LEGAL ARGUMENTS - FOR LEGAL SPECIALISTS (January 2017)
QUOTES: A)True Justice Robert K. Tanenbaum
'Well, basically, the system, not just this office, but every prosecutorial organization, is essentially corrupt. It's so easy to pass laws, politicians love to pass laws...we're so overloaded that we can't actually do what we're supposed to do. So we perform an imitation of justice...because moving the system along becomes the prime value, not making sure that the laws are carried out. Get it?...and the corruption you get from power is an order of magnitude more serious than the kind you get from what I was talking about, the necessity for pretense. Because it's personal...They don't teach this in law school, do they?'
'No...So gradually things will improve?'
'No', said Karp sourly. 'Things will get worse. But we'll fight it all the way down'
B)'The trial was a spectacle, a farce, a ridiculous way to search for the truth. But as I learned, the truth was not important. Perhaps in another era, a trial was an exercise in the presentation of facts, the search for truth, and the finding of justice. Now a trial is a contest in which one side will win and the other side will lose. Each side expects the other to bend the rules or to cheat, so neither plays fair. The truth is lost in the melee. The Racketeer John Grisham
C) 'The law's a farce, sonnyboy. You can plant evidence and suborn witnesses and make sweetheart deals with the prosecution. The only laws we're really interested in making stick are the laws of contract - because if commerce doesn't work we're eating tree bark instead of bread.' Cassidy Morris West
D) 'What needs we fear it, for who can call us to account?' Lady MacBeth
E) 'A culture is unsalvageable if stabilizing forces themselves become ruined and irrelevant.
...these 5 jeopardized pillars are... (5) self policing by the learned professions Dark Age Ahead Jane Jacobs N.B. NO oversight body will acknowledge my many complaints against judges and lawyers, let alone rule one way or the other on the issues=anarchy
F) It is dangerous to be right when the government is wrong. Pierre Elliot Trudeau (1919-2000) '...Every government must accept responsibility for the rights of the citizens within its own jurisdiction. Canada as a whole suffers when any of her citizens is denied his rights, for that injustice places the rights of all of us in jeopardy.'
G) '...that whenever a thing seems at its zenith, you may be sure its destruction has already started. Dictator Robert Harris
H) D) 'If you can't find a lawyer who knows the law, find one who knows the judge.' The Halls of Justice L. Gruen.
CALLOW ARGUMENT - TAB 4 (2016) SC36993 (SK) c. 1997
FIRST ASPECT OF THE COMPLAINT - THE PROPOSED ALTERNATIVE SETTLEMENT STRATEGY
(Letter from Ottawa lawyer, Paul Conlin to B.C. Labour Board 1997)
The nub of part one of the Petitioner's complaint before the B.C. Labour Relations Board ("the Board") was that the Association failed to provide a fully considered response to his request that the Association review, deliberate upon, and assess the merits of his proposed alternative settlement strategy. The factual assertions underlying this part of his complaint are set out in paragraphs 16 through 21 of the Petitioner's outline. The assertions are particularly germane are as follows:
(a) The Association through Mr. Yorke (see letter of February 24, 1997) promised to "carefully consider (Mr. Callow's) views concerning settlement";
(b) The Association had not previously (i.e. before the Petitioner's request of July 14, 1997) considered the alternative strategy;
(c) Mr. Laughton provided a "preliminary view" of the strategy only. His preliminary response was given without knowledge of any legal support for the strategy, and with a promise to "revisit" the issue on receipt of such authority;
(d) The Association (M. Laughton) never indicated one way or the other, after being advised of the legal foundation of the strategy, whether the strategy might have merit despite three written requests from the Petitioner's counsel.
