Wednesday 30 July 2014

121. Quandaries of fumblers

VIEWS@9054

Trying to confirm the origin by Googling a sentence I remembered from long ago: "The more you know, the more you know how little you know," I ran in to a one liner by Socrates:

"The only wisdom is in knowing you know nothing."

So I had a reply to the Request I sent the Attorney General of Ontario. (Post 120)
"Dear Evert Jan Steen,

Thank you for your email sent July 19, 2014 to the Ministry of the Attorney General. Your email has been forwarded to this office for response.

The Ministry is very interested in the views and responses of members of the public about the Ontario justice system.  We are aware of the important issues facing individuals involved in the civil justice system and regularly monitor to ensure that our laws and the administration of the courts are responsive to the needs and interests of the public. We very much appreciate hearing your concerns and comments on the civil justice system. 

You may wish to contact Pro Bono Law Ontario (PBLO)..." etc. + another 5 paras with directives to available help. Understandably, NONE of my particulars were addressed.

"Thank you again for providing us with your comments. We hope this information is helpful to you.

"Sincerely,
Civil Policy and Programs Branch
Court Services Division
Ministry of the Attorney General. "
===============================================================

I have as of now managed to ADJOURN my September 10th Appeal Hearing. The new date was set - by telephone - by the Registrar of Court Services for the Divisional Court in Ottawa.
When I was given the September 10th date, I went online to see if I could glean whether the Court services provided an indication of the dates the divisional court sat in the various Ontario Jurisdictions.

Yes! On Googling: 'Divisional Court Dates for Ontario,' I noted a: "Divisional Court Sittings" listing.
The 2014 and 2015 dates for the Ottawa Region indicated:

"East Region – Divisional Court will sit in Ottawa the following weeks:
  • One week commencing Monday, January 27, 2014
  • One week commencing Monday, April 7, 2014
  • One week commencing Monday, June 9, 2014
  • One week commencing Monday October 27, 2014
  East Region – Divisional Court will sit in Ottawa the following weeks:
  • One week commencing Monday, January 26, 2015
  • One week commencing Monday, April 20, 2015
  • One week commencing Monday, June 8, 2015
  • One week commencing Monday October 26, 2015"
=================================================================
What is interesting is that the Date I was supplied with was September 10, 2014.
I do not see the Divisional Court of Ottawa sitting then, as per the above schedule.
Neither is the new date of DECEMBER 3 @ 10 AM showing up.

Are there differing Divisional Courts in a Province? Is this my naivety?
Or, as with my Case Management's "Special Appointment of September 20, 2013" are there, now and again, certain  'special' dates arranged, outside the regular schedule?

All of this, and the realization that more and more I feel I am getting less and less aware of what is going on. I would loath to think, like my experience in BC, that some wee tiny little technicality can chuck the whole thing.

And although I loath letting this drag on even longer,  I am now in a determined mode to seek Representation. Someone, preferably in the Ottawa Region (costs, and inconvenience of travel etc), someone who is prepared to step in and properly represent this Appellant and see due justice done.
I'm positive the Courts would like nothing better than to see that occur.

Enough of me.
It's just a matter of finding the RIGHT person. That's the rub.
Enough of fumblers.  







Saturday 19 July 2014

120. to the ONTARIO ATTORNEY GENERAL

VIEWS@8890 

THE HONOURABLE MADELEINE MEILLEUR

Honourable Madame Meilleur:

As a British Columbia domiciled, pensioned, Self-Representing Litigant, with an appeal date booked in  Ottawa's Divisional Court, September 10 at 2 PM, I find myself in a grandiose dilemma. 

All required docs are filed and procedure seems in order, verified by the Divisional Court's related Services. Notwithstanding, I have experience the slightest overlooked technical glitch can bring procedure to an abrupt halt. 
Deeply in debt as it is, I still intend to drive my SmartCar across our country to attend in person, since I have experienced over-the-phone attendance to be far less effective. 

As a pillar of our society, your dedicated and oath-bound noble office functions as the highest legal department in our Democratic Nation. 
To my knowledge, your civil department is responsible for the appointment and proper functioning of our Masters and Judges. 
Additionally, your role is instrumental in updating our Rules of Civil Procedure, continue refining nomenclature, abolish words leaving room for interpretation. Laws should never allow for subjectivity.

