2017 ONSC 7100, 2017 ONSC 7100

CITATION : Massiah v. the Justices of the Peace Review Council, 2017 ONSC 7100 DIVISIONAL COURT FILE NO.: 316/15 DATE: 20171201 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 Attorney General of Ontario, Respondents Raj Anand and Weirfoulds LLP, Intervenors BEFORE : Kiteley J.

COUNSEL: Ernest Guiste, counsel for the Applicant Brent Kettles, counsel for the Attorney General of Ontario, Respondent Matthew Gourlay, counsel for the Justices of the Peace Review Council, Respondent Tim Gleason, counsel for the Intervenors HEARD at Toronto: November 27, 2017 ENDORSEMENT [ 1 ] This is a motion by the Proposed Intervenors to be added as parties to a motion. The Applicant did not oppose the intervention order however there were submissions on two issues that arose out of the intervention order.

This endorsement deals with those matters that were on consent and the two matters on which I heard submissions. [ 2 ] The Applicant brought an application 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 recommended removal from the office of Justice of the Peace and which also denied him any compensation for his legal expenses. As a result of the recommendation for removal, the Lieutenant Governor signed the Order in Council O.C. 546/2015 removing the Applicant from office.

In reasons for decision released October 4, 2016 [1] the Divisional Court dismissed the application save for the issue regarding the 2012 Panel’s decision not to recommend compensation for legal fees. The proposed Intervenors acted for the Applicant in the judicial review application. [ 3 ] The Applicant retained the proposed Intervenors to seek leave to appeal the decision to the Court of Appeal, and to respond to the application by the JPRC for leave to appeal.

Both of those applications were dismissed on January 13, 2017. [ 4 ] The Applicant served a notice of motion dated September 20, 2017 in which he seeks an order pursuant to “rule 59.06(1), 59.06(2)(a)(

b) of the Rules of Civil Procedure, s. 6(1) and 10 of the Judicial Review Procedures Act, s. 20(

d) of the Statutory Power Procedures Act and s. 52(1) of the Constitution Act, 1982 , including the Constitutional Principle of Judicial Independence”. [ 5 ] The key issue is the request for “an order amending, setting aside, varying or suspending the Divisional Court’s order of October 4, 2016 upholding the findings of judicial misconduct and the recommendation to the Attorney General for the Applicant’s removal from judicial office by a Hearing Panel of the Justice of the Peace Review Council and Order in Council 546/2015 dated April 29, 2015”.

In that connection, the Applicant also asked for “an order admitting the Applicant’s proposed fresh evidence.” The grounds for the application (sic) are that the decision of the Divisional Court was made on “Admittedly Deficient Record of Proceedings”.

The request for leave to file fresh evidence is based on the Applicant’s assertion that his appellate counsel acted under a conflict of interest; that the Applicant experienced “Ineffective Assistance of Counsel”; that Presenting Counsel to the JPRC was in a conflict of interest; that he intended to rely on fresh evidence that the “complainant” was the former Assistant Attorney General for Ontario; that the Applicant experienced “ineffective assistance of counsel by Presenting Counsel”; and that there was “Non-Compliance with Mandatory Statutory Requirements” in the JPRC hearing”.

Under the “documentary evidence to be relied on” the notice of motion listed 15 items including the “sworn affidavit of Mr. Errol Massiah and exhibits thereto”. [ 6 ] Mr. Gleason acts for both Mr. Anand and the firm. As a result of that notice of motion, Mr. Gleason indicated an intention to bring a motion for an order that Mr. Anand and the firm be joined as Intervenors. Counsel attended before the Divisional Court Team Leader Justice Julie Thorburn on October 25, 2017. At that point, the Notice of Motion on behalf of the Applicant had been served without a return date and without an affidavit in support. Mr.

