82. How Timing is EVERYTHING...

VIEWS @ 6719

Hurrah! Having ordered it mid-October, 2013, I was yesterday informed my most telling transcript is "In the Mail." The 'Special Hearing Motion' of September 20, 2013, the session that led the Master to dismiss my case. Dismiss and post as 'Case Law' Lii.ca #10-49776, because after 2 years of continued demands for more answers to completely claim irrelevant questions, I refused to continue answering any more of them. Enuff was enuff!

Although I am keenly awaiting this transcript, reading it will take me back to relive that highly unpleasant session, held, not in a court, but what is called 'in chambers.' Attended by a substitute Defense Counsel, the senior Master, and myself on the phone, I remember most disconcerting the sound reproduction. After being reprimanded for interrupting, by stating I could not hear the conversation, the Master suggested I try calling in again. On doing so, there was no improvement. Regardless, the session has crucial content which will become part of my appeal.

So with a fresh read of Dr. Julie Macfarlane's new posting (link below), here is my response:

A GREAT BIG - YES! to her newly published episode.
Timing is EVERYTHING!
We're no longer ALONE. Representatives of the system itself are stepping forward and leading the cause for change. Let our exhaustive work not go wasted.

The posting contains some great phrases: "Crisis in access to justice"; "institutional professional resistance"; "user-oriented solutions"; "Being an SLR makes you Nuts;""abyss of obsession, compulsion and despair"; "It's a Spectrum, not a dualism."etc. Also the fact the 'movement' is titled: NSRLP - National Self-Represented Litigants Project; rather than the US's SRLN(etwork).

(This February 5, 2014, it will be exactly 6 years ago this (my) "project" began. My preferred life has been 'put on hold' ever since. As if caged, I have made do, blinkers on. I was going to have a last major-kick-at-the-can with my Postal Code based Classifieds website; to be built, after thorough research, by none other than Canada Inc. '1234567' etc. Little did I know then...)

As I mentioned in a former Posting, I shall continue to deal with my issues with the legal system from the inside-OUT!  Let the NSRLP do their noble work from the outside-IN! Who knows, we may swing in to an era where truth by proof, and Democracy by majority rule, can become a FACT of life.

Within the next 2 months, I shall continue to pursue my efforts, completing and filing my Perfection of Appeal papers. In my inimitable way, I shall discover if justice was in fact done; if those who ran my course of procedures acted according to the rules they had sworn their oaths to, or whether the imperfections I will be forwarding are to be sufficient indication the case needs revisiting and will be proven far from dismissed. Scary thing is: All will be up to a SINGLE appeal Judge's assessment.

At the center of my appeal will lie my responses to:

1) Variable readings of the existing Rules of Civil Procedures.
2) Case Management Masters' inconsistent orders of endorsement.
3) Uncontrolled Counsel manipulation by interfering with due process (i.e. Motions; applications to a Judge; stretching time)
4) Concerns with allowances to overshadow when running Counterclaims and Claims together.
5) Jurisdictional disparity with Forum Convenience advantages with filing, attendance etc.
6) Potential Jurisdictional favouring amongst professionals.
7) Institutional resistance to SRLs, by officers' heavy handed responses.
7) Lack of direct access to one's Case file.
8) Complications with filing documents.
- Then, there are my former suggestions about when cases go in to Case Management.

NOTE: Regarding the article's 2-group analysis:
From my perspective this is NOT a good idea. Most of us likely start off with a certain amount of venom. That is why I think having a Para-Legal 'bridge' to the system is advisable. 

Querulous Litigants or Distressed Citizens: Who Are We To Judge? (Querulous: adjective: whining, petulant, cantankerous) by drjuliemacfarlane

81. Increased Efficiency + Clarity of Conduct

VIEWS @ 6675

Looking ahead, as the number of SRL's increase, I expect procedural adjustments will be made (Self-Representing-Litigants). At least those suffering the slings and arrows of the present misfortunes befalling them (including those who have already fallen by the wayside), will demand a more democratic system. Justice as a lucrative business, should no longer be tolerated.

