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OPEN LETTER TO U.S. NEWS SOURCES – NOV.01-2013 

(FORMERLY OPEN LETTERS TO THE OTTAWA CITIZEN)

BY: Roger Callow ‘The Outlawed Canadian’ www.employeescasecanada.com  (28 year unresolved legal case) now known judicially as ‘the clusterfuck case’. Canada’s Watergate- Pulitzer Prize winning author being sought

INDEX

1) PLAINTIFF FACTUM                                        pages  2 - 7

2) B.C. LABOUR CODE AS IT APPLIES

    TO PLAINTIFF’S FACTUM                                pages  8 – 13

         

FACTUM OF THE PLAINTIFF – SECTION 12 COMPLAINT

QUOTE: ‘…When the then-minister of Education (Ontario) Laurel Broten signed a Memorandum of Understanding with Ontario Elementary Catholic Teachers Association on July 5, 2012, she not only broke more than a decade of labour peace in Ontario’s education sector, but she also created a situation where nobody – the government, unions, school boards, and labour experts – really had any idea how things would be handled and which body of law actually applied.

Robert Murray UofAlberta professor  Ottawa Citizen October 26  B7

N.B. Imposed government legislation has the same effect. RC

 

NO FORMAL HEARING IS REQUESTED (Any questions which so arise could easily be accomodated on a ‘party by party’ written basis.) If necessary, telephone conferencing is available.

 

INCLUSION  #DT-12-1872 (Ottawa Divisional Court) NOVEMBER 04-2013  2 P.M.

and #13-59060 (Ottawa Superior Court) JANUARY 16-2014  & #13-58607 OSC

 

BACKGROUND

1) On June 26, 1985, former West Vancouver high school teacher was laid off – or not as the case may be – under the auspices of BILL 35, the neophyte government legislation which became law on July 01-1985. He was the sole teacher in B.C. so ‘laid-off’ under this Bill which was withdrawn before legalities were completed. (Banana Republic action)

2) No compensation, including pension rights, has been paid which flies in the face of the collective bargaining rules as well as the law of ‘ultimate remedy’. By cutting the plaintiff off hardly before the arbitration began, the plaintiff lost all leverage to finalize this matter with the Employer considering Union intransigence

3) The B.C. Teachers Federation, the parent organization of the West Vancouver School District, conducted all litigation on behalf of the West Vancouver Association. My understanding is that the lawyer assigned by the BCTF had no contact with the WVTA and, as I was told by one local President, they were instructed to pass all material on  this case to the BCTF.

4) The Union, although they were not the bargaining agent for the teachers in 1985; nonetheless, they financed the ensuing arbitration and court appeal.

5) Justice Mary Southin quashed the arbitration in 1986 ruling, as she did, that the arbitrator had been ‘patently unreasonable’. She returned secret memo notes to the Employer and the Union ‘because she did not use them’.

6) Those secret memo notes, conspicuous by their absence from materials acquired by this plaintiff in 2004, I submit would spell out the depths of a government conspiracy in which my submission is that the government was hi-jacked and the judiciary co-opted in order to fire a whistle blower in a legal saga without equal in Canadian Jurisprudence.

7) Efforts were made, under what I submit was systematic judicial cover-up continuing to the present day, which included the B.C. Labour Board, to thwart any hearing which could lead to a revelation of this conspiracy. Section 12 complaints by this plaintiff were routinely side-tracked and are now the source of judicial inequities in legal cases extant in Ontario and the Supreme Court of Canada.

8) When the Employer failed to return employment as recommended by Justice Southin, she ordered the matter back to arbitration before the same arbitrator who succumbed shortly after creating a situation  in law called ‘frustration’. Briefly, that law states that no litigant is to suffer due to unforseen legal glitches.

She did not see fit to return this plaintiff to salary in the interim; an action supported by over 30 judges up to the current time. Those monies are owed to this plaintiff  apart from judicial findings.

9) In 1995 when it was clear that no action was forthcoming from the Employer and Union, I went to B.C. Supreme Court before Justice Spenser requesting that as it was apparent that the Employer and Union had abandoned this case, the proper course was to change the ‘should return employment’ of Justice Southin’s Order to ‘must’ with all terms of the contract to apply. He appeared to consider another alternative; namely, ordering the matter back to arbitration but in the end, he did nothing leaving this plaintiff in limbo.

10) That pattern established by Spenser has applied throughout the sorry history of the search by this plaintiff to receive ‘due process’ for without a court decision, compensation (includes pension rights) may not flow. While this plaintiff had re-located to Ontario by this time, he was always ready and willing to return to work in West Vancouver.

