ME: I suggest the reader read below again, then read my letter to 'Tim' at the Motion desk, as well as the reference I make to Case Management's Rule 77.04, which indicates NO REQUIREMENT for additional 'materials,' i.e. Affidavits etc.
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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....or in support of his cross motion ...
Although acknowledged in September 's 'Special Appointment,' by both Defence and Master, it was ultimately IGNORED in its entirety! Please read below rule and tell me if I'm off the wall, having NOT understood what seems plain english to me.
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FOR THE RECORD
RE: Case: 10-49776
ATTENTION 'TIM' @ MOTION DESK
HELLO TIM:
On August 9, 2013, you telephoned me, Evert Jan Steen @ 1-xxx-.xxxx.
You informed me you were in receipt of my NOTICE OF CROSS MOTION papers, and payment Form details, sent you by Registered Mail (Tracking number RW 783 108 510 CA)
You informed me I had not included:
1) An Affidavit of materials.
2) An Affidavit of Proof of Service.
*2) After explaining case #10-49776 is in Case Management, and as such per 77.07 (4) the Procedure does not require "supporting material", you instructed me to adjust the application to a FORM 77, and to read: CASE MANAGEMENT MOTION FORM.
Please see included, as per your instructions, and in accordance with the Rules:
1) PROOF OF SERVICE (as allowed by email per Master Pierre E.Roger)
2) ADJUSTED FORM to CASE MANAGEMENT MOTION FORM
Please, together with THE GROUNDS FOR THE MOTION in your office's possession, proceed to file same.
- verifIcation of acceptance, and appropriate filing data thereof will be much appreciated.
Unless I hear from your Office otherwise, all shall be in compliance with the rules.
Respectfully,
Jan Steen
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*2)
RULE 77 CIVIL CASE MANAGEMENT
MOTIONS
To Whom Made
Same, Particular Judge
(2) If a direction is made under subrule 77.06 (1) for all steps in a proceeding to be heard by a particular judge, then any motions in the proceeding shall be made to that judge. O. Reg. 438/08, s. 64.
Referral by Particular Judge
(3) A judge who is directed under subrule 77.06 (1) to hear all steps in a proceeding may refer to a case management master any motion within the jurisdiction of a master under subrule 37.02 (2), unless the judge who made the direction directs otherwise. O. Reg. 438/08, s. 64.
Procedure
(a) with or without supporting material or a motion record; and
(b) by attendance, in writing, by fax or under rule 1.08 (telephone and video conferences). O. Reg. 438/08, s. 64.
Costs on Motion
(5) The judge or case management master shall address the issue of costs at the conclusion of each motion in accordance with rule 57.03, regardless of whether the motion is contested.
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NOTE: As stated a number of times, NONE of ANY of my MOTION EFFORTS, were EVER dealt with!
However, ALL defence Motions were keenly adhered to!
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Justice Hackland:
[11] Master MacLeaod heard the respondent’s motion on September 20, 2013. At the hearing, the *1) 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. *2) Master Macleod clearly explained that he had no jurisdiction to re-consider Master Roger’s order, *3) which had not been appealed.
===============================================================
ME: *1) appellant confirmed that he understood....
- Understanding the language is one thing, verifying the reasoning was the ISSUE!
*2) Master Macleod clearly explained that he had no jurisdiction to re-consider Master Roger’s order
- AHAH! Here we are getting to the crux of the matter. THIS is the TECHNICAL OUT, the judge uses to state, Master Roger's hands were tied; your fate was determined!
3) which had not been appealed.
- OKAY, so my CROSS MOTION, though referred to at the outset of the September 20,13 session (below), is never dealt with.
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K.BOYD: So, those are my
submissions, Master with respect to – to our motion. I know there is a cross-motion, but I don’t
know, if you would like me to address that right now or if you’d prefer me to
hear Mr. Steen’s response and then, we can deal with the cross-motion
separately. I’m in your hands as to how
you’d like....
THE COURT: Well, no, I think the cross-motion is really the response to this motion, wherein he’s challenging the – the order, I think. But I’ll hear from Mr. Steen in just a moment.
MR. BOYD: Thank you.
THE COURT: All right. So Mr. Steen in summary the – you’re being – I’m being asked to dismiss your action because you have failed to answer the questions as ordered by Master Roger. And you want to say something about that order I gather?