NOTE: A Reader has called me an "idiot" for suggesting Para Legals represent the client. She states that Para Legals are not allowed to represent a client in court. On careful reading of below, you will note I do NOT suggest the ParaLegal Represent the Client. I am speaking about the Para legal as the objective 'contact' person; more in a secretarial manner. The role is one of organizer, rather than representational.  (I HAVE, HOWEVER, MADE A FEW ADJUSTMENTS) 

Here are my thoughts on improving procedures: 

1) Create a functioning SRLN 'body' in all provinces. (Self-Representing-Litigant-Network)
2) Engage the Para-Legal Societies of each Province and appoint a Senior Para-Legal in charge of the respective SRLN for that province.
3) Upon any SRL's request for support, the senior Para-Legal in the litigant's domicile province assesses the SLR's case.
4) After assessment of particulars, i.e. qualification verification of the SRL's involvement allowances, the Senior Admin Para Legal appoints the most suitable para-legal to the case.
4) The appointed Paralegal proceeds to work with the SRL on preparing the case.
     a) Communication will be done by email, phone, or SKYPE. All will be recorded.
     b) If any communication issues arise early in procedure, a switch to another Para legal may be requested. Conversely, the SRL may choose a para legal, qualified to take the case, from a given list.
5) Any, and all written communication with Court departments shall be by the appointed para legal.
     a) All communication with the Courts shall be verified and acknowledged by both SRL & Para Legal. i.e. There shall be NO clandestine communication with the Courts outside that which is known, and agreed on by the 'Team.'
     b) All communication shall be recorded and all email correspondence cc'd to all parties.
6) Procedure will be previously explained, and SRL will at all times acknowledge understanding of same.
7) The appointed Para-Legal will be the communication 'contact' for the Party.
8) Should a case go to trial, the Para-Legal, although not as spokes person, will be allowed to support its party in court.
     - Conversely, a lawyer may be hired, specifically for the purpose of representation at trial!
9) The province pays for the Para-Legal, but the Party pays for the costs of filing and/or any penalties.
10) The Para-Legal DOES NOT REPRESENT THE CLIENT.

The above system adjustments:

 a) Allows the Courts to concentrate on in-court procedures.
 b) Avoids any potential semblance of bias and/or partiality.
 c) Allows Para-Legals to 'Front' an SRL, making communication with the court more efficient.
 d) Eliminates SRLs from direct, personal contact with the Court, or Counsel for the other Party, preventing any frustration, or misunderstanding.
 e) Allows for a better prepared and more efficient presentation of their case.
 f) Allows the SRL Litigant/ Defense, to bring the Para-Legal in to act as a 'silent partner' during trial.
_________________________________________________________________________________

NOTE:
If there are any additional reader suggestions, please forward them.
A reader sent me the following 2 applicable URLS:

http://www.lawtimesnews.com/201304292181/headline-news/time-to-expand-paralegal-rights

http://www.theglobeandmail.com/globe-debate/lawyers-are-too-expensive-for-most-canadians-give-more-work-to-paralegals/article15262477/

80. RELEVANCE IN DISCOVERY...("in the circumstance")

VIEWS @6635

As the reader may note, the topic focus is changing. We are experiencing the development of a Self-Representing Litigant's Claim and his naive views in believing procedures unfold according to prescribed rules. Not so. Rather, we are dealing with good 'lawyering.' 

With author's permission, the following is part quote of one of this Blog's readers:

(I have italicized it )

________________________________________________________________________

"My opinion is that the web-developers you worked with after pulling the site out of Ottawa are non parties - in order for the defendants to examine for discovery non parties, the defendants must bring a motion and obtain an order from the court to question non parties and convince the court that they are entitled  to evidence of non parties- this type of order is very difficult to obtain and requires an extensive and convincing motion by the parties seeking such an order.

I suspect that the defendants , since they knew they were dealing  with a self represented litigant who does not know the rules and also knew that  their chances of obtaining such an order were nil, decided to frame this as their entitlement to question the web- developers you worked with after pulling the site out of Ottawa and your failure to cooperate should be interpreted as a breach of a court order.

This is simply good lawyering and you fell for it."

________________________________________________________________________

All well and good - and MUCH appreciated! The only MAJOR difference being, that I did not 'FALL for it.' I'll explain! 

To reiterate: After having been dismissed in BC's lower court for "lack of Jurisdiction" (Claims up to $25,000), several weeks after serving the claim in the Ottawa Superior Court , then Defense Counsel Mr.'X' (via his clients) offered us a $30,000 out of court settlement. Having at that stage spent the Investors $75,000, this party turned it down. 

This led to the 'Business of Law' setting in, with the filing of a Counterclaim followed by a Defense motion, heard September 13, 2011: to withdraw this Claimant's request for Case Management, accept Defense's long Discovery Plan, or have the case dismissed. 

(The order became a certain 'forced' consent at the claimant's costs of some $2,300.)

- Again, remember Defense had been in possession of my questions for some 3 months! 

At the very outset of the pursuant Discovery process, during the tutelage of Counsel 'X,' I already argued the relevance of many of Defense's questions. This painful phase ultimately led Defense being allowed self-representation during a January 17, 2012 defense motion. Included was the Master ordering the case in to Case Management.

