An Old Man Ranting! : 2014

VIEWS@10749

NOTE: The following is a transcript (EXHIBIT) of the last Case Conference, held on September 20, 2013, with Master Macleod residing. This 'Special Appointment' was set to occur as early as May o8, 2013. It led to the dismissal of the case. The asterisks in RED are mine; I respond to them at the end of this 'Special Appointment' session/conference. Mr. Kirk Boyd attends for Defence since the original counsel had entered an Affidavit.

Reader, please remember I am in BC, on the telephone from my home...
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FRIDAY, SEPTEMBER 20, 2013

MR. BOYD: Good morning Master.

THE COURT: Good morning.

COURT CLERK: This is the matter of Steen and a numbered company.*1)

THE COURT: Mr. Steen, are you there? Hello, Mr. Steen.

MR. STEEN: Oh hello.

THE COURT: Yes.

MR. STEEN: Yes sir.

THE COURT: It’s Master MacLeod, I was just checking to see that you were there. All right give us a second or two to get organized.

MR. BOYD: Master first of all, I thought I should just explain at the outset why I’m – why I’m here.

THE COURT: Okay.

MR. BOYD: It’s Kirk Boyd, Mr. Steen. I am a lawyer with Ms. Alexander’s firm, but because Ms. Alexander swore....*2)

MR. STEEN: Are you – sorry, Master MacLeod, are you talking to me?

THE COURT: I’m not, Mr. Boyd is talking to me and to you through me. Can you hear him?

MR. STEEN: Because - because I can hardly hear you.

THE COURT: All right. There’s a microphone on the desk in front of you that should be picking up everything you say. I can’t pick it up any further than that, but I don’t know why it wouldn’t be.

MR. STEEN: Okay. Well it – it’s...

THE COURT: Mr. Steen...

MR. STEEN: ...about 40 percent.

THE COURT: ...don’t interrupt. Okay. Let me know, if you can’t hear and I’ll let and we’ll do what we can about it, but as I’ll come to in a minute you never asked permission to attend this by a phone call. I will allow you to do that, but you’re going to have to bear with us because your – this is a motion and you’re supposed to be here so. We have the equipment we have and that’s all that we’ve got so we’ll - we’ve moved the microphone, Mr. Boyd’s going try again and we’ll see if it works any better.

MR. BOYD: Thank you – thank you, Master. So Master I’m here because Ms. Alexander swore me the affidavit on the motion to dismiss in the anticipation that the motion was going to be brought as a basket motion initially...*3)

THE COURT: Yes.

MR. BOYD: ...pursuant to Master Roger’s order on May 8^th, earlier this year. So – so that affidavit was prepared by Ms. Alexander on the anticipation that we go in writing and obviously we are not proceeding in writing today. There’s also a cross-motion,*4) so we’re – we’re here and we felt that it more appropriate that Ms. Alexander...

THE COURT: Yes.

MR. BOYD: ...didn’t argue a motion on her own affidavit.

THE COURT: No, fair enough. All right. So let me just make sure before we start that, I have everything I’m supposed to have.*5) So I’ve got – sorry, could you hear Mr. Boyd better, Mr. Steen?

MR. STEEN: No, I don’t Master.

THE COURT: Well, I....

MR. STEEN: I - I’m straining to understand....

THE COURT: Well, as I say, I’m at a loss to understand why that would be. We’ve got equipment that has an extension on it.

MR. STEEN: If - you are quite distant from the microphone as - as I perceive it.

THE COURT: Are you hearing me?

MR. STEEN: Well, about 40 – 40 percent.

THE COURT: Okay. Well, we can hear you fine, so I have no idea why that would be. The only thing I can suggest, we’ll try one more time. I will hang up, we’ll get you to – what – what kind of phone are you on?

MR. STEEN: A regular phone. The other case conferences were all – all – very – very good.

THE COURT: Yes.

MR. STEEN: Easy to hear.

THE COURT: Okay. Well we can hear you no trouble at all, so I will simply suggest this. Let me – I will hang up, call back...

MR. STEEN: Yes.

THE COURT: ...and then we’ll reconnect you and see if that works any better. Okay.

MR. STEEN: Shall I just hold on?

THE COURT: No. Hang up.

MR. STEEN: Hang up. Okay.

THE COURT: And phone back. Okay. The same number that you phoned a moment ago.

MR. STEEN: Okay. I will.

THE COURT: Okay. I’m going to – and we’ll see if it connects better.

MR. STEEN: Okay.

THE COURT: All right. Just a moment.

...MR. STEEN CALLING BACK

THE COURT: Yes. Mr. Steen?

MR. STEEN: Yes.

THE COURT: Is that any better?

MR. STEEN: A little bit better. Yes.

THE COURT: Okay. Well, as I say, it seems that we can hear you find at this end. I’ll see if I can adjust the volume at all.

MR. STEEN: That would be great.

THE COURT: Well I think that – I think that just makes you louder. I don’t think it makes me louder...

MR. STEEN: Uh-huh.

THE COURT: ...but how’s that?

MR. STEEN: No, no change.

THE COURT: Okay. Well, it’s the best we can do.

MR. STEEN: Okay.

THE COURT: So Mr. Boyd was just explaining that he is going to be arguing the motion, not Ms. Alexander and the reason for that...

MR. STEEN: Okay. Mr. Boyd?

THE COURT: Boyd, B-O-Y-D.

MR. STEEN: D – D-O-Y-D. Doyd. Okay.

THE COURT: No, Boyd, as in....

MR. STEEN: Boyd with a B.

THE COURT: Yeah.

MR. STEEN: Bernard. Okay.

THE COURT: But never mind, we’ll get to the information eventually. In any event, it is because Ms. Alexander’s affidavit is in the materials, so she can’t argue the motion because it – she’s a witness.

All right. So the material I have – I’ve got your motion record and factum *6) and then I have Mr. Steen’s notice of cross-motion and some documents that he sent in which is I think just something that says, attention motion desk. Which I think – I think that’s just covering – well, there’s a couple of emails and a simplified procedure motion form attached to it.*7)

MR. BOYD: That’s what we have as well, Master. Those are the materials.

THE COURT: Okay. Good. All right. So, Mr. Steen, you – the – the way this works because it’s – because it’s their motion as I will hear from – I will hear from them first and then, I will hear from you. *8) Okay. So yes, Mr. Boyd go ahead.

