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PREAMBLE TO FEDERAL COURT APPEAL OF T-2360-14

(Vancouver Prothonotary, Roger Lafreniére, Order Feb. 11-2015)

A pejorative background to this 30 year unresolved B.C. labour issue where no compensation has been paid although this matter has been before four separate court systems and over 30 judges (including two inconsequential trips to the Supreme Court f Canada in 1997 and 2004

BY: The appellant, Roger Callow. (In this account, the personal pronoun 'I' will be used in place of the more cumbersome terminology 'appellant')

QUOTE: '...So why not do away with the politicians? It would save the country millions and millions of dollars and let the judges run the country as they seem to be doing anyway....Letter to Editor Ottawa Sun Feb. 16-2015  (It's certainly true that the courts rush in where politicians fear to tread. editor)  ...not so here in the conglomerate in this 30 year unresolved legal case although individual truncated judicial actions are the order of the day to subvert the course of justice in finding a solution. R.C.

1) Without excusing the perfidy of the Judiciary in this issue, Parliament should have acted some time ago with such as the 'notwithstanding clause'  ('Something has to be terribly, terribly wrong with the Justice System to use the 'notwithstanding clause' M.P. Stephen Harper 2004).

2) Prime Minister Stephen Harper's government is particularly remiss in ignoring a legal matter which now negatively affects 35 million Canadians which is not to excuse the silence of the Opposition leaders in Parliament nor the anti-employee media.

3) The current charge before the Federal Court T-2360-14 is one of fraud which functions on two levels; a) the original 'conspirators'  b) the judicial processes as mentioned for a first time in the Preamble to the Supreme Court in 2004. There was no hearing before the SCofC leaving this litigant in a state of perpetual limbo contrary to basic tenets in law. That is why the credibility of the Canadian Judiciary is now suspended which is a devastating indictment for any democracy.

4) The charge of fraud is central to the maintenance of our justice system and any such accusation based on material fact - rather copious in this case -  should not have been summarily disposed of by Vancouver Prothonotary, Roger Lafreniére, in a Summary Trial which should have been held before an Ottawa judge in which the parties involved were in the process of awaiting a pre-written evaluation of the materials presented. Lafreniére 'jumped the gun' and disposed of the entire issue on the grounds of Rule 221; the 'frivolous and vexatious' rule which has been over-abused by the courts in this case as well as others as a means of disposing of anything embarrassing to the courts of which this case obviously is.  His action did not have the 5 Motion Records before him; one of which detailed an application of the Canadian Charter of Rights and Freedoms to this case and is now included in the Appeal as a 'Book of Authorities'

5) This is not the first time that Lafreniére has 'jumped the gun' which explains why I have kept Chief Justice Paul Crampton and Prime Minister Stephen Harper fully informed of developments. I have now called on the Prime Minister to assign a trustee to the Federal Court in this issue in which I believe this prothonotary should be labeled 'patently unreasonable' with further condemnation to apply to Chief Justice Crampton (a Harper appointee whom, in 2009, was also directly involved in the first Lafreniére caper.)

6) Conspicuous by its absence, Lafreniére makes no mention of the fraud charges against the government which is a glaring omission. He would depend entirely on the Union quoting the highly specious Ontario Superior Court Justice Colin McKinnon's 'frivolous and vexatious'  Order (#13-59060 April 23-2015 where I was the Respondent) which used court resources to research the necessary background to make an assertion which I read for a first time in his judgment although in a subsequent hearing launched by me (#14-61592 Sept. 23-2014) I included a complete rebuttal to his points. As a generalization, McKinnon's depiction of events in Ontario (where the Union never appeared) is reasonably accurate but his definition of events in B.C. and the Federal Court left much to be desired.) It is interesting to note here that the Union lawyer, Bruce Laughton Q.C. whom has been associated with this case since 1987 and looms large in the accusations of fraud along with BCTF staff lawyer, David Yorke, makes no mention of how I am prohibited from appearing in B.C. courts.