This was the self-same Case Manager who had suggested on September 13, 2011, he would have ordered the case in to Management, had the order not specifically asked to withdraw the request. At the January 17, 2011 motion hearing, the first scheduled Case Conference then became May 09, 2012. (See earlier posts for specs on these CC's.)

Setting aside the understandable trajectory of Defense maneuvers to 'win at any cost,' with a Case ordered into Case Management, the pertinent assessment factors should be: 

1) With a Case Management Master at the helm, is the derailed train back on its track, or has  damage-done sufficiently effected procedure, that the business of law is surreptitiously carried forward? 

2) As the transcripts indicate (if I am ever to receive the more than half paid for second one), during ALL sessions did I argue the relevancies of Defense's Undertakings. At every  stage during the long drawn Motion requests did I venture to comply with the Master's orders of "answering the relevant questions." Even going beyond them...

3) Even after the December 06, 2012, Motion Hearing, when the Master had ordered: 

" (1) This motion is really or primarily a motion to dismiss the Plaintiff's action for failing to answer questions under rule 35. * (etc)

(2) During the motion, we carefully reviewed outstanding answers and undertakings. * (etc)

(3) Considering: that the previous orders were made at case conferences without assessing the sufficiency of the answers; that the previous orders were not specific [...] * and .... considering generally the concept of proportionality...is not to dismiss the action for failing to comply with previous orders...to order that outstanding questions, as they are outlined below, be answered by Feb. 15, 2013. 

(4) The above is a fair and reasonable disposition, in the circumstances of this case. The Plaintiff is, however, on notice that he must comply with this order in a timely manner as this court might exercise its discretion differently should a similar motion return. *

5) The Statement of Claim, as drafted, is not an example of excellence in drafting...*

6) [....] All questions or undertakings ordered answered have been found to be relevant and outstanding." *

* RE: (1) Compare Rule 35 with  applicable Rule 31 below.

Rule 35 states: 

" FAILURE TO ANSWER

Further List of Questions

35.04  (1)  Where the examining party is not satisfied with an answer or where an answer suggests a new line of questioning, the examining party may, within ten days after receiving the answer, serve a further list of written questions which shall be answered within fifteen days after service. R.R.O. 1990, Reg. 194, r. 35.04 (1).

Court Order for Further Answers

(2)  Where the person being examined refuses or fails to answer a proper question or where the answer to a question is insufficient, the court may order the person to answer or give a further answer to the question or to answer any other question either by affidavit or on oral examination. "

NOTE in (2) Above: ..."fails to answer a proper question..." (CHECK below)

 ________________________________________________________________________

SCOPE OF EXAMINATION

General

31.06  (1)  A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action or to any matter made discoverable by subrules (2) to (4) and no question may be objected to on the ground that,

(a) the information sought is evidence;

NOTE: "any proper question relevant to any matter in issue in the action" 

* RE: (2) At this, the 3rd Conference, the Master, having stated he has read the claim, is committed to the reasonings and considers Defense's questions 'relevant to the issues at hand.' 

* RE: (3) On May 9/2012, the Plaintiff was ordered: "All relevant questions are to be answered as fully as possible." 

- From this former Plaintiff's perspective he MORE than complied with the order.

* RE: (4) "In the circumstances of this case." I shall continue to ask the question: 

In what way do the circumstances of this case make claim-irrelevant questions - relevant?

* RE: (5) What is the Master's objective in criticizing the imperfections of a Self-Representing Litigant? Is this the first time the Master has encountered a less-than-perfectly drafted claim? Regardless its possible imperfections, this claimant maintains his claim is written in proper english, using proper grammar, leaving no doubts about the clarity of its contractual boundaries of non-compliance. 

* RE: (6) Nonetheless, the December 06, 2012 Conference made it blatantly clear it was decided I  was the non-complying party; that Defense's Motions had put them solidly in the driver's seat. 

As early as the May 9, 2012 (the 1st Case Conference) the Master stated:

"Affidavits of documents have been exchanged and the Plaintiff served written examination for discovery in My 2011. The purpose of this case conference is to timeline the action to a date by which it will have to be set down for trial." 

NOTE above: "... Plaintiff served written examination questions for discovery in May 2011."

WHY DID THE MASTER NEVER QUESTION THE LACK OF DEFENSE ANSWERS, WITHIN THE LEGALLY ALLOWABLE TIME OF 2 WEEKS?

This case has abundant proof of grave anomalies, and legal inconsistencies.

 SUMMATION: 

We either accept the concept of 'lawyering,' and the fact LAW is NOT about JUSTICE. That it is a business, to be indulged and played by the elite who can afford it!  WHOA be any fool to think otherwise! Welcome to the circus of inequity.