MR. BOYD: Thank you Master MacLeod. So this a – I’m going to give you a brief history of the action before we begin.

THE COURT: I don’t think that’s necessary.

MR. BOYD: Okay.

THE COURT: I’ve been involved in it...

MR. BOYD: Okay.

THE COURT: ...before.

MR. BOYD: So - so the action has been going on for some time and we – we actually got on the record just earlier this year. The both parties were self-represented prior to that. Mr. Steen also did for a brief time have a lawyer, Joseph Griffiths acting for him earlier this year,*9) as well. And the history of the proceedings is set out in Ms. Alexander’s affidavit which is at Tab 2 of the motion record of the defendant on – on the motion. And this is – this is a motion to dismiss following the order of Master Roger dated May 8^th, 2013 where he ordered that the plaintiff provide further answers to undertakings by June 15^th, 2013, failing which the action would be dismissed by – through a basket motion.

The answers were not answered. There has not been – we have not received any – any further answers whatsoever. If they had of been answered, I think we would have been here today on the – we have a – we had a date set aside for about a three or four appointment to address any issues that were – that were outstanding related to the undertakings. So, in the event that, Mr. Steen had have attempted to answer the undertakings in accordance with Master Roger’s order, if there was still issues that needed to be addressed – that needed to be addressed at that time we were going to return for a lengthy – potentially lengthy motion dealing with all of the various issues, but we had received anything pursuant to that order.

So, if we back up though, a little bit this is a case where the plaintiff has been given many opportunities to comply with the timetables – the timetables set by the Court and – and there have been some attempts to – to comply with *10)– with getting undertakings together, however, there have also been situations where there have – that has not taken place.

So, if we look over the history of it, we – the first – in – on paragraph 2 of Ms. Alexander’s affidavit, you’ll see that it says pursuant to an order dated December 7^th, 2012 that should actually be 2011. It’s – it was a – the action was actually assigned to case management back in 2011 and since then there have been a series of case conferences and a motion that has resulted in procedural orders.*10)

The first is that, is on December 6^th, while unrepresented our client brought a motion seeking a dismissal of the plaintiff’s action for failing to answer questions put to the plaintiff in writing. They’re written – they had agreed on written interrogatories rather than discoveries. The plaintiff had not answered them and the – so, the motion was heard by Master Roger who reviewed outstanding answers and undertakings and found that 27 questions and undertakings were outstanding and required better answers and so he made an order which we’ve attached at Tab A that sets the specific list of questions and undertakings that needed to be answered by February the 15^th, 2013.

The next thing that transpired – and – and the Master - Master Roger also set out a number of factors that he took into account in - in deciding not to grant our clients request for an order dismissing the plaintiff’s action. He felt that, at that point, the plaintiff was to – to comply with the order in a timely manner and warned the plaintiff that this Court might exercise its discretion differently should a similar motion return. *11)

So, a further – a further case conference was held following that order on February 27^th, 2013 and had – by this point Mr. Griffiths was involved. He was not on the record at that time, but he was – actually, no he was – he wasn’t. The defendant – we had not come on the record. He – Mr. Griffiths had gone on the record. Our client had not retained us yet. But Mr. Griffiths attended the case conference on behalf of the plaintiff. Our client was unrepresented. And this – that was the case conference before – before yourself and you made an order that – that the outstanding undertakings be answered by March 8^th, 2013 and that, again, if - if the plaintiff failed to comply, the defendant may seek to stay or dismiss the action. And that – that is – that order is attached at Tab B of our – of our affidavit.

There were some additional issues in there which are also of significance. The counsel for the plaintiff was also to review the compliance with the order of Master Roger requiring material to be removed from a blog and was to advise the defendant, what steps the plaintiff has taken to ensure that he’s in compliance.

Now, following that case conference there was a further case conference with – with Master Roger on May 8^th, 2013 and in advance of that case conference, Ms. Alexander spoke with Mr. Griffiths several times because they were obviously trying to sort out what kind of an order would be appropriate rather than – and so that, it would it easier for the – for the matter to proceed in an orderly fashion and they did – they did reach a resolution and you can see at – there’s – I can refer you to the – to the email, it’s at Tab D of our materials. Tab D is the email from Ms. Alexander to Mr. Griffiths that was on May 8^th prior to the – prior to the case conference and this is where they – there was a discussion of a long – to secure – to secure the long motion date in the event that, an undertakings motion is needed to address any deficiencies in the answers. But the other things that were requested were that, the defendant was to provide Mr. Griffiths with a list of all undertakings that remained unanswered by Friday, May 10^th, 2013 and the plaintiff was to provide answers to all *12) outstanding undertakings on or before June 15^th, 2013 failing which the plaintiff’s action will be dismissed with the defendants counter-claim remaining in force.

Now, there are further discussions about mediation and a possibility of an early neutral evaluation before a judge or master. And the upshot of – of that case conference is found at Tab E that’s the endorsement of Master Roger of May 8^th, 2013 and it sets out the background in the first part of the endorsement and then, it gets into the – to the order.

“The defendant was to provide the list of outstanding undertakings by May 10^th and the plaintiff shall answer all outstanding undertakings by June 15^th and, if the plaintiff fails to provide any additional answers following receiving the list of outstanding undertakings to be provided by May 10^th then, the plaintiff’s action shall be dismissed with costs to the defendant upon the defendant filing with the Court, an affidavit that, no additional answers were provided. It shall be brought as a basket motion in writing with notice to the plaintiff.”

And that’s what the motion materials here, in effect were because no – as it indicates in Ms. Alexander’s affidavit, we didn’t receive any further answers. So, otherwise it – it goes on to:

“...otherwise, if partial answers are provided a motion may return to strike or dismiss the plaintiff action. This motion is hereby scheduled before a Master for four hours starting at 10:00 a.m. on September 5^th.”

And that was the long motion that was – was scheduled and then it got moved to today.

So, that’s the history. We can see though that following the 8^th at Tab F, we’ve included the – Ms. Alexander’s communication to Mr. Griffiths with respect to the unanswered undertakings. In compliance with Master Roger’s order, she was to do it by that date, so that the answers could then be prepared. And it sets out – there’s a chart at the back of that tab, you’ll see that it deals with the refusals and undertakings, it’s all set out in a - in a chart. And it’s – there was no - no response from – from Mr. – Mr. Griffiths or – or the plaintiff and shortly, thereafter on June 8^th, 2013 at Tab G you’ll that Mr. Griffiths is no longer representing the plaintiff. *13)

Mr. Steen files a notice of intention to act in person. And we are here today – there – there still hasn’t been anything received in accordance – well, there still haven’t been further answers provided in accordance with the – with the order of May 8^th, 2013.