Gleason brought with him a draft of his notice of motion. Thorburn J. made the following endorsement on the back of the Applicant’s Notice of Motion:

Meeting with counsel to discuss ongoing steps. On the consent of all parties: The Notice of Motion final version is this copy. [Referring to the Applicant’s notice of motion.] Mr. Guiste does not agree to the motion brought by Mr. Gleason for intervenor status. A date is therefore set to hear the motion on November 27, 2017 for 45 minutes. Mr. Guiste will file his responding record on November 6. Mr. Gleeson will file his factum on November 10 th . Mr. Guiste will file his responding factum on November 21 st . [ 7 ] After Mr. Gleason served the notice of motion, Mr.

Guiste filed a responding motion record that included an affidavit of the Applicant sworn November 3, 2017 that indicated it was “in response to Mr. Anand’s intervention motion and in support of some aspects of my Rule 59 motion and for no other or improper purpose”. [ 8 ] At paragraph 2 of that affidavit, the applicant said that “for the purpose of clarity, I do not oppose intervention by my former appellate counsel. . . “ However in the various confirmation forms and emails counsel had filed in advance of this motion, it was not clear whether the motion was opposed. At the outset, Mr.

Guiste confirmed that he did not oppose the motion but that there were several issues he asked be clarified in the order. I held this matter down while counsel discussed what was outstanding. I also provided dates in March and April when the rule 59.06 motion could be heard and I left counsel to choose one of the dates and agree on a timetable to ensure readiness. I indicated that a court day of no more than 5 hours would be allocated. [ 9 ] When counsel returned, they provided a written consent that is incorporated below.

I then heard submissions on two issues raised by the Applicant: that the Intervenor ought not to be entitled to ask for costs either of this motion or of the hearing on the rule 59.06 motion; that the court ought to restrict the Intervenor’s submissions to avoid duplication. I referred to them as the “peripheral issues”.

Analysis [ 10 ] Rule 13 indicates that before making an order adding an intervenor, the court must be satisfied that the intervenor meets at least one of three criteria and the court must consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties. In the end, the court is required to make “such order as is just”. [2] [ 11 ] The procedure in which the intervention motion is brought is not a trial, nor an application but a motion [3] pursuant to rule 59.06 which provides as follows:

(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.

(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) vary an order into operation; or (

d) obtain other relief than that originally awarded, may make a motion in the proceeding for the relief claimed. [ 12 ] The Applicant and the Respondent the Justices of the Peace Review Council have consented to the intervention order but I must nonetheless ensure that the requirements of rule 13.01 are met. [ 13 ] In the rule 59.06 motion the Applicant raises allegations of ineffective assistance of counsel and misconduct that I need not detail here. Suffice it to say that the proposed Intervenors have an interest in the subject of the rule 59.06 motion and may be adversely affected by a judgment in that motion.

Granting leave to the proposed Intervenors will not delay or prejudice the determination of the rights of the parties. [4] [ 14 ] I am satisfied that the order should be made. Proposed Restrictions on the Role of the Intervenor [ 15 ] As indicated above, the Applicant asked that the court impose conditions. [ 16 ] The material filed on behalf of the Applicant is unfocused. The impression I formed was that the Applicant is primarily pursuing “facts arising or discovered after” the Divisional Court order was made. However, in submissions Mr.

Guiste left open that the Applicant might ask to set aside or vary the Divisional Court order on the ground of fraud. Furthermore, as counsel for the proposed Intervenors pointed out, other allegations that are included in the notice of motion are close to a pleading of fraud. The highlighted portions of rule 59.06 above reflect what I understand to be the basis upon which the Applicant intends to proceed. [ 17 ] Whether the Applicant does pursue a specific allegation of fraud, the content of the notice of motion which Thorburn J. indicated was final, contains serious allegations against his former counsel.