If it still stands any chance to become truly fair, proportional and just, it will require numerous changes. Both in Rules as in procedure. 

The likelihood for that to happen is slim, at best.

79. Interpreting 'RELEVANCE' and Motions.

VIEWS @ 6555

On January 17, 2014, I received the October 7, 2013 ordered transcript (No.1)
('MOTION BEFORE THE MASTER'; December, 06, 2012; 150 Pages @ Total cost of $600.00)
(Ottawa Superior Court in Ontario)

NOTE:
Wanting to file a Counter Motion, on November 27, 2012, I spoke by phone with a fellow working at the Motion desk. He FAXED me a 'Notice of Motion', which I filled out and returned. Early Monday morning, Nov. 31, I had a call from a gal at the same Motion Desk. She asked me what was happening? Bemused, I told her about my Counter Motion's Notice filing, stating there was a Conference scheduled for December 4, 2012. She informed me it was changed to the 6th; that I should contact the Master's Office, for an hour. When I emailed them to enquire, the switch was verified for the 6th @ 10:30 AM (which is my 7:30 PST). I thought (erroneously it turned out) that the new date was due to my filing my Counter Motion.

I remember the session, with a 30 mins EST lunch break, to have been some 3 hours+ long. Let alone the costs for all concerned, to me it had been a highly confusing, disorganized affair. The transcript is now useful proof of a number of factors, as well as its clear indication of an indescribable waste of everyone's resources. Rereading it, the following are some excerpts:
(after an all-round introduction of those in attendance)

THE COURT: "So this is a motion that is brought by the defendants okay. .... the defendants say that the Plaintiff has inappropriately, or - not sufficiently answered the questions...
I have read the affidavits, the factum, which were mostly about the factual circumstances of the legal action. And, but I want to remind everybody that that's fine for background information, that I am aware of the actual circumstances of the legal action, but the motion it is not a motion to determine the legal action. It is a motion to determine have the questions been sufficiently answered, yes or no. If yes, what then. If no, what then. Okay, that is what this motion is all about."

"STEEN: (on telephone from British Columbia) May I ask a question?
COURT: Go right ahead.
STEEN: The motion that you speak of - is the return of the defence's motion?
COURT: It is the motion that is before the court.
STEEN: Did my motion ever - was it ever acknowledged?
COURT: What is your motion?
STEEN: Oh. You are not aware of my motion?
COURT:  I do not think I am because I..."
STEEN: (I rerun my previous week's efforts with the Motion desk...)
"COURT: Okay, well Mr. Steen, what is your motion about?
STEEN: The motion is, essentially, to ask, - to state that from my perspective I had sufficiently filled out, or as best I could, what was pertinent and what was relevant.
COURT: Okay, so we will deal with that when we deal with your response to their motion. So essentially what you are telling me is your motion is to respond to their  - to say that you have sufficiently answered.
STEEN: Yeah, but I am interested that you did not see that.
COURT:  Well, I have a lot of materials Mr. Steen.
STEEN: I appreciate that.
COURT:  And I just do not know what is what. So, I want to do this in order, and just look at what I need to look at in order to deal with this, okay.
STEEN: Okay. "
{Defense and Court then spend several minutes finding the "Most up to date" Undertakings Chart of my responses to an array of (to me completely case irrelevant) Defense questions...}
"COURT: ...... And that is what I propose to go through, so that I can identify the sufficiency of the answers. Okay?
STEEN: Okay."
{Discussion then focuses on a Defense's Questionnaire sent Web-developers Steen worked with after pulling the site out of Ottawa. Questions relating to their background, experience etc; their opinion of Mr. Steen... That if they did not comply by answering, they were threatened with a subpoena to do so.

The developers who volunteered had sent me a copy of their responses; those who refused had said so, stating it had NOTHING to do with them.

"DEFENSE (1): Some of them responded, some of them didn't.
STEEN: So.
COURT: But, so you - so, you have got their...
STEEN: Some of them responded, some of them didn't, well...
DEFENSE(2): Mr. Steen the question...
STEEN: ... I can't help that.
COURT: No. No, wait a minute gentleman listen. The email addresses. So, were you able to contact each of these individual, and some of them answered, some of them did not?
DEFENSE (2): Well, we don't know if they received the email. There is no way for me to know because there's no way to know. That's why we asked for all contact details including a phone number. It was simple - a simple instruction, can you provide this, that, and the other thing, and he did not comply. It's that simple.
STEEN: My, my, my, my, my, my.
COURT: Mr. Steen, can I ask you to stay quiet.
STEEN: Yes.
COURT: You are - We are going to do this at a time - one at a time.
STEEN: Yes, I'm sorry.
COURT: And I do not want to repeat myself.
STEEN: NO.    (long pause) "

For most of the rest of the session I sat in awe as they plodded painstakingly through the questions and answers, deciding whether they were sufficiently answered or needed more detail. At some point we discussed the existence of the 'original version of the site.' With the view of the need for it at some stage, I was very careful to store it - untouched. Upon the Court asking Defense if they still had the original version? The response: "We should have it." The session/document is a fascinating account of dribble in my view.