So, in our submission the – this is a situation where the plaintiff has been given multiple opportunities to comply. Multiple deadlines and warnings by both – both Ottawa Masters with respect to complying with the – with the court orders and failing – if failing which more serious consequences will follow. And this is – this action has been going on for quite some time. Our client is being prejudiced *14) by not getting the information that they need to proceed with the action and it certainly - it’s certainly something where – this isn’t as if the – in the circumstances, the plaintiff has not been warned that – that a dismissal will follow, in fact, he’s been warned on several occasions a dismissal will follow. And, if we were just fighting about the – this deficiency of the undertakings, we could have – we could have taken this time to go through all the undertakings and be dealing with them on a – on a one-by-one basis to determine whether they’re – what needs to be – what needs to be remedied but we’re – here we are in a situation where we just – we just didn’t the – we just didn’t get any follow up answers whatsoever, so we’re not able to move – we’re still in the same place that we were almost a year ago or certainly as of December of 2012 when the – when the order was made with respect to the deficiencies dealing with the undertakings. *15)

So, that’s essentially our – our position. I know that the Court does not dismiss a plaintiff’s claim lightly and – but in these circumstances, the plaintiff has not – has just been – been avoiding the – the – or ignoring the Court’s – the Court’s orders on repeated occasions and our client is obviously frustrated by that and is in a position where – where it’s not able to move the case forward to – to get to a position where a trial would be – where we’d be able to be prepared and ready for – for trial.

So, those are my submissions, Master with respect to – to our motion. I know there is a cross-motion, but I don’t know, if you would like me to address that right now or if you’d prefer me to hear Mr. Steen’s response and then, we can deal with the cross-motion separately. I’m in your hands as to how you’d like.... *16)

THE COURT: Well, no, I think the cross-motion is really the response to this motion, wherein he’s challenging the – the order, I think. But I’ll hear from Mr. Steen in just a moment.*17)

MR. BOYD: Thank you.

THE COURT: All right. So Mr. Steen in summary the – you’re being – I’m being asked to dismiss your action because you have failed to answer the questions as ordered by Master Roger. And you want to say something about that order I gather?

MR. STEEN: Thank you.

THE COURT: Yes.

MR. STEEN: Again, it – it’s very hard. I could understand Mr. Boyd better than I am straining to understand you sir. Indeed, the case has been going on for years now – could I ask you a question?

THE COURT: Yeah, you can ask.

MR. STEEN: Are you familiar – are you familiar with the claim of contractual noncompliance?

THE COURT: I’m not sure what that means. I have your material – I have the material in front of me in connection with this...

MR. STEEN: But you’re...

THE COURT: ...action.

MR. STEEN: ...but you’re not necessarily familiar with the claim which is – which is purely contractual.

THE COURT: I know what it’s about, if that’s what you’re asking me.

MR. STEEN: So – so going from there based on Mr. Boyd’s summation of my not answering follow up questions and the undertakings. All of the questions that – in my opinion that had been asked – asked since we earlier on during Mr. Machaalani’s reign exchanged our questions and written questions and written answers. In my opinion with proof at hand, defence has continued to press for questions – follow up questions and setting motions to dismiss based on the fact, that they considered the claim to be frivolous having offered us $30,000 to settle out of court before we decided that it would go ahead, possibly in retrospect we should have taken it because it would have avoided all that we are now experiencing. So to sum up, why, I as a plaintiff have not answered these questions? It was based on initially Master Rogers indicating during the earlier case conferences where he stated that we were to return, both parties were to return to the questions and answer best as possible. Those that, they felt – we felt were relevant. If you were to look at the motions during Master Roger’s reign, you will note that, as the case conferences over time were repeated, gradually I began to lose out, so to speak and that based on the fact that to the unsatisfied defence, I was not answering the questions fully. I was to answer further questions and my point is that, all and any of these questions that were continued to be asked by defence have zero relevance to the claim.

And if I may read you a Judges Brown response which is only four days old which I found on google, he says:

“In these times of very constrained judicial resources I am loath to schedule refusals motions in large part because experience shows that in most cases they had little tangible impact on the evidence adduced at trial. Dare I say that frequently refusals are no more than technical posturing by a party?”

It goes on:

“...and that by the time trial comes advisements or refusals often crumble in the weeks just before trial.”

I could not go on at length. I will not take up the – the time Mr. Boyd has taken because essentially, Master MacLeod, I feel that it has become very clear, defence has no interest to go to trial. I feel that we are more than ready for trial. I stopped answering – asking for more questions at some point because I felt that essentially I wasn’t going to get any better answers and that I had sufficient proof based on my claim which has nothing more to do than the contract that was not complied with. *18)

Most of our efforts since in - in the number of case conferences that we have had have been based on a blog, so again, I am very curious to note that proceedings have proven to be tackling in fact, two cases, a counter-claim based on defamation of a blog which I then had Mr. Griffith’s advice in February and he said you would do well to delete it. It would be a great showing of – of, you know, good will; so I did. It mattered none and I – now, I don’t know whether you’re aware of it or not, but I have a blog again keeping most, you know, keeping defence out of it, but I am at this point sir, I am groping at straws to – to try to interpret as I have learned the – and studied the – the rules of civil procedure. I am - to interpret how any of – all and all of these undertakings over this last year that I have been asked to answer have any relevance to the claim. And that’s, I guess that’s, as best as I can for now.

THE COURT: Right. But I think the rule you need to be focusing on is the one that tells you what happens, if you don’t follow an order of the Court. I mean you’re not...

MR. STEEN: Well....

THE COURT: ...you’re not suggesting that you didn’t understand Master Roger’s order because he’s telling you...

MR. STEEN: No.

THE COURT: ...that you had to answer these questions.

MR. STEEN: But I realize that Master. My point is I have come to a point where I felt I was being wrongfully pushed into doing things – matters by answering questions that were completely irrelevant and my cross-motion in fact, asks where at the point where Master – Master Roger said that, in the circumstances all the questions were relevant, my question is and I’m – surely I’m entitled to the answer to it, is I still do not comprehend why most any and all of these questions over this past year have any relevance to this – the – the rules as they pertain to the claim. And so, I came to a point where I just couldn’t do it anymore and I – and I held – I held from my perspective, I held the civil – the rules of civil procedure, I suppose you could say to a higher court and – and felt that – that, if I did not do something it would go on ad infinitum. So that’s why I did, what I did, and that’s what brings us today here.