MR. STEEN: Thank you.
THE COURT: Yes.
THE COURT: Well, no, I think the cross-motion is really the response to this motion, wherein he’s challenging the – the order, I think. But I’ll hear from Mr. Steen in just a moment.
MR. BOYD: Thank you.
THE COURT: All right. So Mr. Steen in summary the – you’re being – I’m being asked to dismiss your action because you have failed to answer the questions as ordered by Master Roger. And you want to say something about that order I gather?
MR. STEEN: Thank you.
THE COURT: Yes.
MR. STEEN: Again, it – it’s very hard. I could understand Mr. Boyd better than I am straining to
understand you sir. Indeed, the case has
been going on for years now – could I ask you a question?
THE COURT: Yeah, you can ask.
MR. STEEN: Are you familiar – are you familiar with the
claim of contractual noncompliance?
THE COURT: I’m not sure what that means. I have your material – I have the material in front of me in connection with this... MR. STEEN: But you’re...
THE COURT: ...action.
MR. STEEN: ...but you’re not necessarily familiar with the claim which is – which is purely contractual.
THE COURT: I know what it’s about, if that’s what you’re asking me.
MR. STEEN: So – so going from there based on Mr. Boyd’s
summation of my not answering follow up questions and the undertakings. All of the questions that – in my opinion
that had been asked – asked since we earlier on during Mr. M's (name withheld) reign
exchanged our questions and written questions and written answers. In my opinion with proof at hand, defence has
continued to press for questions – follow up questions and setting motions to
dismiss based on the fact, that they considered the claim to be frivolous having
offered us $30,000 to settle out of court before we decided that it would go
ahead, possibly in retrospect we should have taken it because it would have avoided all that we
are now experiencing. So to sum up, why,
I as a plaintiff have not answered these questions? It was based on initially Master Rogers
indicating during the earlier case conferences where he stated that we were to
return, both parties were to return to the questions and answer best as possible. Those that, they felt – we felt were
relevant. If you were to look at the
motions during Master Roger’s reign, you will note that, as the case
conferences over time were repeated gradually I began to lose out, so to speak
and that based on the fact that to the unsatisfied defence, I was not answering
the questions fully. I was to answer
further questions and my point is that, all and any of these questions that were
continued to be asked by defence have zero relevance to the claim.
And if I may read you a Judges Brown response which is only four days old which I found on google, he says:
“In these times of very
constrained judicial resources I am loath to schedule refusals motions in large
part because experience shows that in most cases they had little tangible
impact on the evidence adduced at trial.
Dare I say that frequently refusals are no more than technical posturing
by a party?”
It goes on:“...and that by the time trial comes advisements or refusals often crumble in the weeks just before trial.” I could not go on at length. I will not take up the – the time Mr. Boyd has taken because essentially, Master MacLeod, I feel that it has become very clear, defence has no interest to go to trial. I feel that we are more than ready for trial. I stopped answering – asking for more questions at some point because I felt that essentially I wasn’t going to get any better answers and that I had sufficient proof based on my claim which has nothing more to do than the contract that was not complied with.
Most of our efforts since in - in the number of case conferences that we have had have been based on a blog, so again, I am very curious to note that proceedings have proven to be tackling in fact, two cases, a counter-claim based on defamation of a blog which I then had Mr. Griffith’s advice in February and he said you would do well to delete it. It would be a great showing of – of, you know, good will, so I did. It mattered none and I – now, I don’t know whether you’re aware of it or not, but I have a blog again keeping most, you know, keeping defence out of it, but I am at this point sir, I am groping at straws to – to try to interpret as I have learned the – and studied the – the rules of civil procedure. I am - to interpret how any of – all and all of these undertakings over this last year that I have been asked to answer have any relevance to the claim. And that’s, I guess that’s, as best as I can for now.
THE COURT: Right. But I think the rule you need to be focusing on is the one that tells you what happens, if you don’t follow an order of the Court. I mean you’re not...
MR. STEEN: Well....
THE COURT: ...you’re not suggesting that you didn’t understand Master Roger’s order because he’s telling you...
MR. STEEN: No.
THE COURT: ...that you had to answer these questions.