“In the circumstances all questions are relevant and the Plaintiff shall answer them.” This was a Case Management’s Master’s order, upheld by the senior Master. By questioning continuous orders to answer, to me, more case ‘irrelevant’ questions, the Master responded:
“The court is not there to give you advice.” 

Though I was not seeking advice, as a Canadian Citizen, I have equal rights. Being entitled, I merely required an explanation of what that all-important phrase defined! Having studied the Rules, (updated as of 2010), Discovery has to be “relevant to the issues at hand,” i.e. the issues as set out in the pleadings of the, in my case, contractual based claim. My education, job I retired from, my marketing plans, or who else I negotiated with, have ZERO bearing to the relevance of my contractual non-compliant claim.

After driving some 5000 KMs, my dilemma could face the possibility of arriving at the court house this September 10, 2PM, to be informed an act of God, or some other technicality forced a cancellation, or if seated, the judge might apply some other applicable technicality. 

Your office is no doubt aware of the immense growth of SRLs across the Nation. How the Internet and its e-commerce is playing havoc with Jurisdictional cross-boundaries. I have cc’d this email to Heather Hui-Litwin of litigation-help.com, Doctor Julie Macfarlane’s U of Windsor’s Self-Representing Project, as well as Lisa Nakamura at the BC Gov. dispute resolution. 

Although I appreciate you can not personally look in to the particulars of this case, by appreciating my dilemma, your office should however be able to either direct me to, or suggest a specific tangible solution.  

CanLii Case #10-49776 has been up-loaded as case law. My mental health, though acknowledged by the Master to be in reasonable shape, has been questioned. The appointment of an amicus curiae has been entertained. This lengthy case has experienced a number of serious legal anomalies over some 4 years, and begs firm directive. Might the appointment of an amicus curiae be a positive solution here?

I site:
==============================================================
 Supreme Court Judgments
Case name
Ontario v. Criminal Lawyers’ Association of Ontario
Collection
Supreme Court Judgments
Date
2013-08-01
Neutral citation
2013 SCC 43
Report
[2013] 3 S.C.R. 3
Case number
34317
Judges
McLachlin, Beverley; LeBel, Louis; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard
On appeal from
Ontario
Subjects
Courts
Notes
SCC Case Information: 34317
(After Opening Paras…)
"Absent authority flowing from a constitutional challenge or a statutory provision, the jurisdiction to fix the compensation of amici curiae must be found within the inherent or implied jurisdiction of the courts.  The inherent jurisdiction of superior courts permits them to make orders necessary to protect the judicial process and the rule of law and fulfill the judicial function of administering justice in a regular, orderly and effective manner." 
===================================================================
I humbly suggest your office assess my Ottawa Divisional Court Appeal case: # DC-13-1971, and, 'in the circumstances,’ in order to “protect the judicial process and the rule of law,” appoint an amicus curiae  to represent this citizen’s appeal more cogently and fairly.  

Respectfully Yours,
Evert Jan Steen
Self-Representing Litigant,
Domiciled in BC.   

Thursday 17 July 2014

119. 0 FOLLOWERS + 8788 VIEWS = COLLECTIVE CONSCIOUSNESS?

So what is REAL?

I have been reading a book by a local author, entitled: 'rapt in awe. It speaks of cosmic consciousness. How collectively we can join in the rapture of life and set out to make a positive difference. Poetically Lee White weaves his various ways from reality as we know it to the awe and mysteries of the unknown. I really like a lot of what he talks about.

"Any body of knowledge, field of inquiry, or way of seeing and saying is built upon presumptions. Such presumptions are perspectives with a frame of reference so that any ideology is constructed upon a foundation of beliefs. This foundational truth - that all knowledge is relative and that there is no absolute fixed frame of reference..." (LW)

Since then life is a self-imposed illusion, perceived by our inherent senses, everything is real. Both the good, Bad, and the Ugly. We do what  motivates us; each by our own resources bound, with limitations given, or set upon the self.

Proof of a species success lies in multiplying its numbers. With Necessity as the Mother of Invention, the industrial revolution led us to discover that the machine could enhance our 'useful' means to solidify and enhance our numbers, by letting automation do much of the manual work. 

So, like the fruit-fly in a finite jar, we continue to increase in numbers. And although we have yet to achieve the tipping point of capacity, indications we are close to reaching it are showing everywhere. 