THE COURT: Right. Well, the problem with that, Mr. Steen is, what you’re essentially telling me is that you didn’t agree with the order, so you’ve just ignored it. Isn’t that right?

MR. STEEN: No. I didn’t – I did not ignore it.*19) I actually stated why I could not carry on answering any further. I – I – from my perspective, already over the past year, if – if we – we’ll go back over this and if it’s – it’s arduous and – and I’m sure there’s no need for it at this point, but, if you will go back you will see that, for instance, I went out of my way. I have spent maybe thousands of hours now complying, doing whatever the Court has ordered me to do, to the point where I have filled out a resume. What in heaven’s name does my resume and what I have done in my life, what bearing does it have on a – on a claim that is based on a contract? I have been forced to write a business plan. What does that business plan – how does it relate to a website that was delivered which was not usable? Clearly, whatever business plan I had at the time was not put into practice and so, there are umpteen questions, many in fact or a number of which are constantly being repeated. *20) There are questions about showing proof that – asking questions about which website reviews did – did I have from professionals? I had supplied all that. Then, the question that the website is badly designed. I had six professionals review the original website. Another question is, how – to prove that it was cumbersome in construction? I have gone there, at the very outset I’ve gone there. And that, it wasn’t a custom built website. Well, it was not a custom built website because it was built on php cake and it had a forum that was purchased and it did not have seo references which is search engine optimization. All of these things were discovered by professionals, but all of this has been done. So, my bottom line here is to you, sir, is that, we are more than ready for this case to go to trial and that we – this thing has been dragged on far beyond it’s – far beyond it’s reason. You may not concur with me there. *21)

THE COURT: I know that - there are two sides to the action of course. There’s – there’s the claim and there is the counter-claim, so.

MR. STEEN: Exactly. So, well, can you – can – do you concur with me or is it feasible – is it legal to in – in a single effort to deal with two claims because most of the time this case has been dealing with – with the counter-claim.

THE COURT: Well, it’s going to be dealing with both. The counter – the rules say the counter-claim will be tried immediately after or with the trial of the main....

MR. STEEN: I – I can’t hear you.

THE COURT: The counter-claim will ordinarily be tried with the action, that’s the point of a counter-claim. Unless the court otherwise orders and that is a rare occurrence, but it is possible, if they have nothing to do with each other to have them tried separately, but that’s...

MR. STEEN: Well, they...

THE COURT: ...not the...

MR. STEEN: ...they in fact....

THE COURT: ...case here.

MR. STEEN: In my opinion have nothing to do with each other.

THE COURT: Well, I appreciate it’s your opinion, but that’s...

MR. STEEN: (inaudible) over talking

THE COURT: (inaudible) over talking

MR. STEEN: (inaudible) over talking

THE COURT: ...that

MR. STEEN: (inaudible) over talking

THE COURT: ...but as it stands they will be tried together.

But what I'm being asked to do is to strike out your claim and allow the counter-claim to continue.

MR. STEEN: Well, you will do whatever you feel the need to do, Master.

THE COURT: Well, here’s the difficulty, as I understand it, what you're telling me is, you just refused to follow Master Roger’s order.

MR. STEEN: No. I did not.

THE COURT: ...and that you disagree with it.

MR. STEEN: I explained – I explained it very clearly in my – in my rebuttal, why ultimately at the – at the final end in May – and May 8^th was – was again, a whole new motion which didn’t start out as a motion which was – which was something I – I’m not even understanding what it is. It’s a requisition for a long motion something, something, but I have it all somewhere else, but not in front of me. It’s not easy sir, to be out here in this different jurisdiction and to – and to handle these affairs by mail and I’ve - been continually suggested that I hire counsel and when I did, we – we were further in – I and I can – yeah, I was further in the mud than before.

THE COURT: Well, that’s the other problem, isn’t it? Your counsel agreed to this order, did he not?

MR. STEEN: I know, he didn’t help me one bit.*22)

THE COURT: Right. So having consented to the order that’s the same as you consenting to it.*23) You can’t then suddenly say well, I’m now changing my mind. It is a court order. You didn’t appeal it. I know you are saying now that you want me to review what Master Roger ordered, but I don’t have the jurisdiction to do that.*24)

MR. STEEN: Well, all – all I’m saying to you sir, is – is that from my perspective every order since the orders first began last year, in last May of 2012 where we were ordered to re-visit our questions and do our best to answer those that we felt were relevant and so, I did. And then, the next one again, became, to do our very best says Master Roger to answer those that were pertinent and I did it again.

And then by December 06, last year, Master Roger put his foot down, he clearly had taken a dislike to me and I would – became the culprit and I ended up paying for the motion which earlier – an earlier motion Master Roger had ordered that the trial judge decide on the costs, now it was, that clearly, I was the culprit and I was to pay and I paid $2,300 or something like that and I’m deeply in debt anyway. I’m not here to cry, I am – I’m here – I - all I seek is justice sir.

You know, I had final questions that were so disgracefully insulting that, I was to write out how – how long I had been a handyman. What type of work I did as a handyman. My - my mindset, as you know, has been questioned and you know, in - in Ms. Alexander's materials, one of the investors by the name of Noel Daley, he - he suggested and I’ve looked into this, that a public guardian be appointed. Now, if a public guardian could be appointed, I would be more than happy, if only it were to relate and be confined to this case. I have – I have done all the work myself, done the very best I could and I’m – admittedly, I’m losing – losing it sir. And – and I’m – I’m – it’s become very evident sir that defence does not want to go to court because any of the questions, if you were to look at them, you will find that they have no bearing on the contract. There are – there are things – there are – that – irregularities that – that have – that have occurred throughout this whole scenario, starting out with Mr. Machaalani. Holding onto my written questions for five months when two weeks is the deadline and I gave a month and then he sent a fax that he cc’d me on June the 2^nd 2012 and – or 2011, I’m sorry. He cc’d me a fax addressed to your case management’s office and he was more or less threatening me. When I called, I discovered there was no fax sent and there are irregularities and discrepancies throughout all of this and so, it – all – all of it indicating that to be self-representing in a distant jurisdiction is not only not an easy task, it’s almost nearly impossible and it’s clear that, you know, your – there’s – the defence in that jurisdiction.

