CITATION: Errol Massiah v. Justices of the Peace Review Council, 2020 ONSC 3644
DIVISIONAL COURT FILE NO.: 808/18
DATE: 20200611
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: ERROL MASSIAH, Applicant
AND:
THE 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 ATTOURNEY GENERAL OF ONTARIO, Respondents
BEFORE: PENNY J.
COUNSEL: Ernest J. Guiste on his own behalf
Scott C. Hutchison and Matthew R. Gourlay for the JPRC
Brent Kettles and Joanna Chan for the Attorney General (observing)
Osborne G. Barnwell for the Applicant (observing)
HEARD by teleconference due to COVIC-19 pandemic: June 10, 2020
ENDORSEMENT
Ernest J. Guiste, formerly counsel for the applicant, Errol Massiah, seeks to intervene as an added party in this judicial review application. The Respondent Justices of the Peace Review Council (“JPRC”) opposes his motion. The applicant consents to Mr. Guiste’s motion. The Attorney General takes no position.
Mr. Guiste seeks status as an added party on two grounds:
i. a pecuniary interest in being paid for legal services previously rendered to the applicant; and
ii. a reputational interest in defending himself against negative comments made by the Hearing Panel at the original judicial conduct hearing (the “Panel”), and by the reconstituted Panel that rendered the decision on compensation now under review (the “Reconsideration Panel”).
Mr. Guiste submits that there is a third ground for intervention, namely the independence of the Bar and the duty of counsel to represent clients fearlessly. While I accept that this principle may be relevant to the exercise of the Court’s discretion under Rule 13.01, I prefer to treat this as a factor to be considered when assessing the nature of the case, the issues which arise and the likelihood of the moving party being able to make a useful contribution to the resolution of the appeal, rather than a distinct, un-enumerated basis for intervention under Rule 13.01.
For the reasons that follow, the motion is dismissed.
Background
There is a long history to these proceedings. Following a lengthy hearing under the Justices of the Peace Act, R.S.C. 1990, c. J.4, a panel of the JPRC made a recommendation, dated April 28, 2015, to the Attorney General that the Applicant should be removed from office as a result of findings of judicial misconduct (this was based on findings that the applicant had committed acts of sexual misconduct in the workplace). On April 29, 2015 by order of the Lieutenant Governor in Council, the Applicant was removed from office.
The applicant asked the Panel to recommend that he be fully indemnified by the Attorney General for his legal costs under s. 11.1(17) of the Act. Mr. Guiste’s account was presented, totalling over $500,000. Written submissions were made by the applicant and counsel for the JPRC. The Panel declined to recommend that the applicant be indemnified for his costs. The Panel relied in part on the manner in which the applicant’s defence was conducted by his counsel, Mr. Guiste, including a determination by the Panel that the applicant brought many frivolous motions and unduly lengthened and complicated the proceedings by advancing meritless positions and arguments.
The applicant sought judicial review of the Panel’s finding of misconduct, recommendation to remove and the Panel’s refusal to recommend indemnity for legal costs. The applicant retained different counsel, Raj Anand, for his judicial review of the Panel’s decision. Mr. Guiste did not apply for intervener status in that proceeding. Following a two-day hearing, this Court upheld the Panel’s decisions on judicial misconduct and removal from office, Massiah v. Justices of the Peace Review Council, 2016 ONSC 6191. However, on the issue of compensation, the Divisional Court found that the Panel had relied on a legal presumption against compensation for legal fees because of the recommendation to remove the applicant from office based on a finding of judicial misconduct. This, the Divisional Court held, was the wrong test in law. The Court provided guidance on the proper approach and ordered a reconsideration of that single issue. Both parties were unsuccessful in motions for leave to appeal to the Court of Appeal from that decision.
