CITATION: Massiah v. Justices of the Peace Review Council, 2018 ONSC 2179
DIVISIONAL COURT FILE NO.: 316/15
DATE: 20180409
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Conway, McKelvey, and Myers JJ.
BETWEEN:
Errol Massiah
Applicant
– and –
Justices of the Peace Review Council and the Lieutenant Governor by and with the advice and concurrence of the Executive Council of the Legislative Assembly for the Province of Ontario and The Attorney General of Ontario
Respondents
– and –
Raj Anand and Weir Foulds LLP
Intervenors
E.J. Guiste, for the Applicant
Scott Hutchinson and Matthew R. Gourlay, for the Justices of the Peace Review Council
Sara Blake, for The Attorney General of Ontario and The Lieutenant Governor in Council
Tim Gleason and Lindsay N. Beck, for Raj Anand and Weir Foulds LLP
HEARD at Toronto: April 3, 2018
BY THE COURT
Background
[1] The applicant moves pursuant to subrules 59.06 (1) and (2) of the Rules of Civil Procedure, R.R.O. 1990, Reg 194, for an order setting aside the order of this court dated October 4, 2016 (the “October 2016 Order”). The applicant also seeks an order declaring unconstitutional portions of the Justices of the Peace Act, R.S.O. 1990 c J.4.
[2] For the reasons that follow, the motion is dismissed. The applicant has failed to establish any basis for setting aside the October 2016 Order under Rule 59.06.
Key Procedural Facts
[3] After holding a statutory hearing, the Justices of the Peace Review Council (the “JPRC”) recommended that the applicant be removed from his office as a Justice of the Peace due to misconduct. The applicant was subsequently removed from office by Order in Council. The applicant sought judicial review of the decision of the JPRC before this court.
[4] After holding a two day hearing of the application and pursuant to the October 2016 Order, this court dismissed the judicial review application with respect to the JPRC’s findings of misconduct and the recommendation that the applicant be removed from office. The court did set aside and remit to the JPRC for re-hearing its recommendation that the applicant not be reimbursed for his legal expenses.
[5] Both the JPRC and the applicant sought leave to appeal the October 2016 Order to the Court of Appeal for Ontario. The Court of Appeal dismissed both applications.
[6] No further appeals are available.
The Finality of Litigation
[7] In Peoples Trust Company v. Atas, 2018 ONSC 58, Justice Corbett explained that finality is an important element of civil justice. A litigant is entitled to her or his day in court to obtain a just and final outcome. But then it is over. And when it is over, it is over. In the words of Justice Corbett:
- The Importance of Finality to Litigation
[14] …Any civilized society requires a mechanism for deciding [civil] disputes. And there is no more fundamental feature to such a system than its finality: however long and elaborate the process may be, however many appeals may be available, once the process has run its course, the dispute is at an end. The matter is decided. Whether the parties disagree with results or not, they have become beyond dispute or debate.
[15] The principle of finality requires that parties air their entire grievance and not approach the process piecemeal. In our system, a judgment, once rendered, after all appeals are exhausted, authoritatively disposes of all the issues raised in the proceeding, or which could have been raised in the proceeding.
[19] Finality is itself a principle of justice, integral to the civil justice system. And Ms Atas’ record as a litigant has been inconsistent with this basic principle. [Notes omitted.]
[8] This motion is also inconsistent with the basic principle of finality.
The Rule 59.06 Exception to the Principle of Finality
[9] Rule 59.06 of the Rules of Civil Procedure provides a narrow and rare exception to the principle of finality to which Corbett J. refers. It provides, in part:
AMENDING, SETTING ASIDE OR VARYING ORDER
Amending
59.06 (1) An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.
Setting Aside or Varying
(2) A party who seeks to,
(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;
(b) suspend the operation of an order;
(c) carry an order into operation; or
(d) obtain other relief than that originally awarded,
may make a motion in the proceeding for the relief claimed.
[10] Subrule 59.06(1) deals with correcting an order that contains an accidental error or needs correction on a point that was not adjudicated upon. It applies where the court order contains a typo or perhaps where the judge forgot to rule on a point that was raised at the hearing. It is not a basis to raise new grounds not raised before or to complain about former counsel’s handling of a proceeding.
[11] Subrule 59.06(2)(a) allows a party to challenge an order obtained by fraud or based on facts arising or discovered after the order was made. Rule 59.06 is not an opportunity to second guess counsel’s decisions as to which arguments to make at a hearing or to seek a new hearing to make the arguments that counsel previously chose not to make. That is what the applicant is seeking to do here.
[12] The applicant was present at his hearings before the JPRC and before this court at the judicial review hearing. He knew which issues were and were not raised at each stage. The applicant knew all of the facts and issues of which he now complains before the entry of the October 2016 Order.