I also, earlier, I started out and this is why this, you know, as irate as I am, I guess, my earlier, I started out in a B.C. in Courtney, British Columbia where a judge dismissed the case based on lack of jurisdiction. Now she erred because there are not rules to – to indicate that when a business across, you know, a cross-border business deals – deals with two parties on daily basis and where the money comes from here et cetera, et cetera then, Rule B applies, meaning that, it was legitimate to have had it taken care of here.

But then, when I filed in Superior Court in Ottawa, well, the hardships began sir and – and as I said, the – the basis of the reasoning for this case having come – taken this long is based from my opinion, it’s clearly based on the fact that defence will – has no intentions to end up in court because I have too good a case, if I only am allowed to take the case to court and I’m saying we are more than ready to go there. We’ve done our mediation. We’ve brought all our affidavits. We’re done our factums. We’ve – we were ordered to write another factum, so I wrote another factum and we’ve updated stuff. It doesn’t take much effort to go back to see that all of the materials are set to go to trial and that’s all I could leave you with.

THE COURT: Right.

MR. STEEN: We’re taking up your time unnecessarily and that’s why already a year ago, I said no, I said I am not going to be asking defence their initial questions – my initial questions I asked, only 50 percent were answered and then, the next time around another maybe 7 percent were answered, so I’m still without 43 percent of answers, but I felt, listen, we need to move this case on. I appreciate the Court’s scenario and – and the costs of it all and clearly, I made a mistake by – by relenting – by saying I’m satisfied, let’s move on and defence is just motion by motion, kept – kept stretching things - matters. That’s it sir.

THE COURT: So, what you’re telling me is, even, if I give you more time, you’re still not prepared to answer these questions.

MR. STEEN: That’s correct. I need someone to – to verify that these questions are indeed, if you can somehow make these questions show me because I, you know, my mind – my mental capacity has been challenged and has been questioned and I’m saying well, I am – I am ready to undergo a psychiatric assessment, but from my perspective and this is the most frustrating thing of all, why am I forced to answer questions that have nothing to do with the claim at hand. This is my...

THE COURT: Okay.

MR. STEEN: ...the, so that…

THE COURT: But the problem...

MR. STEEN: ...if they do have something that is relevant, then, show me.

THE COURT: But Mr. Steen, they’ve been found by Master Roger to be relevant or these being found or he has found that you consented to answer them and so, he ordered...

MR. STEEN: Uh-huh.

THE COURT: ...you to answer them.

MR. STEEN: No.

THE COURT: And he said there would be a....

MR. STEEN: I never said (inaudible) over talking

THE COURT: Well you did through Mr. Griffiths and so, he has ordered you to answer them. *25) And you didn’t appeal the order and so, it is an order and the findings are the findings. I’m not sitting in appeal of Master Roger. I’m not going to overturn his order. The only question today is whether – because you have not complied with that order, I should grant the relief that’s being asked which is to dismiss your claim. And what you’re telling me is that even, if I said you could have another 30 days or so, you would not answer them because you refuse to answer them.

MR. STEEN: I would – if – if you would give me another 30 days to answer them – okay. So here’s the – here’s the situation. What would guarantee me by answering them regardless if I find them relevant or not and I will until my grave question this, but, if you were to give me 30 days to answer them, how can I have a guarantee that, after answering them there will not be any more questions asked.

THE COURT: You can’t have a guarantee.

MR. STEEN: Sorry?

THE COURT: You can’t because it depends what the answers are and they have a right...

MR. STEEN: Well – well, then...

THE COURT: ...to ask further questions.

MR. STEEN: ...then in that case could – could you or Master Roger please explain to me on paper, what it – in what way the questions that I am forced to answer are relevant to the claim in issue because all I know is sir, I know the rules of civil procedure and they are very clear. They were changed in 2010, they were updated where the semblance of relevance, what’s changed to the questions must be relevant to the case at issue.

THE COURT: I’ve read what you said about that and I’ve read – and I know all about that because amongst other things, I was at the rules committee when they passed the rules, so. But I will tell you that, we’re not debating that today, that is what Master Roger was supposed to take into account when he made his order.

MR. STEEN: But then, how can...

THE COURT: Because now...

MR. STEEN: ...I – so....

THE COURT: ...and so, if you read the rules they say that, when the Court makes an order...

MR. STEEN: That, I’m so....

THE COURT: ...it shall take...

MR. STEEN: (inaudible) over talking

THE COURT: ...into account proportionality and the other purposes of the rules. And one of the things that the court can do is to intervene to prevent ongoing, unnecessary discovery, but...

MR. STEEN: Yes.

THE COURT: ...that’s not what we’re dealing with today.

MR. STEEN: Well, that’s what I thought we were dealing with.

THE COURT: Well, we’re not. We’re dealing with, the fact, that, you were ordered to answer these things, so the determination that they were necessary has already been made by the court, you’ve just...*26)

MR. STEEN: Without...

THE COURT: ...decided...

MR. STEEN: ...without...

THE COURT: ...to disagree.

MR. STEEN: ...explaining it?

THE COURT: Well, it’s not the role of the Court to give you advice, so... *27)

MR. STEEN: But isn’t...

THE COURT: (inaudible) over talking

MR. STEEN: ...isn’t case management sir – isn’t case – isn’t the reason for case management, if there are two counsel, two of – two – two professional counsels are involved, there’s the likelihood of – of a case being – being ordered into case management, if it’s – it’s little (ph)? Correct? So, the case is ordered into case management on February the 17^th – on January the 17^th, 2012 because defence was – had a motion in asking to self-represent and Master Roger, correctly, then – and I had been – by the way, I was the first one to want to go into case – be ordered into case management because I was having...

THE COURT: Okay.

MR. STEEN: ...some difficulties...

THE COURT: We’re...

MR. STEEN: ...where (inaudible) over talking

THE COURT: ...we’re wandering far afield from the – from the issue. The issue is, you were ordered to do something and you haven’t done it and therefore, they’re asking for a remedy. The most extreme remedy...

MR. STEEN: Yes.

