PART I OVERVIEW – REBUTTAL pp 2 - 7
PART III ISSUES AND LAW – REBUTTAL pp 8 - 10
Court File No: 12-54944
ONTARIO SUPERIOR COURT OF JUSTICE
Plaintiff (Responding Party)
BOARD OF SCHOOL TRUSTEES (WEST VANCOUVER SD #45)
Defendant (Moving Party)
REPLY TO THE FACTUM OF THE DEFENDANT (MOVING PARTY)
PART I – OVERVIEW
2. The terminology ‘terminated’ has certain connotations which do not apply to this case. This term implies dismissal for cause wherein two years salary is the average compensation based on a successful petition. In fact, the petitioner was ‘laid off’ complete with recall rights on June
26, 1985 in a Superintendent’s letter quoting School Board authority and the need to lay-off this senior teacher due to declining enrolment. The School Board meeting notes of that date filed in arbitration show 16 new positions created and no teacher lay-offs. The neophyte ‘BILL 35’ effective as of July 01-1985 was quoted as the necessary authority to lay off this plaintiff. It should be noted that in the entire 27 years of hearings, no court has been held to deal with any of these issues, declining on the jurisdictional grounds that this plaintiff lacked the
necessary status to proceed. The central question here is why the B.C. Labour Board refused any hearings on a Section #12 complaint by the plaintiff against the Union which will be dealt with further in this account.
3. How, it needs be asked, may this plaintiff obtain express leave of the B.C. Supreme Court when the Associate Deputy Chief Justice, Anne MacKenzie, left instructions with court officials to refuse any materials from this plaintiff regarding his search for justice in this case? Indeed,
CA038538 contesting this outrageous action was blocked by the administration to be entered in the docket. Regrettably, Chief Justice Lance Finch failed to adjudicate on this ‘Catch 22’ situation. That matter was further compounded when the Supreme Court of Canada in turn
blocked an appeal on this basis by, yet again, using a questionable administrative decision to block what this petitioner claims was a judicial question. The Federal Court was problematical on many levels including two hearings held for which this plaintiff was not notified.
4. The term ‘re-litigate’ issues already decided on is a phrase oftentimes used by the defendants without being clear. For example, there is no conclusion to this labour matter from which compensation may flow. That also includes pension rights. The courts, therefore, have decided nothing in 27 years of litigation prompting this writer’s accusation that this case has reduced Canada to Third World status. For example, ‘there can be no process without judgment’; there must be ultimate remedy under the collective bargaining rules; plus habeas corpus is a basic tenet of the legal system; are all major laws undermined in this case.The term ‘vexatious litigant’ has oftentimes been used by a court evading its responsibilities. S106159 holds the genesis of the current legal imbroglio which Justice A. MacKenzie, on her own recognizance, without taking argument, without quoting any laws, dropped this action barring this plaintiff from any further court action. Her incidental inclusion of ‘without permission’ is meaningless considering administrative court action blocking an appeal. Interestingly, CA038538 protesting her action, which was never held as a result, made note that S106159 did include a ‘with permission of the court’ proviso in recognition of a‘vexatious’ label. Hence her action was redundant in that regard. Contrary to the defendant’s assertion, I am not appealing this label as my case is limited to acquiring ‘interim compensation’ which belongs to
this writer apart from judicial outcomes. Anything else the court may choose to do is contingent on first granting this part of the petition. Otherwise, this matter will be appealed as no other option is available to this plaintiff.
5. The phrase ‘no cause of action is plead or discernible’ is an empty label. It may have some value in an esoteric legal sense, but is hardly applicable to making sense out of a 27 year unresolved legal matter which even the courts agree should be settled. The question remains;
when? By being placed back on salary with all back salary as detailed elsewhere places pressure on the Employer and Union – the only two the court would recognize with the necessary status to resolve this matter – to find a resolution. This action is solely against the Employer who ‘set the clock ticking’ by failing to respond to the court order and if they feel that they have complaints against other parties in this process, surely the proper course is for them to lay the appropriate legal action(s) whatever those actions may be.
7. The plaintiff is currently receiving partial pension based on combined contributions from B.C. and Ontario through the Ontario Teachers Pension Fund. Receiving ìnterim compensation ` permits the plaintiff to finalize that aspect of the case. Labour arbitration in this case has not
worked. If 27 years of doing nothing is acceptable to the Defendant, the logic of the defendant’s message is to go for another 27 years. That`s unconscionable.