11) The B.C. Labour Board’s role in this imbroglio is particularly reprehensible as it would appear to form the basis of all subsequent litigation dating from Vice-Chair Barbara Parkinson Decision numbered B117/2002 under yet another Section  12 complaint by me where no hearing was held.

12) No hearing for that matter has ever been called by the B.C. Labour Board which,I submit, would show the complicity between the Union and Employer in this matter. Indeed, if it were known what was in the memos, it would explain that one effect of quashing the arbitration was to hide school board perjury as well as question the legal standing of their legal Counsel for claiming that the School District laid off 17 teachers that year when in fact he well knew that no teacher other than this targeted employee was laid off. I submit he should have been disbarred for letting his client lie.

13) By failing to hold a Section 12 hearing, evidence would show that this plaintiff was in a `race by himselfHH  kkk

` for the so-called 17th position. Indeed, the records on file showed the addition of 16 teachers with myself as the only lay-off.

14) The point to stess here is that should the Labour Board have held a hearing, it would be noted that teachers competing against lay-off provisions would be represented by the same Union hence it was of the utmost importance under these circumstances to maintain that a teacher had independent status apart from the Union. I believed I always had that power anyway but in my particular case, the courts have ruled otherwise.

15) B117/2002 is typical of almost all rulings and the one on which the Defendants and courts have always depended; namely, that they did not support this plaintiff’s concerns because they found no fault with the way that the Union handled the matter.

16) Immediately after that BCLB decision, the Employer dropped all offers of settlement and the Union deserted the issue, failing as we requested, to turn full status to this employee so that he could pursue a direct agreement with the Employer. That refusal left me in a state of limbo.

17) The matter was appealed to the Supreme Court of Canada under the ‘universality of unions’ question as some judges hear the plaintiff apart from their Association, others don’t. I was one of those they didn’t. While the Supreme Court of Canada did not hear this Appeal; nonetheless, there is no denial that this central question to the collective bargaining process still goes without an answer.

18) A second refused Appeal to the SCofC in 2004 under the ‘ultimate remedy’ provisions of the collective bargaining system was far more damaging to the cause of justice in Canada. With any other case set before the SCofC, litigants are left with a lower court finding if a hearing is denied. Not so the Employee’s Case Canada, as it is labelled, with this litigant becoming the ‘Outlawed Canadian’.

19) That state of affairs has never happened before so that, in this kafkaesque legal world of ours, ‘no legal answer has become a legal answer’. In short that is anarchy and why I have currently enrolled the  Justice Minister of Canada, Peter MacKay in this matter. Such central legal concepts as ‘due process’ ‘habeas corpus’ ‘ultimate remedy’ ‘there can be no process without judgment’ have gone by the board in Canada. In short, the legal system of Canada imploded due to SCofC inaction. And without a viable legal system, Canadians have no democracy.

20) The sorry performance – or lack thereof – of the B.C. Labour Board is well-known among B.C. Teachers who I have challenged to place all School Districts ‘into dispute’ until this case has been resolved. Their view of the Justice System in general and the B.C. Labour Board in particular, must be very jaundiced indeed.

21) What has hamstrung the plaintiff’s case for many years has been the problem of status established by B117/2002 which the Defendant Employer and Union have joined forces to deny me, on judicial grounds, any hearing of my claim. With a loose reference to ‘the plaintiff is merely re-litigating matters already decided’ without being specific as to which matters have been decided and by whom, gullible judges merely parrot this phrase in their decisions as res judicata as an excuse to avoid dealing with some central judicial concepts affecting this case.

22) Hence while the action of B117/2002 may arguably apply to the conditions of 2002, they certainly do not apply to the present where such as pension provisions now apply.

23) In bottom line language, any employer may now obviate his fiduciary obligations by laying off an employee with this line: ‘If you do not sign a $1 settlement, you will not collect your pension’. What employee, it needs be asked, will belong to a Union and contribute to a company pension scheme under those circumstances?

 

ACTION REQUESTED

24) That the B.C. Labour Board declare the respective B.C. Teacher Unions concerned here as having abandoned the matter of this plaintiff’s lay-off in June of 1985 under highly specious circumstances and that full status – which I always believed I had in any event – be restored to this plaintiff so that he has access to all courts in Canada. This is a basic right of our Charter of Rights and Freedoms.

