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.
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"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."
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* (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."
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"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."
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*"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.)
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" 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."
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*"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?'
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" * 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.
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* "...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!
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"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.
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* 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 inquiry" as set by the Rules.
* We shall see how the judge will respond; who's 'ARGUMENT' holds up.
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