Before the Panel’s reconsideration could take place, the applicant re-hired Mr. Guiste to bring a motion in this Court to set aside the 2016 judicial review decision under Rule 59.06. He claimed that Mr. Anand and Weir Foulds were incompetent for failing to raise a range of legal arguments that Mr. Guiste had raised without success before the Panel. This Court dismissed the motion, finding that the allegation against Mr. Anand was an abuse of process, Massiah v. Justices of the Peace Review Council, 2018 ONSC 2179. Mr. Guiste, on behalf of the applicant, unsuccessfully sought leave to appeal this decision from the Court of Appeal and then from the Supreme Court of Canada.
In the meantime, the Chair of the Panel had retired and, upon receiving further written submissions, the remaining two members of the Panel were unable to reach a unanimous decision on costs. The Chief Justice appointed the Reconsideration Panel which reviewed the written record and written submissions, including the submissions previously filed.
On March 29, 2018, the Reconsideration Panel unanimously declined to make a compensation recommendation in favour of the applicant. In its decision, the Reconsideration Panel applied the factors enumerated by Justice Nordheimer and concluded that to make a recommendation would be “contrary to the public interest and inconsistent with the objectives of this process.” It further observed that “Mr. Massiah is a vexatious litigant who has demonstrated no insight into his behavior, the nature and objective of this process, and his role as a justice of the peace within the justice system.”
Some nine months later, the applicant delivered a Notice of Application for Judicial Review of the Reconsideration Decision. Nearly another year elapsed before the applicant filed his factum and materials in December 2019. There was new counsel appearing for the applicant, with whom Mr. Guiste was initially shown as co-counsel.
A hearing date of April 30, 2020 was scheduled for the judicial review application. The Respondents, the JPRC and AG/LGIC, filed their materials. However, the hearing was postponed due to the COVID-19 pandemic.
On May 4, 2020, counsel for the JPRC wrote to the other counsel indicating an intention to make a request for the hearing to be scheduled and heard remotely by video conference.
On May 7, 2020, Mr. Guiste notified the parties for the first time that he intended to seek standing to intervene as a party.
Analysis
- The criteria for intervention as an added party are set out in Rule 13.01:
13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,
(a) an interest in the subject matter of the proceeding;
(b) that the person may be adversely affected by a judgment in the proceeding; or
(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.
(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.
In Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 6886 (ON CA), 74 O.R. (2d) 164 (C.A.), Dubin C.J.O. held that the essential matters to be considered are: the nature of the case; the issues which arise; and, the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.
Appellate and review courts have occasionally exercised this discretion in favour of lawyers whose conduct has been impugned, but not every lawyer whose conduct is criticized has an automatic right to party status on appeal. Rule 13.01 is discretionary and requires a consideration of all the circumstances, with a focus on the requirements of the Rule itself and those matters articulated by Dubin C.J.O. in Peel.
The Pecuniary Interest
Mr. Guiste’s financial interest in this proceeding is slight to non-existent. The pecuniary interest in question is not his, but his former client’s. Section 11.1(17) of the Act 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.” Whether or not the applicant has paid the accounts rendered by Mr. Guiste is irrelevant to the question of whether the Reconsideration Panel acted unreasonably in declining to make a recommendation for the benefit of the applicant under s. 11.1(17). If the applicant has not paid fees owing to Mr. Guiste, that is a private matter between them. Mr. Guiste has his remedies if his former client fails to honour their retainer agreement. In this regard, Mr. Guiste is in the same position as any other creditor of the applicant.
Mr. Guiste represents, however, that in 2013 he “accepted the retainer based on the Applicant’s expectation to be indemnified by the Attorney General for the cost of defending the complaint against him in accordance with s. 11.1(17) and (18) of the Justices of the Peace Act.” I agree with counsel for the JPRC that, if Mr. Guiste shared the applicant’s alleged expectation, it was wrong as a matter of law. The Act only empowers the panel to make a recommendation to the LGIC. It does not require the panel to make a recommendation, nor does it require the LGIC to act on any recommendation if one is made. If the applicant and Mr. Guiste held a mistaken belief about what the Act required, or what their chances were of having the applicant’s defence costs paid from the public purse, this is not a basis upon which to grant Mr. Guiste added party status on this judicial review application.