Although my character strives towards the positive enhancing and harmonic, negative forces run supreme. To manifest positive action takes time, much energy, while never guaranteed. The so called 'negative' forces are blunt, quick, and efficient. Nature is not forgiving, in our eyes often not kind. Our species has learned to embellish upon it.

Since I do not believe in 'hope,' why do I bother with this? I guess It is my avatar of fantasy. The ability to comprehend beauty; the experiences felt when listening to mesmerizing music; to cry on reading a Dylan Thomas passage; to watch the vulnerable butterfly flutter by and realize its journey to a winter habitat thousand of kilometres away, like in the case of the Monarch. 

It is in the myriad impulse synapses of our emotions where lies this rapture that is 'awe.' 
While we can not move mountains, nor change the nature of our beast, while here, in the flesh, let those who are so motivated have their opportunity to express themselves. 

Thank you Lee White, Martin Steinson et all - for caring to make a difference. 

  

Sunday 13 July 2014

118. Asking for your Input.

VIEWS@8708

In my efforts to better understand court procedures, as determined by the Judge presiding, I have had several responses to my request to better comprehend what occurs during the actual how, and WHAT, while in attendance. None sufficiently explain my request.

Since I have been afforded but ONE judge (under the circumstances) I am seeking to better prepare myself to what I will encounter on SEPTEMBER 10TH, @ 2PM, in OTTAWA.

I envision the following:
COURT SCENARIO:
(All rise as the the Judge enters the court room; all sit after the judge has been seated)
I might hear:

“ I have perused Mr. Steen’s Appeal. And, although as a Self-Representing Litigant I have some sympathy for him having taken the incentive and troubles to have driven to Ottawa all the way from British Columbia, my jurisdictional confinement and the several additional technical anomalies of the file, do not allow me, at this time, to hear the details of the case. I will prepare my report with its pertinent details … in due time.  Dismissed…Thank you “ (Judge gets up; all rise; Judge leaves Court room

The Appellant is dumb-founded and is guided out of the Court room.

If any reader is knowledgeable about the procedure:
1) Will the judge allow for opening statements?
2) Are there Jurisdictional confinements to which a Divisional Court Judge is restrained?
3) Is it this judge's prerogative to deal with the specifics?
4) If not, the actual issues of the case are NOT heard; the HEART OF THE MATTER is a non issue?
5) Case law rules, and you are toast Mr. Steen. NO new case is sufficiently different.
6) Have a pleasant ride back to your never-never land in BC.

Any pertinent response will be much appreciated.
Thank you.

Friday 11 July 2014

117. Questioning PROCEDURAL FAIRNESS

VIEWS@8666

Today is 6 years to the DAY our contracted web-site completion date came, went, and ultimately evaporated our window of opportunity.

Yesterday I picked up a letter from the Ministry of the Attorney General , Court Services Division. It contained 2 Pages setting out procedure, and a Standard Casebook Index, Updated  October 2005.  "Frequently relied on cases are supplied to each Divisional Court judge as directed by the 1996 practice direction on judges' books of authorities. There will be additions to, and deletions from, the book from time to time.

In preparing books of authorities, counsel need no longer include authorities contained in the Judges' Book. However, extracts from those authorities which counsel intend to refer to the court should be included in the factum or book of authorities."

What follows are 5 pages of "Cases Arranged in Alphabetical Order." Some 60 are indicated, the latest being from 2004, the oldest being from 1973.
There is a secondary list with the same cases listed in 'Chronological Order, showing the 2004 first, and the 1973 Case last.

Bottom of Page 2, " This Index to the Justices' Book of authorities may be found on the Internet at:
www.ontariocourts.on.ca/divisional  court/index.htm   "

I immediately tried the URL, and stumbling over the gap between 'divisional' and 'court' tried 3 different ways to access the site. ( With underscore _ ; NO space: divisionalcourt; then again adding 'https://) I had NO luck with any... It took me to: ontariocourts.ca/
So possibly as per the rest of above, all is OLD!

Regardless, in preparation for my 'ARGUMENT', before I venture posting specifics about my own case and questions about 'PROCEDURE,' I will be reading up on a number of Case Law results, since it has been indicated in JUSTICE'S BOOK OF AUTHORITIES: "Each Justice sitting in divisional Court has a Justices' Book of Authorities listing authorities frequently relied on by counsel."