7) The McKinnon Order is under appeal despite his move to bar any such action and to impair future legalities. Also, due to the malfeasance of McKinnon, and a second federally appointed Ontario Superior Court judge, Robert Scott, (plus the Ottawa firm of Hicks, Morley et al which has dropped their representation of the Employer explaining the re-assignment of the B.C. arm of the Employer's representation. They merely concurred with the Union position.) reference has been made to the oversight committees involved. At the very least, Lafreniére was premature making reference to this document although his action borders on collusion with un-named parties.

8) Following is a copious application of the Federal Court Rules to this case included here for the inevitable Supreme Court of Canada challenge. RULE 334.39 is particularly relevant as to early B.C. court machinations.

APPLICATION OF FEDERAL COURTS RULES IN APPEAL OF VANCOUVER PROTHONOTARY, ROGER LAFRENIÉRE, ORDER #T-2360-14 FEBRUARY 11, 2015

BY: THE APPELLANT, ROGER CALLOW

RESPONDENTS: 1) BOARD OF SCHOOL TRUSTEES S.D.45(WEST VANCOUVER,B.C.)

                               2) UNION - BCTF/WEST VANCOUVER TEACHERS ASSOCIATION

APPLICATION AND INTERPRETATION with Appellant interpretation (R.)

1.1 (2) In the event of any inconsistency between these (Federal Court) Rules and an Act of Parliament or a regulation made under such an Act, that Act or regulation prevails to the extent of the inconsistency.

Response(R.) Accusations of corruption of the legal processes dating from the last Supreme Court of Canada appearance (2004) which was not held made reference in the Preamble to the unresolved matter of the lay-off of former West Vancouver Teacher, Roger Callow, in 1985, in which no compensation has been paid. Leaving this plaintiff in a perpetual 30 year limbo after innumerable court challenges, flies in the face of such basic legal tenets as habeas corpus, due process, 'there can be no process without judgment'. In short, Parliament should have exerted their oversight powers in terms of such concepts as 'peace, order and good government',  or 'the notwithstanding clause.'

4. On motion, the Court may provide for any procedural matter not provided for in these Rules or in an Act of Parliament by analogy to these Rules or by reference to the practice of the superior court of the province to which the subject matter of the proceeding most resembles.

R. Herein lies the crux of why the Federal Court has been referred to in this B.C. labour matter under B.C. provincial rules. The terms of inherent jurisdiction and natural justice have been ignored by the Federal Court in previous hearings (T-1386-11). a) In October 2010, B.C. Supreme Court Deputy Chief Justice, Anne MacKenzie, without a docket number, and for reasons best known to herself, delisted an action laid by this plaintiff (CA038538) from the Appeal Court of B.C. telling the Respondents and the Registry that they need no longer respond to any legal material filed by this plaintiff. In effect, I was denied access to the B.C. Courts to resolve the matter of my lay-off without which compensation could flow unless I had permission of a judge. Keep in mind, the Respondent Employer was bound by an earlier court Order to re-litigate this case after the initial arbitration was quashed and the arbitrator ruled 'patently unreasonable' . Vancouver Prothonotary, Roger Lafreniére, threw the case out on the grounds that this plaintiff had not provided sufficient evidence of wrongdoing on the part of the judge.  b) In July of 2013, B.C. Supreme Court Deputy Chief Justice Alistair Cullen, on his own recognizance and also without taking legal argument nor quoting specific laws, quoted CA038538 in denying this plaintiff access to B.C. Courts although no case was laid by the appellant. He made no reference to the earlier MacKenzie Order although his dismissal was absolute as he did not include the all important 'may proceed with permission of a judge'. That is anarchy robbing anyone in an unfinished legal matter from court access and is a central pillar in the charge of fraud against the 'judicial processes'.  Madame Justice Gauthier of the Federal Court rejected a hearing on the grounds that the two Orders were similar and had already been decided by Prothonotary Lafreniére earlier. Her arbitrary action was referred to the Canadian Council of Judges (along with other judicial complaints from Ontario courts which are awaiting evaluation.)

ADMINISTRATION OF THE COURT

26.1 (1) In this rule, "appeal" includes an appeal of an order of a prothonotary, an application for leave to appeal and an Appeal to the Supreme Court of Canada.