MR. STEEN: But I realize that Master. My point is I have come to a point where I
felt I was being wrongfully pushed into doing things – matters by answering
questions that were completely irrelevant and my cross-motion in fact, asks
where at the point where Master – Master Roger said that, in the circumstances
all the questions were relevant, my question is and I’m – surely I’m entitled
to the answer to it, is I still do not comprehend why most any and all of these
questions over this past year have any relevance to this – the – the rules as
they pertain to the claim. And so, I
came to a point where I just couldn’t do it anymore and I – and I held – I held
from my perspective, I held the civil – the rules of civil procedure, I suppose
you could say to a higher court and – and felt that – that, if I did not do
something it would go on ad infinitum. So
that’s why I did, what I did and that’s what brings us today here.It goes on:“...and that by the time trial comes advisements or refusals often crumble in the weeks just before trial.” I could not go on at length. I will not take up the – the time Mr. Boyd has taken because essentially, Master MacLeod, I feel that it has become very clear, defence has no interest to go to trial. I feel that we are more than ready for trial. I stopped answering – asking for more questions at some point because I felt that essentially I wasn’t going to get any better answers and that I had sufficient proof based on my claim which has nothing more to do than the contract that was not complied with.
Most of our efforts since in - in the number of case conferences that we have had have been based on a blog, so again, I am very curious to note that proceedings have proven to be tackling in fact, two cases, a counter-claim based on defamation of a blog which I then had Mr. Griffith’s advice in February and he said you would do well to delete it. It would be a great showing of – of, you know, good will, so I did. It mattered none and I – now, I don’t know whether you’re aware of it or not, but I have a blog again keeping most, you know, keeping defence out of it, but I am at this point sir, I am groping at straws to – to try to interpret as I have learned the – and studied the – the rules of civil procedure. I am - to interpret how any of – all and all of these undertakings over this last year that I have been asked to answer have any relevance to the claim. And that’s, I guess that’s, as best as I can for now.
THE COURT: Right. But I think the rule you need to be focusing on is the one that tells you what happens, if you don’t follow an order of the Court. I mean you’re not...
MR. STEEN: Well....
THE COURT: ...you’re not suggesting that you didn’t understand Master Roger’s order because he’s telling you...
MR. STEEN: No.
THE COURT: ...that you had to answer these questions.
THE COURT: Right.
Well, the problem with that, Mr. Steen is, what you’re essentially
telling me is that you didn’t agree with the order, so you’ve just ignored it. Isn’t that right?
MR. STEEN: No. I
didn’t – I did not ignore it. I actually
stated why I could not carry on answering any further. I – I – from my perspective, already over the
past year, if – if we – we’ll go back over this and if it’s – it’s arduous and
– and I’m sure there’s no need for it at this point, but, if you will go back
you will see that, for instance, I went out of my way. I have spent maybe thousands of hours now
complying, doing whatever the Court has ordered me to do, to the point where I
have filled out a resume. What in
heaven’s name does my resume and what I have done in my life, what bearing does
it have on a – on a claim that is based on a contract? I have been forced to write a
business plan. What does that business
plan – how does it relate to a website that was delivered which was not
usable? Clearly, whatever business plan
I had at the time was not put into practice and so, there are umpteen questions,
many in fact or a number of which are constantly being repeated. There are questions about showing proof that
– asking questions about which website reviews did – did I have from
professionals? I had supplied all
that. Then, the question that the
website is badly designed. I had six
professionals review the original website.
Another question is, how – to prove that it was cumbersome in construction? I have gone there, at the very outset I’ve
gone there. And that, it wasn’t a custom
built website. Well, it was not a custom
built website because it was built on php cake and it had a forum that was
purchased and it did not have seo references which is search engine
optimization. All of these things were
discovered by professionals, but all of this has been done. So, my bottom line here is to you, sir, is that,
we are more than ready for this case to go to trial and that we – this thing
has been dragged on far beyond it’s – far beyond it’s reason. You may not concur with me there.
THE COURT: I know that - there are two sides to the action of course. There’s – there’s the claim and there is the counter-claim, so.
MR. STEEN: Exactly. So, well, can you – can – do you concur with me or is it feasible – is it legal to in – in a single effort to deal with two claims because most of the time this case has been dealing with – with the counter-claim.THE COURT: Well, it’s going to be dealing with both. The counter – the rules say the counter-claim will be tried immediately after or with the trial of the main....
