Law Times

Page 4 June 22, 2015 • Law Times www.lawtimesnews.com Panel recommends against reimbursing Massiah Fired justice of the peace sought more than $600,000 in costs By Tali Folkins Law Times panel of the Justices of the Peace Review Council has recom- mended against com- pensating former justice of the peace Errol Massiah for his legal expenses of more than $600,000. In the opening to last week's ruling, panel chairwoman Jus- tice Deborah Livingstone sug- gested "it is only in exceptional circumstances that the public purse should bear the legal costs of a judicial officer who has en- gaged in judicial misconduct." In Massiah's case, she wrote, there were no such exceptional circumstances. "Mr. Massiah committed serious misconduct that required removal from the bench to restore public confi- dence in the judiciary," she wrote. The provincial government removed Massiah from office this spring after a panel ruled on allegations of sexual harass- ment levelled by five female staff members, including a provincial prosecutor and another justice of the peace, at a Whitby, Ont., courthouse. The complaints con- cerned incidents alleged to have occurred between May 2007 and August 2010. According to one complaint, Massiah said, "Mrs. H, looking goooood," to the prosecu- tor as she walked by in a way that carried sexual overtones. The al- legations also included "leering and/or ogling at female staff " and inviting them into his chamber while he was bare-chested. Since his removal from of- fice, Massiah has requested re- imbursement for his legal costs of $517,055.81 plus $5,175.94 in disbursements for the services of Ernest Guiste and $93,916.84 plus $27.97 in disbursements for an- other lawyer, Jeffry House. As part of last week's ruling, Livingstone questioned Mas- siah's conduct during the hearing itself. "Mr. Massiah's conduct in advancing many pre-hearing mo- tions, which were without merit, frequently appeared to be a delib- erate attempt to prolong the pro- cess. This caused public resources to be unnecessarily expended." Massiah had also been re- ceiving his full salary through- out the proceedings, Living- stone noted, "even though he had not been assigned judicial duties since August 23, 2010." Asked to comment on the rul- ing, Guiste says: "I am concerned and disappointed that the hearing panel has disregarded a long line of cases recognizing the object of the attorney general to indem- nify judicial officers as part of a re cognition of the financial se- curity segment of the doctrine of judicial independence." The protection of judicial independence has traditionally been the main justification for compensating judicial officers for their expenses in disciplin- ary hearings. Guiste says it was his under- standing that Massiah would be appealing the ruling. Besides the recommendation on the costs issue, the panel also declared its intention to alert the Law Society of Upper Canada to Guiste's conduct and comments that it described as "unprofes- sional and inappropriate." In an addendum attached to the ruling, Livingstone outlined a string of incidents in which the panel found Guiste's behaviour objectionable and concluded it intended to forward it to the Law Society of Upper Canada to consider. At one point, accord- ing to the addendum, Guiste implied the panel had become a "kangaroo court . . . a lapdog for the masters in terms of what they want to accomplish." The panel also took issue, Liv- ingstone wrote, with an apparent accusation of racism by Guiste. At another point in the proceedings, according to Livingstone, Guiste told the panel: "I'm not sure what Mr. Massiah did, but from what I know, he never raped anybody." In another incident, Guiste ex- pressed concern about the pan- el's retention of an independent counsel for advice on specific le- gal issues, suggesting the arrange- ment was improper. Asked to comment on some of his remarks, Guiste says: "Context is very important. You don't just take things without a context and understanding of what was being said. . . . Everything that I did was in furtherance of representing my client, which I have a duty to do." Asked about the possibility of a disciplinary matter at the LSUC, Guiste says: "As a lawyer, my repu- tation is of paramount impor- tance to me. So any judicial offi- cers or tribunals directing allega- tions of professional misconduct against me are very, very serious. I'm deeply concerned." A spokeswoman for the LSUC says the regulator doesn't com- ment on whether it has received specific complaints or is investi- gating a matter "unless and until a matter has resulted in formal dis- cipline, which would be public." Douglas Hunt, a former as- sistant deputy attorney general for Ontario who also served as the prosecuting counsel in earlier proceedings against Massiah, says the argument about protecting judicial independence rests large- ly on the notion that the govern- ment bodies prosecuting judicial officers have, in effect, a "limitless pocket" of resources to spend on the case and that judges and jus- tices of the peace would be unable to defend themselves adequately if they had to foot the bill. Despite the merits of such arguments, Hunt says the pub- lic also has the right to question whether it should foot the bill, es- pecially given that usually in non- criminal proceedings the party that loses has to pay some costs. "Just take a lawyer, for ex- ample, who defends himself or herself against an allegation of professional misconduct and is not successful. They don't get to have their costs paid — and they have to pay costs." The hearing wasn't Massiah's first brush with the council. In 2012, a panel found him guilty of professional misconduct after court staff in Oshawa accused him of misdeeds including mak- ing sexually suggestive comments and slapping someone's buttocks. At the time, the panel reprimand- ed him and suspended him for 10 days. It also ordered him to write letters to those involved and take education or counselling ses- sions in "gender sensitivity and professional boundaries." LT NEWS EARLY BIRD ENDS SEPT. 4 Register online at www.lexpert.ca/cpdcentre For more information, please contact Lexpert® Events at 1-877-298-5868 CLOUD 2.0 – DRAFTING AND NEGOTIATING EFFECTIVE CLOUD COMPUTING AGREEMENTS Cloud 2.0 is here and as customers grow more sophisticated, Cloud computing agreements are evolving to meet regulatory and legal environments and increasing customer needs. However, as the cloud market matures, not all Cloud computing agreements are created equal. 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