170. Rebuttal continued....

VIEWS@11455

ME: After having taken part in some actual living, like pruning, and filling my tanks with the likely last of my artesian's water this winter, and spending time with a depressed friend who lost his soulmate partner some time ago, I have another go at this seemingly bottomless chasm. I take a deep breath > wondering, while continuing to keep my seething anger under control. DISGRACEFUL!
==============================================================
Justice Hackland:

[4]     "On December 6, 2012, the respondent brought a motion seeking an Order dismissing the appellant's action* on the grounds that he failed to answer discovery questions put to the Plaintiff in writing and for failing to answer outstanding undertakings in accordance with the Rules of Civil Procedure and prior endorsements of the court."  

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ME: * "The respondent brought a motion"... I have previously alluded to how Motions can redirect focus, away from the main claim in a more desirable other direction. My several attempts at filing Cross and Counter Motions were never successful; when they were referred to, they were pooh-poohed, without addressing their detail. The court's decision was to allow the respondent in to the driver's seat. The process remains awkward and complicated, especially from outside the 'Jurisdiction'. Due process becomes purely subjective.  

I have mentioned how during the July 2012, conference, I had stated I was "satisfied with the respondent's answers." Believing I wasn't going to be getting any further, deciding I had enough 'facts' for my case, while cognizant, respecting and abiding by the Rules. I once again refer the reader to the Rules: (I again underlined/emboldened the updates that were intended to make a difference):

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DISCOVERY

The reforms to the discovery rules include:

1. Scope of Discovery

The scope of discovery has been narrowed in the new civil rules. The "semblance of relevance" test has been replaced with a stricter test of "relevance". The phrase "relating to any matter in issue" has been changed to "relevant to any matter in issue" (see rules 30, 31 and 76).

This reform provides a clear signal to the bar that restraint should be exercised in the discovery process. It strengthens the objective that discovery be conducted with due regard to cost and efficiency. The effects of this reform will be felt by those who abuse the discovery process or engage in areas of inquiry that could not reasonably be considered necessary.
==========================================================

ME: In my view both Masters completely ignored the above updated rules. Master Macleod in the final September 20, 2013 Conference, even admitted being present when the rule changes were implemented. His excuse for ignoring my pleas were that he had no 'Jurisdiction' to question the former Master's position. Handy stuff this.

==================================================

2. Duration of Oral Examinations for Discovery  (ETC.........>)

This reform limits the time available for discovery, which will save a litigant time and money. These time limits may avoid litigants abandoning their claims or accepting less than adequate settlement for fear of the costs associated with discovery.

3. Proportionality in Discovery

The civil rule reforms require proportionality to be considered on all motions relating to discovery (rule 29.2.03). Discovery motions, also known as "refusals motions", address whether a person should answer a question posed on an examination for discovery or whether a person should produce a document. On a discovery motion, parties can now argue that the court should consider:
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ME: "Discovery motions" /"refusals motions"? Whole bag of tricks never used.
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• the time, expense, or undue prejudice caused to answer a question or produce a document
• whether answering the question or producing the document would interfere with progress of action
• whether the information is readily available from another source
• whether any order would result in the excessive production of documents.

The court will continue to consider relevance and privilege and will also be able to consider the principles of proportionality when determining whether to require that a question be answered or a document produced.

================================================================

ME: My July/2012, acknowledgment "I was 'satisfied" with Defendant's answers, I reiterate, realizing the chess of it all, was a MAJOR mistake! (I have lived my life stating, even to my children, there are no such things as mistakes; you do what you do, though you may regret it later and may well not do it again)

The respondents had not been answering what I believed to be highly relevant questions. Some 50% of their responses were: "I object to answering this question on the ground that it is a leading question/ suggestive interrogation to the matters at issue." 

====================================================================

Justice Hackland: 

The respondent’s December 6, 2012 motion was heard before Master Roger who reviewed outstanding answers and undertakings and found that twent-seven (27) questions and undertakings were outstanding and required more complete answers.*1)  In a comprehensive Order dated December 7, 2012, Master Roger orderederd the appellant to answer a specific list of questions and undertakings by February 15, 2013.

[5]      Master Roger declined to dismiss the appellants action, explaining:

"Considering: 2) that the previous orders were made at case conferences without assessing the sufficiency of the answers; that the previous orders were not specific*but rather a general request to both parties to ensure that their answers were complete; that the parties are self-represented; that some efforts have been made by the Plaintiff to provide some answers;3) that most of the outstanding questions are follow-up questions* arising from previous answers (there have been a number of follow-up questions) and *4) considering generally the concept of proportionality, *5) what is just in the circumstances is not to dismiss the action  for failing to comply with previous orders and for not fully answering questions but rather to order that outstanding questions, as they are outlined below, be answered by February 15, 2013."

