116. How Bout Dem Apples?

VIEWS@8595

A RECENT LEXOLOGY.COM (Article copied )

I would like the reader to pay special attention to my underlined, numbered, asterisk text.

See my comments below the article. 

What has become perfectly clear is that the 'due process of law' is subjective. Officers presiding, or in charge, hand it to you as they see fit!

"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." (Free Dictionary)

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From LEXOLOGY. com:

Summary judgment on trial: Ontario Court of Appeal revisits the risks of summary adjudication

• In a recent decision, Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, the Ontario Court of Appeal reiterates some of the risks of summary adjudication and reminds parties that, despite the enthusiasm for summary judgment endorsed by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, summary judgment may not be appropriate in all cases – *1) specifically those in which a staged fact-finding process raises the spectre of inconsistent findings at summary judgment and at trial.

Background

In 2009, the parties were involved in a series of transactions relating to a property located in Barrie, Ontario. When the relationship between the parties broke down, litigation arose: the plaintiffs sued, alleging fraud and other misconduct by the defendants; the defendants counterclaimed for payment on two promissory notes executed by the plaintiff totalling $1.25 million. The defendants moved for summary judgment dismissing the plaintiff’s claim and granting the counterclaim requiring payment of the promissory notes.

Motion Judge’s Decision

The motion judge declined to grant summary judgment on the defendants’ counterclaim to enforce the promissory notes. Before deciding the issue, *2) he ordered a half-day “mini trial” under Rule 20.04(2.2) of the Ontario Rules of Civil Procedure to hear evidence from the parties relating to the enforceability of the promissory notes. The motion judge found that the documentary evidence supported enforceability of the notes, *3) but the parties’ live evidence confirmed a pattern of fabricating and executing documents that did not reflect the actual state of affairs between them. As a result, the motion judge was unable to obtain a sufficient appreciation of the evidence and ordered that a trial was needed to decide whether the notes were enforceable.

The motion judge did, however, grant summary judgment dismissing the plaintiff’s claim. Notwithstanding his concerns about the reliability of the promissory notes, the motion judge accepted that a release executed by the plaintiff in November 2009 was valid and therefore a complete bar to his claim against the defendant. In reaching this decision, the motion judge relied on the plaintiff’s admission in cross examination on his affidavit that he believed, as of December 2009, that there was a “clean slate” between the parties.

Court of Appeal Decision

The Ontario Court of Appeal, per Lauwers J.A., reversed the motion judge’s decision dismissing the plaintiff’s claim and ordered that both the claim and counterclaim proceed to trial.

Applying the Supreme Court of Canada’s decision in Hryniak, Lauwers J.A. held that the motion judge erred by failing to assess the advisability of summary judgment in the context of “the litigation as a whole”. Here, the promissory notes and the release were part and parcel of the same series of transactions. Although the summary judgment rules do permit staged fact-finding, it was not appropriate for the motion judge in this case to attempt to isolate adjudication on the enforceability of the release from adjudication on the enforceability of the promissory notes when the motion judge had concerns about the reliability of the latter:

[37] In the complex situation in this case, it is therefore entirely possible that the trial judge who hears the trial of the issue on the validity of the promissory notes will develop a fuller appreciation of the relationships and the transactional context than the motions judge. That could force a trial decision on the promissory notes that would be implicitly inconsistent with the motions judge’s finding that the [release] is fully valid and effective, even though the parties would be bound by that finding.

Lauwers J.A. also noted concerns with the motion judge’s reliance, when adjudicating the issue of the release, on the plaintiff’s “clean slate” admissions. Lauwers J.A. noted that these admissions were not made specifically in relation to the release, and they were also undermined by other portions of the plaintiff’s cross-examination transcript. Lauwers J.A. cautioned against undue reliance on decontextualized affidavit and transcript evidence in the context of summary adjudication, particularly on matters involving credibility:

[44] *5) What happened here illustrates one of the problems that can arise with a staged summary judgment process in an action where credibility is important.  *6) Evidence by affidavit, prepared by a party’s legal counsel, which may include voluminous exhibits, can obscure the affiant’s authentic voice. This makes the motion judge’s task of assessing credibility and reliability especially difficult in a summary judgment and mini-trial context. *7) Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all.

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*1) "specifically those in which a staged fact-finding process raises the spectre of inconsistent findings at summary judgment and at trial."

- "Staged fact-finding process" (i.e. the Master's allowance, and indulgence, for unsubstantiated Defense questions; NEVER questioning how they related, or, were RELEVANT, to the pleadings)

*2) (The Judge) he ordered a half-day “mini trial” under Rule 20.04(2.2) of the Ontario Rules of Civil Procedure to hear evidence from the parties relating to the enforceability of the promissory notes. 

- the Masters' unquestioned allowances for continued Defense Motions, the 'Requisition to Schedule Appearance Long Motion Dates' (duh?); their never-ending need for more answers to further questions.

*3) but the parties’ live evidence confirmed a pattern of fabricating and executing documents that did not reflect the actual state of affairs between them.

- Exactly! NEVER did EITHER Master EVER question ANY of Defense's motives, or requests! 

*4) The process, in this context, risks inconsistent findings and substantive injustice.

- Exactly! Comments this present appellant. With time allowance the case grew further away from ANYTHING that could even come close to resemble ANYTHING relating to the pleadings. 

*5) What happened here illustrates one of the problems that can arise with a staged summary judgment process in an action where credibility is important.

"staged summary judgment process" - Substitute 'Case Management' here, and I'm on board.

*6) Evidence by affidavit, prepared by a party’s legal counsel, which may include voluminous exhibits, can obscure the affiant’s authentic voice.  (DEF: 'Affiant = person who swears to an affidavit)

- Focus shifts away from issues to where it may have the greater influence (effect).  

*7) Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all.

- Exactly! I maintain substantive unfairness was allowed to enter my case, since neither Master EVER questioned ANY of Defense's requests; not their Motions, nor their insatiable demands for more answers! 

   

"Notice should provide sufficient detail to fully inform the individual of the decision or activity that will have an effect on his/her rights or property or person." (From Wikepedia)

When I asked - again - What do you mean by: "Under the circumstances all questions are relevant. The Plaintiff shall answer them!" 

Master Macleod: "The court is not there to give you advice,"  

In the NEVER EXPLAINED "CIRCUMSTANCES," the Plaintiff was made the expedient scapegoat.  

There is NO EXCUSE FOR THIS!

And I will NOT accept it!