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Legal bill covered for fired justice of the peace?

Ruling says panel used flawed reasoning
|Written By Michael McKiernan

A fired justice of the peace will get another shot at having his $600,000 legal bill covered by the public purse after a court ruled his discipline panel relied on flawed reasoning to deny him compensation for the cost of his defence. 

Errol Massiah was removed from office in April 2015 after a panel of the Ontario Justice of the Peace Review Council found his behaviour in two provincial courthouses demonstrated a “pattern of inappropriate conduct toward women in the justice system.” 

After recommending its stiffest possible penalty, the panel denied Massiah his legal costs, concluding that in cases of proven judicial misconduct, there should be a presumption against compensation. In those cases, taxpayers should bear the cost of a judicial officer's defence “only in exceptional circumstances,” the panel wrote. 

But in its Oct. 10 decison, the Divisional Court said the panel "started from a flawed premise" when it made its findings on compensation, and sent the issue back to the review council for redetermination.

"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," wrote Ontario Superior Court Justice Ian Nordheimer on behalf of a unanimous three-judge panel.  

"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," Nordheimer added, noting that the particular circumstances of a case could still result in a denial of compensation.  

However, it wasn't all good news for Massiah, since the Divisional Court ruling also upheld the findings of misconduct made against him by the review council panel, as well as the penalty of removal it imposed, concluding that both were reasonable.

Raj Anand, a partner with Weir Foulds LLP who acted for Massiah on the appeal, says he has mixed feelings about the ruling. 

“We're disappointed in the result as it relates to his individual circumstances because it upholds his removal,” Anand says. “But the decision on costs and compensation is favourable, and is actually quite important to the judicial discipline system.”  

Anand says a number of review council panels in the past few years had adopted the presumption in favour of refusing costs in cases of judicial misconduct before the Divisional Court weighed in and put a halt to it.

“That's quite a major change,” Anand says. 

In his decision, Nordheimer wrote that the approach taken by the review council in Massiah's case posed a threat to judicial independence by incentivizing judicial officers to back down from challenging complaints about their conduct in future cases.

“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,” the judge wrote. 

“I think it's consistent with the general practice in these kinds of cases, where someone in an institutional position gets reimbursed for expenses incurred in the context of that position,” says James Morton, a Toronto lawyer who has acted as counsel to the Association of Justices of the Peace of Ontario.

He says JPs are particularly susceptible to cost pressures, given their relatively low pay compared with provincially and federally appointed judges.  

“It's tremendously expensive to defend one of these hearings, and a JP probably needs to have legal counsel from the get-go,” Morton says. “Whether you need to spend $600,000 is another question, but even a $40,000 legal bill would be pretty darn crushing.”

Sean Lawler, a Toronto lawyer whose practice includes professional disciplinary matters, says the Divisional Court decision “makes sense” on the costs issue. However, even with the onus reversed, he says he expects the review council to come to the same conclusion as before. 

“The problem here is that the justice of the peace's conduct was, as the panel found, quite egregious. They found he was unrepentant, and his conduct could be seen as bringing the judiciary into disrepute. In this particular case, I think the facts point in favour of him paying his own costs,” says Lawler, a partner with Shibley Righton LLP.  

At press time, Massiah was still considering seeking leave to appeal the Divisional Court ruling to Ontario's top court as he seeks a final chance to revive a judicial career that has seen him spend more time off the bench than on it. After his appointment in 2007, Massiah was assigned as a non-presiding justice of the peace in August 2010 when allegations emerged about his behaviour at the Oshawa, Ont. courthouse where he was based. Despite not hearing cases, he continued to collect his full $120,000 annual salary until his removal in 2015.    

Massiah's first hearing before the Justice of the Peace Review Counsel ended in 2012 with a 10-day suspension without pay after the panel found his sexual innuendos and comments on the appearance of court clerks made them uncomfortable. Massiah's explanation that the complainants had misinterpreted his friendly team-building style “did not hold up in the light of common sense,” especially since Massiah had a background in human rights and workplace discrimination investigations, the panel concluded. 

That time, the panel ordered reimbursement of Massiah's $123,000 legal fees, but during the hearing, further complainants came forward from the Whitby, Ont. courthouse alleging similar behaviour there. 

A second hearing elicited an aggressive defence from Massiah, but this time, the review council panel recommended his removal after finding he was not a credible witness, and that he had failed to demonstrate any remorse for his actions or insight into the impact they had on the complainants. 

At the Divisional Court, Anand argued on Massiah's behalf that the escalation in penalty was excessive considering the allegations were so similar, and actually predated the complaints from the earlier hearing.  

However, Nordheimer ruled that the second panel's penalty decision was reasonable. Indeed, “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,” Nordheimer wrote. 

Anand says the Divisional Court ruling on the compensation issue will cause some practical difficulties, since Justice Deborah Livingstone, who chaired the second review council panel, has since retired from the bench. 

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