While the Board accepted (with hesitation) that the Association had an obligation to respond to the Petitioner's request "in a manner that accorded with its duty of fair representation", it did not accept the Petitioner's factual assertions underlying the complaint as it was required to do in making a S.13 determination. Rather the Board found "there is no evidence from which it could be inferred that Laughton did not review, or failed to be persuaded by, the Philip (SIC) authority either arbitrarily or for reasons attributable to bad faith..." There clearly was evidence (or factual assertions) as indicated in (a) (b) (c) & (d) above from which it could be inferred that no full consideration of the strategy in light of the legal authorities ever occurred, and that, if it did, the results were not communicated to the Petitioner. In either case arbitrariness or bad faith must be implied to Mr. Laughton. The only evidence that Mr. Laughton did review the strategy was his initial response (Laughton letter of October 2,1997) given with an admitted lack of knowledge of the legal basis for the strategy. It is patently unreasonable to interpret that response as satisfying the Association's duty to respond (a duty which the Board found to exist) without arbitrariness or bad faith.
Having thus denied the Petitioner's factual underpinnings and having determined, without jurisdiction, that the Association did provide a meaningful response, the Board went on to conclude that the "response" was reasonable.
In doing so, because there was no Association response to the legal foundational elaboration of the strategy as set out in Conlin's (Plaintiff's legal counsel) letter of October 2, 1997, the Board had to review Mr. Laughton's "preliminary view" following his cursory introduction to the strategy (see Laughton letter of September 22, 1997). Here also the Board, misinterpreted or failed to accept the factual assertions of the Petitioner. The Board interpreted the Petitioner's factual position as being that the success of the alternate strategy rested on either a judicial/arbitral finding of liability, or an admission of liability. The Board's reasoning appears to be that since the Association had a right not to pursue arbitration (which the Board concluded was the only means of determining liability) and since the School Board was not likely to admit liability, the Association's refusal to pursue the alternative strategy was reasonable.
The Labour Board based its finding that the Association had a right not to pursue arbitration on its own determination of the issues in the Petitioner's first complaint. The Board's decision on the first complaint is under judicial review but no date for a hearing has yet been set. The Board's conclusion that its decision had been confirmed by the Supreme Court and Court of Appeal is therefore erroneous, both in relation to the procedural (timeliness) issue, and in relation to the merits of whether the Association had a right not to pursue arbitration.
If the Board, when referring to Court confirmation of the Association's right not to pursue arbitration, was alluding to the decisions of the B.C. Supreme Court and Court of Appeal in proceedings initiated by the Petitioner not involving the Board, it was mistaken as to any such confirmation. All such decisions by either the Supreme Court of B.C. or the Court of Appeal involved other issues and were decided on the basis that the Petitioner, as a member of a collective bargaining unit, had no status to pursue his claims. Far from determining that the Association had a right not to pursue arbitration or that arbitration was precluded, Mr. Justice Spencer (1995) suggested a method of getting arbitration on the rails. Further, because the circumstances giving rise to the Petitioner's lay-off grievance predated the Association's certification and the mandatory applicability of the Labour Relations Code to the Petitioner's complaint, it is open to the Petitioner to have the unsolved issue of the merits of his first complaint determined in Court, quite apart from the judicial review of the Board's untimeliness decision on that complaint.
The Board's error in finding that the Association's action in refusing to pursue the alternative strategy was reasonable goes beyond the Board's mistaken premise that the Association had a right not to pursue arbitration in aid of reinstatement. It compounded its error by extending its approval of the Association's decision not to pursue arbitration in aid of reinstatement to the Association's decision not to pursue arbitration in aid of compensation. It did so even though in finding that the second complaint was timely, it carefully distinguished the actions of the Association in pursuing reinstatement on the one hand, and financial settlement on the other (see paragraph 31 of decision). It correctly found that the two remedies were independent of each other. Similarly the means of achieving those remedies ought also to have been viewed independently.