On page 103 we move in to the 'Undertakings' section:

"COURT: Okay. Okay, undertakings. So, the undertaking - The first one is - So, you wanted the plaintiff to provide a copy of his resume. So, a copy of his resume, that is what you are asking?
DEFENSE (2): Yes.
COURT: Okay, Mr. Steen, on - on this point, the reason they are asking for your resume is to know about your background. And if this was an oral discovery the usual question is - a part of any discovery is to know who the other side is. You know, did you - And - And, it would be relevant. It is on the border of relevancy, but it is certainly relevant to know who your opponent is, particularly when we are dealing with the website."

"If you have, for example, a PhD in computer design, or you have got a grade 11 high school education. I mean that is relevant. Are you - Do you have an MBA from Harvard, or do you - just you have completed grade - I mean, all - that is relevant to - to understanding who you are, what your understanding of these things would be. And, so to ask for a copy of your most recent CV is a quick - quick - very quick way of doing that, you know?"

"So, the answer that you have outlined to the right of that is - is unresponsive because it does not provide a copy of your CV. And you know, it is not - At discovery most lawyers would say, to avoid the many questions about your education, do you have a recent CV? Yes. Thank you, will you provide it? Yes. Great. And then you move on after that."

"The other way around this at discovery would be to say, okay did you graduate from grade 12? Yes. After that where - did you go to university? No. Did you go to college? Yes. Where? What? You know, and just so we know who you are. That is - Do you understand, Mr. Steen?
STEEN: I am not understanding...
COURT: I mean, you have not said...
STEEN: ... but I am accepting your reasoning.
COURT:  Okay, and you have not said in your answer, it is not relevant, but - but, it is relevant. I mean, you are - as well, Mr. Steen, I do not know if in your question you have asked, but you are as well entitled to know, from the defendants - you could ask, or you could have asked for a CV for each of these people who worked on the project, for example. And for the same reasons. Mr. (x)(Project Manager Name), for example, you are alleging was not up to par. I do not know if you have, but you can certainly ask for...
STEEN: Well it - it is the Defense's own statement in September that he was not up to par.
DEFENSE (2): No, that's not true. Again, you are taking it out of context. "

[NOTE: Almost 2 months after the July 11 contracted completion date, the September 2, 2008, email from the CEO to me read:
"Hey Jan,
It is clear to me that (Name of Project Manager)'s skills are not where they should be at. We have removed him from the project management role and PM's (New Name) will be your permanent project manager. It's clear to me that things are going much smoother and progress is significant. Soon we will see the light and move in to production. Regards, ..." (CEO Name).]

AFTER a lengthy, well-prepared tirade by the Defendant CEO, explaining how everything is my fault, I SKIP TO PAGE 148. Here procedure is wrapping up:
COURT: "... I have always appreciated that this motion was a motion to dismiss primarily for failing to comply with written questions, okay. " .... a number of hints follow:
"if I do not dismiss the action." / "... this action can be set down if - if I decide not to dismiss."

The Master's Order describes the Motion:
December 06/2012: "This motion is really or primarily to dismiss the Plaintiff's action for failing to answer questions asked under rule 35 and for failing to comply with previous endorsements."

The order compares to earlier Case Conference orders, in which the parties were ordered:
May 09/2012: "The Plaintiff is to review the lists of questions provided by the Defendant and is to make best efforts to provide any additional answers that he is prepared to provide in answer to these questions. All relevant questions are to be answered as fully as possible."

July 18/2012: "The Plaintiff ... shall answer to the best of his abilities all unanswered questions that he is prepared to answer."
Again, this is a Motion hearing, and at the outset we were asked were we stood. So that we could move on, thinking I had more than enough evidence, I responded I was satisfied with the Defendant's answers to written examination for discovery. In retrospect, I realize I made a mistake, when Defense was NOT satisfied. It began putting Defense in the driver's seat.

Defense had been in receipt of my written Discovery Questions since May 19, 2011. They had legally 2 weeks to answer them. Counsel did not deliver them to his clients for 5 days, and asked for more time; I offered a month. It wasn't enough, and the manipulation with Motions began.

I had discussed Case Management with Defense Counsel, but he stated: "Case Management is archaic, my client does not want it."  Requiring to hire local Counsel @ some $2,300 for the preparation and hearing, it is fascinating to go back to the same Master's first Defense Motion heard on:
September 13, 2011.