R. One point that this writer as respondent and Ontario Superior Court Justice, Colin McKinnon (#13-59060) of whose judgment was the sole presentation of the Union lawyer, Bruce Laughton (attached to this case since 1987), was that this topic of fraud stretching across 4 separate court systems quite rightfully should be the province of the Supreme Court of Canada. (It is interesting to note that the Union was not present in any of the 4 Ontario court hearings now under Appeal and referenced to the Canadian Judicial Council for the injudicious actions of two federally appointed judges including Justice McKinnon. No mention is made in Laughton's account of B.C. injunctions.). "But how do I get it there?", I asked Justice McKinnon whom had no answer, considering the copious correspondence with SCofC Registrar, Roger Bilodeau, rejecting, as he did, any but a three person appeal court decision. (Section #40). An appeal form of Lafreniére's Order is included here.

30.(1) A judge or prothonotary who is not sitting in court may make an order on a motion if  (a) the judge or prothonotary is satisfied that all parties affected have consented thereto; (b) the motion was brought in accordance with rule 369         (2) On motion, the Court may set aside or vary an order made under paragraph (1) (a) on the ground that that a party did not consent to it.                          

 

R. In agreement with the Respondents due to the nature of this case and travel distance between Vancouver and Ottawa, we agreed to a pre-written disposition  as per court procedures based on materials provided by the 3 parties. That pre-disposition, as was clearly marked on the documents by me in order to avoid another Lafreniére debacle, was to be before a judge in Ottawa. Not only did the Chief Justice assign a Vancouver prothonotary, but none other than Lafreniére, thus compounding my charges of fraud against the Federal court in terms of his earlier conduct. Rule 369 was abused by him in T-2360-14 and is one of the grounds for appeal to have his Order quashed. Further, it is clear that Lafreniére was not in possession of 5 Motion Records (continual to and fro in order to comply with Federal Court Rules; the latest filing on February 9,2015 which pre-dates his February 11, 2015 ruling.) Either he was not informed as to the existence of these key pieces of evidence or else he ignored them. Either way, an investigation as to fraudulent activity should be made.

SUMMONING DOCUMENTS

41. (1) Subject to a written request (4)- no subpoena shall be issued without leave of the Court- on receipt of a written request, the Administrator shall issue, in Form 41, a subpoena for the attendance of a witness or the production of a document or other material in a proceeding.

R. The key in defining the accusation of fraud against both the original 'conspirators' and the court processes lies in the 'secret memo notes' of Justice Southin whom quashed the original arbitration. I made such written application which was ignored by Lafreniére - if he ever knew about this request. Those memo notes held the record of all Employer and Union meetings on this issue in 1985. The B.C. government met with the West Vancouver Trustees on more than one occasion as it related to BILL 35; the operant document under which I was laid off. Those documents are vital as they deal with the matter of representation. The Employer argued that BILL 35 conditions did not necessitate the application of the Collective Bargaining Rules hence, if correct, the Union misrepresented themselves to both me and the court. That is a key in these accusations of fraud so of course I was unable to provide the kind of definitive case on which Lafreniére insisted.

 

RULES APPLICABLE TO ALL PROCEEDINGS

50. (1) A prothonotary may hear, and make any necessary orders relating to, any motion under these Rules other than a motion (a) in respect of which these Rules or an Act of Parliament has expressly conferred jurisdiction on a judge

R. By ignoring the accusations of fraud against the Court; no doubt Lafreniére hoped to diminish this case to prothonotary 'bite size' proportions. Considering that Chief Justice P. Crampton was kept personally apprised by me of developments in this case to avoid an earlier repetition of court cupidity, there is no excuse for appointing a prothonotary to this case. Considering that this is a second infraction in this case under Chief Justice Crampton, the Prime Minister has every right to take corrective action.

APPEALS OF PROTHONOTARIES' ORDERS

51. (1) An order of a prothonotary may be appealed by a motion to a judge of the Federal Court.