 

cc Hon. R. Wagner SCofC

Minister of Justice, Peter MacKay

B.C. Premier Christy Clark

Ontario Premier Kathleen Wynne

media (see www.employeescasecanada.com) B.C.LABOURBOARD-NOV.-2013

 

B.C. LABOUR BOARD APPLICABLE CODES AS APPLIED TO THE CASE BY THE APPLICANT, FORMER WEST VANCOUVER HIGH SCHOOL TEACHER, ROGER CALLOW LAID OFF IN JUNE OF 1985 UNDER THE CONDITIONS OF BILL 35 ENACTED ON JULY O1,1985 AND WITHDRAWN IN THE 1990’S BEFORE THIS SOLE LAID CASE WAS RESOLVED. NO COMPENSATION (INCLUDING PENSION RIGHTS) HAS BEEN PAID AS THE PROPRIETY OF THE LAY-OFF HAS YET TO BE ESTABLISHED DESPITE 28 YEARS OF CONTINUOUS LITIGATION WHERE THE PLAINTIFF WAS ALWAYS AVAILABLE TO RETURN TO WORK IN WEST VANCOUVER ALTHOUGH HE CURRENTLY RESIDES IN OTTAWA.

 

55(1) OR 74(1) APPLICATION OF A MEDIATOR UNDER THE CODE.

ANALYSIS (A) If the Board chooses this route, I request that full legal status be assigned to me so that I may pursue a finalization of this issue in any court of law. I have always believed that I had that power anyway, but in this particular case, the courts have decided otherwise. The problem here is that in any lay-off where the Union has to choose between two employees for lay-off, they are in a conflict of interest situation. In my case, I was in a race against myself.

2(e) APPLICATION FOR CANCELLATION OF CERTIFICATION OR REVOCATION OF BARGAINING RIGHTS UNDER SECTION 33 OR 34 OF THE CODE.

A. In 1985, the Union was not the bargaining agent for the teachers although they acquired that power later. (Reference #34) It would appear in this case that a limitation or rejection of the Union’s control in this matter is paramount for full status to be granted to me. In recent years, the Employer and Union have filed joint submissions in order to deny a court presence by me in this unresolved legal case.

17 d(1) ANY RECONSIDERATION OF THE DECISION WILL BE LIMITED TO QUESTIONS OF NATURAL JUSTICE

A. What must be avoided at all costs, is a fundamental deprivation of justice under the law.’ Justice Estey  St. Anne-Nackawic  Here the Employer would seek to escape all fiduciary responsibility under the collective bargaining rules creating a very dangerous precedent…(Employer Precedent) ‘If you do not sign a $1 settlement for your dismissal, you will not collect your pension’.

29(2) MATERIAL FACTS WHICH ARE NOT EVIDENT ON THE FACE OF THE BOARD’S ORIGINAL DECISION OR ORDER.

A. No doubt the Board of B117/2002 envisaged a solution as opposed to the obfuscation by the Employer and Union for the next 12 years to resolve this matter. If the Board had held a hearing in 2002, such as West Vancouver Superintendent, Ed Carlin, could have been called to give testimony although he left the employ of the School Board in the following year and was not employed in the public education field since. He still lives locally. Others are also available.

33(1) CANCEL CERTIFICATION IF THE EMPLOYER CEASES TO BE THE EMPLOYER OF EMPLOYEES IN UNIT, THEN IT MAY CANCEL THE CERTIFICATION.

A. Currently I am not getting any response from the Employer to the question as to whether the B.C. Provincial Government has supplanted local School Boards and what that would mean to this case.

76  SPECIAL MEDIATOR APPOINTED BY THE MINISTER

A. Should the Labour Board choose this route, the proper course would be to re-instate ‘salary continuance’ which was untimely cut on November 4-1985; hardly before the arbitration - which was later quashed - had begun. Without any judicial finding in this regard, the Board may only re-institute all back salary from the present with interest appropriately compounded. I ask for full salary on the grounds that I have not had the benefit of social programs under the contract for that period of time. These monies belong to me apart from judicial findings.