In any event, Mr. Guiste’s interests are identical to the applicant’s. Both wish to have Mr. Guiste’s legal accounts paid out of the public purse. This position has already been fully and forcefully advanced by the applicant in his application for judicial review.
The Reputational Interest
It is true that that Mr. Guiste has some reputational interest at stake given the critical comments about his conduct made by the Reconsideration Panel. But this interest is highly attenuated in the context of the current judicial review proceeding.
The comments of the Reconsideration Panel are relatively mild compared to those of the Hearing Panel, which went so far as to issue an addendum to its decision on compensation specifically detailing Mr. Guiste’s involvement in what it viewed as meritless motions and other strategies over the course of the original proceeding. Mr. Guiste seeks to respond to all the comments made about him, not only by the Reconsideration Panel in 2018 but by the original Panel in 2015 as well.
In my view, Mr. Guiste’s only relevant reputational interest in this judicial review relates to the comments made about him in the Reconsideration Decision. The original Panel’s decision has already been reviewed by this Court twice. If Mr. Guiste was concerned about the original Panel’s comments in its original decision and addendum, the time to raise those concerns was in 2016 when that decision was under review. Mr. Guiste did not do so.
Mr. Guiste was, as well, provided with, and has often taken, the opportunity to defend himself throughout these proceedings.
In Butty v. Butty, 2009 ONCA 852, a case relied on by Mr. Guiste, the lawyer who sought to intervene was, without notice or warning, subjected, in the trial judge’s reasons, to highly critical comments about the lawyer’s conduct at trial. The Court of Appeal criticized the trial judge for not making his concerns known before making his derogatory comments in the reasons for judgment. Significantly, the lawyer’s former client – the appellant – was not expected to defend the lawyer’s conduct on appeal but, rather, to rely upon it as a ground of appeal.
By contrast, in this case, during the original proceedings before the Panel, Mr. Guiste was put on notice that the Panel found his conduct to be unhelpful. He had the opportunity to address these concerns, including during submissions leading up to the compensation decision in which counsel for the JPRC put these issues squarely on the table. That the applicant’s, and Mr. Guiste’s, conduct and approach during the proceedings would be relevant to the cost indemnity issue was not, and could not have been, a surprise to Mr. Guiste.
Moreover, unlike in Butty, the applicant himself has advanced a complete and thorough defence of Mr. Guiste’s conduct, claiming that the Reconsideration Panel’s comments undermined his “fundamental right to counsel and counsel’s fundamental duty to fearlessly represent his client.” From both the reputational and pecuniary perspective, therefore, the interests of Mr. Guiste and the applicant are entirely aligned. The applicant has already aggressively advanced those interests in his application for judicial review.
Delay and Prejudice to the Parties
The judicial review application is ready to be heard by video conference. The only remaining preliminary issue is whether Mr. Guiste should be granted intervener status as a party.
Rather than (as in Butty) proposing to file brief submissions on the existing record, Mr. Guiste has declared his intention to enlarge the record before this Court dramatically. His proposed contributions to the record would turn a narrowly circumscribed judicial review application into a series of broad-ranging disputes with the clear (and stated) intention of re-litigating matters from 2013-2015 and in subsequent court proceedings which took place long before the Reconsideration Decision.
Mr. Guiste proposes, for example, to file the transcripts of the entire original proceeding - 23 days of hearings between 2013 and 2015. Filing all this material would massively expand the record beyond what the applicant and the respondents have presumptively considered necessary. This alone would cause significant additional cost and delay. And, given the intended use to be made by Mr. Guiste of this huge record, it will inevitably lead to a massive expansion of the issues in the judicial review itself, all for no legitimate purpose.
In dismissing the applicant’s Rule 59.06 motion in 2018, this Court re-affirmed the importance of finality as an integral principle of the civil justice system. The Court cited with approval from Peoples Trust Company v. Atas, 2018 ONSC 58, at para. 15, which held that:
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.