R. This is typical legalese; to shunt an issue sideways such as happened under Justice Mosley whom 'rubber-stamped' Lafreniére's first action in a secret hearing where he decided to impute rules to my protest. Other court systems permit of a direct appeal to the Appeal Court. Should I be forced to go the route of this 'intervening' court, my request is to quash the Lafreniére Order and re-institute this hearing before a judge on the grounds earlier outlined to the court. At present, that requires a pre-written order  outlining how the case should be conducted. In brief, production of the 'secret memo notes' and a detailed analysis of my charges of fraud against both the respondent interests as well as answers to the question of my status as a union member as well as conduct by the courts. Depending on the spurious McKinnon Order from Ontario is meaningless until the Canadian Judicial Council gives a ruling on his activities in this regard.

52. (1) The court may call on an assessor

R. I have requested that the Prime Minister assign such an individual.

55. In special circumstances, in a proceeding, the Court may vary a rule or dispense with compliance with a rule.

R. By rights, the Federal Court should be giving this case a 'by' on the grounds that the only court so suited to examine questions relating to the judicial process are, as Ontario's  Justice McKinnon pointed out in accord with my agreement, best suited to the Supreme Court of Canada. What the lower courts may do consistent with Rule 157:

1) reinstate me to salary as these sums exist apart from judicial outcomes until a resolution is found. (30 years as I should never have been cut off salary until a resolution was found)

2) subpoena the 'secret memo notes' from Justice Southin's record.

3) clarify the status of this plaintiff as to whether provisions of the BILL 35 apply (Employer's argument) or the Collective Bargaining Process (Union's de facto action). This last question is vital to such as the Jian Ghomeshi case (dismissed CBC radio commentator).

Under the above circumstances, proceeding as an Action as opposed to an Application would appear to include the broader parameters.

60. At any time before judgment is given in a proceeding, the court may draw the attention of a party to any gap in the proof of its case or to any non-compliance with these Rules and permit the party to remedy it on such conditions as the Court considers just.

R. As the last submission of the 5 motion Records pre-dates the judgment of Lafreniére, good argument may be made in requesting the secret memo notes.

MANNER OF BRINGING PROCEEDING

61. (4) Whereby or under an Act of Parliament a person is given the option of bringing a proceeding referred to in Rule 169 or 300 as either an action or an application, the person may commence the proceeding as an action or as an application.

R. I choose an action as it is more consistent with the Charter of Rights and Freedoms with which my Book of Authorities details at it applies to this case. (Lafreniére made no reference to this Record in his Order. Did he know about it?)

69. A notice of a constitutional question referred to in section 57 of the Act shall be in form 69.

R. a) When a court recommends an action; that is, the Employer should return employment to this employee, may the Employer, one and at the same time, refuse the recommendation and fail to return to litigation as so ordered by the court as a consequence?  b) May the court refuse to handle a basic question as regards the status of a litigant? In this case, the Employer argues that the Collective Bargaining Rules do not apply in this case as BILL 35 conditions (since repealed by the B.C. government before this sole laid case was resolved) should apply. The repeated failure of the B.C. Labour Board to hear my complaint under a Section 12 appeal as well as the Supreme Court of Canada in 1997 to hear an appeal under the 'universality of Unions' and later in 2004 under 'ultimate remedy' reflects more than an ignorance of the facts. The assertion here is that both court systems are complicit in this aberration of judicial process. The Employer's assertion in launching #13-59060 in Ontario Superior Court(Ottawa) was that they owed no money in compensation to this employee although they gave no reason (nor was the judge asking for one).

COUNTERCLAIMS

190. A counterclaim may be proceeded with notwithstanding that judgment is given in the action or that the action or that the action is stayed or discontinued.

R. The point of providing the 5 MOTION RECORDS to the Respondents in November, December 2014 and January 2015, was to evoke an intelligent response to serious questions raised by this case; not merely a specious 'frivolous and vexatious' response accepted by prothonotary Lafreniére without question as to the validity of the McKinnon judgment from Ontario. As response space is limited in this appeal, I have selected the MOTION RECORD (re-labeled BOOK OF AUTHORITIES) detailing the application of the Charter of Rights and Freedoms as it applies to this case which I now label as a COUNTERCLAIM although it can be classified as a joint motion/application under Rule 61 (4)

SUMMARY TRIAL

216.(8) If the motion for summary trial is dismissed in whole or in part, the Court may order the action, or the issues in the action not disposed of by summary trial, to proceed to trial or order that the action be conducted as a specially managed proceeding.