A) Nowhere in his factum has the defendant provided an explanation as to why the Employer is not responsible for paying monies which essentially belong to this plaintiff and would have been continuously paid if it had not been for the illegal Employer action of curtailing salary
before a legal conclusion was reached in this matter. To be sure, if this Employer gets away with abusing the collective bargaining rules in this manner, every employer can be expected to follow suit.
B) The defendant is correct in raising the question as to why this application is being raised in Ontario, the answer relating to the contumely to which this plaintiff is being treated in B.C. Interestingly, the defendant did not raise the jurisdictional question before the Federal Court.
C) Readers of the above account must be puzzled as to why no hearing has ever been called on the events of this case in any court; a point made in 2. Here`s one arguable proposition explaining why this plaintiff believes himself to be the target of a government conspiracy. In
March of 1985, this writer presented detailed material to the B.C. Ministry of Education alleging fraud on the part of an administrator. The response was `to shoot the whistleblower` by hi-jacking the government (BILL 35 used only against this personage until, in typical `banana
republic fashion` it was repealed in the 1990`s before this case was resolved); co-opting the judiciary (beginning with a government-appointed arbitrator who was subsequently labeled as being `patently unreasonable` in the ensuing court challenge), to sanction a `sweetheart deal` between Employer and Union. The key as to why no hearing has been held is that any such hearing would give this writer access to the secret memos of the Employer and Union in this matter which he has never seen. Justice Mary Southin (r. 2004) requested such information
and, no doubt seeing what I was asserting, unwisely decided to return these memos to the respective Employer and Union `because she did not use them`. Unfortunately, by so doing, she placed the court in a position of blackmail for should those documents ever surface in
subsequent hearings, her credibility/culpability among other things, could be called into serious question. That explains why no hearing has ever been held and how the various legal authorities involved in this matter have been guilty of `systematic`judicial abuse in the ensuing
26 years. No judicial system can survive that accusation.
D) While not excusing the cynical actions of various legal personnel attached to this case, full opprobrium needs be leveled against the actions of the Supreme Court of Canada. Form 25C alleging a conflict of interest was filed against Chief Justice Beverly McLachlin in that regard.
If the SCofC had heard the first appeal on the `universality of unions`, this writer would not be in the position of having to acquire his pension rights in the manner he is due to legal wrangling. In short, pension schemes, we submit, were never intended to be affixed in the fashion as has happened here. No employee will hold Union membership nor contribute to a pension plan when an employer is able to obviate his fiduciary responsibilities with this lay-off message: `If you do not sign a $1 quick claim, you will not obtain your pension`. The second SCofC Appeal related to `ultimate remedy` under the collective bargaining rules. By failing to see that compensation is paid in whatever amount, the SCofC undermined not only the collective bargaining rules, but the whole notion of contract law. The third SCofC Appeal related to`usurped judicial authority` in which a judge, for reasons best known to herself, may bar a litigant from court. That charge was so serious that the SCofC chose to hide behind a specious administrative as opposed to judicial decision. The fourth SCofC – Strike 4 baseball anyone? Appeal currently before the court is based on a surety collection in a B.C. Court where I have no standing due to the failure of the SCofC to hear the Third Appeal. In short, the Employer and Union may rob this writer blind due to the fact that this personage is ‘The Outlawed Canadian’. That action smashes the Canadian Justice System in its entirety. Presumably, if the Ontario Appeal reaches the SCofC, it will be labeled ‘Stage Five Cancer’.
E) Every employer in this country will be watching this case for if the ‘collective bargaining procedures’ are seen to be ‘flushed down the toilet’ by the judicial system, Canada as a democratic country following ‘due process of law’ will be no more.
