171. How the Judge and Masters snubbed their noses at me.

VIEWS@11481

Justice Hackland:

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

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ME: Initially evidenced in a number of email communiques with both the CEO and CFO of the web-developing company (while they were still self-representing), all appeared my Counsel was well-intentioned in serving me. He was going to put an end to their dilly-dallying, and never-ending questions. His attitude was polite yet firm. After all, the Courts would allow only so much. He was going to put an end to discovery, get us through Mediation, then on to pre-trial. 

Email my trusting Counsel sent me on March 29/2013 (Last Para)

"Finally, as to your comments about my representation, you may rest assured that I intend to be here till the end. Win or lose, I do not abandon my clients so long as they heed my advice and act reasonably in their dealings. You have shown yourself willing to do both. You should have no fear that I will abandon my post in this lawsuit."

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May 6, 2013, Counsel to me:
"I have been served with a Notice of Appointment of Lawyer for the Defendant. The company has retained Jill Alexander at BLG to represent it. I know Jill reasonably well although she and I have never had any files directly against one another. I consider her to be a reputable lawyer and I view her appointment as a positive step towards a resolution of this matter.  I have left Jill a voicemail this morning and asked her to give me a call so that we can discuss the case. I will be out of the office all of this week from 9 to 3 on another matter but should I speak with her before the case conference on Wednesday I will let you know."

I have again read many following email communications between us, intending to post more, but realize its futility. Once Ms. Alexander came on board, my Counsel quickly melted in to collusion. As I once suggested, maybe it was her Vent Vert got to him. Whatever Defence demanded with more questions to be answered, he saw fit to add some of his own: What diploma did I receive from theatre school; what jobs did I do as a handyman? (This prior to my retirement.)

All clearly highly relevant questions to an initial 2010 filed claim, based on a non-compliant website contract. What I did as a handyman, would clearly build solid proof Defence had honoured their contract, some 5 years earlier! My LACK of a Theatre diploma, would have weighed heavily in their favour! They were out to drive me INSANE! 

That whole phase since new Defense Counsel came on board early May until June 15, 2013, is an entire enigma to me. There's no proof of evidence, nothing. I can only surmise they knew they were closing in, preparing my demise.  And they were.

The May 8, 2013, 'session' became a telephoned Case Conference. My February delivery of Answers and Undertakings were never acknowledged, purportedly 'un-delivered' according to defence. My Counsel stated HE had received them! It resulted in yet another ENDORSEMENT from Roger:
 a. The outstanding undertakings are to be answered by March 8th, 2013, etc.

1) WHERE WAS MY COUNSEL? WHY DID HE NOT DEMAND MY ANSWERS/ UNDERTAKINGS ORDERED ON DECEMBER 06, 2012, and delivered on Feb.15, 2013, WERE PROPERLY ADDRESSED?
WHY DID HE NOT CHALLENGE THE QUESTIONS? - SEEKING THEIR RELEVANCE TO THE CLAIM?

2) Then on May 23, 2013, at long last the all important MANDATORY MEDIATION is to be held.
- I gather all my materials around me, since I will be attending the session by telephone.
- Then 2 days before, I am informed by Counsel, decision was made by counsels, it will be a pro-forma affair. At NO TIME am I consulted; I'm merely TOLD what's happening!
- MEDIATOR'S REPORT NO.7 Box is checked: "The parties did not settle any issues in the case."
 Its totality is a single page. A mediator's signature. (That's it)
- I would have been very curious what an unbiased Mediator would have thought of it all.

3) That's it! I've had it with the lot of them! After various emails with my trusty collusionist, we part company. The following is one of the last:

FOR THE RECORD

Dear Mr. 'Y':

With the recent developments resulting in a full-blown Case Conference on May 8, 2013, (attended by yourself as my Counsel and Counsel J. Alexander for defense) Master Roger, based on continuing and insistent requests by Defense, - under the circumstances - ordered, yet once again, this Respondent, Plaintiff, Claimant, Defendant by Counter Claim answer what have been interpreted by the Court to be case relevant questions, all pertinent details required to be answered, in order to proceed with a fair and just discovery process.

To this Respondent however, absolute stark raving madness is being allowed to continue to reign unfettered in this the highest of Courts our democracy has to offer. Instead of applying the rules, and proceeding with due process, the system is intent on systematically driving an out of jurisdictional Canadian out of his mind. Your client suggests collusion is running rampant and the only way to stop the insanity is to either you as a "not too bad a lawyer" put your foot down on this lunacy, introduce some sanity of purpose, or throw in the towel. Your client is loosing it.

