113. Prelude to Case Management

VIEWS@8366

Scrutinizing the FACTS!

Until I received below as a PDF complaint, I did not know about Case Management. Having filed my Claim on December 30, 2010, I began email exchange with Defense Counsel Mr. MacHaalani in March, 2010.

As verified below, I had filed and served my Rule 35 A Written Questions  on May 19, 2011.
By law a response must be served within a 2 week period. Mr. MacHaalani had indicated that for "technical reasons" he had not been able to serve his clients with my Written Questions until May 24th. Asking for an extension we exchanged a number of emails, with my final allowance of June 21, 2011.  This being more than a month from serving. It was not enough.

I was then emailed below PDF. The next day, June 2, I telephoned Case Management Office and spoke with Miss Estabrooks who confirmed her office did NOT RECEIVE ANY FAX from Mr. MacHaani!

I have retyped its contents:
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VIA FACSIMILE ONLY AT Tel No: xxxxx

June 1, 2011

Case Management Centre, Room 5022

161 Elgin Street, 5th Floor

Ottawa, Ontario

K2P 2K1

Attention: Kathy Estabrooks:

Dear Ms. Estabrooks:

re: Evert Jan Steen v. (Defense numbered Company)

Court File No: 10-49776

Our File No: (etc)

We are the solicitor for the Defendant (Plaintiff by Counterclaim) in the above-noted action. The Plaintiff (Defendant by Counterclaim) is self-represented, and is a resident of Hornby Island, British Columbia. 

Since the filing of the Statement of Claim, the self-representing Plaintiff, being emotionally involved in the case at bar, has made the management of the case extremely difficult.

On or about May 19, 2011, the self represented Plaintiff served our client with Form 35A Questions on Written Examination for Discovery. The foregoing comprised about 111 questions where many questions contained several sub-questions.

Under Rule 35.02 (1), the Defendant is to answer all written questions within 15 days after service. Due to the excessive number thereof, the Defendant is utterly unable to comply with same. As such, we requested the self-representing Plaintiff indulgence into providing time extension until the end of June.

It is apparent that the self-represented Plaintiff is intentionally holding matters strictly legal. 

The Defendant was only provided with 4 days grace period, thus until June 6, 2011, which is completely insufficient in the circumstances. 

It appears that the self represented Plaintiff considers the legal system as "doing business". Thus, he agreed to provide limited extension only if the Defendant compensate him at a $1000.00 per calendar week, payable in advance, commencing on June 6, 2011. The said proposal shall only subsist until June 27, 2011, being the self-represented Plaintiff self-imposed final due date. Such proposal is absolutely unqualified, unreasonable and unacceptable.

In order to avoid future delays, increasing legal costs to the Defendant, as well as, more particularly, to reduce Court intervention, we are requesting a Case Conference, pursuant to 77.08, for the purpose of establishing a timetable for the proceeding.

We are prepared to attend the conference personally. Presumably, the self represented Plaintiff would be available by telephone.

Your immediate reply to this correspondence would be appreciated or, if you wish, please contact the writer by telephone so that we may discuss this matter in more detail. 

We look forward to hearing from you at your earliest convenience.

Yours very truly,

(Company Name)

Roy Machaalani 

c.c. Evert Jan Steen - Plaintiff and Defendant by Counterclaim (self-represented)

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Other than it is made clear the Plaintiff is Self-Representing (x9), a number of factors urge consideration, and require clarification, if the law is to be just:

1) I called the Case Management office on June 2, introduced myself, and the case. I then asked Ms. Estabrooks if she had received a FAX from Mr. Machaalani on June 1, to which I had received an
emailed PDF c.c.  Miss Estabrooks informed me "NO", she had not.

2) Considering the content of the purported FAX, it is addressed to Ms. Estabrooks. (i.e. NOT the Master) Surely this Counsel knew Ms. Estabrooks as secretary in the office, was not the person
who could supply him any legal directives on the subject.

3) Mr. Machaalani indicates several telling facts. 

"We are the solicitor for the Defendant (Plaintiff by Counterclaim)" 

Mr. Machaalani had been emailing this Appellant/ Plaintiff on company letterhead since March.
At all times did he make clear he was representing "his client." 

4) Only after I began probing his legitimate role, did he finally, on July 21, 2011, go on file and supplied me with a 'Notice of Appointment of Lawyer.'

5) Mr. Machaalani further indicates he has been in receipt of my Written Questions since May 19, 2011. That by law the defendant is to supply answers within 15 days of receipt.

6) He doesn't admit emailing me, it took him 5 days to supply 'his client' with the questions.

7) He mentions "increasing legal costs." It later became evident, his client had claim insurance.

8) He then mentions: "to reduce Court intervention we are requesting a Case Conference."

- What kind of Court intervention was he hinting at?

- Requesting a Case Conference from Case Management, after having informed me:
"Case Management is archaic, my client does not want it." 

 What exactly is going on here?

The chess game had begun. Although delivery receipt had been acknowledged,
I did not receive answers to my questions for some 5 MONTHS (October 30, 2011).

Regardless the ruse FAX, I began looking in to Case Management, thinking it would clean up our wanting communications. 

With clear indications the case was off-track, I applied for Case Management. But my application for Case Management ran into some never explained 'technical' problems. Was there a cover up?

I then received what became Defense's first MOTION. Set for September 13, 2011, the following was an exchange between MacHaalani and my Counsel in Ottawa I had especially retained for the Motion hearing, since traveling there was out of the question at that stage.
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Machaalani to my Ottawa Counsel:

"I just got instructions and confirmation from my client. Tentatively, my client is ready to adjourn the motion sine die, if Mr. Steen accepts the following conditions that he:

- Withdraws any motion to have the action managed by the Case Management office;
- Accepts the attached discovery plan as discussed and agreed tentatively by the parties;
- Agrees to have mandatory mediation no later by the end of the year 2011 or another time agreed upon by both parties;
- Agrees as to legal costs issue incurred for educating him and bringing this motion to be reserved to the trial judge who shall hear this matter on the merits.

Please be advised that the day of acceptance of the Discovery Plan shall be the day of the motion, being September 13, 2011.

I kindly ask you to prepare the consent order for execution.
Signed/ MacHaalani
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The September 13th, 2011, Motion Hearing was my introduction to Master Roger.

Accepting all conditions (as per above) I was informed by my Ottawa Counsel that, at the Hearing, Master Roger had stated the following:
"I am of the view that this is an appropriate candidate for case management and, but for the provision in the order dealing with it specifically, I would have made that order." 
(Made Bold by Blogger)

While compiling evidence for my 'Appeal Argument,' I will pose the following:

Based on the Master's views:

1) WHY did the Master not ask some pertinent questions during the September 13 Defense Motion? 

2) If he had he done so, a number of disturbing factors would have come to light.

a) The fact Defense had acknowledged possession of my Written Questions since May 19, 2011 (some 4 months by September 13th). It is my argument, the Master erred for not enquiring about this crucial, and legally binding procedure.
b) The purported FAX I had supplied them a copy of, after my phone call enquiring about it.
c) With my previous efforts to seek Case Management, WHY did the Master not smell a rat and enquire WHY the Plaintiff was requesting to "drop the request?"