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?
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