"THIS MOTION, made by the Defendant/ Plaintiff by Counterclaim was heard this day at ...(etc).
ON READING the consent of the parties,
1.  THIS COURT ORDERS that the Plaintiff withdraws, without prejudice, any motion to have the action managed by the Case Management office.
2.  THIS COURT ORDERS that the parties accept the Discovery Plan attached as Schedule A hereto;
3.  THIS COURT ORDERS that the parties agree to attend a mediation no later than by the end of the year 2011 or another time agreed upon by both parties.
4.  THIS COURT ORDERS that Costs of the motion to be reserved to the trial judge."

In his unofficial statement, according to our hired Counsel, the Master had stated, that had it not been for it being specifically requested so, he felt it to be a prime case for case management and he would have ordered it.
Responding to No.1:
- Had the Master been sufficiently curious and expeditious, he would have asked: 'Why is the Plaintiff withdrawing his request for Case Management?' And if I would have been in court, I would have told him: 'Because, your Honour, according to Mr. Defense Counsel "Case Management is archaic and his client does not want it!"'
Responding to No.2:
- If the system was sufficiently together, even though it was acknowledged elsewhere, but NEVER picked up on, the Master SHOULD have been told and responded to the fact that by this date, Defense had had my Written Questions since May 19th, without responding, and thus legally being responsible, and punishable.
Responding to No.3:
- To this Appellant a Rule is a Rule; an order is an order. If this were the Military, there would NEVER  be such an order: "Alright men, listen clear and listen carefully! I'm only going to say this once: I want you to KILL the enemy, or, if you FEEL like it, ask him out to lunch! Suit yourself!"
Responding to No.4:
- Here the Master orders costs of the Motion to the trial judge (when it looked like we might actually end up with a court date). However, at the December Motion conclusion, I was ordered to pay $2,100, when it was indubitably 'proven' that I had to be the culprit.

As I stated in Post 78 Motions are killers.
They MUST BE ABOLISHED, IN ORDER FOR JUSTICE TO STAND ANY CHANCE.
- I am amazed by the system's manipulative factors, and its humongous inefficiency.

The Business of law is alive and well.

MOTIONS ARE KILLERS

SOMETHING MUST BE DONE!
RELEVANCE INDEED!
------------------------

I am not only gravely concerned about the quality of our 'democracy,'

it, in fact, seriously scares me!

The irony is that the so-called "archaic Case Management" has managed to turn me in to Case Law!

78. Suggested Changes to Improve Due Process.

VIEWS @ 6483

Due Process of Law

"A fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's life, liberty, or property. Also, a constitutional guarantee that a law shall not be unreasonable, arbitrary, or capricious." (USA)

Due: Expected, or planned; required, or owed as a legal or moral obligation.
Process: A series of actions, or steps taken in order to achieve a particular end.
Arbitrary: Based on random choice, or personal whim, rather then reason or system. 
Capricious: given to unaccountable mood, or behaviour. 

Regardless my indescribable anger with the system, my New Year's Resolution is to show less emotion. I shall try my best to be cold, calculated, and to the point. My focus will be on what is, and what isn't;  -  on the 'Due Process of Law' -  of what should be, in order to promote actual fairness and justice in our courts. This all, clearly, according to me  - yours truly.

My take:
The Canadian Rules of Civil Procedure were  tightened in 2010, to avoid unnecessary court time, by becoming more efficient. It put the greater burden on the parties to sort out matters during discovery, and mediation. To pursue every effort to resolve differences and stay OUT of court; i.e. have NO trial, if it could be avoided! My experience has shown it to allow for long-drawn, unjust, legal manipulation.

Rules must be succinct and to the point. The present loopholes of 'either/or', 'this/or that', are confusing. The Rules require drastic overhaul. I will address the following:
Motions*(1) need redefining; Counter-Claims*(2) shall not overshadow Claims*(3); Mediation*(4) needs addressing; Case Management*(5) must live up to its title: 'Management'!

ADDITIONAL ALLOWANCES:
- Personal Online Registration for access to one's COURT files;
- For email connects to all pertinent departments, to enhance and simplify the filing of documents;
- For SKYPE, telephone connect to attend all conferences;

THE COURT SHALL ENSURE:
- To eliminate any semblance of jurisdictional disparity; i.e no hint of Forum Convenience leveraging of any Forum In-convenience party;
- Judicial Officers must appear to be, independent, impartial, and unbiased; (coe)
- Judicial Officers must avoid all conflicts of interest, whether real or perceived etc (code of ethics)
- Judicial Officers should not use their title and position to promote their own interests or the interest of others; (coe)
- Judicial Officers shall be familiar with the details of the case at issue; (coe)
- Judicial Officers shall maintain their competence by remaining up to date on changes in the law relevant to their judicial function; (coe)
- Judicial Officers shall at all times strictly adhere to the Rules;
- Judicial Officers should convey in plain language their decisions and the reasons therefore where such is legally required; (coe)
- That any Self-Representing Party is assured to understand procedure, and not be reprimanded in his role.
- That consecutive Masters/Judges' orders at Case Conferences/Hearings reflect earlier orders; i.e., rather than negate, to build thereon.

