Excerpts from RULES 61A) 61B) 61C) 61-4F (Constitutional)
NOTICE OF APPEAL
THE PLAINTIFF ROGER CALLOW APPEALS to the Court of Appeal from the judgment #12-54944 (Superior Court) of Justice R. Maranger dated November 01-2012 at Ottawa
THE APPELLANT ASKS that the judgment be set aside and a judgment granted as follows:
1) To return the plaintiff to ‘interim salary’ as per contract until a conclusion is found in an unresolved 27 year labour matter originating in British Columbia which exists apart from judicial findings in that case.
2) In lieu of granting 1), to provide an alternative to the above in this last court that the plaintiff has access to in Canada.
THE GROUNDS OF APPEAL are as follows:
3) The reason this hearing was called in Ontario was due to the prohibitive order labelled as the ‘MacKenzie Creed’ in which a judge on her own motion, without taking argument, without quoting relevant laws, banned the plaintiff from access to the British Columbia Courts which, at one time, ordered further litigation to complete this action, but an order which gave no power to the plaintiff to invoke. See Attachment for MacKenzie Creed
4) Hence 3) above implies that a constitutional question is now at stake if the original claim by the plaintiff is not recognized. FORM 4F filed herein
THE BASIS OF THE APPELLATE COURT’S JURISDICTION IS:
5) The plaintiff is a resident of Ontario for the past 24 years and is collecting a partial pension from the Ontario Public Teachers Pension which is an amalgam of contributions from both British Columbia and Ontario. Being granted interim compensation would permit the Pension Board to complete their pension obligations to the plaintiff. Such payment would erase two significant laws being breached: a) no compensation has been paid to date b) there can be no process without judgment. The central question of habeas corpus remains but the plaintiff believes with the above leverage, an outside arrangement can be made.
Courts of Justice Act
NOTICE OF CONSTITUTIONAL QUESTION
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
NOTICE OF CONSTITUTIONAL QUESTION
The following is the legal basis for the constitutional question: The ‘MacKenzie Creed’ is ultra vires’.
QUOTE: . This point was recently raised (Ottawa Citizen November 13-2012 p.1) ‘Courts planning to assist lawyerless litigants.’ ‘Aim of web proposal is to help make sense of legal processes’ ‘…However, the report stops short of recommending that judges get new powers to declare someone a “vexatious litigant”, thereby preventing them from launching new legal action without leave. Such powers are “fraught with peril”, it says, and could thrust the courts into an adversarial posture against some litigants, potentially subverting the appearance of impartiality and fairness’. The Employee’s Case Canada, considering the widespread promulgation of this case among the legal fraternity, was in all likelihood the basis for these report writers.
Memorandum of Argument
From the Supreme Court of Canada Memorandum of October 8-2012: (rejected on administrative grounds)
I, Roger Callow of the city of Ottawa , in the province of Ontario, swear and affirm the following is true:
1. I turned 65 on August 24, 2006, which brought into play my pension rights;
2. My pension rights are determined on the basis of contributions to the plan, both mine and the employers;
3. The amount of these contributions is dependent on the date of termination of my employment, both mine and the employers;
4. Because I was a tenured teacher, my employment could only be determined by a proper legal process;
5. In my case the validity of the termination has never been determined. Technically although I was unable to work and was not paid, I remained a teacher under the employment of the Board;
6. I require that a proper termination date be determined, or a settlement be achieved providing me compensation which would include pensionable service benefits;
7. Attached as Exhibit ‘1’ is correspondence received from the teachers’ pension plan.
8. The recent pension inquiries caused me to examine how I could get compensation or a termination date determined. There is no other remedy I can pursue other than as requested in this petition.
1) For 27 continuous years, the plaintiff has initiated actions to deal with the propriety of his lay-off from his senior teaching position in West Vancouver, B.C. on June 26, 1985 under `BILL 35`which became law on July 1 1985. The first two actions – namely, an arbitration and the subsequent court appeal – were supported by the Union. Since that time, the petitioner’s action has been unitary and without judgment for jurisdictional reasons before over 30 judges including three inconsequential appeals to the Supreme Court of Canada. No compensation has flowed. The collective judicial action utilized appears to be one in which the plaintiff’s complaints are diminished in scope as a means of dismissing them.
7) The plaintiff was unable to participate in the hearing of September 25-2012 due to a prohibitive Order from Associate Deputy Chief Justice of the B.C. Supreme Court, Anne MacKenzie j. (2010) hereafter referred to as the `MacKenzie Creed’ or `Creed`
8) In that creed, the plaintiff is barred from courts of law (at least in British Columbia) in any matter pertaining to his 27 year unresolved labour case in which, as noted above, no compensation has been paid. This creed which hamstrings pension rights reads in part;
3) Any document or process filed by Roger Callow in contravention of this Order or any process inadvertently filed or received by the Registry is a nullity.
4) The defendants in this matter will not be obliged to respond to any process that is filed by Roger Callow in contravention of this Order or any document or process inadvertently filed or received by the Registry.