This again would seem to suggest that he/she who's 'argument' is superior, wins the day, truth, proportionality, fact or fairness notwithstanding.

I am assuming that the list of 60 sent me (1973 > 2004, updated October 2005) will provide for the September 10, 2014, most pertinent, applicable reality. Like fine wine that improves with age, the realities of facts, when allowed to linger on the sacred dungeon shelves of the hallowed halls of Justice, will clearly mature to attain even greater meaning.

Below then some paragraphs from one of the cases...(while the case is not relevant, the text is)
It concerns Procedural Fairness. The underlining, as well as the italic para inserts are mine.
======================================================  

"The duty of procedural fairness is flexible and variable and depends on an appreciation of the context of the particular statute and the rights affected.  The purpose of the participatory rights contained within it is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, *with an opportunity for those affected to put forward their views and evidence fully and have them considered by the decision-maker.  Several factors are relevant to determining the content of the duty of fairness:  (1) the nature of the decision being made and process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3)  the importance of the decision to the individual or individuals affected; (4) * the legitimate expectations of the person challenging the decision; (5) the choices of procedure made by the agency itself.  This list is not exhaustive."
--------------------------------------------------------------------
* (Case Management never addressed the relevant issues that were associated with the pleadings )
* (4/5: CM never questioned either motives, filed Motions, or requests by Defense. 
May 8, 2013, MASTER'S ENDORSEMENT (several quoted lines)
"c. If the Plaintiff fails to , the defendants may seek to stay or dismiss the action."
"The Defendant says that undertakings still remain unanswered."
-------------------------------------------------------------------------------

"A duty of procedural fairness applies to humanitarian and compassionate decisions.  In this case, there was no legitimate expectation affecting the content of the duty of procedural fairness.  Taking into account the other factors, although some suggest stricter requirements under the duty of fairness, others suggest more relaxed requirements further from the judicial model.  The duty of fairness owed in these circumstances is more than minimal, and *the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered.   Nevertheless, taking all the factors into account, the lack of an oral hearing or notice of such a hearing did not constitute a violation of the requirement of procedural fairness.  The opportunity to produce full and complete written documentation was sufficient."
--------------------------------------------------------------------
 *"evidence relevant to their case...fully and fairly considered." Both CM's kept clear of anything relevant, though questioned time and again by this claimant. Instead the phrase: "relevant in the circumstances" was applied, but upon Plaintiff's request for an explanation, the Senior Master stated:
"The court is not there to give you advice."  ('Advice' was not what this Plaintiff had asked for.)
---------------------------------------------------------------------------------
              " It is now appropriate to recognize that, in certain circumstances, * including when the decision has important significance for the individual, or when there is a statutory right of appeal, the duty of procedural fairness will require a written explanation for a decision.  Reasons are required here given the profound importance of this decision to those affected.  This requirement was fulfilled by the provision of the junior immigration officer’s notes, which are to be taken to be the reasons for decision.  Accepting such documentation as sufficient reasons upholds the principle that individuals are entitled to fair procedures and open decision-making, but recognizes that, in the administrative context, this transparency may take place in various ways."
---------------------------------------------------------------------------------
 *"Reasons are required..." The sole "reason" for dismissal was based on the Plaintiff's ultimate exasperation by not being allowed an explanation as to how continued questions were 'relevant.'  
How they could sensibly relate to either the Rules, pleadings, or procedure. Hence his refusal to continue answering the court allowable "relevant questions in the circumstance."
What WAS this circumstance, that made these questions 'RELEVANT?'    
--------------------------------------------------------------------------------
" * Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias, by an impartial decision-maker.  This duty applies to all immigration officers who play a role in the making of decisions.  Because they necessarily relate to people of diverse backgrounds, from different cultures, races, and continents, immigration decisions demand sensitivity and understanding by those making them.  They require a recognition of diversity, an understanding of others, and an openness to difference.  Statements in the immigration officer’s notes gave the impression that he may have been drawing conclusions based not on the evidence before him, but on the fact that the appellant was a single mother with several children and had been diagnosed with a psychiatric illness.  Here, a reasonable and well-informed member of the community would conclude that the reviewing officer had not approached this case with the impartiality appropriate to a decision made by an immigration officer.  The notes therefore give rise to a reasonable apprehension of bias.
 ---------------------------------------------------------------------------------
* "...reasonable apprehension of bias, by an impartial decision-maker." 
In the December 06, 2012, ENDORSEMENT, the Master stated the following: 
"1. This motion is really or primarily a motion to dismiss the Plaintiff's action for failing to answer questions asked under rule 35 and for failing to comply with previous endorsements. 
2. During the motion, we carefully reviewed outstanding answers and undertakings, I have found that 27 questions and undertakings are outstanding and require better answers, out of the 44 requested as outstanding by the moving party.  
10. A further case conference is hereby scheduled for one hour before me on February 27, 2013, at 12:00 noon.
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 the Defendant consult with legal counsel before bringing a rule 21 motion. "
* No. 11 sounds like advice to me.
MY COMMENTS : 
As per No.1, above, the Master indicates "the Plaintiff's action for failing to answer questions... and for failing to comply with previous endorsements."
Every previous endorsement (after a conference), ordered each party to: "review the list of questions provided, and to make best efforts to provide any additional answers...All relevant questions are to be answered as fully as possible," 
From my perspective, I went beyond - in to the ridiculous - to answer what I considered case IRRELEVANT questions.
Here are some:
1) Why did you choose to hire the defendant company?
2) Have you spent any money on marketing your business?
3) Resume: highest level of education; recent work experience in CV format.
4) Did you have a business plan in 2008?
5) Did you make any efforts to market your business? etc. 
My direct question to the court and its officials is the following:
In WHAT way are the above questions RELEVANT TO THE ISSUES AT HAND?
I am entitled to an explanation. The reason I was not given one is highly questionable.