  THEN - likely - we may begin our road towards a more just society.

There are ever-increasing numbers of self-representing litigants. It is a sign of the times.
A number of caring professionals are aware of the present trends: (see Dr. Julie Macfarlane's Blog: http://drjuliemacfarlane.wordpress.com , as well as Richard Zorza's  http://accesstojustice.net. and www.selfhelpsupport.org ) 

We are the general public, the bulk of democracy, who, for a variety of reasons, are required to go it alone in our legal pursuits. Exorbitant costs, as well as certain alienating uncertainties by dealing with Professionals are leaving us no choice. (Creating any confidentiality in a relationship is a hardship)

Principles and Best Practices For Access-Friendly Court Electronic Filing.

I look forward to the day when, like the US, Canada has a well-established SRLN body actively functioning. (Self-Represented Litigation Network ) 
When in place, it would assure the system that we are well represented, and not alone! 
_________________________________________________________________________________

*1) Motion. "A written or oral application made to a court or judge to obtain a ruling or order directing that some act be done in favor of the applicant."

- "that some act be done in favor of the applicant!" > (?) There should be NOTHING in favour of ANY party, until the claim has been fully assessed. As such, Motions should be UN-acceptable! 

- 'FAVOROTISM' is not a word applicable to fair and just  LAW.

My assessment on filing:

1) Responding to a registered, filed claim - an opposing party, having certain issues with the Claim may file a Counterclaim.

2) A case with one or both parties Self-Representing shall automatically be ordered in to Case Management. Save for a pre-trial date, the Case-Assigned Master shall at the first Case Conference  determine set dates for all procedures.

3) Should there be no Counterclaim, the Defending Party may file an 'Application to the Master' in which questionable issues, or facts described in the Claim may be addressed.

4) The Master, upon reviewing the Application, shall assess the validity and relevance of it, as each ground is laid out to show relevance to the specific ISSUE stated in the CLAIM. Only if the Master acknowledges direct concern with validity, will the Master allow for a Motion to be filed. Without favoring the Applicant, this puts the onus on the Court.

5) However, no Motion may interfere with due process. There shall be NO allowances for any extraneous further filings, unless the Master legitimizes one for valid reasons.

6) There shall be no more than three Case Conferences during discovery, with orders and summation indicating clear progress. Any out of Town or Province party may attend by SKYPE, or phone.

7) Discovery Questions and Answers shall at all times be acknowledged as claim relevant. There may be no more than 2 revisits with requests for additional questions for answers, and Undertakings. Proportionality shall be at all times adhered to; irrelevancies shall be discussed, interpreted, and determined one way or the other. The Master's allowances for any questionable questions or answers must be explained clearly.

8) Any party's disagreement at this stage, shall move on to the next phase - pretrial. It must be realized, the case is in 'Management'; this is not the stage for judgment, or dismissal! It shows conflicting roles. 'Management' is not 'Judgment.' A Master should not have the power to dismiss - at any time.

9) Mediation can be discussed at any time. However, a Mediation session must be held with an acknowledged Mediator, regardless the parties agreeing to settle, or not. This allows for additional objective evaluation by an outside professional. Pro-forma is out of the question.

10) At conclusion of third Case Conference (all procedures to date having been accomplished within one Calendar year), the Master writes an assessment of the case, stating all docs are in place, and that the parties are as ready as they will be to file for pre-trial. NO misgivings, or partiality may be noted.

*Counter-Claims (2) versus Claims (3)

Unless the filing party can at the outset direct the court to specific factors within the claim the party deems can actively hurt the party during process, and the Court agrees - with reasons, the Court may Order a Cease and Desist order during the case's process.  

However NOTHING may allow the main focus to be drawn away from the matters at issue - the Claim! 

Only when the Claim has had its day in court, may any Counter-Claim be pursued! The two shall NOT run actively parallel! 

* Mediation (4) 

Regardless any opportunity for Out of Court Settlement, Mandatory Mediation is sound practice in that, like the Master's, it allows for an additional objective assessment. The Mediator's minimum session, of some 3 hours, allows for another professional's overview. It may be of use at Trial. 