MR. STEEN: I – I can’t hear you.
THE COURT: The counter-claim will ordinarily be tried with the action, that’s the point of a counter-claim. Unless the court otherwise orders and that is a rare occurrence, but it is possible, if they have nothing to do with each other to have them tried separately, but that’s...
MR. STEEN: Well, they...
THE COURT: ...not the...
MR. STEEN: ...they in fact....
THE COURT: ...case here.
MR. STEEN: In my opinion have nothing to do with each other.
THE COURT: Well, I appreciate it’s your opinion, but that’s...
MR. STEEN: (inaudible) over talking
THE COURT: (inaudible) over talking
MR. STEEN: (inaudible) over talking
THE COURT: ...that
MR. STEEN: (inaudible) over talking
THE COURT: ...but as it stands they will be tried together.THE COURT: I know that - there are two sides to the action of course. There’s – there’s the claim and there is the counter-claim, so.
MR. STEEN: Exactly. So, well, can you – can – do you concur with me or is it feasible – is it legal to in – in a single effort to deal with two claims because most of the time this case has been dealing with – with the counter-claim.THE COURT: Well, it’s going to be dealing with both. The counter – the rules say the counter-claim will be tried immediately after or with the trial of the main....
MR. STEEN: I – I can’t hear you.
THE COURT: The counter-claim will ordinarily be tried with the action, that’s the point of a counter-claim. Unless the court otherwise orders and that is a rare occurrence, but it is possible, if they have nothing to do with each other to have them tried separately, but that’s...
MR. STEEN: Well, they...
THE COURT: ...not the...
MR. STEEN: ...they in fact....
THE COURT: ...case here.
MR. STEEN: In my opinion have nothing to do with each other.
THE COURT: Well, I appreciate it’s your opinion, but that’s...
MR. STEEN: (inaudible) over talking
THE COURT: (inaudible) over talking
MR. STEEN: (inaudible) over talking
THE COURT: ...that
MR. STEEN: (inaudible) over talking
But what I'm being
asked to do is to strike out your claim and allow the counter-claim to
continue.
MR. STEEN: Well, you will do whatever you feel the need to do, Master.
THE COURT: Well, here’s the difficulty, as I understand it, what you're telling me is, you just refused to follow Master Roger’s order.
MR. STEEN: No. I did not.
THE COURT: ...and that you disagree with it.
MR. STEEN: I explained – I explained it very clearly in my – in my rebuttal, why ultimately at the – at the final end in May – and May 8th was – was again, a whole new motion which didn’t start out as a motion which was – which was something I – I’m not even understanding what it is. It’s a requisition for a long motion something, something, but I have it all somewhere else, but not in front of me. It’s not easy sir, to be out here in this different jurisdiction and to – and to handle these affairs by mail and I’ve - been continually suggested that I hire counsel and when I did, we – we were further in – I and I can – yeah, I was further in the mud than before.
THE COURT: Well, that’s the other problem, isn’t it? Your counsel agreed to this order, did he not?
MR. STEEN: I know, he didn’t help me one bit.
MR. STEEN: Well, you will do whatever you feel the need to do, Master.
THE COURT: Well, here’s the difficulty, as I understand it, what you're telling me is, you just refused to follow Master Roger’s order.
MR. STEEN: No. I did not.
THE COURT: ...and that you disagree with it.
MR. STEEN: I explained – I explained it very clearly in my – in my rebuttal, why ultimately at the – at the final end in May – and May 8th was – was again, a whole new motion which didn’t start out as a motion which was – which was something I – I’m not even understanding what it is. It’s a requisition for a long motion something, something, but I have it all somewhere else, but not in front of me. It’s not easy sir, to be out here in this different jurisdiction and to – and to handle these affairs by mail and I’ve - been continually suggested that I hire counsel and when I did, we – we were further in – I and I can – yeah, I was further in the mud than before.
THE COURT: Well, that’s the other problem, isn’t it? Your counsel agreed to this order, did he not?
MR. STEEN: I know, he didn’t help me one bit.
