REPLY: #13-58607 (HEARING DATE MARCH 13-2014 & #13-59060 (HEARING DATE APRIL 10-2014) - JOINT SUBMISSION
REPLY 25A to #13-58607 & DEFENDANT'S FACTUM FILED ON JANUARY 23-2014
1) The perfidy of the Defendant Employer's action in laying #13-59060 subsequent to the Plaintiff's laying of #13-58607 with a hearing date originally unitarily set for January 16, 2014 by the Defendant is now clear with this current filing. (The January 16-2014 date for #13-59060 was postponed to April 10-2014 at my insistence. March 13-2014 has now been set for 13-58607 by me.)
2) The aim of the Defendant, we submit, was to undermine the course of justice by running a separate case prior to the main case as a means of declaring this Plaintiff a 'vexatious litigant' thereby undermining and perhaps forestalling the hearing of #13-58607.
3) The court is asked to punish the Defendant to the full extent of the law. A copy of this Reply is being sent to the Ontario Legal Society for action against Hicks Morley et al for that purpose.
4) There is no reason as to why the Defendant could not have used #13-58607 under the normal terms of the duly laid case to voice their argument.
5) This writer cannot envisage such as the above action without complicity of the court as evidenced by two earlier hearings in Ottawa Court for which the authorities (Premier, Attorney General, and Chief Justice) were kept fully apprised of developments in this high profile civil action. More on this point below.
(HICKS MORLEY) STATEMENT OF DEFENCE #13-58607
R. = response by plaintiff to defendant assertions
1. The Defendant denies all allegations contained and relief sought in the Plaintiff's Statement of Claim.
R. The claim is that as the 'Cullen Creed' is absolute in denying this Plaintiff from any court access - at least in British Columbia - then compensation may now be applied in this 29 year unresolved labor matter. That compensation exists apart from any judicial finding as the plaintiff should never have been released from salary until a solution had been found. With the denial of court access in B.C., the plaintiff makes application in Ontario where he has resided for the past 26 years under the provisions of the court's right of 'inherent jurisdiction'. In brief, there must be a court available in this matter once ordered back to legalities by the B.C. court for a finalization; an Order ignored by the Defendant and subsequent B.C. courts. Of course, the Defendant would like to escape all financial obligations in this case (including pension rights) and with the culpability of the Justice System and 8 separate courts of law across the country, they are able to do just that. The matter currently rests with the PMO (Prime Minister's Office) in what has been described as the demise of the credibility of the Canadian Justice System due to systematic abuse by over 30 judges including a number of trips to the Supreme Court of Canada. Placed in the negative, nowhere has any court declared that this case should not be resolved. Hence this plaintiff is in a continued state of legal limbo due to judicial malfeasance. The Plaintiff makes no mention of the 'Cullen Creed' in his statement of defense which is the prime definition in this current case. For example, if the Defense accepts my bid to accept this highly contentious action by B.C. Supreme Court Justice, Alastair Cullen made on July 23-2013, then we may deal with the central question which the Defendant and the Courts have always ducked; namely, Is the Employer obligated to pay compensation to this plaintiff under the collective bargaining rules and - if so - when and how should that payment be made? By failing to address either of these central questions by the defendant, the answer by the court must be in the affirmative for this plaintiff. In the event that the court seeks to - in a pattern seen for 29 years - obviate this hearing by a holding of #13-59060 which appears to be the nefarious goal of the defendant, then the presiding Justice will be cited to the authorities with an eye to being removed from the bench.
2. The Plaintiff is an individual who was employed as a teacher by the Defendant Board of School Trustees (West Vancouver,B.C. SD #45) ("the Defendant"), from 1968 to 1985. Throughout his employment, he was, at all material times, represented by the West Vancouver Teachers' Association ("the Union"). The Union was his exclusive bargaining agent and was party to a Collective Agreement with the Defendant that contained mandatory provisions for dealing with claims or grievances arising from employment or lay-off from employment.
R. a) The Union was not assigned the bargaining agent for the teachers until 1988.
b)The above was the 'consentual vs imposed' aspect of BILL 35 under which the Employer unsuccessfully tried to block a court appeal of the arbitration supporting the School Board. In 1986, B.C. Supreme Court Justice Mary Southin ruled that as an 'imposed' piece of legislation, the court did have the power to intervene and the normal powers of arbitration outlined in the Defendant's factum did not apply. She quashed the arbitration and ruled the arbitrator to be 'patently unreasonable'. When the Employer failed to return employment as recommended by her, she ordered the matter back to arbitration before the same arbitrator who subsequently died creating a 'frustrated' legal situation. No renewed arbitration took place and no court, especially the B.C. Labour Board (Barbara Parkinson Order B117/2002) would permit any discussion of this issue under a Section 12 complaint. The concern here - and it appears to apply to all courts - is that any hearing would reveal the existence of fraud on the part of the union and employer thus releasing this plaintiff from legal strictures designed to frustrate his attempts to get a finalization of this matter. The first SCofC hearing under the 'universality of Unions' question was rejected for a hearing by Chief Justice Lamers (d) Justice B. McLachlin, and Justice Cory for examination of this national question.
c) The second hearing under the principles of 'ultimate remedy'; that is, that no collective bargaining client may go without a remedy is outlined below: This excerpt appears on the home page of www.employeescasecanada.com
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.