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ME: *1) During this 3 hour session [myself on the phone from BC] (+ half hour lunch-break) Master Roger was clearly out of his element. Many of the purportedly website related questions had to be explained to him. Here are several Q's considered RELEVANT. (Remember, this was a CONTRACT-based claim, solely focused on the contents of the contract between the 2 parties)
Q: Identify all other companies you considered hiring for the project; state which companies, developers, or other persons you contacted/approached priorr to approaching the Defendant/Plaintiff by Counterclaim.
Q: How much have you spent on website marketing and branding and provide a detailed breakdown.
Q: Recite in detail the preparation, research, and arrangement you took in the following areas: 
(a) Business planning / provide a copy of his resume... 

At a later stage, during my actually being represented, I was asked when I retired, and what jobs I had performed as a handyman; what diploma I had received from theatre school. 

The questions became more ludicrous as time went by. The system was clearly trying to drive me insane.

*2) "that the previous orders were not specific*
- WHY WERE THEY NOT SPECIFIC? WHO IS WAISTING WHO'S TIME HERE?
*3) "most of the outstanding questions are follow-up questions*. How many more questions are needed? Is any court official capable of interpreting what is relevant and required for a 'fair discovery?' Am I the only one smelling a RAT HERE?
*4) "considering generally the concept of proportionality," 
- HERE HACKLAND IS STARTING TO BUILD HIS ARGUMENT: "Considering/concept/proportionality"
*5)  "what is just in the circumstances is not to dismiss the action..."
 - don't dismiss YET, (in the circumstances; > the circumstances being that we are working on shutting this fella down for his recalcitrancy in questioning the court's decision it has decided that the never-ending questions from the defendant, follow-up questions to follow-up answers to follow-up questions etc.etc. have all been found "relevant UNDER THE CIRCUMSTANCES." You get the gist.      
============================================================ 
Hackland Endorsement:

[6]  * 1)   Master Roger did caution that, “the Plaintiff is, however, on notice  that he must *2) comply with this Order in timely manner as this court might exercise its discretion differently should a similar motion return.”
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ME: *1) "the Plaintiff is, however, on notice"  Here is the warning: 
      *2)  The court might exercise its discretion + 
+(the freedom to decide what should be done in a particular situation)
=================================================== 
Hackland Endorsement:
[7]      A further case conference was scheduled for May 8, 2013 before Master Roger in order to secure a date for a long motion. The respondent intended to seek an order dismissing the action on the grounds that the appellant had failed to comply with earlier earlier court orders with respect to outstanding undertakings and discovery questions. However, counsel for the appellant and the respondent reached an agreement pursuant to which Master Roger made an Order requiring the appellant to answer all outstanding discovery questions and undertakings on or before June 15, 2013. Master Roger’s order dated May 8, 2013 included a “last chance” warning:

     

 "If the plaintiff fails to provide any additional answers following receiving the list of outstanding undertakings to be provided by May 10, 2013, then the Plaintiff’s action shall be dismissed with costs to the Defendant upon the Defendant filing with the court an affidavit that no additional answers were provided. This shall be brought as a basket motion in writing with notice to the Plaintiff."
===========================================================

ME:

 ALERT!

THERE IS A MAJOR GAP HERE:  Master Roger's December 06, 2012, ENDORSEMENT states:  (see *5 above)
"what is just in the circumstances is not to dismiss the action for failing to comply with previous orders and for not fully answering questions but rather to order that outstanding questions, as they are outlined below, be answered by February 15, 2013

The above is a fair and reasonable disposition +, in the circumstances of this case. "
+ (the way in which something is placed or arranged, esp. in relation to other things)

[7]      "A further case conference was scheduled for May 8, 2013 before Master Roger"

ME: - WHAT HAPPENED TO THE DELIVERY OF ANSWERS I SUPPLIED BOTH THE COURT AND DEFENCE ON FEBRUARY 15, 2013?  THEY WERE NEITHER ACKNOWLEDGED, NOR EVER DEALT WITH!

- WHAT HAPPENED TO MY FRESHLY HIRED COUNSEL, U OF OTTAWA LAW PROFESSOR?
- WHO WAS GOING TO PUT A STOP TO DEFENCE'S SHENANIGANS, 
- WHO WAS GOING TO TAKE ME THROUGH MEDIATION?
- WHO WAS GOING TO PREPARE ME FOR PRE-TRIAL?

