DIVISIONAL COURT DC-12-1872 - ARMAGEDDON
DIVISIONAL COURT #12-1872
N.B. (COURT PRE-HEARING DATE OCT. 04-13 AT 9: A.M. IN ROOM #59 before Hon. M. de Sousa)THE ‘FACTUM OF THE RESPONDENT’ WAS RECEIVED ON OCTOBER 03-2013 AT 3:30 P.M. APPARENTLY IN RESPONSE TO MY FAX OF OCTOBER 2-2013 IN WHICH I LEARNED FOR A FIRST TIME THAT A RESPONDENT FACTUM WAS TO BE FILED ON OCTOBER 4-2013 AT A PRE-HEARING. UNDER THOSE CIRCUMSTANCES, THIS REBUTTAL WOULD NOT EXIST FOR FILING PURPOSES. (ADDENDUM: OCT. 4-13; RESPONDENT FACTUM NOT FILED/ MY REBUTTAL WAS)
REBUTTAL TO THE DEFENDANT`S FACTUM
PART 1 – OVERVIEW
2. Qualification: I was ‘laid off’ with recall rights not merely `terminated`
5. a) ‘no reasonable cause of action’. The propriety of my lay-off has never been tested in law. No compensation has been paid which includes pension rights.
c) As this plaintiff was barred from seeking justice in British Columbia, he turned to the Supreme Court of Canada in 2004 under the ‘ultimate remedy’ provisions. It was further argued for a first time that this plaintiff was the subject of an abuse of judicial process hence this appeal was not ‘res judicata’. The failure of the Supreme Court of Canada to hear this unresolved case left this plaintiff in limbo. My legal advisor’s comment was that ‘You have exhausted all remedy under the law’; a preposterous statement as ‘no legal answer may NOT be a legal answer’ under Canadian law; frivolous and vexatious and assorted such labels notwithstanding.
As to the OSC lacking jurisdiction, I have been a resident of Ontario for the past 25 years and am receiving a partial pension (amalgam of earlier B.C. and Ontario contributions) from the Ontario Teachers Pension Fund. The hope here was to finalize at least the pension aspect of this case. This appeal to the Ontario Courts was also made under the power of a court’s ‘inherent jurisdiction’. Where else could the petitioner turn? Merely telling him what he can’t do hardly fixes the problem which remains a major challenge to the efficacy of the entire Canadian Justice System. Over a decade ago, B.C. Justice Horace Hollinrake made the case succinctly: ‘Mr. Callow, you are entitled to a court decision.’ “Great, where is it?” ‘Not my jurisdiction.’ “If it isn’t your Department, then whose Department is it?” ‘Jurisdiction. I don’t know but not mine’.
8. ‘not clear on what grounds he seeks to do so’ (appeal the Maranger Endorsement) There were two major questions before Justice Maranger: 1) a continuation of salary until the Employer and Union (the only two the court would recognize as having status in this affair) finalized this outstanding matter. The plaintiff had been cut from salary even before the arbitration commenced. Regrettably, Justice Southin quashed the arbitration and when the Employer did not return employment as recommended by her, she ordered a renewed arbitration without ordering a renewal of salary. No court I appealed to would order that re-arbitration when the Employer failed to return to further litigation. 2) the ‘MacKenzie Creed’ would bar me from B.C. Courts as I submit Justice Maranger was well aware. If he wanted this case to be heard in B.C. instead, the obvious action to be taken was to quash the MacKenzie Creed for that purpose. As it was, he failed to make any mention of this Creed in his judgment which explains why the challenge in DC-12-1872 is limited to solely the quashing of the MacKenzie Creed. Armed with that support, I would no longer have required the support of Ontario Courts, which should accord with Maranger’s wishes. For that matter, I have always believed that I have had access to the courts but the courts through a process of systematic abuse have denied me one of the most basic rights of a citizen; namely, access to the courts in his own name.
9. ‘substantial indemnity basis to the Respondent’ Even Justice Maranger considered the financial claims of Hicks Morley to be excessive. We settled for an amount 1/6 of their request.
PART II – THE FACTS
10. Hicks Morley has taken a narrow view of the law supported by Justice Maranger. The broader question of justice under the law is more relevant:’ What must be avoided at all costs,is a fundamental deprivation of justice under the law’ oft quoted remark from Justice Estey St. Anne Nackawic. This guiding principal is the only authority in this precedent-setting case as all other examples cited by the Defendant do not even come close to defining this issue.