"The curse of the world is not decisions taken, Blake reflected, it's the decisions shelved, bought off, sidestepped." War Dance Tim Sebastian
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.' Someone should tell that to the bozos who now run this country but the idea of any entity being more than the mere sum of its parts would escape them. 'The Outlawed Canadian'
d) The essence of the B.C. Labour Board's Decision (B117/2002) was to accept the Union's position of 'not having done anything wrong' without a hearing. What is conspicuous by its absence from this Report is whether the Union did anything right? Namely, the Union was faced with two choices and a third one provided by me. They could either return to litigation as so order by the court or sign an outside agreement with the Employer. Of course that latter choice would have left the Union to being charged by me in a hearing which, it is submitted, would reveal the fraudulency of their action. My offer to continue legalities at my own expense (I always believed that I had court access but in this case, the various courts have decided otherwise.) was declined by the Union. From that point on, the Union joined hands with the Employer and has acted in concert against this plaintiff. The Labour Board could hardly be expected to see into the future and how this unresolved case would affect such as pension rights.(By refusing to accept my resignation at age 65, my pension rights continue in limbo. That is unconscionable and while the Labour Board could not foresee the dangers of a weak decision in 2002, other courts have been familiarized with this problem and have done nothing to date other than to dun this writer with all court expenses; no doubt as a means of 'chasing him out of court'. That's not justice. That is anarchy and explains why Parliament was called on to address this issue. The silence from that quarter has been resounding as is the silence of the anti-employee media. It's a national catastrophe of unimagined proportions.
3. In 1985, the Plaintiff was laid off from his employment and was never recalled (the "termination"). For the nearly (29) years that have followed the termination, the Plaintiff disputed the validity of that termination, and has initiated more than 20 proceedings challenging it. These proceedings have included, without limitation:
(a) a grievance arbitration proceeding;
(b) various proceedings before the BC Labour Board (BCLRB) and the BC Columbia Supreme Court(BCSC);
(c) various attempted appeals to both the British Columbia Court of Appeal (BCCA) and the Supreme Court of Canada(SCC);
(d) a proceeding wherein he purported to 'sue' various BC Court Justices in the Federal Court of Canada, in respect of decisions made in their judicial capacity.
R. a) So which is it, a clearly 'vexatious' plaintiff as the Defendant would have it or Why hasn't the Justice System been able to resolve this matter as this Plaintiff would have it? Notice that there is no mention that the arbitration was quashed and, when the Employer did not return employment as recommended by the court, the matter was ordered back to arbitration; an arbitration rejected by the Employer and Union, the only two the court would recognize in this matter.
b) Questioning a decision - in this case, the MacKenzie Creed, in Federal Court is not tantamount to 'suing various judges although their collective action/inaction left much to be desired. The actual wording in the secret meeting held before Vancouver Pronothotary Roger Lafrenieré (as opposed to an Ottawa judge) did not in fact support the actions of Justice MacKenzie. He merely stated - without giving reasons - that I had not proven my case against her actions. Madame Justice Gleason of the Federal Court in 2013 quoted his report when she claimed - again without a hearing - that as the Cullen Creed was similar to the MacKenzie Creed, it did not make an originating complaint and, as such, she rejected the matter for a hearing. That's why this matter ended in an Ontario courtroom. The Justice Minister, Peter MacKay, was asked by this plaintiff to cite her in this regard as I believe I had a right to point out a significant difference between the two creeds in an open trial; the one I rejected (MacKenzie Creed) and the one I accept (the Cullen Creed) for reasons explained above.
5. The Plaintiff now resides in Ontario. On July 13,2012, the Plaintiff filed a Civil Claim (#12-54944) with the Ontario Superior Court of Justice (OSC). Claim 12-54944 amounted, in essence, to a critique regarding the manner in which the BC Courts and Adjudicators had, over the preceding 27 years, dealt with his complaints pertaining to his 1985 termination from unionized employment, and a request for back salary and interest to his 1985 termination date. The Plaintiff's Claim also sought to 'appeal' the BCSC's declaration of him as a vexatious litigant.