I'll tell you what happened to this man. After some noble efforts in communicating with defences CEO, March 19, 2013: 
As the Master explained to you during our last attendance, you are not entitled to hold-up the progress of the litigation until you get “perfect” answers.

Stated differently, by your own admission, having “better answers” to the undertakings is not going to change your position at mediation since you have already made it clear that you do not intend to negotiate a resolution of this claim. 

In short, you are now legally obligated to attend mediation by the middle of June. Kindly provide our office with your availability failing which we will have this matter returned to the Master and seek to have you sanctioned with legal costs for your unreasonable position."

March 27, 2013
My Counsel to Defence: 
(After opening para)

In any event, it appears that it is your intention to bring a motion to strike out my client’s claim on the grounds that it is frivolous, vexatious or an abuse of process. 1) Unfortunately, the Masters do not generally have jurisdiction to entertain that type of motion. While I do not purport to provide you with legal advice, your request is a bit vague and I would need clarification from you as to your intentions so that I can provide my client with advice on this jurisdictional question. Can you please help me better understand what authority you intend to rely on for your motion? Obviously if it is limited to procedural questions about the answers provided by my client or his undertakings, I do not take issue that the motion can be addressed by a Master.

In short, if it is your intention to move forward with your motion, 2) kindly provide me with a complete copy of your materials together with any supporting affidavit so that I can properly evaluate your position.

ME: 
1) GUESS THEY ULTIMATELY DID!
2) (Re last sentence) NEVER received ANY DETAILS!

March 27, 2013,
MY COUNSEL TO ME: 

Hi Jan,

Thanks for your email. 

While I appreciate your anxiety, I thought I would take a moment to provide you with a short explanation of the strategy we are deploying to deal with this defendant. First, I have managed to persuade them that they must attend mediation. There is a date fixed for that purpose and attending mediation is the last “standard” step before you can move for a pre-trial, which I have mentioned previously is an evaluation of your case on the merits by a judge or master. It is my intention to continue to press this matter forward to a pre-trial.

Second, while I cannot stop the defendant from bring a motion, I can make it costly for it to do so.  You will notice that I intentionally copied Kathy Estabrooks with my email, the sole purpose of which was to point out to the Court that the defendant was seeking a motion date for an as yet unparticularized “dispute”.  That is, the defendant is seeking the court’s intervention to address a matter without ever having afforded us an opportunity to deal with the defendant’s complaint.  That will not bode well for the defendant. In fact, unless the defendant particularizes its “complaint” in advance of the motion, there is good reason to believe that the court may punish the defendant with costs.  It is also worth noting that a defendant is not entitled to “perfect” answers and that insisting on bringing motion after motion to deal with “petty” grievances or complaints will not win it any friends at the court house.  I should also add that if the defendant does eventually provide particulars of its complaint regarding the answers etc, I am capable of addressing those concerns and insulating you from further harm down at the courthouse.

In other words, the defendant now has one of two choices. It can particularize its complaint against you, at which point I can then take the necessary steps to invalidate or otherwise neutralize the complaint or the defendant can elect to remain silent and bring its motion with the prospect that the court will be annoyed that we were not given the chance to address the concerns before the motion. Either way, the defendant is on the cusp of losing its credibility and its “power” in this proceeding.

Finally, I would also point out that your agreement to remove the blog provides us with a significant boost in your credibility. They no longer have that as ammunition and, as far as I am concerned, that was the biggest weapon in their arsenal. Petty grievances about unanswered questions or inadequate answers are generally not taken that seriously by the court because, as a matter of law, there are self-imposed penalties under our Rules if you fail to provide sufficient or adequate information. The court is, therefore, generally only concerned that the defendant has adequate information from which to advance its defence.

Hope this clarifies matters. I will keep you posted as we go along.

Joseph

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March 29, /13

Hello Joseph:

Since you do not like 'insert responses,' I will relate to paras by number:

Para 1) Re mediation date: 

- Can they cancel, even if one calls in "sick?" 

- Where may I glean the set procedure for mediation (i.e. sample cases?)

- "pre-trial [...] is an evaluation of your case on the merits by a judge or master."     I find this disconcerting, should it be "a Master."  To repeat: "Under the circumstances, all questions are relevant." (Master Pierre Roger, Dec 6/2012) I have studied and become familiar with the Rules of Civil Procedure, over these years, and I find them SOUND. I have, however, taken clear issue with adherence. I have noted the Rules' 2010 'updated' clarifications for DISCOVERY: 

1. Scope of Discovery

The scope of discovery has been narrowed in the new civil rules. The "semblance of relevance" test has been replaced with a stricter test of "relevance". The phrase "relating to any matter in issue" has been changed to "relevant to any matter in issue" (see rules 30, 31 and 76).