* Case Management (5) 

Case Management must be true to its words. A Master is there to guide the Parties, whether both are Self Representing, or not.  In Rule 77, it still states that the greater duty to move proceedings forward continues to lie with the parties. I see the role of Case Manager as a knowledgeable, experienced teacher, not as a threat, or party favor. And certainly not as one who, in time, can become aggravated with a party. A Master requires the special human traits of fairness and understanding. As an overseer, the role should lie above the law. It is a highly privileged position. 

NOTE:

It appears I will be receiving my first transcript this Friday. It will be some 3 1/2 months since ordered. Can the second ordered be far behind?   

   

77. Accruing the Documents for an Appeal.

VIEWS @ 6359

Holidays notwithstanding, distance continues to play a major part in my legal logistics. Regardless computers running most common citizens daily affairs, communication exchanges with the Superior Court in Ottawa requires constant need for verification, in order to ascertain procedure is accurate.

Experience has proven difficulties in certifying filing of any type of document. Early file checking in 2010 showed some documents had not been date stamped. Several Motions I thought filed were determined unregistered, or 'missing.'
 I was informed my cross motion would be "put with Defense Counsel's material" to be heard, I thought, on September 20th, 2013. It was never looked at, nor dealt with.

The obtaining of 2 transcripts, ordered in October 2013, are yet to be delivered. After a lengthy hiatus, recent contact with one of the transcribers, is proving productive, and conclusive. I should receive a hard-copy by registered mail earliest end of week. Total Cost @ $540.00  Living on $1,300 a month, you can imagine, I am deeply in debt.

My immediate family continues to reprimand me; others plainly have stopped talking to me. Nobody wants to hear... Although we all KNOW its futility - that we are merely stimulating the 'business' - there is my dogged determination to keep those blinkers on and persist. All with the slightest of possibilities a single Judge will actually look at this case - SERIOUSLY! As long as I maintain a cool front.

I might even have explained to me HOW, WHY, and WHAT allowed the evermore invasive Defense Questions, to become "relevant - in the circumstances." It's a loaded statement.

Last thoughts on the logistics of the Appeal.
{As a reminder: The usage of transcript(s) dialogue, and/or facts, determines the Final Appeal Date for Filing, some 60 days AFTER you have been informed the transcript has been COMPLETED. (Regardless your having it in your possession)}
 
 Here's the process:

1) In your Notice of Appeal you state you will be including and referring to 'transcript (s)'
2) You contact the Transcript department. (emails allowed; thank you)
- You render your dates of hearings with names of parties and presiding Master/ Judge.
- You are informed on which Hearings there were reporters, and thus transcripts possible.
a) Not all Hearings, Case Conferences, Motions, Special Appointments, Trials etc. have reporters sitting.
b) I am informed when there is at least ONE party 'Self-Representing,' a reporter MUST be present.
c) I am informed that every MOTION hearing must have a reporter present.
d) Recordings are digitalized these days. After you have gleaned which sessions have been recorded, you proceed to order the ones you wish to purchase.
e) You are put in contact with the applicable reporter/ transcriber; your transcriber my not necessarily be the original reporter at the session. My second ordered session is not being transcribed by the original reporter. I was informed she was 'busy.' That transcription is slated for 'sometime in January...'
f) You are then given an estimate cost of the transcription. If you decide to go ahead, a down-payment is required; it MUST be delivered in CASH to the home of the transcriber (in my case in Ottawa), or sent as a Certified Cheque or Money order. Transcribers are contracted and work from home.

- Since I live in British Columbia, it would have been a stiff walk to pay CASH! So, after a lengthy, inexplicable silence taking me into December I sent one $200 money order down payment, by Registered mail (extra cost @ $17); the second one, a money order @$380.00. That's $580.00 with ZERO guarantee. Both amounts were delivered by mid December, 2013.

g) Before the transcript is considered 'Complete' it passes by the residing Master, or Judge. On verification of its accuracy (it can not be changed I am informed), the transcriber files a 'Certificate of Completion' in the Court files (your Divisional Court Appeal number I expect) and informs you of this.

h) Upon this Notice of Completion, you are then given exactly 60 days to complete and file your 'Certificate of Perfection.'
It consists of:
- an Appeal Book and Compendium;
- an Exhibit Book;
- an Appellant's Factum; and
- the transcripts.
(You must also have an electronic duplicate on hand)

 All is becoming to feel surreal. I Googled the keyword: 'self-representation', and have begun to read up on the logistics of self-representation and its problems. I continue to feel 'alone,' but hope at some point to share my experiences with others, and WHO KNOWS maybe even make some positive difference.
I understand that more and more individuals are self-representing - by need!

This too will pass ......