You have in your possession materials far beyond your need to satisfy the outstanding 'relevant', and what has been decided by an honourable court's Master in his wisdom, 'case pertinent questions' - "under the circumstances" .  

I humbly suggest you do NOT have your Para legal contact me, but instead and with less fuss have her glean from the abundant materials in your possession what it is YOU feel YOU need in order to proceed. If this is NOT amenable, under the circumstances, please indicate so. 

Since I continue not to see even a glimmer of sensibility towards facts and justice being applied, we may need to reconsider our ways.

Sincerely,

Jan Steen

4)  Remembering Master Roger's December 06, 2012, ADVICE to Defense to FIND COUNSEL led me to check Master Roger's background; discovering his former partnership with BLG seemed a highly surprising co-incidence, realizing new found Counsel just happened to be working there.
I call this an at least 'perceived conflict of interest'.*1)
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Justice Hackland:

[10]     On June 19. 2013, following the expiry of Master Roger’s June 15, 2013 deadline, respondent’s counsel sent an email to the appellant to advise that the respondent would be bringing a motion for an Order dismissing his action pursuant to Master Roger’s May 8, 2013 Order. *2) The appellant did not file any materials in opposition to the respondent’s motion or in support of his cross motion which was, in essence, a request that the court “re-assess” Master Roger’s Order of May 8, 2013, which had not been appealed.
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*2) ME: "Did not file any materials in opposition....i.e. my CROSS MOTION attempt was both considered in-sufficient, and although acknowledged in September 's 'Special Appointment,' ultimately IGNORED!
(*3) NOTE MY POSTING OF SAME BELOW)

The above sentence in BOLD clearly gives the Judge his 'out.'
With the system's complete collusion, Master Roger's snubbing my indication he was infringing his code of ethics when continuing to handle the case after BLG's Counsel came on board. (Master Roger having been a Partner at self-same Company prior to be appointed as Master)
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*1) "JUSTICE OF THE PEACE CODE OF ETHICS
Independence
Rule 1.00: Justices of the Peace must both be and appear to be independent, impartial, and unbiased.
Rule 1.01: Justices of the Peace must avoid all conflicts of interest, whether real or perceived, and are responsible for promptly taking appropriate steps to disclose, resolve, or obtain advice with respect to such conflicts when they arise."

I recall Master Roger's December 06, 2012, ENDORSEMENT (the all-telling 3 hour conference I suffered through, while abiding the painstaking plodding through 'Undertakings' I had both answered, and questioned relevance of much thereof.
Still self-representing, he indicated to defence :
Page 3/11. "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 Defendant consult with legal counsel before bringing a rule 21 motion."
  (In plain ENGLISH this would read: As a Master I have no Jurisdiction (i.e. POWER) over Rule 21. I advice you to find a good lawyer to help you interpret that one)

Also remember after I asked Master MacLeod for an explanation of "What the circumstances were that made the questions 'Relevant?' September 20/13: "Mr. Steen, the court is not there to give you advice, sir."  >>> It was an explanation I sought, NOT ADVICE! And, clearly, as per above, Roger clearly gave Defence ADVICE!

It must be noted here, especially by all you SRLs, that a lack of Jurisdiction (in this case geographic DISTANCE, not official status of power) in the successful filing of documents at a distance, in order to get it right, is HUGELY risky and cumbersome. With every step there is a human involved; with every involved 'human' there is an opportunity for mishap.
Example: The only access to my file was to go to Ottawa and identify myself, or HIRE a lawyer or legal service to do it for me.

At an early stage I did hire a para-legal firm to verify what docs were in my file.
I was informed:
-  there was NO indication of a Defence Lawyer's representation (i.e. Notice of Representation); this after some 5 months of numerous letterhead indicated 'My Clients' email communications.
- A number of my filed docs which had NOT been date-stamped.

Reason given by the clerks? "Oh, I guess they forgot..."    
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LOOKING FORWARD TO COMPLETE THIS INSANITY.... MORE TOMORROW...

