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October 17, 2016

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Law Times • OcTOber 17, 2016 Page 3 www.lawtimesnews.com Legal bill covered for fired justice of the peace? BY MICHAEL MCKIERNAN For Law Times A fired justice of the peace will get anoth- er shot at having his $600,000 legal bill cov- ered by the public purse after a court ruled his discipline panel relied on f lawed 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 demon- strated a "pattern of inappropri- ate conduct toward women in the justice system." After recommending its stiff- est possible penalty, the panel denied Massiah his legal costs, concluding that in cases of prov- en 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 f lawed 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. Rath- er, there are compelling reasons for the opposite approach," wrote Ontario Superior Court Justice Ian Nordheimer on be- half of a unanimous three-judge panel. "Adjudicative bodies, dealing with complaints against judi- cial office holders, ought to start from the premise that it is always in the best interests of the admin- istration 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 com- plete process, ought usually to be borne by the public purse, be- cause it is the interests of the pub- lic, 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 Divi- sional Court ruling also upheld the findings of misconduct made against him by the review coun- cil 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 individ- ual circumstances because it up- holds 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 re- view council panels in the past few years had adopted the pre- sumption in favour of refusing costs in cases of judicial miscon- duct 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 in- dependence by incentivizing ju- dicial 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 par- ticular complaint, acquiesces in their removal from office or they may choose to avoid decisions that will subject them to criti- cism," the judge wrote. "I think it's consistent with the general practice in these kinds of cases, where someone in an institutional position gets re- imbursed 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 hear- ings, 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 pret- ty darn crushing." Sean Lawler, a Toronto lawyer whose practice includes profes- sional 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 part- ner with Shibley Righton LLP. At press time, Massiah was still considering seeking leave to appeal the Divisional Court rul- ing 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 al- legations 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 com- ments about court clerks made them uncomfortable. LT NEWS MATTER CREDENTIALS TORONTO I BARRIE I HAMILTON I KITCHENER 1-866-685-3311 I www.mcleishorlando.com A Noticeable Difference ™ Choosing a personal injury lawyer is one of the most important decisions an injured person will make. Help your client ask the right questions: Is the lawyer? Untitled-4 1 2015-02-17 10:59 AM Sean Lawler says 'the facts point in favour' of a fired justice of the peace paying his own legal costs.

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