R. Conspicuous by its absence from Lafreniére's order is any mention of the charge of fraud against the processes of the various courts; possibly because he lacked the jurisdiction to do so. As those charges are inextricably tied with charges of fraud against the original 'conspirators'; his action which I have labeled 'patently unreasonable' (N.B. The usual term is 'judicial bias' although in the case of Ontario's Justice McKinnon, I used the term 'judicial malfeasance') and should be grounds for his dismissal. Clearly this was not a case for a summary trial as Lafreniére appears to be acting as little more than an agent for the interests of the Respondents which, regrettably, parallels 30 years of court experience by this plaintiff.

QUESTIONS OF LAW

220. (1) A party may bring a motion before trial to request that the Court determine (a) a question of law that may be relevant to an action; (b) a question as to the admissibility of any document, exhibit or other evidence; or (c) questions stated by the parties in the form of a special case before, or in lieu of, the trial of the action.

R. Those points have been made under other sections above.

STRIKING OUT PLEADINGS

221. This Section is the one on which the Respondents would rely entirely on in requesting that the claim be dismissed because it is 'frivolous & vexatious'

R. The accusation of fraud on the part of the Respondents plus court processes in the past 30 years places this case at the top of all civil cases ever presented before the Justice System of Canada. It is a major disconnect which calls into question the credibility of the Canadian Justice System to permit this challenge to be reduced in scope in order to dispose of it. Of course the Justice System is not inclined to investigate its own conduct; the rules are written to avoid that charge. Herein lies the role of the oversight bodies including Parliament which are remaining strangely silent on this case which is a mistake for without a credible Justice System, we cannot have a democracy. As to cover-up? That's worse than the original crime as per former U.S. President Richard Nixon experience in Watergate.

PRE-TRIAL CONFERENCES

258. (4) A pre-trial conference memorandum shall be accompanied by a copy of all documents that are intended to be used at trial that may be of assistance at the pre-trial conference; including all affidavits or statements of expert witnesses.

R. It is clear that Lafreniére 'jumped the gun' with his summary order before I could file a Form 258 requesting a pre-trial conference although it was clear from documentary evidence that this was the direction in which I was headed. Considering that Chief Justice Paul Crampton was kept apprised of this leading case; I submit the blame for this pre-emptive action must rest entirely with him explaining why I believe the Prime Minister must intervene.

265. (1) At a pre-trial conference, (a) a judge may make any order respecting the conduct of the action and  (b) a prothonotary may make any order respecting the conduct of the action other than an order under a motion referred to in any of paragraphs 50(1)(a) to (i)

R. It would appear that Lafreniére exceeded his powers raising the question as to why Chief Justice Crampton appointed a non-judge as well as one caught up in the intricacies of the earlier allegations of a faulty judgment?

285. The Court may, at any time, order that any fact be proven by affidavit or that the affidavit of a witness be read at trial.

COSTS

 334.39 (1) Subject to subsection (2), no costs may be awarded against any party to a motion for certification of a proceeding as a class proceeding, to a class proceeding or to an appeal arising from a class proceeding, unless (a) the conduct of the party unnecessarily lengthened the duration of the proceeding; (b) any step in the proceeding by the party was improper, vexatious or unnecessary or was taken through negligence, mistake or excessive caution; or (c) exceptional circumstances make it unjust to deprive the successful party of costs

(2) The court has full discretion to award costs with respect to the determination of the individual claims of a class member.

