600,000. In setting out that fact, I do not, for a moment, mean to suggest that that level of legal fees was either appropriate or justified for what took place in this case.[^2] I merely use it as an example of the type of financial consequence that may arise for a judicial officer holder, who finds her/himself in the position of having to decide whether s/he can actually afford to respond to a complaint.

[56] For these reasons, adjudicative bodies, dealing with complaints against judicial office holders, ought to start from the premise that it is always in the best interests of the administration of justice, to ensure that persons, who are subject to such complaints, have the benefit of counsel. Consequently, the costs of ensuring a fair, full and complete process, ought usually to be borne by the public purse, because it is the interests of the public, first and foremost, that are being advanced and maintained through the complaint process. Again, this reflects the public interest nature of the process.

[57] All of that is not to say that, in every case where a judicial officer holder is subject to a successful complaint, that judicial officer holder can expect that his or her legal expenses will be compensated. It is a decision that must be made separately in each case and only after a consideration of the particular circumstances of the case viewed in the context of the objective of the process. Chief among those circumstances will be the nature of the misconduct and its connection to the judicial function. For example, misconduct that is more directly related to the judicial function may be more deserving of a compensation order than conduct that is less directly related. In contrast, conduct that any person ought to have known was inappropriate will be less deserving of a compensation decision than would conduct that is only determined to be inappropriate as a result of the ultimate decision in a particular case. Further, misconduct where there are multiple instances may be less deserving of a compensation recommendation than would a single instance of misconduct. Similarly, repeated instances of misconduct may be less deserving of a compensation recommendation than one isolated incident.

[58] This case itself presents as an example of how different circumstances can give rise to different decisions on compensation. The 2011 Panel recommended that the applicant be compensated for his legal expenses. The 2012 Panel did not. Those apparently conflicting results, though, simply reflect that there were crucial differences in the circumstances between the two proceedings.

[59] All of that said, it remains the fact that the 2012 Panel started from a false premise. Had they adopted the approach that I have outlined above, they may or may not have reached the same conclusion regarding the applicant’s request for compensation. This court is not in a position to determine what conclusion the 2012 Panel would have reached if the proper approach had been taken, especially given that there were two different parts to the claim for compensation and regarding which the 2012 Panel expressed different views as to their reasonableness. As a consequence, the only proper remedy is to remit the question of compensation back to the 2012 Panel for a fresh determination.

[60] Before leaving this issue, I would make one further point. It should be clear that just because a hearing panel makes a recommendation for compensation for legal expenses does not carry with it any requirement that the compensation cover whatever legal expenses were incurred and at whatever level. It is open to a hearing panel to include in its recommendation for compensation that such compensation should not include the costs associated with steps taken that, in the view of the hearing panel, were unmeritorious or unnecessary. This authority is clear from the wording of s. 11.1(17). It is also open to a hearing panel to indicate that its recommendation that costs be paid will be presumed to proceed on the assumption that those costs will still be reviewed by a competent person, prior to payment, if there are concerns regarding quantum. In any event, the Attorney General, upon receipt of any recommendation from a hearing panel that legal expenses be compensated, could, of course, require that those legal expense be assessed for reasonableness – both in terms of time incurred and fees charged.

Conclusion

[61] For these reasons, I conclude that the decision of the 2012 Panel that the applicant had engaged in misconduct is a reasonable one. The 2012 Panel’s conclusion that the applicant had to be removed from his judicial office, in light of the nature of the misconduct, is also a reasonable one. The decision of the 2012 Panel not to recommend compensation for legal fees is not, however, one that can stand given that it based on a flawed premise.

[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.

[63] If the parties cannot agree on the disposition of the costs of the application, they may make written submissions. The respondents shall file their written submissions within fifteen days of the date of these reasons. The applicant shall file his written submissions within fifteen days thereafter. No reply submissions are to be filed without leave of the court. No party’s submissions shall exceed ten pages in length.

NORDHEIMER J.

MARROCCO A.C.J.

THORBURN J.

Date of Release: October 4, 2016

CITATION: Massiah v. Justices of the Peace Review Council, 2016 ONSC 6191

DIVISIONAL COURT FILE NO.: 316/15

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MARROCCO A.C.J., NORDHEIMER & THORBURN JJ.

BETWEEN:

ERROL MASSIAH Applicant

– and –

THE JUSTICES OF THE PEACE REVIEW COUNCIL and others Respondents

REASONS FOR JUDGMENT

NORDHEIMER J.

Date of Release:

[^1]: Judges Act, R.S.C. 1985, c. J-1, s. 63 [^2]: I should make it clear that counsel for the applicant on this judicial review application were not counsel for the applicant before the 2012 Panel.