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Justice Hackland:

[11]     Master MacLeaod heard the respondent’s motion on September 20, 2013. At the hearing, the * appellant confirmed that he understood Master Roger’s previous order requiring him to answer discovery questions and undertakings. He argued before the Master that he was wrongfully being required to answer questions that he considered to be irrelevant and he sought to re-argue Master Roger’s order. Master Macleod clearly explained that he had no jurisdiction to re-consider Master Roger’s order, which had not been appealed.
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[12]       A review of the motion transcript discloses that Master MacLeod advised the appellant that he could consider allowing him an additional period of time to answer the questions and undertakings in response to which the appellant stated that he would not provide further answers unless the Court would guarantee that he would not have to answer any further questions.

  

[13]       Master Macleod issued comprehensive reasons for his decision dismissing the Plaintiff’s action, concluding as follows:

             "Mr. Steen made it abundantly clear during the motion that he has made no attempt to answer the remaining undertakings because he does not agree he should have to. He states that they are not relevant ans are too much work.   When I asked him if he would comply with the order if I gave him a further 30 days. He advised me he would only do so 

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if the court could guarantee he would not then be asked more questions. 

Under the circumstances I have no option but to conclude that the failure to answer the undertakings constitutes willful and intentional disregard of a court order. As stated by Ferrier J. in 1066087 Ontario Inc. v. Church of the First Bon Apostolic Inc. et al. cited by the counsel for the defendant, where the plaintiff has shown utter disregard for the orders of the court, it is unfair to require the defendant to continue to incur costs defending the action. A similar conclusion was reached by the Divisional Court in Vacca v.Banks (2005 6 C.P.C.22. In any event, Master Roger has already ordered that the action be dismissed if there was failure to comply and that order was not appealed.

Accordingly the action of the plaintiff is dismissed with costs of the motion. The costs are fixed at $2,800.00 on a partial indemnity scale."

[14]        In my opinion, the order of Master Roger of May 8, 2013, made it abundantly clear that he was providing the appellant with a last chance to comply with the orders of the court to answer undertakings. This order was made pursuant to a consent disposition negotiated by the appellant’s own counsel. Still, the appellant refused to comply with that order.

[15]       When the motion to dismiss the action was brought on before Master MacLeod, the appellant sought to re-argue the refusals motion that had previously been decided by Master Roger. Following a careful and patient explanation of the issue and the consequences of the motion, Master MacLeod sought an assurance from the appellant that if he granted a further 30 day extension to answer the questions and undertakings, his order would be complied with. In response, the appellant demanded assurances from the court that he would not be asked to answer any further questions. In these circumstances, I am unable to appreciate how the Master could reasonably have been expected to extend any further indulgences to the appellant.

[16]       In Vacca v. Banks, 2005 CanLll 1054 (ON SCDC), Mr. Justice Ferrier of the Divisional Court made the following observations when he affirmed a Decision of Master Birnbaum dismissing a Plaintiff’s action for non-compliance with court orders in very similar circumstances:

  

     “Repeated delays and failures to comply with procedural orders affect not only the parties to the action. They significantly increase the cost of the administration of justice due to the impact on administrative and judicial resources. Repeated breaches of orders must attract significant sanctions otherwise the Case Management Rules will become ineffectual and the ultimate goal of the rules will be unattainable.

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The rules must not be rendered nugatory by failure to impose appropriate sanctions in case of breach of orders.

Rules 30.08(2)(b), 60.12 and 77.10(7), specifically provide for the dismissal of a plaintiff’s action in such circumstances. 

  

Furthermore. Although the Master found prejudice to the defendants, in my view it was unnecessary to make such finding as a factor supporting a dismissal of the action.

There comes a time when this court is obliged to meet its responsibility for the effective administration of justice through case management by dismissing an action. Such is the case when the plaintiff repeatedly fails to comply with orders of the court whether or not there is prejudice to the defendants.

In the circumstances of four breached order, including the “last chance” order, the Master realistically had only two options – one was to give the plaintiffs yet another chance – the other was to dismiss the action.

Not only am I unable to find error in the exercise of discretion by the Master, I am of the view that her decision was correct.”

[17]      In conclusion, I am not persuaded that the Master was clearly wrong in ordering the dismissal of this action and indeed I think he was correct.   I find that the appellant was well aware that he had been provided with a last chance to comply with Master Roger’s order to answer undertakings and even when queried by Master MacLeod as to his willingness to comply if granted a further extension, the appellant sought to bargain with the court to impose inappropriate conditions.  The appeal herein is dismissed.

[18]     I would note that the respondents have a counterclaim in this action.  They have advised the court that they will agree to dismiss the counterclaim without costs upon dismissal of the main action.