PART III – ISSUES AND LAW
16. “The doctrine of abuse of process has been described by the Supreme Court of Canada as follows: ‘…The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute….’ ”That statement was the essence of our case to the Supreme Court of Canada in 2004 which was not heard. Every court since that time would duck out of their responsibilities in this matter as a means, no doubt, of avoiding the questioning of a major Supreme Court of Canada snafu. That’s politics, not the law. Attempting to apply the rule of ‘res judicata’ as Hicks Morley and others before them would do is not applicable as each case registers a distinctive definition. For example, the MacKenzie Creed may be paralleled with its apparent successor from the same B.C. Supreme Court, the Cullen Creed of July 23, 2013. In my current bid before the Superior Court in Ontario #13-58607; I do not contest the horrendous legal problems created by this document as I have with the MacKenzie Creed. Indeed, I am prepared to accept the abandonment of my case by the B.C. Courts as a means to now applying compensation claims which exist apart from judicial findings. Such comments as ‘…re-litigate a cause which has already been decided by a court of competent jurisdiction’ was rebutted in my opening at the Maranger court: `Which decisions? Which courts?’ Apparently doing nothing passes for legal activity to the Defendant and I read the litany of failed attempts (21.) to get justice very differently from the Defendant. Most noticeable, by its omission from their account, is the fact that the Arbitration was quashed with the arbitrator being declared as ‘patently unreasonable’. He had converted 16 new hires to 16 lay-offs declaring that this plaintiff was the necessary 17th. He knew that there was only one teacher lay-off in June of 1985 in West Vancouver, B.C.; namely, this plaintiff. The plaintiff was later left in limbo. That’s not justice; it’s politics of a type that goes to the very heart of what a Justice System is all about. That’s why this petitioner has always requested experienced adjudication. None of the over 30 judges on this case, I submit, qualify, including Justice Maranger who appeared to have a limited knowledge of labour and constitutional law.
30. “Having regard to the foregoing, the Respondents state that Justice Maranger correctly found that: ‘A court in the province of Ontario does not have jurisdiction to hear a claim that is inextricably intertwined in all respects with the province of British Columbia.’ “While some argument on this level may apply to the ‘continuance of salary provisions’ which this plaintiff would dispute; there is no argument against making a prima facie case against the MacKenzie Creed (the sole issue on appeal) as being ‘ultra vires’ and a clear abuse of the law. How else can one explain why courts have ‘ducked and weaved’ around this document. The worst experience was with the appeal of the MacKenzie Creed (CA038538) in B.C. Appeal Court which Hicks Morley notes as ‘abandoned’. By whom? Certainly not by me. The Appeal Court has never responded as to why they would not register that claim. B.C. Attorney General Suzanne Anton has recently ducked out of responding to that question as well.
PART IV – ORDERS REQUESTED
31. Of course the Defendant would seek to dismiss the appeal. As matters now stand, the Employer is able to escape all their obligations under the law. I call it the ‘West Vancouver School Trustees Final Solution’. What employer is ever going to dismiss an employee when all they have to do is lay him off with this caveat: ‘If you do not sign a $1 settlement agreement, you will not collect your pension.’ That proposition radically changes the nature of Canadian society. Of course the challenge here is of immense proportions, but if the Justice System cannot meet its commitment to see justice done in this case, what point is there for any Canadian placing faith in that system. I need courageous judges in that regard and not judges prepared to buckle under to the pusillanimous arguments from such as Hicks Morley. Thirty five million Canadians deserve much better in this precedent-setting case which arguably has the future of Canada’s democratic welfare at stake.
Any honest Defendant rebuttal, conspicuous by its absence by the Defendant who would rely on jurisdictional explanations, would include answers to the following questions regarding the MacKenzie Creed:
a) What was MacKenzie’s authority to act in this non-docketed Order dated October 01, 2010?
b) As she does not quote any laws nor did she take any argument, how may her action be considered as legitimate under the laws?
c) What power does she possess to deprive a litigant in an ongoing legal case of access to the courts in order to adjudicate this labour matter?
d) How would the Defendant address this case in terms of due process, habeas corpus, there can be no process without judgment, ultimate remedy under the collective bargaining rules?
e) How would the Defendant explain how after 28 years of continuous litigation, this case remains unresolved with no compensation flowing to this plaintiff?
The underpinnings of our Justice System depend on honest responses to the above questions. Hicks Morley comes up very short indeed in that department.
cc Justice Minister Peter MacKay / Hon. SCofC Judge Hon. R. Wagner