When a party makes such serious allegations, he risks

significant cost consequences if unsuccessful. I see no reason to protect the Applicant from those consequences and alternately no reason to deprive the proposed Intervenor of the opportunity to request costs. [ 18 ] The second condition the Applicant sought to impose was that the proposed Intervenors not be permitted to make submissions on the underlying legal issues such as sexual assault or bias. He raised the concern that counsel for the proposed Intervenors and for the JPRC might “gang up” on him. [ 19 ] I see no reason to limit the subject matters on which the proposed Intervenors participate.

Pursuant to the consent, they are participating as parties. As Nordheimer J. (as he then was) held in North American Financial Group Inc. v Ontario Securities Commission [5] at paragraph 9 , an intervener in the situation of a party should have the same rights as any other party. [ 20 ] During submissions, I raised concerns with Mr. Guiste about the content of the notice of motion and the request for fresh evidence. That seems to arising from rule 59.06 “facts arising or discovered” after the order that was made.

I pointed out that the “order” is that of the Divisional Court dated October 4, 2016, not the orders of the JPRC. Furthermore, in drafting the “main affidavit” in the rule 59.06 motion, counsel must consider the four factors identified in R. v. Palmer [6] . The November 3, 2017 affidavit, on which the Applicant intends to rely in the rule 59.06 motion, lacks attention to the requirements of adducing “fresh evidence”. [ 21 ] On November 27, Mr. Guiste committed to serving and filing the “main affidavit” by December 4, 2017.

I will extend that deadline modestly to ensure that the Applicant has time to turn his mind to the requirements of “fresh evidence” and “facts arising or discovered after [the order dated October 4, 2016] was made”. Ultimately the panel hearing the rule 59.06 motion will decide on the admissibility of the proposed evidence. [ 22 ] Having reviewed the materials thoroughly to prepare this endorsement, I observe that this rule 59.06 motion may be ill- advised.

Given the two day hearing of the submissions on the judicial review followed by the unsuccessful leave to appeal to the Court of Appeal, such a motion will be a challenge. Costs of the motion [ 23 ] Counsel for the proposed Intervenors has brought a costs outline which reflects his request for partial indemnity fees of approximately $8700 and disbursements of approximately $300. He asks for costs of $9000. Mr. Guiste is strongly opposed. [ 24 ] I agree that the proposed Intervenors are entitled to costs of this motion which ought not to have been necessary. Rule 13.01 was engaged.

The attendance for the morning was required because of the conditions the Applicant sought to impose, both of which were refused. The proposed Intervenors are entitled to costs but the requested amount is not proportionate to the reasonable services required for this motion. [ 25 ] Mr. Gourlay asks for costs of $500 which I decline to order given the limited role he played in this motion.

ORDER TO GO AS FOLLOWS : [ 26 ] On consent, Raj Anand and WeirFoulds LLP are granted leave to intervene in this proceeding, as parties, and to file affidavit evidence, cross examine the deponents of affidavits filed by the applicant, and make written and oral submissions as parties. [ 27 ] On consent, this court orders and declares that the applicant has waived privilege over his communications with Raj Anand and WeirFoulds LLP and all documents in the Intervenors’ files relating to the Applicant. [ 28 ] On consent, the hearing of the issues in the notice of motion contained in the Applicants record for this motion is scheduled for April 3, 2018 and the parties shall comply with the following timetable: By December 11, 2017 Moving Party Record By January 5, 2018 Intervenors’ Responding Record By January 15, 2018 Respondents Responding Records By February 9, 2018 Cross-examinations completed By March 1, 2018 Moving Party Factum By March 15, 2018 Respondents/Intervenors facta By March 23, 2018 Reply factum [ 29 ] On consent, the time allocation for the hearing is as follows: Applicant 2.5 hours including reply JPRC 1 hour Intervenors 1 hour

Attorney General . 5 hours [ 30 ] The style of cause is amended as indicated above. [ 31 ] By January 5, 2018, the Applicant shall pay costs of this motion to the Intervenors in the amount of $2500. _______________________________ Kiteley J. Date: December 01, 2017