Law Times

Page 2 SePtember 8, 2014 • Law Times www.lawtimesnews.com NEWS JP association concerned about review council process Group attempts to intervene in two hearings over fairness, procedural issues By Peter Small For Law Times ntario's justices of the peace have lost their bid to inter- vene in a misconduct hearing over concerns about the handling of allegations that one of their colleagues falsified ex- penses. It's the second recent miscon- duct hearing in which the Asso- ciation of Justices of the Peace of Ontario has raised issues of fairness. "Our real concern is just to make sure that the procedures are closely and carefully fol- lowed," James Morton, counsel for the association, tells Law Times when asked about the lat- est attempt to intervene. On Aug. 22, a hearing panel of the Justices of the Peace Re- view Council rejected the as- sociation's application for in- tervener status at the hearing into allegations of misconduct against Justice of the Peace San- tino Spadafora. The three-member panel didn't accept that the associa- tion, which represents most of Ontario's 347 justices of the peace, could provide unique expertise that would be helpful to the case. The panel begins hearing evidence in Novem- ber. "If the application to in- tervene were granted, there is a risk of a perception on the part of the public that the association is attempting to inf luence the outcome of a hearing," said Ontario Court Justice Esther Rosenberg, who chaired the panel set up to hear the case. The association stresses it takes no position on Spada- fora's case. "We don't have a dog in this fight," Robert Karrass, another association lawyer, told the panel. Spadafora faces accusa- tions of making 600 inf lated travel accommodation, mileage, and Highway 407 toll expense claims while on court business in the Niagara region. The association sought in- tervener status at his hearing because of two issues: the under- lying fairness of how financial policies apply across the bench and the practice in place when a justice of the peace faces a mis- conduct hearing after a criminal prosecution. "There's a concern that we have to be very sure in a situation such as this that the criminal accused's rights are not in any way infringed and, in addition, that should criminal charges be with- drawn that they don't have any overhang," says Morton. Spadafora, a Brampton, Ont., justice of the peace, was charged criminally with fraud over $5,000 and breach of trust with regards to the same expenses, but those charges were withdrawn in late 2012. As a result, he was reinstated and continues to sit on the bench. The association was more successful in gaining inter- vener status in another cur- rent hearing after raising con- cerns about fairness. In that hearing, Justice of the Peace Errol Massiah is defending him- self against allegations that he sexually harassed female court- house staff in Whitby, Ont. The review council had pre- viously found Massiah guilty of misconduct in April 2012 over allegations of sexual harassment at another courthouse. It repri- manded and suspended him for 10 days. In Massiah's new hearing, the association argues the com- plaint was improperly laid be- cause the review council's own presenting counsel brought it forward. Because presenting counsel is part of the review council, having that person file the com- plaint is essentially the same as the review council itself laying the complaint and investigating the case, the association argues. "It is submitted that only written complaints from iden- tified complainants made through the regular process are proper," wrote Morton in his submissions. Ernest Guiste, Massiah's law- yer, raised similar concerns and alleged an abuse of process. "It is not presenting counsels' role to investigate complaints," Guiste argued at the Massiah hearing. "Their role is to be impartial. It calls into question the integrity of the process." When it comes to Spadafora's hearing, Morton says it's partic- ularly important that the review council carefully follow proce- dures, especially when dealing with issues like expense claims. "There is a certain informality sometimes that is apparent in the way such concerns are dealt with," says Morton. "Justices of the peace are judi- cial officers and when a serious allegation is made, it needs to be dealt with with all due serious- ness." The association worries the hearing panel may decide on Spadafora's expenses without knowing the bigger picture and that this could create a prec- edent that is not fully informed, says Morton. There's a danger of using ambiguities in the rules against other justices of the peace, he suggests. At the hearing, presenting counsel Scott Fenton argued the association had failed to show it could make a useful contribu- tion. "There are no issues of pub- lic importance apart from the determination of the factual is- sues," said Fenton. Granting intervener status could derail the hearing with irrelevant issues, Fenton added. Spadafora's lawyer, Mark Sandler, took no issue with the request for standing. He said it would be "very much in issue" whether there was a policy in place precluding Spadafora from claiming the expenses he did. "I can see how the asso- ciation could contribute to the question as to the existing poli- cy, how that existing policy was communicated, whether it was uniform across the province or applied uniformly across the province and the like," said Sandler. Sandler said Spadafora, when he testifies, "will undoubtedly ref lect upon his perceived un- fairness in the way in which the allegations were brought to his attention, his opportunity to respond to them, and how the matter has been dealt with." Rosenberg asked Karrass if what it really boiled down to was that the association had concerns about whether the hearing panel would appropri- ately decide the case. "Absolutely not," Karrass re- plied. "What we want to make sure of is that when complaints are brought before you, they are brought properly." LT Draft your own customized documents with O'Brien's Encyclopedia of Forms, Eleventh Edition, Ontario – Court Forms, Division VIII. This service provides, both in looseleaf and electronic formats, a comprehensive collection of documents that can be easily adapted to suit your clients' needs. 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Bruce Drake and Christopher Wirth Includes online access Order # L91124-65203 $579 4 volume looseleaf supplemented book + online access Anticipated upkeep cost – $208 per supplement 1-3 supplements per year Supplements invoiced separately L91124 Also available in online only or print only formats Master Subject Index also available Shipping and handling are extra. Prices subject to change without notice and subject to applicable taxes. 00218EB-A43205 CANADA LAW BOOK ® Available risk-free for 30 days Order online: www.carswell.com/obriens Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 O 'Justices of the peace are judicial officers and when a serious allegation is made, it needs to be dealt with with all due seriousness,' says James Morton.

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