[13] Mr. Guiste fairly concedes that he makes no allegation that a fraud was committed on this court at the judicial review hearing.
[14] The applicant was represented by Mr. Guiste at the initial hearing before the JPRC. That hearing did not go well for the applicant. The applicant then retained Mr. Anand and his firm to conduct the application for judicial review to this court.
[15] Mr. Guiste continued to be engaged by the applicant in discussing and instructing Mr. Anand. Mr. Anand disagreed with many of the views and issues raised by the applicant and Mr. Guiste as to the most appropriate approach for the judicial review application. There are no new facts that arose after the October 2016 Order was made. Rather, on this motion, the applicant is trying to raise the issues and arguments that Mr. Anand decided not to raise for him the first time around.
[16] Rule 59.06 is not a do-over. All of the issues as to the fairness of the JPRC hearing of which the applicant now complains were matters for the judicial review application before this court and then for the Court of Appeal if it chose to grant leave to appeal. When leave to appeal was denied, the proceeding ended.
[17] None of the applicant’s complaints fits within the narrow exception to finality provided by Rule 59.06.
(a) Constitutional Challenge
[18] Rule 59.06 does not authorize a party to commence a claim attacking the constitutionality of a statute. Had the applicant wished to challenge the constitutionality of the Justice of the Peace Act, the time to do so was long before his application for judicial review was dismissed and leave to appeal denied. In fact, Mr. Guiste concedes that a constitutional issue was raised in the applicant’s factum on the judicial review hearing. He is simply not content with the emphasis or the lack of emphasis placed on the argument by Mr. Anand. That is not a matter for a Rule 59.06 motion.
(b) The Applicant’s Other Issues
[19] The applicant complains that he was denied a fair and impartial hearing of the complaint against him due to, among other things: the composition and conduct of the JPRC; allegations of bias against the JPRC; allegations of impropriety against presenting counsel before the JPRC; that the JPRC failed to answer the question remitted to it; that the JPRC denied the applicant the benefit of defences that ought to have been available to him under the Ontario Human Rights Code; and that the Notice of Hearing submitted to the JPRC was broader than the terms of the Complaint brought against him. He also argues that he was denied a fair judicial review hearing because counsel for the parties at the judicial review proceeding agreed to omit from the record of proceedings five volumes of witness interview transcripts.
[20] Rule 59.06 does not apply to any of these matters. The applicant knew of all of these issues and complaints before the entry of the October 2016 Order. This includes being fully informed as to his counsel’s views as to the appropriate manner to deal with the five volume set of interview transcripts at the judicial review hearing. The written and oral arguments made by the applicant before us amount to nothing more than an effort by the applicant to have this court re-hear the application for judicial review on the merits.
(c) The Applicant’s Accusation of Ineffective Assistance of Counsel is an Abuse of Process
[21] If a party is entitled to claim that a civil order is tainted by the ineffective assistance of counsel, the issue can be raised on an appeal. Assuming, without deciding, that ineffective assistance of counsel is a ground of complaint that can be recognized by a court reviewing an order made in a civil proceeding, it is not a basis for a motion under Rule 59.06. It is neither a fraud nor does it arise from facts discovered after the court’s order has been made.
[22] The applicant did not raise the issue of ineffective assistance of his counsel at the Court of Appeal because, despite his current allegations against Mr. Anand’s handling of the hearing before this court, the applicant retained Mr. Anand to represent him on his application for leave to appeal.
[23] The fact that the applicant retained Mr. Anand for the appeal knowing the outcome and process before this court wholly undermines his suggestion that Mr. Anand provided ineffective assistance and renders the argument an abuse of process.
Order and Costs
[24] The motion to set aside the October 2016 Order is dismissed.
[25] Each of the respondents may serve and file with the Registrar up to three, double-spaced pages of submissions on costs within 10 days. The applicant may deliver within a further 10 days up to ten, double-spaced pages of responding submissions, recognizing that he will be responding to three sets of submissions. Each party shall also include a Costs Outline in the required form with its submissions.
Conway J.
McKelvey J.
Myers J.
Released: April 9, 2018
CITATION: Massiah v. Justices of the Peace Review Council, 2018 ONSC 2179
DIVISIONAL COURT FILE NO.: 316/15
DATE: 20180409
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Conway, McKelvey, and Myers JJ.
BETWEEN:
Errol Massiah
Applicant
– and –
Justices of the Peace Review Council and the Lieutenant Governor by and with the advice and concurrence of the Executive Council of the Legislative Assembly for the Province of Ontario and The Attorney General of Ontario
Respondents
– and –
Raj Anand and Weir Foulds LLP
Intervenors
REASONS FOR JUDGMENT
BY THE COURT
Released: April 9, 2018