THE COURT: ...is to dismiss your action. There are other remedies. I can order costs. I can give you more time to do it. I can – I can do other things, but.... *28)

MR. STEEN: But – but, if you ordered to give me more time to do it, since we have spoken today, this scenario can continue, you know, forever unless – unless somebody put a stop to some – to something – some - at some point. As you said, you can – you can dismiss the case today because I didn’t comply. You can allow me one other 30 days or whatever, you know, you would allow to answer these questions. Then, when I answer the questions, regardless of - I – my feelings because I was so ordered by Master Roger, then, there again could be a motion wanting more questions, so do – are you not in a position as a Master to say that, if Mr. Steen answers these next set of questions there shall be no more motions.

THE COURT: Yeah. No. I would not make that kind of an order because I don’t know what your answers would be. So when – when your answers are answered, then, if they ask for more questions and you think that is unreasonable, then and only then, would I be in a position to determine whether I agree with you or not. *29)

MR. STEEN: Okay. So may I ask you this then? If you are going to allow me another 30 days to answer these questions, would you then, also allow me to ask further questions?

THE COURT: That issue is not in front of me today. You have not brought a motion about your questions and so, I don’t have any opinion on that at all.

MR. STEEN: So – okay. So – so again, the – the, you know, the focus is on me?

THE COURT: Yes. It’s completely on you because the – the – one of the problems with the relief they’re asking for, is they’re asking me to dismiss your claim, but not the counter-claim, so you’re still in the action even, if I dismiss it.

MR. STEEN: Even though we’ve been...

THE COURT: And....

MR. STEEN: ...even though we’ve been dealing most of the time with the counter-claim and so – so, from a practical perspective, what would happen, if you were to dismiss my claim, the counter-claim which has already taken up more than half of the energies to date, would just trundle on, on the side and it – it would just unfold or would it be re-represented?

THE COURT: It would continue, presumably, unless they discontinue it, it would continue and then, they would set it down for trial when they think they’re ready.

MR. STEEN: Oh, oh. Okay. So – so the counter claim would continue on as it has been and be prepared and there would be mediation and then, a date – a trial date would be set.

THE COURT: Yeah. You’ve already had some of those things because you’re treating them, as if they’re two different things. At the moment, it’s an action with a claim and a counter-claim and so, whatever has happened has happened, but yes, the relief they’re requesting deals only with the claim, strikes out your claim. It does not – it does not dismiss the counter-claim. They would want to continue with the counter-claim. I’m not sure, if they’re asking to strike your defence in the counter-claim or not, but that’s – but they certainly wish to proceed against you.

MR. STEEN: Okay. Well, I – I really have nothing more to add sir. It’s – it’s up to you now.

THE COURT: All right. All right. Thank you Mr. Steen. Mr. Boyd, anything you want to add by way of a reply?

MR. BOYD: Just – just briefly, Master. A couple of issues that were just addressed.

The – the concern with respect to these undertakings. This is a claim for some $700,000 and *30) including business losses and whatnot, the parties before we were involved agreed to do written interrogatories and – and so, that – that something that’s been agreed upon. But we do need to obtain records relating to the – such issues as business losses, for example, which are substantial or are indicated to be substantial in – in the claim and for which have - have not been answered. These aren’t trivial – they’re not trivial things that have been requested and from what I’ve – what I – my understanding is that, there just seems to be a reluctance to provide them. And there certainly has been a reluctance in – in the face of the court order. So to give Mr. Steen yet, more time to – to try to get us things, when it doesn’t sound like he’s – he’s even made an attempt and certainly, in the past – since – since the orders were made, would seem to be certainly prejudicial to my client. Certainly, the constant of this – of this proceedings is also a burden upon – upon them, as well.

The issue of the psych – psych assessment came up for the first time after Master Roger indicated that, he – the case was to be dismissed failing – failing the production of additional answers. That’s the first it was addressed. We don’t really have any evidence to suggest that it’s necessary from anyone who is qualified to give such evidence and Mr. Steen has been handling this matter with his counsel never raised it as an issue before and – and it’s not been raised until sort of the eleventh hour.

I know you’re not dealing with our answers, but – but we have an order from July 18^th, 2012 indicating that the plaintiff is satisfied with the defendant’s answers to the written examination for discovery. So now we’re getting into sort of....

THE COURT: Yeah. Well, I think Mr. Steen indicated that he had taken that position because he didn’t think it was worth asking him for those answers. *31)

MR. BOYD: Correct.

THE COURT: So I guess the only thing I’m thinking about is a practical one. If I were to grant your relief and dismiss the claim, your client wants to – according to the notice of motion, continue with the counter-claim. You haven’t asked me to strike his defence in the counter-claim, so you’re still going to need some of these answers, aren’t you? You’re still going to need these answers for the purposes of the counter-claim because many of these seem to – or some of them, at least, relate to the counter-claim, don’t they? *32)

MR. BOYD: I – not necessarily and in fact, we would need instructions to see whether there is any intention of proceeding with the counter-claim in the face of a...

THE COURT: Right.

MR. BOYD: ...of the dismissal of the plaintiff’s claim.

THE COURT: Right.

MR. BOYD: I think before we would get into any – any issue with respect to whether anything was required in connection with the counter-claim we’d want to – we’d want to....

THE COURT: Right. You’d have to assess your - with your client whether it makes sense to proceed under those circumstances.

MR. BOYD: Correct.

THE COURT: All right. All right. Thank you. Mr. Steen, I’m not going to make my decision just this moment I’m going to write out a decision and I’ll send it to you – to everybody. And so, the only other issue will be a question of costs, if I were to grant this relief that’s being requested I assume you’re asking for costs.

MR. BOYD: Yes. Yes sir – Master, I do have a cost outline, as well.

THE COURT: Go ahead.

MR. BOYD: Yeah, we’ve got....

THE COURT: Well, what we’ll do with that, I’ll...

MR. BOYD: Pass up mine and I can send it...

THE COURT: ...I’ll take that...

MR. BOYD: ...to Mr. Steen.

THE COURT: ...from you and you’ll send a copy to Mr. Steen...

MR. BOYD: Yes.

THE COURT: ...and then...

MR. BOYD: Yes.

THE COURT: ...if I – if I do grant the motion then I’ll deal with the award of costs, but if Mr. Steen has anything to say about the quantum of those costs I would – I would hear what he has to say about that in writing probably.

MR. BOYD: Thank you Master, the only – only other issue, I suppose it would be from – from our end, if – if the matter was to proceed...

THE COURT: Yes.