This reform provides a clear signal to the bar that restraint should be exercised in the discovery process. It strengthens the objective that discovery be conducted with due regard to cost and efficiency. The effects of this reform will be felt by those who abuse the discovery process or engage in areas of inquiry that could not reasonably be considered necessary.

To date, I have seen zero proof (unless, of course, I am proven the guilty party) that my Resume is pertinent and relevant to the claim, and thus the case.

(and then clearly there is no 3. Proportionality in Discovery)

While Master P.Roger started out well in January of 2012, after allowing Defense self-representation, and finally ordering Case Management, his earlier orders stipulated 'relevance,' to which I, in my interpretation of relevance, adhered. Defense continued to balk at my answers, until the Master at the third (Dec.6/12) Case Conference, while clearly uninformed of any of the details of the claim,  struggling through the session, reading each point, asking Defense questions and explain terms, becoming impatient with me and taking clear sides with Defense with his ultimate phrase:"under the circumstances all questions are relevant,"

That 3 hour December session was a sad waste of court time and, in my mind, a sheer travesty of justice. 

Should Master Roger reside at Pre-trial, and 'evaluate the case "on its merits", I shudder to think of his 'assessment'. If there is a glimmer of hope for justice, I do not see Master Roger being part of this case any longer. I clearly understood why Master Macleod resided over the last Conference, and why Defense wishes for Master Roger. (I've said it!)

(Google) " During consultations, many said that pre-trial conferences are often ineffective and in need of reform. The bar consistently reported that the ..."  All  materials I read mention 'Judge' (none 'Masters? Is it because we continue in Case Management that we 'may' have a Master?)  

1.    "Judges should also make whatever orders are reasonably necessary to identify and narrow the trial issues and promote the most efficient use of trial time."

2.      Joseph, as I mentioned the Counterclaim has taken up most all the time, with the claim NEVER having been an issue. How are these differing issues now clarified and prioritized? Is it not 'cheaper' in the long run for us to become pro-active, to recover our position of Claimant, with the Counterclaim essentially nullified?

3.      When does Case Management END? 

Para 2) 

Motions, costs, etc. Are you aware I filed a motion several months ago? Requesting any additional motions be refused, and matters re-focus on the claim at hand? That the Motion was filed, but not acknowledged by Master Roger? (As if it never existed?) The more legal dillydallying allowed by defense, the more costly to me, both in time and money.

Para 3) 

"Either way, the defendant is on the cusp of losing its credibility and its “power” in this proceeding."

I hope you are right.

Para 4) 

...."there are self-imposed penalties under our Rules if you fail to provide sufficient or adequate information."

Yes, and by assuming (or deciding so) Defense's questions "under the circumstances were relevant" (without having one iota CLUE about the case and claim, Master Roger ended up punishing me severely.) In my 'sane' interpretation of the "Rules,"  50% of my written questions that were NOT answered by Defense I let be, without any further pressing, since I felt I had MORE than enough proof of relevance "under the circumstances." Instead, precious time went by, and continued with Blog related matters, ending up with my having to supply a resume, Marketing Plan, and Business Plan! What in heavens name kind of "relevance" do any of these have to a failed contract, that was fully paid for. Relevance flew the coop - long ago, Joseph. :)))>>> This case, under the rightfully adjusted circumstances, should have seen matters completed within one year.

Last question: In dealing with a seriously derailed case such as this: 

a) Can Motions continue to trump any case matter, without court intervention?

b) Do Counterclaims trump Claims?

c) Is it too late to ask for trial by jury? 

* I hope I continue to keep you on 'my side.' 

Take care,

Jan

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ 

* I hope I continue to keep you on 'my side.' 

IT WAS NOT TO BE!

HOWEVER, THEN DEFENCE HIRED A 'BLG' COMPANY LAWYER: 

================================================================I'VE GOT TO GET AWAY FROM THIS; SPRING IS HERE; SAW FIRST BUTTERFLY;
THE MASON BEES ARE HATCHING..... THERE IS LIFE, AND SANITY BEYOND MAN'S MANIPULATION. MORE TOMORROW!
================================================================= 

[9]     The appellant discharged his counsel in early June 2013 and resumed representing himself.