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ME: Granted, I took some time to digest the, to me, collusive realities, before mustering the energies to respond with my Cross Motion. Unless I am gravely mistaken, I felt that the Motion was, by FACT, my APPEAL! I herewith post it:
Court File No. 10-49776
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
EVERT JAN STEEN
Plaintiff/ Defendant by Counterclaim
(Responding Party)
- and -
39026641 CANADA INC. , carrying on business as (WEB-DEVELOPERS NAME WITHHELD FOR FEAR OF REPERCUSSIONS BY THEIR support SYSTEM).
Defendant/Plaintiff by Counterclaim
(Moving Party)
NOTICE OF CROSS MOTION
The Plaintiff, Evert Jan Steen, will make a Cross Motion in writing on August 08, 2013, or as soon after that time as the motion can be heard at the court house, 161 Elgin Street, Ottawa, Ontario, K2P 2K1.
PROPOSED METOD OF HEARING: The Motion is to be heard
[ ] in writing, on consent of both both parties, and in accordance with an Order of this Honourable Court, dated May 8, 2013:
[X ] in writing as an opposed motion under subrule 37.12.1(4):
[ ] orally.
THE CROSS MOTION IS FOR
a) An Appeal to the Order by this Court of Master Pierre Roger's ENDORSEMENT of a Defense Motion, as entertained during the May 8, 2013 Case Conference;
b) An order for an allowance to re-assess, explain and define with relation to the Rules, Master Pierre Roger's usage of the term: "in the circumstances all questions are relevant."
c) Taking Rule 29.2 in account, an order to have Master Roger identify the considered 'outstanding' relevant questions by relating same to specifics in the claim at issue.
d) An order recognizing the Rule of "Proportionality in Discovery" (Sedona Canada Agreement) and according to its directives, dismiss Defense's motion of July 4, 2013.
e) An order to have Defense's Counterclaim be exempted and removed from this case, since it continues to take focus away from the claim at issue.
f) With mandatory mediation 'Pro-Forma' fulfilled and filed, order the action be set down for trial.
g) An Order allowing all further costs be reserved to the trial judge.
h) Such further and other relief as to this Honourable Court may deem just.
THE GROUNDS FOR THE CROSS MOTION ARE
a) Rules 21.01 (3) (d); 29.09; 30.02 (1); 34.14 (1) (a) (b) (d) ; 34.15 (1) (a) (b) (d) ; 60.12 (c); 77.08 (5) (a)(b)(c)
b) Ordered by Master Roger in previous Court Orders:
- "The Plaintiff is to review the list of questions provided by the Defendant and is to make best efforts to provide any additional answers and documents that he is prepared to provide in answer to these questions." (May 9, 2012) This Plaintiff maintains he went beyond the Master's indicated order to comply.
- "The Plaintiff shall answer to the best of his abilities all unanswered questions that he is prepared to answer "(Endorsement: July 18, 2012) This Plaintiff maintains he went beyond the Master's request, including answering a number of Case irrelevant questions.
c) Pertinent to Defense's Counterclaim (Rule 29.09;)) "The Plaintiff shall review his blog and take reasonable steps to ensure that the Defendant's name no longer appears on his blog." (Endorsement: July 18, 2012), the Plaintiff claims the inclusion of Defense's Counterclaim has gravely usurped and overshadowed the original claim's matters in issue.
d) Considering Rule 34.14 (1) (a) (b) (d), the Respondent/ Plaintiff maintains he has gone far beyond the Master's requests to comply with answering case relevant questions, by answering case irrelevant questions, as a consideration and respect to a fair discovery process.
e) Plaintiff's dismissal of his previous Counsel is entirely based on his concept Counsel 'XY', if not misrepresenting his client, was not given, or did not insist on, allowances to prepare a fair response to the impending May 18, 2013, Motion. Hence, this Plaintiff feels he is entitled to same.
f) An order halting any further motions from being filed; motions that continue to delay this case from being set for Trial.
August 08, 2013
Evert Jan Steen
Self-Representing Plaintiff
(ETC. withheld)
TO:
Borden Ladner Gervais LLP
World Exchange Plaza
100 Queen Street, Suite 1100
Ottawa, ON, Canada, K1P 1J9
ETC withheld
Lawyers for the Defendant
===============================================================
NOTE: I WILL BE AWAY FOR A FEW DAYS, AND CONTINUE THIS AFTER MY RETURN
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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
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