The issues at hand being the Claim.  (I quote Master Macleod's September 23, 2013, sentence in his "Background" to his endorsement that led to his dismissal).
 "This action is a breach of contract action in relation to a website development agreement signed in April of 2008. Mr. Steen seeks a refund of money paid to the defendants, the cost of replacing his website and consequential damages." 

Well folks, Master Macleod hit the nail on the head with that statement!
The claim is specific, restricted within the confines of the signed contract; its last paragraph reads: 
"IN WITNESS WHEROF, the parties acknowledge that each has fully read and understood this Agreement, and, intending to be legally bound thereby, executed this Agreement on the date set forth above."
My education, business and marketing plan, or what I had for lunch HAS ZERO TO DO WITH THE RELEVANT ISSUES THAT ARE THE PLEADINGS OF THE CLAIM. 
If  Defense had complied with the time sensitive contract, and supplied me with a perfectly functioning web-site on completion date of July 11, 2008, their job was done. What I then did with the completed site was NONE OF THEIR BUSINESS! THESE FACTS ARE YET TO BE ADDRESSED! 
-----------------------------------------------------------------------------------
"In applying the applicable factors to determining the standard of review, considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, and the considerable discretion evidenced by the statutory language.  Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division, and the individual rather than polycentric nature of the decision also suggest that the standard should not be as deferential as “patent unreasonableness”.  *The appropriate standard of review is, therefore, reasonableness simpliciter.
 -----------------------------------------------------------------------
* substitute 'Case Management Master' and I would have gladly shown deference, if indeed I felt the process had honoured and addressed the "fact-specific nature of the inquiryas set by the Rules. 

* We shall see how the judge will respond; who's 'ARGUMENT' holds up.

Tuesday 8 July 2014

116. How Bout Dem Apples?

VIEWS@8595

A RECENT LEXOLOGY.COM (Article copied )

I would like the reader to pay special attention to my underlined, numbered, asterisk text.
See my comments below the article. 
What has become perfectly clear is that the 'due process of law' is subjective. Officers presiding, or in charge, hand it to you as they see fit!