MR. BOYD: ...we’re still going to get into an oral issue of – of the – the undertakings motion, it would then have to come back on to get into this.

THE COURT: Right.

MR. BOYD: I mean...

THE COURT: Because in addition to these, there are others that are in dispute. Right?

MR. BOYD: Exactly.

THE COURT: As to whether they were properly answered.

MR. BOYD: Correct.

THE COURT: Yeah.

MR. BOYD: Exactly. *33)

THE COURT: Okay. Well, I...

MR. BOYD: But...

THE COURT: ...I realize that. All right. So, Mr. Steen, I will – I will let you go and I will release a written decision very shortly.

MR. STEEN: Very well.

THE COURT: All right. Thank you.

MR. STEEN: Thank you sir.

THE COURT: Right. Good bye.

MR. STEEN: Bye-bye.

MR. BOYD: Thank you Master.

THE COURT: Thank you.

**********

++++++++++++++++++++++++++++++++++++++++++++++

*1) "...and a numbered company." My claim was filed and served against the two (2) principals of the company, NOT their numbered Company registration! They managed to switch this without notice...

*2) Whereas I could hear the earlier sessions very well (I imagine they were held in a court room), being again on the telephone, I had immense difficulty hearing both Master Macleod as well as Mr.Boyd; this was even AFTER I redialed. It felt like the session was held in a small conference room; it should have been 'clear,' but it never was.)

*3) A motion where it relies on written material only and you do not even go to court.

*4) "there's also a cross motion" (MY MOTION! You will note it was NEVER addressed!)

*5) "I have everything I'm supposed to have:" (Master Macleod)

*6) "I've got your motion record and Factum" (Court)

Note: I suppose these 2 docs are most handy to bring a Master/Judge up to date, at any given session.

*7) Clear evidence of my dogged efforts to ensure that my materials were properly filed, since my previous efforts all disappeared in smoke. It may have all been MY FAULT! Regardless, from my distant BC domicile, there is NO simple method, nor assurances ANYTHING is either properly executed, or filed. I had earlier files that were NEVER DATE STAMPED AT THE COURT! Reasons given? Oh, they forgot...

*8) "It's their Motion as I will hear from ...[etc] ...and then I will hear from you" ... "I've been involved in it....before" (Court indicates clear awareness of the 'issues at hand.)

*9) "Joseph Griffiths acting for him earlier this year" (Boyd) Counsel who was going to STOP Defences shenanigans of continued questions, and get me through mediation, then to pre-trial! NONE of this happened! Instead, WITHOUT client consultation, he colluded with newly hired Defence, having the gaul to add some of his own questions!

*10)"There have been some attempts - to comply" (Boyd)

NOTE: At all times obeying the Rules as well as Master';s orders to answer "best able all the relevant questions as fully as possible," in his view, this Respondent has gone FAR BEYOND ANY REASONABLE RULE ALLOWABLE efforts to comply. Starting by delivering his own Questions as early as May 19, 2011, with some 50% ANSWERS delivered at OCTOBER 18, 2010 , while Defence Questions were delivered on October 11, 2011.

- The Court NEVER questioned WHY, according to the Rules, Defence did not supply their answers within the allotted 2 week window!

- This then Plaintiff delivered his answers on November 15, 2011, receiving 'FOLLOW-UP QUESTIONS ON WRITTEN EXAMINATION FOR DISCOVERY' on November 30, 2011. Additional questions never ceased coming, getting more bizarre as time went by. By May 08, 2013, I was asked what diploma I received from theatre school? What jobs I had had as a 'Handyman.' If these are not clear attempts to drive someone insane, I am from Mars!

*11) As you can see, Mr. Boyd is essentially informing the Court of what we are here for!

*12) "the defendant was to provide Mr. Griffiths with a list of all undertakings that remained unanswered by Friday, May 10^th, 2013 and the plaintiff was to provide answers to all" (Boyd)

NOTE: THIS is were 'my trusted' Counsel BETRAYED ME! "I can not work with a client who does not trust me," he had emailed me earlier. I had stated 'trust' is something you earn. When matters unfolded as they did, with JG, instead of STOPPING Defence's never-ending demands for more questions, instead of even addressing the type of questions, and their relation to anything relevant to the case, as HE HAD PROMISED ME, without even consulting me, he caved and colluded with Defence. At that point I had had enough! I told him he was evil,

*13) and I let him go!

*14) "...our client is being prejudiced .." An impartial court of law would long ago have given EACH party the benefit of the doubt. An unbiased court, knowing the circumstances, would have looked at the answers of BOTH parties; would have QUESTIONED in WHAT manner, or purpose ongoing questions should be 'allowable' since they were related, i.e. 'RELEVANT' to the issues at hand (i.e. the contract based claim!); So that NO party would be "prejudiced!"

- During Master Roger's December 06, 2012, 3 hour session, it became blatantly clear he was entirely outside his realm of knowledge, accepting every indication by Messrs. Mondoux and Ivens, that the questions asked had bearing to the claim!

- Had Master Roger been educated to the ins and outs of websites, to the Plaintiff's contract-specific based claim, he would well have questioned as to the 'Relevance' of a good number of questions.

- Bottom line continues to be: This Self-Representing Litigant/Claimant/ Plaintiff/ Respondent/Appellant has been taught a lesson!

*15) This is NOT TRUE (lay folk like myself call it: "a LIE!")

- On February 15, 2013, I delivered the outstanding Undertakings, as ordered by Master Pierre Roger on December 06, 2012.

- WHAT HAPPENED TO THEM? WHY WERE THEY NOT LOOKED AT AND CHECKED OUT, and VERIFIED?

- After Defence (still as SRL) informed NO questions had been answered, what was received, after Counsel was hired, was a letter of apology stating (once again) that some questions had been answered. NO body EVER went through my answers: NO body EVER verified ANYTHING! Instead Defence was 'honoured, ' and believed ipso-facto, as if in CHARGE OF PROCEEDINGS. ( I guess all was part of "THE CIRCUMSTANCES")

*16) "we can deal with the cross-motion separately. I’m in your hands as to how you’d like..." (Boyd)

*17)"I’m being asked to dismiss your action because you have failed to answer the questions as ordered by Master Roger." (Macleod)

NOTE: WHO SAYS I HAVE FAILED TO ANSWER?

DEFENCE SAYS I HAVE FAILED TO ANSWER!

