“The applicant asserts excess of jurisdiction, breach of natural justice, fairness, and violation of his Charter rights and a lack of institutional impartiality and independence between subject tribunal and the Ministry of the Attorney General for Ontario and the attorney general and his agents. He also asserts inadequate representation of counsel,” states Justice of the Peace Errol Massiah’s Jan. 30 factum seeking the Superior Court’s supervisory jurisdiction over the review council’s receipt, investigation, and adjudication of the allegations of misconduct.
The case related to complaints by six female staff members at the Oshawa, Ont., courthouse who said they were uncomfortable around Massiah and alleged he commented on their looks, made sexually suggestive remarks, and eyed them up and down.
In one incident, a clerk said she apologized after entering Massiah’s office when he was buttoning or unbuttoning his shirt. In response, he allegedly told her, “Any time you want to see me with my shirt off, just let me know.”
Massiah denied the allegations and said people misheard or misinterpreted his comments. While a panel found him guilty of misconduct in 2012 and suspended him for 10 days, he now says the investigation of the allegations was improper.
Among other things, he argues in his factum that the law requires officials to refer complainants to the review council rather than, as in this case, allowing for the Ministry of the Attorney General’s director of court operations to forward a representative complaint on the clerks’ behalf.
“The attorney general cannot do indirectly that which he cannot do directly. The act expressly directs the attorney general to refer any person making a complaint to the [review council]. The statute does not allow the attorney general to investigate, prepare statements, and forward complains to the [review council]. It stands to reason that agents of the attorney general must be similarly circumscribed otherwise institutional impartiality and judicial independence may be compromised,” Massiah’s affidavit alleges.
In addition, Massiah alleges bias in the investigation, in particular due to the failure to put his written responses to the allegations to the complainants. He suggests the law firm that conducted the investigation overlooked some of his responses, including his answers on what happened when the clerk saw him buttoning or unbuttoning his shirt.
“I strongly deny making such a statement about seeing me with my shirt off as alleged by Person C. I recall that I was struggling with the top button (which was broken) of my shirt when Person C announced from the door way that court was ready and I replied from the bathroom that I would be right there. There was no discussion between us that could give rise to the allegation.”
Besides seeking to quash the misconduct finding, Massiah is asking for $35,000 in costs.
In the meantime, he has been facing a fresh set of sexual harassment allegations after five more female court staff members, including a provincial prosecutor and another justice of the peace, complained about inappropriate behaviour. While the earlier proceedings were ongoing, five staff members at the Whitby, Ont., courthouse phoned the prosecuting counsel to lodge more sexual harassment complaints after reading media coverage about the case.