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!
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RELEVANCE INDEED!
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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!
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