The conclusion therefore reached by the Board that the Association acted reasonably in deciding not to pursue the alternative strategy was based on a faulty premise, namely, that the Association had a right not to pursue arbitration and, by extension, that the Association was under no obligation to have liability determined under any circumstances. To say that it is reasonable to be unwilling to determine liability or an unreasonable position on compensation for Mr. Callow, no matter which strategy is pursued, is either futile or entirely dependent on the benevolence of the School Board. The Board's conclusion is therefore patently unreasonable. Parenthetically, the School Board has failed to demonstrate any such benevolence. In fact in negotiations with the Association it initially denied Mr. Callow's right to any interest on any compensation that might be agreed to, and later offered a partial payment only of court order interest. That offer was subsequently withdrawn. Both the School Board and the Association seem more intent on immediate collection of legal costs awarded against Mr. Callow as a result of his effort to achieve fair compensation than they are in providing fair compensation to him.
MY ADDENDUM (2016)
1) If you can get through the legalspeak, compensation depends on the legitimacy of the lay-off of Mr. Callow in June of 1985. To date there is no decision (arbitration quashed) leaving him in limbo for 30 years; a preposterous position for any litigant. No compensation has been paid.
2) Any such enquiry held by the Labour Board or courts would have forced disclosure and the fact that Justice Southin covered-up a conspiracy of massive proportions in 1986.
3) It would also permit an Employer to argue that under BILL 35 conditions, the courts and Union under the collective bargaining rules had no jurisdiction in this matter and why they claim they owe no compensation in this matter as the Arbitrator's Report is the final word; not that of the court.
3) The SCofC in 1997 compounded that cover-up by refusing to hear this matter under the 'universality of unions' thus compromising the entire Union movement.
4) The SCofC in 2004 refused to hear this matter under 'ultimate remedy' hence 'no legal answer became a legal answer' That reduced Canada to Third World status.
5) In 2016, in the SCofC appeal of QC failure to produce 'disclosure' on June 09-2016 decimates the entire justice system as all written law becomes redundant. That's anarchy.
6) Whom runs Canada? SCofC Chief Justice B. McLachlin or Prime Minister Justin Trudeau?
The West Vancouver school board should reinstate dismissed teacher Roger Callow in light of a B.C. Supreme Court decision earlier this week, B.C. Teachers Federation president Elsie McMurphy said Thursday...McMurphy said the teachers' federation is pleased with the decision, as it should discourage school boards from using the legislation in a way it was not intended to be used. She said it was encouraging that Justice Southin stressed teachers' rights to due process if they are to be terminated...She said she doesn't like the idea of sending it back to the arbitrator, because it would be difficult for him to admit he's wrong. He (Callow) should be simply reinstated by the board....
1) The failure of the Union to place the School District 'into dispute' was a signal to the authorities that the Union did not want any investigation of my charges of fraud against an administrator (until 1988, administrators were part of the Union). My return would have forced that issue.
2) There were a number of attempts by other School Boards to use BILL 35 which the Union talked out of leaving the case in West Vancouver to proceed under highly dubious circumstances.
3) The matter did not go back to arbitration due to the intractability of both the Union and Employer in this squeeze play leaving me in limbo in this unresolved labour case. The B.C. courts (Spencer j. Decision 1995) decided that I had no status under these conditions to gain compensation (deferred salary plus pension rights- for 30 years as it turns out). The 'Cullen Creed' expelled me from B.C. in July of 2013 forcing me into other court systems which have fallen on their sword in order to derail this case. All of Canada is poorer for these judicial machinations.
4) The Union had no intention of proceeding to court to appeal the arbitration. It was my change of lawyers which prompted a 'delayed' support; much like the CBC's Jian Ghomeshi case.
...' West Vancouver taxpayers will happily pay whatever cost is necessary to ensure the teachers standing in front of their children have current demonstrated ability,' chairman Mike Smith said after the board voted this week to take the matter to the B.C. Court of Appeal....
But Smith said the board is going ahead with an appeal, which he estimated could cost at least $10,000. (they lost RC) "because we believe the judge erred. (my italics) According to BILL 35, the decision of the arbitrator is binding. There is no right of appeal. (There is if fraud is shown. That is the importance of disclosure of the School Board meeting notes of June 1985.)