13) A success of the current petition for interim compensation would have one concrete benefit in that the Ontario Teachers Pension Board would be able to finalize pension allotment. Currently, this plaintiff is receiving a partial pension from this Board based on contributions from both the B.C. fund and the Ontario fund as per transfer regulations although it should be noted that four years transpired before that action commenced. While the B.C. Public Teachers Pension Board would not dispense any pension – apparently on the grounds that a final court disposition had not been made although we really don’t know as they never responded to my enquiries – the Ontario Private Pension fund did not feel obliged to follow these B.C. judicial decisions or lack thereof.
ISSUE AT QUESTION: Under which circumstance(s) may a Justice or Registrar act as an agent of one of the respondents at the expense of another respondent? May that Order be conducted in such fashion that the normal sequence of pursuing a matter to the Supreme Court of Canada is truncated?
MEMORANDUM OF ARGUMENT (continued) in Appeal of #12-54944
1) The above challenge involved matters other than pension relating to this dismissal and listed both the Union and the Employer as Defendants as the court decreed that only these two interests, in this particular case, may finalize this matter under the collective bargaining rules. They have done nothing in this alleged ‘sweetheart deal’ which has been supported by over 30 judges which flies in the face of many laws. SEE TAB 1 AFTERMATH 54944
2) The current submission to the Ontario Superior Court (#12-54944) was limited in scope to requesting ‘interim compensation’ and listed only the Employer as a Defendant. This interim compensation would permit this litigant to continue on salary – plus back salary – until a resolution was found. These monies exist apart from judicial findings and would presumably be added to whatever other amounts the court would assign.
3) The submission in court was limited in scope by this plaintiff to the above although he recognized that the court could make other decisions in this regard.
4) Foremost as an obligation on this court should the petition be defeated – as it was – was to defeat the ‘MacKenzie Creed’ as being ultra vires as a means of permitting this plaintiff to access the courts in British Columbia on this question.
5) A special mention needs be made of the despicable action of Federal Court Prothonotary, Roger Lafreniére in an illicitly held hearing where no counsel were present, to invert the question as regards the perfidy of the MacKenzie Creed to one in which the onus was placed on this plaintiff to prove, in effect, a negative: namely, that this personage was in some manner responsible for this iniquitous action which placed him beyond the pale of the courts. This point was recently raised (Ottawa Citizen November 13-2012 p.1) ‘Courts planning to assist lawyerless litigants.’ ‘Aim of web proposal is to help make sense of legal processes’ ‘…However, the report stops short of recommending that judges get new powers to declare someone a “vexatious litigant”, thereby preventing them from launching new legal action without leave. Such powers are “fraught with peril”, it says, and could thrust the courts into an adversarial posture against some litigants, potentially subverting the appearance of impartiality and fairness’. The Employee’s Case Canada, considering the widespread promulgation of this case among the legal fraternity, was in all likelihood the basis for these report writers. Revising the law is NOT the answer here. Rather dealing with this challenge directly – something Justice Maranger did not feel competent to do – remains the ONLY approach suited to this problem which now defines the future course of justice in Canada. Hence the reductionism of the defendant and the courts has run its course. The MacKenzie Creed cannot stand because it must not stand. Canadian justice is at a cross-roads with this central question in this current trial in an Ontario court system. It is clear from his written decision that Justice Maranger did not feel competent to deal with this question.
6) Merely denying the role of Ontario courts, the only one to which the petitioner has access, gives tacit approval to the MacKenzie Creed which is possibly the most egregious action of a court in Canadian Jurisprudence. I do not believe that dictum would withstand a Section 7 challenge under the Canadian Human Rights code although I did not cite that section in court on November 01-2012. In short, in wishing to avoid any connection with this British Columbia case, Justice Maranger has attached the Ontario court in the worst possible way.
7) Knowing that this is the court of last resort, Justice Maranger should have enunciated alternatives. Unfortunately, he appears to have merely re-iterated the Defendant`s factum without any referral to this plaintiff`s arguments. Nor did the Defendant answer the central question; namely, is the Employer obliged to pay salary until a resolution has been found to this issue and, if so, when should that salary be paid?
1) To re-instate the petitioner to interim compensation as outlined in the original court factum.
2) In absence of the above, to quash the `MacKenzie Creed` permitting this plaintiff to renew his unfinished case in the courts of British Columbia.
3) As to costs, there shouldn`t be any assigned but should they be awarded against this petitioner, they should be in the amount of $1. Any larger sum should be collected from a surety posted in British Columbia of which this plaintiff has no access due to the `MacKenzie Creed`. SEE TAB 2 COSTS 54944
4) Indeed, I submit that this Appeal Court has the power to quash the ‘MacKenzie Creed’ permitting this plaintiff to continue litigation in British Columbia which appears to be one consequence of Justice Maranger’s ruling.
ERRORS IN LAW
1) The presiding Justice has shown bias by ignoring the argument set forth by the plaintiff and virtually copying his Decision from the factum of the Defendant. Should the court see fit to revert this matter back to the Lower Court, I request that a different Justice be attached.
2) No litigant may be expelled from the Justice System for specious and picayune excuses, but the effect of Justice Maranger’s decision as ‘the court of last resort’ has just that effect.