"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." (Free Dictionary)

=====================================================

From LEXOLOGY. com:
Summary judgment on trial: Ontario Court of Appeal revisits the risks of summary adjudication
  • In a recent decision, Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, the Ontario Court of Appeal reiterates some of the risks of summary adjudication and reminds parties that, despite the enthusiasm for summary judgment endorsed by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, summary judgment may not be appropriate in all cases – *1) specifically those in which a staged fact-finding process raises the spectre of inconsistent findings at summary judgment and at trial.
Background
In 2009, the parties were involved in a series of transactions relating to a property located in Barrie, Ontario. When the relationship between the parties broke down, litigation arose: the plaintiffs sued, alleging fraud and other misconduct by the defendants; the defendants counterclaimed for payment on two promissory notes executed by the plaintiff totalling $1.25 million. The defendants moved for summary judgment dismissing the plaintiff’s claim and granting the counterclaim requiring payment of the promissory notes.
Motion Judge’s Decision
The motion judge declined to grant summary judgment on the defendants’ counterclaim to enforce the promissory notes. Before deciding the issue, *2) he ordered a half-day “mini trial” under Rule 20.04(2.2) of the Ontario Rules of Civil Procedure to hear evidence from the parties relating to the enforceability of the promissory notes. The motion judge found that the documentary evidence supported enforceability of the notes, *3) but the parties’ live evidence confirmed a pattern of fabricating and executing documents that did not reflect the actual state of affairs between them. As a result, the motion judge was unable to obtain a sufficient appreciation of the evidence and ordered that a trial was needed to decide whether the notes were enforceable.
The motion judge did, however, grant summary judgment dismissing the plaintiff’s claim. Notwithstanding his concerns about the reliability of the promissory notes, the motion judge accepted that a release executed by the plaintiff in November 2009 was valid and therefore a complete bar to his claim against the defendant. In reaching this decision, the motion judge relied on the plaintiff’s admission in cross examination on his affidavit that he believed, as of December 2009, that there was a “clean slate” between the parties.
Court of Appeal Decision
The Ontario Court of Appeal, per Lauwers J.A., reversed the motion judge’s decision dismissing the plaintiff’s claim and ordered that both the claim and counterclaim proceed to trial.
Applying the Supreme Court of Canada’s decision in Hryniak, Lauwers J.A. held that the motion judge erred by failing to assess the advisability of summary judgment in the context of “the litigation as a whole”. Here, the promissory notes and the release were part and parcel of the same series of transactions. Although the summary judgment rules do permit staged fact-finding, it was not appropriate for the motion judge in this case to attempt to isolate adjudication on the enforceability of the release from adjudication on the enforceability of the promissory notes when the motion judge had concerns about the reliability of the latter:
[37] In the complex situation in this case, it is therefore entirely possible that the trial judge who hears the trial of the issue on the validity of the promissory notes will develop a fuller appreciation of the relationships and the transactional context than the motions judge. That could force a trial decision on the promissory notes that would be implicitly inconsistent with the motions judge’s finding that the [release] is fully valid and effective, even though the parties would be bound by that finding.
Lauwers J.A. also noted concerns with the motion judge’s reliance, when adjudicating the issue of the release, on the plaintiff’s “clean slate” admissions. Lauwers J.A. noted that these admissions were not made specifically in relation to the release, and they were also undermined by other portions of the plaintiff’s cross-examination transcript. Lauwers J.A. cautioned against undue reliance on decontextualized affidavit and transcript evidence in the context of summary adjudication, particularly on matters involving credibility:

[44] *5) What happened here illustrates one of the problems that can arise with a staged summary judgment process in an action where credibility is important.  *6) Evidence by affidavit, prepared by a party’s legal counsel, which may include voluminous exhibits, can obscure the affiant’s authentic voice. This makes the motion judge’s task of assessing credibility and reliability especially difficult in a summary judgment and mini-trial context. *7) Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all.
=====================================================

*1) "specifically those in which a staged fact-finding process raises the spectre of inconsistent findings at summary judgment and at trial."
- "Staged fact-finding process" (i.e. the Master's allowance, and indulgence, for unsubstantiated Defense questions; NEVER questioning how they related, or, were RELEVANT, to the pleadings)

*2) (The Judge) he ordered a half-day “mini trial” under Rule 20.04(2.2) of the Ontario Rules of Civil Procedure to hear evidence from the parties relating to the enforceability of the promissory notes. 
- the Masters' unquestioned allowances for continued Defense Motions, the 'Requisition to Schedule Appearance Long Motion Dates' (duh?); their never-ending need for more answers to further questions.

*3) but the parties’ live evidence confirmed a pattern of fabricating and executing documents that did not reflect the actual state of affairs between them.
- Exactly! NEVER did EITHER Master EVER question ANY of Defense's motives, or requests! 

*4) The process, in this context, risks inconsistent findings and substantive injustice.
- Exactly! Comments this present appellant. With time allowance the case grew further away from ANYTHING that could even come close to resemble ANYTHING relating to the pleadings. 