In her ruling, the judge said: "There was evidence upon which the arbitrator could reasonably have concluded the board used the act to rid itself of a troublesome pedant. Mr. Callow ...has been a thorn in the side of the West Vancouver school board." (euphemism for 'whistleblower')
5) 'current demonstrated ability' is undefined in BILL 35 and in law in general but may not be used to refer to teacher competence as BILL 35 was in addition to and did not cancel out any of the provisions of the collective bargaining process. The current SCofC #36993 seeks to challenge the ultra vires nature of this BILL 35 making the lay-off into a nullity.
6) This basic challenge between 'imposed' government legislation and the jurisdiction of the courts (the SCofC challenge #36993 SK ) is at the heart of the smooth operation of our democracy. Failure first by the B.C. Labour Board in 1996 and then the SCofC in 1997 to hold an open enquiry established the nature of the cover-up which extends to the present day in 2016. That failure has led to the decimation of the Justice System in 10 separate court systems and over 40 judges. On June 9,2016, the SCofC is to act on the Quebec excesses (#36883) in this case. Failure once again - there have been two SCofC failures to date (1997 & 2004) - would be 'strike 3' for the Justice System forcing the Prime Minister to take executive action.
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;
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. 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.
8. Whatever approach is made, disclosure as outlined above is at the root of any successful remedy.
Supreme Court Act (SCofC)
40. (1) Subsection to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of the Federal Court f Appeal or of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such nature or significance as to warrant decision by it, and leave to appeal from that judgment is accordingly granted by the Supreme Court.
Preamble to Supreme Court of Canada Appeal
(This Appeal denied in June/04 – explains why Canadian Justice System imploded)
This preamble makes an unusual request regarding habeas corpus
The correctness of the lay-off of teacher Roger Callow from his teaching position in West Vancouver in 1985 has never been properly tested. That fact flies in the face of the law and the Charter of Rights and Freedoms of Canada and yet over 30 judges up to and including the Supreme Court of Canada has not seen fit to insist that Mr. Callow be provided the key evidence of School Board meeting notes pertaining to the matter of his lay-off. To that extent, the judicial system is a part of the conspiracy charge which Mr. Callow has laid against the Teachers Union and the School Board and yet, due to the nature of the law, can only be referred to obliquely. Should the Supreme Court of Canada proceed on the frivolous and vexatious charge by which Mr. Callow is estopped from being granted a legal hearing without insisting, in this most unusual of cases, for the necessary disclosure of evidence to be provided to him; namely, the School Board meeting notes of 1985, then all Canadian law is at an end. Conversely put, it may be asked, how may Mr. Callow defend a negative which is a logical impossibility; namely, that he was not indeed laid off by the West Vancouver School Board in June of 1985?
There are good grounds to conclude that Mr. Callow has been the object of a massive conspiracy to deny him access to the laws. In 1986, Justice Mary Southin, in quashing the arbitration favouring the School Board claiming, as she did, that the arbitrator had been patently unreasonable in his conclusion favouring the School Board, had stated that ‘nowhere did the Board express a willingness to lay off a teacher under the new statute’ implying the fraudulency of the School Superintendent’s letter to that effect. Mr. Callow from his experience from the condemned arbitration in which no School Board member was called to the stand to explain how an increase of 16 teaching positions – any number of which Mr. Callow was capable of holding – submits that, while knowing otherwise, he is being denied any hearing which would give him an opportunity to voice his dissent. Certainly no such reference to the lay-off was publicly made in the monthly report in June of 1985 where the additions were noted in arbitration. No mention is made of any lay-off.
Considering that Justice Southin in 1986 ordered that all material pertaining to the lay-off of Mr. Callow be made available to the court and no doubt serves as the basis of her conclusion, then we submit such information would be the property of the Union and therefore should be made available to Mr. Callow even though the court has decreed that the Union has full control of this matter as far as questioning the matter of his lay-off. Both the Union and School Board steadfastly refuse to hand over this vital information. Indeed, it would appear that it was the laying of a conspiracy charge against the two parties which prompted the current frivolous and vexatious charge by which those two have successfully evaded having to produce the vital ‘missing link’ information. The failure of the two Appeal Court decisions of the B.C. Supreme Court to address that concern is at the heart of this appeal to the Supreme Court of Canada.
