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 )
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"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."
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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)
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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.
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