F) The first hearing that this petitioner called in the Supreme Court of B.C. in 1995 is illustrative of the legal casuistry which the court indulged in over the years. For example, Justice Spenser implies that this is a matter of an Employer doing the wrong thing for the right reasons. One
would never know from this account that the ‘victim’ was ‘laid off’ complete with recall rights and that the ‘flawed arbitration’ consisted of an arbitrator converting 16 new positions into 16 lay-offs adding Callow as the necessary 17th when he knew full well that Callow was the only
lay-off victim. A ‘pie in the sky’ attitude reflects Spencer’s j. decision making processes as the Union would not sign a final agreement as then this writer would have been in a position to sue the Union with the whole sordid story coming out. And that would never do for the well-being of the Canadian Justice System so like ‘old MacBeth’, they found it easier to go over to the side of the conspirators which, as we now see, has been done at the expense of the validity of the entire Canadian Justice System. Further,’one dead judge does not a curtailment of a hearing make’ as Spencer j. well knew under the rules of ‘frustration’ in which litigants are not to be placed at a disadvantage with such unforeseen events.
No. A950147 Vancouver Registry June 2-1995 Hon. Justice Spencer
Motion Record TAB 2 (Respondent) p.8 Note 16
If, as I think, this law does not permit me to grant any of the relief which this petition seeks, the petitioner appears to be left in legal limbo with his case half heard but incapable of completion. As he points out, both Southin J. and the Court of Appeal by sustaining her decision, found the original arbitration flawed. Southin J. suspected, but did not decide, that the Board may have misused s.130.1(2) of the amending Act to rid itself of an unsatisfactory teacher improperly. Without in any way addressing the merits of any complaint against the petitioner’s performance, I observe that even if he was unsatisfactory from the Board’s point of view, he was entitled to be dealt with according to law under the School Act and not to be made the victim of abuse of authority. Whether he was remains to be decided and the sole person who could decide it is dead. It is hoped that there is some way of addressing that purported wrong.
p. 9 Note 19 IBid
It follows, in my opinion, that the petitioner is bound by any settlement of his dispute reached by the Association.
III ISSUES AND LAW
A) ‘No reasonable cause of action’:
21. The defendant appears to be beholden to the notion that this Claim cannot succeed simply because they say as much. The answer begs the question in a contradictory fashion.
23. The reductionist argument is used pre-supposing that there is no prospect of success on the basis noted above.
24. This action would normally take place in B.C. if it were not for the prohibition of the plaintiff in the Vancouver courts. This is the key to the universality of justice in Canada and while it places the Ontario Justice System at odds with events in B.C.; nonetheless, Ontario should not
think that by ducking the issue that they will not be considered at one with ‘the B.C. Disease’.
Further, this current action is not asking for a final disposition of the issue regarding the merits of the lay-off as the courts in their wisdom have allocated those powers to the Employer and Union. For that reason, no inclusion of the Union has been made in this current hearing. The focus here is solely on ‘interim compensation’ which any court, we submit, may assign.
B) ‘Vexatious and/or an Abuse of process’
28. SCof C doctrine quote: ‘…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….’ It seems clear that an employer such as in this case seeking to obviate their fiduciary responsibilities under the collective bargaining agreement has done just that with the co-operation of any number of court functionaries. That is why we submit that the court is desperate to curtail any hearing in this
matter which could reveal what was before Justice Southin in the secret memos which she demanded from the Employer and Union and then returned them ‘as she did not use them’. The Justice System of Canada could collapse on that point alone although the amount of judicial
cover-up to date points to some serious shortcomings in the judicial system. Nowhere does there appear to be a law as what to do with a tyrannical king or, in this case, a tyrannical judge in that process.
C) ‘No Jurisdiction Over the Subject Matter of the Action’
35. ‘presumptive connecting factors’
(i) The defendant has lived in the province of Ontario for the past 24 years.
(ii) A pension contract connected with the dispute was made in Ontario.
The aim of the Defendant Employer appears to be to chase this case out of court, successfully so it would appear in terms of B.C. That approach is one in which the Employer never defines their action proper such as in this case where they set no argument forth as to why they should not pay ‘interim compensation’. The bottom line effect is that the employer is escaping their fiduciary responsibilities thereby setting a precedent for other disreputable employers in Canada. Will the Ontario Justice System be seen to ally themselves with this ignominious goal,
no matter in which province this case has as its genesis? In bottom line language, it may be asked, how may an employee gain access to the courts when an Employer and Union have joined forces against such representations and is supported by any number of courts in that
endeavor? This is a precedent setting case without equal and the cases cited by Hicks Morley in their ‘Book of Authorities’ do not even approximate the challenge made here. Indeed, many of those cases relate to criminal law, not civil law of which is the case here.