84(2) EVERY COLLECTIVE AGREEMENT MUST CONTAIN A PROVISION FOR FINAL AND CONCLUSIVE SETTLEMENT…INCLUDING A QUESTION AS TO WHETHER A MATTER IS ARBITRABLE

A. When the Employer refused to return employment as recommended by the court, Justice Southin ordered the matter back to arbitration before the same arbitrator, government-appointed arbitrator, Louis Lindholm, who she had condemned as being ‘patently unreasonable’. His untimely death meant that the legal concept of ‘frustration’ applied although neither the Employer nor Union saw fit to return to litigation leaving me in a state of limbo. The Supreme Court of Canada in 2004 failed to hear this issue creating a constitutional crisis. For any other decision which they refused to hear, a lower court opinion applied as the final judgment. In the unique circumstances of this case, there was no lower court decision hence the SCofC sanctioned the notion that ‘no legal answer was now a legal answer in Canada’. My legal advisor stated that ‘I had exhausted all remedy under the law’. (SEE Justice Estey comment made earlier in this account on Justice)

85 MINISTER MAY MODIFY UNWORKABLE PROVISION

A. If a ‘special mediator’ is appointed, this may be an option as SCofC non-response is not an acceptable answer. Furthermore, the SCofC – when viewed in the negative – did not say that this case should not be resolved.

88 (b) ORDER AN EMPLOYER TO REINSTATE AN EMPLOYEE IN CONTRAVENTION OF A COLLECTIVE AGREEMENT.

A. This could only follow on full salary compensation as noted above

89 (d) DETERMINE THAT A DISMISSAL IS EXCESSIVE IN ALL CIRCUMSTANCES OF THE CASE AND SUBSTITUTE OTHER MEASURES THAT APPEAR JUST AND EQUITABLE

A. The devil is in the details on this one.

89(e) RELIEVE AGAINST BREACHES OF TIME LIMITS SET OUT IN THE COLLECTIVE AGREEMENT

A. I don’t think anyone envisaged a 28 year ongoing legal saga such as this one largely due, I submit, to judicial chicanery which does not excuse the role of the defendants in this case.

99(1) a) A PARTY TO THE ARBITRATION HAS BEEN OR IS LIKELY TO BE DENIED A FAIR HEARING.

A. Admittedly, I was denied a fair hearing and would be unlikely to get a fair one under the circumstances should the Union who also represented administrators in 1985 (separated by legislation in 1988) control my case.

99(1) b) THE DECISION OF THE ARBITRATION BOARD IS INCONSISTENT WITH THE PRINCIPLES EXPRESSED OR IMPLIED IN THIS CODE OR ANOTHER ACT DEALING WITH LABOUR RELATIONS

A. Under the provisions of ‘ultimate remedy’ which the SCofC failed to hear, there is a denial in which ‘there can be no process without judgment’. Any judgment must apply to a finalization of my monetary claim.

110 (and 124) EVIDENCE

A.  If the Board chooses a Special Minister they may summon witnesses (125). In that event, former Superintendent Ed Carlin would be a prime witness.

 

HEARING OF A COMPLAINT

133 (under Section 14) e) ORDER AN EMPLOYER TO REINSTATE AN EMPLOYEE DISCHARGED IN CONTRAVENTION OF THIS CODE, A COLLECTIVE AGREEMENT OR THE REGULATIONS

133 (2) BOARD MAY EXERCISE ITS DISCRETION TO PROHIBIT, RESTRICT, CONFINE, REGULATE, CONTROL, DIRECT OR REQUIRE THE PERFORMANCE OF ANY ACT OR THING

139 JURISDICTION  (U) PERSON IS A PROFESSIONAL

141 RECONSIDERATION OF OPINIONS

(a) evidence not available at the time of the original decision has become available.

A. The unfinished nature of this case is testimony to that fact. In 2004, under the ‘Access to Information Act’ I received materials from the School Board which did not include the secret memo notes seen by Justice Southin. Of interest was a document sanctioning my lay-off by the Board in June of 1985 filed in Arbitration which did not show the voting pattern although it was marked CARRIED. The Access materials showed a voting pattern of two Trustees out of five approving this motion. Justice Southin’s comments on this situation were: ‘Nothing was adduced in evidence which would show that the Board intended to lay off a teacher under the conditions of BILL 35 in  June of 1985’. The sixteen new hires were converted into 16 lay-offs by the Arbitrator with my own added as the necessary 17th. The Arbitrator knew full well that I was the only lay-off candidate.

 

145.1 POWER TO COMPEL PERSONS TO ANSWER QUESTIONS AND ORDER DISCLOSURE

A. Good luck with that one. In every court in recent years, I have requested the court, in absence of the Employer to state a definitive position – to ask the Employer: (1) Are they obligated to pay compensation in this matter? (2) If so, how and when should that be paid? These vital questions get ignored with the specious claim promulgated by the Defendants at different times that ‘These matters are res judicata with the plaintiff merely re-litigating matters which have already been decided.’ Which matters and what has been decided is not answered; a major set-back for the various judicial rulings in this case.