*5) What happened here illustrates one of the problems that can arise with a staged summary judgment process in an action where credibility is important.
"staged summary judgment process" - Substitute 'Case Management' here, and I'm on board.

*6) Evidence by affidavit, prepared by a party’s legal counsel, which may include voluminous exhibits, can obscure the affiant’s authentic voice.  (DEF: 'Affiant = person who swears to an affidavit)
- Focus shifts away from issues to where it may have the greater influence (effect).  

*7) Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all.

- Exactly! I maintain substantive unfairness was allowed to enter my case, since neither Master EVER questioned ANY of Defense's requests; not their Motions, nor their insatiable demands for more answers! 
   
"Notice should provide sufficient detail to fully inform the individual of the decision or activity that will have an effect on his/her rights or property or person." (From Wikepedia)

When I asked - again - What do you mean by: "Under the circumstances all questions are relevant. The Plaintiff shall answer them!" 
Master Macleod: "The court is not there to give you advice,"  

In the NEVER EXPLAINED "CIRCUMSTANCES," the Plaintiff was made the expedient scapegoat.  
There is NO EXCUSE FOR THIS!
And I will NOT accept it!





Saturday 5 July 2014

115. The Elusive Relevance of RELEVANT

VIEWS@8515

- e.lu.sive
adjective
difficult to find, catch, or achieve success will become ever more elusive.• difficult to remember or recall the elusive thought he had had moments before.

- rel.e.vant 
adjectiveclosely connected or appropriate to the matter at hand the candidate's experience is relevant to the job.
- jus.ticenounjust behavior or treatment a concern for justice, peace, and genuine respect for people.• the quality of being fair and reasonable the justice of his case.• the administration of the law or authority in maintaining this a tragic miscarriage of justice.• ( Justice) the personification of justice, usually a blindfolded woman holding scales and a sword.a judge or magistrate, in particular a judge of the supreme court of a country or state.

THE FOLLOWING IS AN OPEN LETTER TO ALL WHO CARE ABOUT JUSTICE!
Eugenie Bouchard just got clobbered at Wimbledon. Relevance was borne out - in front of our democratic eyes to witness. No argument; nothing elusive; justice stood firm. The matter at hand proved the facts. Petra Kvitova was clearly superior. But! Eugenie will be back. Bet on it.
However! This was NOT a game! This was a battle proven by fact! In the circumstances of a CENTER COURT, in the most respected and visible arena of its kind. The spectacle unfolded loud and clear, in the presence of tens of millions of people. 
Every aspect of the laws of tennis were on display. The umpire's job was clear and easy. Relevance was in full view. There was not a single excuse.  JUSTICE had its day.
And so it should be in the Courts of Law!  NOT behind closed doors, by phone, coffee, or tete a tete at a cocktail party. No enhancement, or special treatment for any one party. The laws are relevant, for view by everyone. We, the people, own the law. And the officers, as our pillars of society, are there to protect the people; ALL of the people! THAT is true JUSTICE! 
It has been 5 years for this 75 year old SRL. The relevance that are the issues of the claim (the highly defined, factual issues of a non-compliant contract) have yet to be heard.  Due process has been re-interpreted. The Heart-of-the Matter may never be confronted.
The insidious game of law by practice, has become a confusing bag of rhetoric. I have encountered sham in its hypocrisy. The elusive relevance of RELEVANT has bored a distaste in to my soul. Since I experienced nothing relevant, I feel the shame of my species, questioning JUSTICE, fuelled by its purported virtues laws.
Responding to my reference of the changed Rules of Civil Procedure in 2010, Master Macleod on September 20th, 2013, stated:
"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. " 
The Judge on September 10, 2014, may well opinion:
' What is relevant today is whether the Masters erred in their dismissal. We are not dealing with proportionality and fairness or any possible merits of the case. You did not comply with the Masters' orders to answer the questions they had determined relevant in the circumstances.  Since I have no jurisdiction to question the Masters orders, I can not overturn their dismissal. Good day sir. ... Next! '
I have 2 months to decide whether to drive to Ottawa to attend in person. What can be achieved?Am I grandstanding?  What are the chances the appointed judge will recognize irregularities, collusion? Who will she/he be representing? What are my chances? 
 All I ask for is that the present Rules are applied and adhered to. They are far from perfect as they stand. There are far too many holes represented by "ORs" and "What-ever" or "When-ever." Willy-nilly Applications and Motion allowances, are skewing up the essence of efficiency and fairness. 
I am looking for CONSTRUCTIVE ADVICE from anyone who will share it. Is there a technicality I need to watch out for? What are the bets on the outcome? 
In order to achieve my day in Trial, to assess and evaluate my claim, I seek my appeal, hoping to fill the court room on the 10th of September at 2 PM in the Superior Court in Ottawa, with those of us who are tired of professional in-house rhetoric, demanding straight forward Justice. 
To go, or not to go? That is the question. I have 2 months to decide. Life is short and I am fully aware of it. 
+++++++++++++++++++++++++++++++++++++++++++++
PS: And if the reader is not clear on what the above is based on:
1) I have been questioning Defense's Court allowances for continued demands for additional questions based on my answers to their earlier discovery questions. Questions that had ZERO relevance to the pleadings, i.e. issues of the claim based on contractual non-compliance.
2) What other web-developers did I approach? Supply a Business Plan; a Marketing Plan; Your CV. What jobs did I do as a Handyman? What was my education?
3) All questions considered "relevant under the circumstances" by the Masters- All questions and motions asking for dismissal, motivated to stretch the process, since Defense had absolutely NO INTENTION to EVER go to Trial and get to the 'Heart of the Matter' (i.e. the Contract).
4) For those who do not remember. Signed by both Parties on April 19, 2008: 
a) The contract was to develop a custom-built, interactive, online classifieds based on Postal/Zip Codes for North America. Total cost: $43,000  (All monies were paid; no question)
b) The contract had a July 11, 2008, COMPLETION DATE.  
c) The completion date came and went. By October 30, the site was still in-complete. Reluctantly uploaded - by myself - complying with a contractual 90 day free fixing allowance, the site proved in-operable.
d) With its crucial timing phase: "On the Internet a little late is too late" (Bill Gates) and time and additional monies spent elsewhere to create a professional, working site, the site was doomed.    