Simply put, how can the justice system of Canada in all good conscience deny Mr. Callow access to the court to resolve an unresolved legal matter which even the court has declared should have been re-arbitrated. The fact that the original arbitrator passed away under a law which would not see the appointment of any other arbitrator calls into play the courts role of inherent jurisdiction in order to finalize this case. Failure to do so up to and including one appeal already to the Supreme Court of Canada is a denial of the letter and spirit of the law in Canada.
CHARTER OF HUMAN RIGHTS AND FREEDOMS 1982 (excerpts)
One of the most notable effects of the adoption of the Charter was to greatly expand the scope of judicial review, because the Charter is more explicit with respect to the guarantee of rights and the role of judges in enforcing them than was the Bill of Rights. The courts, when confronted with violations of Charter rights, have struck down unconstitutional federal and provincial statutes and regulations or parts of statutes and regulations, as they did when Canadian case law was primarily concerned with resolving issues of federalism. The Charter, however, granted new powers to the courts to enforce remedies that are more creative and to exclude more evidence in trials. These powers are greater than what was typical under the common law and under a system of government that, influenced by Canada's mother country the United Kingdom, was based upon Parliamentary supremacy. As a result, the Charter has attracted both broad support from a majority of the Canadian electorate and criticisms by opponents of increased judicial power. The Charter only applies to government laws and actions (including the laws and actions of federal, provincial, and municipal governments and public school boards), and sometimes to the common law, not to private activity
Section 15: equal treatment before and under the law, and equal protection and benefit of the law without discrimination.
The notwithstanding clause authorizes governments to temporarily override the rights and freedoms in sections 2 and 7–15 for up to five years, subject to renewal
Interpretation and enforcement
The task of interpreting and enforcing the Charter falls to the courts, with the Supreme Court of Canada being the ultimate authority on the matter.
With the Charter's supremacy confirmed by section 52 of the Constitution Act, 1982, the courts continued their practice of striking down unconstitutional statutes or parts of statutes as they had with earlier case law regarding federalism
In general, courts have embraced a purposive interpretation of Charter rights...
This is tied to the generous interpretation of rights, as the purpose of the Charter provisions is assumed to be to increase rights and freedoms of people in a variety of circumstances, at the expense of the government powers.
Most importantly, from a lawyer's perspective, is the fact that the principle of stare decisis does not apply to tribunals. In other words, a tribunal adjudicator could legally make a decision that differs from a past decision, on the same subject and issues, delivered by the highest court in the land. Because a tribunal is not bound by legal precedent, established by itself or by a reviewing court, a tribunal is not a court even though it performs an important adjudicative function and contributes to the development of law like a court would do.
Although stare decisis does not apply to tribunals, their adjudicators will likely nonetheless find a prior court decision on a similar subject to be highly persuasive and will likely follow the courts in order to ensure consistency in the law and to prevent the embarrassment of having their decisions overturned by the courts. The same is true for past decisions of the tribunal.
Among the federal tribunals, there is a small group of tribunals whose decisions must be appealed directly to the Federal Court of Appeal rather than to the Federal Court Trial Division. These so-called "super tribunals" are listed in Subsection 28(1) of the Federal Court Act (R.S.C. 1985, Chapter F-7) and some examples include the National Energy Board, Canadian International Trade Tribunal, the Competition Tribunal, the Canada Industrial Relations Board (i.e. federal labour board), the Copyright Board, and the Canadian Radio-television and Telecommunications Commission ("CRTC").
The superior courts from the provinces and territories are courts of inherent jurisdiction, which means that the jurisdiction of the superior courts is more than just what is conferred by statute. Following the principles of English common law, because the superior courts derive their authority from the Constitution, they can hear any matter unless there is a federal or provincial statute that says otherwise or that gives exclusive jurisdiction to some other court or tribunal. The doctrine of inherent jurisdiction gives superior courts greater freedom than statutory courts to be flexible and creative in the delivering of legal remedies and relief.