R. In 1995, I went before Justice Spencer of the B.C. Supreme Court against only the Employer on the grounds that they had apparently abandoned this case. When they refused to return employment to me as earlier recommended by the court, I requested that the 'should' be altered to 'must' return employment. Spencer's choice, it is submitted here - as he recognized in court - was either to grant my submission or order the matter back to arbitration. He did neither. By claiming - for a first time in a court case - that as the Rules of the Collective Bargaining process applied in this case; only the Union and Employer could be involved in legalities in this issue which begged the question as to the desertion of both entities in solving this case. A buy-out, the power that the Union held, was the only option and one preferred by the court but the Union backed down no doubt on the basis of the undetermined status question which would have left them exposed to legal action by me if they acted unilaterally. Should the B.C. Labour Board in a Section 12 complaint or the Supreme Court of Canada (1997 - universality of Unions) seen fit to hear this matter of status, we would not be here today. The Union conducted themselves as though they had official sanction to operate under the Collective Bargaining Rules, a point disputed by the Employer which claimed that BILL 35 conditions obviated those rules. Hence the Judiciary is guilty of cover-up, which is oftentimes worse than the original crime. 35 million Canadians are the poorer for these judicial shenanigans. That is why the 'secret memo notes' from meetings held by the Employer and Union are so important to a proper adjudication of this case.

NEW EVIDENCE ON APPEALS

351.  In special circumstances, the Court may grant leave to a party to present evidence on a question of fact.

R. According to Justice Southin in quashing the arbitration, 'nothing was adduced in evidence that the Board of School Trustees intended to lay off a teacher under the conditions of BILL 35'  making a lie of the lay-off letter of the Superintendent to me in which he quoted that authority. Again, that is why the 'secret memo notes' are requested.

LEAVE TO APPEAL TO THE SUPREME COURT OF CANADA

357. (1) Notwithstanding rule 352, where a judgment of the Federal Court of Appeal is delivered from the bench, a motion under Section 37.1 of the Supreme Court Act for leave to appeal from the judgment to the Supreme Court of Canada may be made at the time the judgment is delivered and without prior notice.       (2) A motion for leave to appeal under section 37.1 of the Supreme Court Act shall, unless the Court permits otherwise, be argued on the case, and on the reasons for judgment, from which leave to appeal is sought. (3) A motion for leave to appeal under section 37.1 of the Supreme Court Act shall be heard before not less than three judges, who need not be judges who heard the matter under appeal.

R. The precipitate actions of the Federal court in this case do not presage any feelings of equanimity in this appellant. With that much said, returning this matter to a judge to give a pre-written preliminary evaluation of points raised in this Appeal makes much sense in clearing up some of the basic elements associated with this case before any such Appeal is made. It does not seem that an Appeal Court appeal needs be made although if the appeal goes the same way as the Lafreniére Order, then the Appeal Court would be redundant in response as a direct appeal to the Supreme Court of Canada should be made. I ask that Justices Madame Gauthier and Mosley, considering their earlier activity in this case, not sit on this matter.

MOTIONS

369.(1) A party may, in a notice of motion be decided on the basis of written representations.

R. As previously arranged in agreement with the Respondents, I request that the appeal procedures be conducted in writing.

SPECIALLY MANAGED PROCEEDINGS

383. The Chief Justice of the Federal Court may assign (a) one or more judges to act as a case management judge in a proceeding.

R. My preference is for a figure assigned by the Prime Minister.

DISPUTE RESOLUTION SERVICES

387. A dispute resolution conference shall be conducted by a case management judge or prothonotary assigned under paragraph 383(c), who may (a) conduct a mediation, to assist the parties by meeting with them together or separately to encourage and facilitate discussion between them in an attempt to reach a mutually acceptable resolution of the dispute.

R. It was clear from materials presented by me that this was the non-binding approach being requested of the court which the Respondents chose to ignore. Supporting the Respondents in this bid, as Lefreniére summarily did, is tantamount to the court acting as an agent for the Respondents. The above can easily be conducted in writing with no oral hearing to be held. Note that any such negotiation is limited to the propriety of the initial lay-off and compensation accordingly.

CONTEMPT ORDERS

466. Subject to rule 467, a person is guilty of contempt of Court who (b) disobeys a process or order of the Court.

R. The Employer failed to return to litigation as so ordered by the court in 1987 by Justice Southin when they refused to return employment as recommended by the court.

471. Where the Court considers it necessary, it may request the assistance of the Attorney General of Canada in relation to any proceedings for contempt.

ACTION REQUESTED

A) Quash the Lafreniére Order and re-institute the preliminary hearing terms of a pre-trial conference by an Ottawa judge   as earlier requested in writing. (Rule 258)

 

cc Prime Minister Rt. Hon. Stephen Harper