Finally, the delay in bringing this motion also weighs against granting it. Mr. Guiste had the opportunity to raise these issues before the original Panel, during the application for judicial review and the motion for a rehearing and before the Reconsideration Panel. For reasons that have not been explained, Mr. Guiste waited almost a year and a half after the commencement of this judicial review application before bringing this motion. Indeed, it appears that had the COVID-19 pandemic not intervened, the application would have been heard on April 30, 2020, before Mr. Guiste’s intervention motion was ever brought.
Weighing against these factors, however, Mr. Guiste submits that there is another important consideration – the independence of the Bar and the client’s right to fearless representation by counsel. Mr. Guiste submits that being subject to adverse comment, and the denial of indemnity for costs based, in part, on the applicant’s (and his counsel’s) conduct during the hearing, will have the effect of undermining the independence of the Bar and the willingness of counsel to take necessary but unpopular positions.
I cannot agree that this submission supports Mr. Guiste’s request to become an added party in the circumstances of this case. The present application involves one question: whether, in all the circumstances, the Reconsideration Panel’s decision not to recommend that the applicant’s costs be paid by the Province of Ontario, was reasonable. The beneficiary of the exercise of a panel’s discretion to recommend indemnity for defence costs in a proceeding under the Act is the justice of the peace involved, not his or her lawyer. The right to fearless representation is the client’s, not the lawyer’s. The applicant has already argued, strenuously, in his material for this judicial review, that the Reconsideration Panel’s decision not to recommend indemnity for his costs was unreasonable and that its comments about Mr. Guiste’s conduct in the proceedings undermined his fundamental right to counsel and counsel’s fundamental duty to fearlessly represent his or her client. Mr. Guiste’s interests are entirely aligned with those of the applicant. Mr. Guiste’s participation will add nothing. Given the considerable detriment to the parties in terms of cost and delay, not to mention judicial resources, this factor adds nothing to the balance in favour of granting Mr. Guiste added party status.
Conclusion
- In summary, applying the test in Rule 13.01 as interpreted by the courts, including the Court of Appeal in Peel, I conclude that the circumstances in this case weigh strongly against granting Mr. Guiste’s motion to intervene as a party. This is for essentially three reasons:
(i) the interests of the proposed intervener are attenuated. His interests and those of the applicant are entirely aligned. The applicant’s argument is that he should be entitled to indemnity for his costs. Mr. Guiste was co-counsel on the Notice of Application for Judicial Review; the applicant has not alleged any misconduct against Mr. Guiste. To the contrary, the applicant has adamantly defended Mr. Guiste’s conduct in his factum, including with respect to the Reconsideration Panel’s comments about Mr. Guiste. Their interests are identical on both alleged interests. The applicant is already making the arguments that would be made by Mr. Guiste;
(ii) granting intervention as a party would dramatically expand the issues and record before the Court, causing inconvenience and delay. Mr. Guiste has clearly stated his intention to use this judicial review application to re-litigate matters that were decided at a hearing that took place six years ago which has since been the subject of multiple reviews and appeals. The narrow issue on this judicial review application is whether the Reconsideration Panel acted reasonably in its 2018 decision; and
(iii) the motion comes too late. The record of the entire hearing was before this Court in 2016 when the Panel’s decisions on misconduct, disposition, and compensation were subject to an application for judicial review. Mr. Guiste did not apply for intervener status at that time. He did not apply to become an added party in the current judicial review until it had been outstanding for approximately a year and a half, after the originally scheduled hearing date was adjourned due to the COVID-19 pandemic. Mr. Guiste’s participation will inevitably delay and prolong this application, which is otherwise ready to be heard as soon as the Court can schedule it.
[30] The motion is therefore dismissed.
Costs
[32] Mr. Guiste sought no costs if his motion is successful. He argues that he should not be liable for any costs if the motion is dismissed. The JPRC sought modest costs of $3,000 if the motion is dismissed, on the basis that there should be some consequence to Mr. Guiste’s conduct in bringing this unsuccessful motion, however nominal. I find that costs should follow the event. The sum of $3,000 is essentially nominal. Costs of $3,000 shall be paid by the moving party to the JPRC.
Penny J.
Date: June 11, 2020