Tuesday 1 July 2014

114. Happy Canada Day!

VIEWS@8395

Survival of the fittest is playing out all around me. With 3 off-spring, my species' main purpose - to procreate - is long behind me. Their generation, more challenged than mine, is taking longer to interpret itself. 

While on the one hand we live far beyond our usage, some of us continue to wonder if we can still make a difference to the small imprint we leave behind. Most elders leave well enough alone. Retired, we hang on in our twilight, puttering through our quickly fading last years, often a burden to society. 

With the added incentive of financial backing, and general curiosity with this machine's 'Invention,' did I decide to have that last 'kick-at-the-can'. That concerted effort, with its dire outcome, has brought me to these present realities.   

Living on the cusp of Civilization in the middle of the Georgia Strait, on the "Jewel of all Gulf Islands," I am privy to all creatures that make this glorified Rock their home. I have seen the comings and goings, as well as the gradual disappearance of a variety of critters.

Climate change is effecting all of us. Swallows are diminishing, barely holding on. I feel fortunate to still have a pair of Violet greens that have been nesting in my created box for some 10 years now. My neighbours are less fortunate. Green Tree frogs that once were a plenty, have diminished to none around me now. On the other hand, Canada Geese who merely used us as a gateway on their seasonal travels before, are now here in droves all year. To the positive, their young feed our insatiable Eagles' hatchlings. 

So change is our greatest constant. 

Still, I constantly question my drive and my objectives. WHY am I doing this? WHO am I doing this for? WHO even cares? My most important critters, my now middle aged kids, have NO interest in what I'm doing. They have already long ago decided the system is skewed, and irreparable. Are they wiser than I? Am I truly naive? Is there really no hope in hell my efforts will ever make a difference?

If so, than what are all the other causes' fate? Are the hundreds of thousands, seeking a better world, just treading water, until they ultimately realize there IS no light at the end of the tunnel?

Today is CANADA DAY!  I wish the following ORGS all the positive energies I can muster. A well-deserved HAPPY CANADA DAY. Let us continue to accentuate the positive by eliminating the negative.  

ForrestEthics.org
FairVote.ca
Allout.org
Sumofus.org
Friends.ca (friends of Canadian Broadcasting) 
Representingyourself.ca