- The astute reader will note throughout this 'Special Appointment' a certain tonality in the text that is clearly one-sided; I have been found the guilty party from the outset. (Are we dealing with a basket Motion? Will my Cross-Motion be paid any attention? Didn't look like it; Mr. Steen is found to be the Basket Case)

*18) "my claim which has nothing more to do than the contract that was not complied with" (Steen)

NOTE: With all the warnings of discovery indulgence inherent in the Rules, my case must clearly end up to be one of the most convoluted ever allowed by its court officials.

*19) ..."you didn’t agree with the order, so you’ve just ignored it."

NOTE: As I stated above, I DID comply! Those answers were NEVER EITHER FACTUALLY, OR LEGALLY CONFIRMED.

*20) Note: The Claim is about a contract (based on a Proposal, which led to a 'Statement of Work', created by the 10 year long experienced web-creators), while fully paid its due $43,000 + several badly required additional 'out of scope' items that were recognized as being crucial, yet not included at the time the contract was signed.

- Here I am forced to answer questions about my life, my resume, my Business Plan, my Marketing Plan. One's Business and Marketing Plans would tend to associate with a more than acceptable super-satisfactorily 'working' website. The contract was for building a website, "similar to Craigslist and Kijiji, but with the advantages of users being identified by their Postal Codes." It was NEVER finished, let alone on its acceptable 'Completion date. How then, some 6 years later, is the court even allowing these type of questions?

I suggest the answer: To silence the Plaintiff!

*21) "...this thing has been dragged on far beyond it’s – far beyond it’s reason."...(Steen)

Note: My rhetoric falls on deaf ears. To me, a rule-bound court would have taken my concerns to heart!

*22).." Your counsel agreed to this order, did he not?" (Court)

- Aye there's the rub; he did, behind my back, directly contrary to his promises to me. I have plenty of email proof evidence to this. "Trust me" indeed!

*23) "So having consented to the order that’s the same as you consenting to it."

- That's the big hole - I guess. But then I filed a Cross Motion in June. the one mentioned above!

*24) "you want me to review what Master Roger ordered, but I don’t have the jurisdiction to do that."

NOTE: My question is, if a Master IS capable of dismissing an action, WHY does he/she not have the 'jurisdiction' to question a more Junior Master; especially one who more than showed a 'semblance of conflict' (as I pointed out) by having been a Partner at BLG, the very company both present Counsels work at?

- In their CODE OF ETHICS, (presumably as Pillars of our Society) in Rule 1.00: Masters and Judges are to "appear to be independent, impartial, and unbiased. Rule 1.01: "must avoid all conflicts of interest whether real or perceived, and are responsible for promptly taking appropriate steps to disclose, resolve, or obtain advice with respect to such conflicts when they arise."

- Remember that Master Roger on December 06, 2012, in his endorsement, advised Defence to obtain counsel if they wished to bring Rule 21 to the table. (This was part of Defence motion asking for dismissal) one 4 months later, BLG surfaced as Counsel.

*25) Ah, Mr. Griffiths... The law Professor...

*26) "the determination that they were necessary..."

- The relevant issue is whether Master Roger is familiar enough with the circumstances, i.e. the confines as determined by the terms of a contract; i.e. the construction of website. Did Master Roger know what questions were relevant to the "issues at hand," i.e. proportional questions relating to the contract? This appellant suggests, as is proven apparent during the 3 hour December 06, 2012, Defence Motion conference, that he wasn't.

- In Rule 2.00 in the CODE OF ETHICS it states:

"Justices of the Peace should maintain their competence through their work by participating in training and education courses and by seeking guidance from the Office of the Chief Judge in specific areas as required. "

*27) "Well, it’s not the role of the Court to give you advice, so..."(Court)

- I again quote from Master Roger's December 06, 2012, CC Endorsement:
No.11: "The above is without prejudice to any motion under rule 21 that the Defendant may wish to bring. In this regard I wish to confirm my recommendation that the Defendant consult with legal counsel before bringing a rule 21 Motion."
NOTE: Every Defence Motion carried the Rule 21:
"A Party may before a Judge etc,
(3) (d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court,..."
- Ironies abound in this Rule as used by Defence, and I repeat: Would anyone consider an out-of-court settlement offer for $30,000 -FRIVOLOUS?
- Regardless, contrary to Master Macleod's statement, it is clear the 'Court' OFTEN gives advice, and I would suggest especially to SRLs ordered in to 'CIVIL CASE MANAGEMENT.'
*28) I can dismiss, order costs, give more time... "I can do other things"
- WHAT other things I have wondered? Like make an order to seriously check the validity of the questions? To adhere to the Rules of discovery, and find out of this party may indeed have good reason to be questioning procedure? I mean we are 3 years in to discovery in this case ... :(

*29) "....if they ask for more questions and you think that is unreasonable, then and only then, would I be in a position to determine whether I agree with you or not...."
- The absolute insanity here! I have been at this stage for a LONG time now, questioning their questions, trying to file Motions EXACTLY asking that (all stifled); today with another such Motion, a Cross Motion sitting there!

*30) "This is a claim for some $700,000 and including business losses and whatnot" (Boyd) And "Whatnot" this is uncalled for manipulation! For years already we came down to our Investment + Costs at a total of $85,000 (this on 'advice' by Master Roger); that figure grew to become $125,000
*31) NOTE: Am I privy here to the run-of-the-mill Special Appointment Civil Case Management session?
- To this respondent/SRL litigant/claimant/plaintiff/appellant it is all as clear as 'MUD.'
*32) "or some of them, at least, relate to the counter-claim, don’t they?" (court)
NOTE: The Counterclaim at this stage and date is a legal NO-SHOW, since Defence would have had to file those claim intentions after the original claim's dismissal. Since they did NOT to do that, the question is to interpret WHICH of the remaining questions relate to the Plaintiff's original claim and which relate to the now defunct Counter-Claim?
- All is a puzzle; all is seriously questionable.
*33) There is CLEAR understanding here between Defence Counsel and the Master.

*34) FINAL NOTE:
- This Respondent's Cross-Motion was never addressed. As during the Roger 3 hour session in December 2012, after I said what I did, I sat in awe trying to hear the best I could, "in the circumstances."
- For the record, I will post my Cross-Motion next.

Wednesday 31 December 2014

152. What happened to MY Motion?

Sunday 28 December 2014

151. "Good morning Master."

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