R. Compare the above perspective assigned to the events above with this one. This plaintiff, seeing that the Employer and Union - the only two the court would recognize with legal power in this matter - have, in fact, done nothing in the past 28 years to resolve this case nor have the courts assisted in that process. As such, the request for 'interim compensation; namely 29 years of back salary which exists apart from any settlement be granted and continued until the two protagonists finalize this case. No other sum may be applied in compensation until the courts assess the propriety of the original lay-off. In short, it is a judicial matter which the courts would deny in such fashion that what the Employer could not get through the front door of a quashed arbitration, they would obtain through the back door with the systematic corruption of court procedures. Granting the interim compensation now makes sense as I should never have been taken off salary until a resolution had been found. 'No legal answer' may not 'be a legal answer' for a court system which would retain its credibility. Rather, it's anarchy.
6. On August 22nd, 2012, the Defendant School Board filed a Notice of Motion in the OSC to have the Plaintiff's Claim struck out ("the Defendant's Motion to Strike") on the basis that:
(a) it discloses no reasonable cause of action (Rule 21.01(1) (b),
(b) it was frivolous, vexatious and an abuse of process (21.01(3)) and/or
(c) the OSC lacked jurisdiction to hear the Claim (Rule 21.01(3)(a)).
R. As a generalization, the above is reminiscent of the salesman's dictum: 'confuse them with science and confound them with something found out in the back of the barnyard. Another analogy I have used is the quoting of laws as though they were numbers listed in the telephone book claiming in that process, that the number you called is 'not in service'.
a) Rule 21.01(1)b) in its entirety: 'A party may move before a judge...to strike out a pleading on the ground that it discloses no reasonable cause of action or defense. Presumably in any other factum or court of law, reasoned arguments are provided and asked for by the bench. Not in this case as judgments consist of judicial one liners quoting the rule without supporting argument.
b) This 'vexatious' term is bandied about so often in the judicial system that it should be deposed. The point here is that a litigant may proceed only 'with the permission of a judge' under these terms; a feature of the MacKenzie Creed but completely obliterated by the Cullen Creed. The Defendant does not draw any distinction between these two creeds. Indeed, he never addresses them nor does the court demand that he address these creeds.
c) The Defendant refuses repeatedly my request to hold this matter as a Special Case under Rule 22: Without that agreement between parties, the direct 3 judge Divisional Court Appeal is denied.
Rule 22.01(1) 'Where the parties to a proceeding concur in stating the question of law in the form of a special case for the opinion of the court...'
The central question - which the Defendant and the courts would deny is whether or not the Employer is obligated to pay compensation to this plaintiff under the collective bargaining rules? If so, how and when would this be done? Resorting to cliché legalities in order to avoid this central issue is detrimental to the good conduct of the Canadian Justice System as I have shown throughout.
d) As to why the courts lack jurisdiction over matters in another province, no reasoned argument is presented by either the Defendant or the Courts. The SCofC refuse to hear any of my protests on this level leaving me with no court of law at my disposal hence the 'outlawed Canadian' moniker. The courts ignore my appeals under the term 'the court's inherent jurisdiction'. Parliament has shown themselves to be inept in dealing with an issue which affects the entire future of democratic Canada.
7. The Defendant's Motion to Strike was heard, on November 1,2012, by Mr. Justice Robert L. Maranger of the OSC ("Justice Maranger")
R. As he completely ignored the effects of the 'MacKenzie Creed'; his decision was appealed solely on the grounds of this Creed which did not affect the monetary position of the Employer. Also, he declared that the fees requested by Hicks, Morley were exorbitant. That account has now been settled.
8. Justice Maranger granted the Defendant's Motion to Strike on all grounds and struck out and/or dismissed the Plaintiff's Claim on the basis of all requested ground ("the Maranger Endorsement")
R. While wishing to avoid the complexities of the case in B.C., Maranger was quite prepared to quote the Defendant's arguments based on B.C. outcomes in his Decision.
9. The Plaintiff then sought to 'appeal' the Maranger Endorsement to the Ontario Divisional Court (Ottawa). The Divisional Court dismissed the appeal on November 6,2013 (Court File No. DC-12-1872)
R. This action solely on the 'MacKenzie Creed' which did not affect the monetary position of the Defendant, went unresponded to for 8 months and two days before the hearing to freeze documents for the hearing date, the Defendant provided me with a factum which I had learned from other sources was in the works. No entry was made at the admissibility court hence I question whether anything was entered by the Defendant. The 'one-liner' dismissal claimed that the court had no jurisdiction over a judge in another province. No substantial evidence was provided in court on that point nor were any supporting documents to that decision provided in that judgment. The matter of costs has been appealed, as it seems to have been little more than another fee grab, to the court at Osgoode Hall in Toronto as the Ottawa Court disclaimed responsibility to handle that aspect.
10. On August 22,2013, the Plaintiff filed the herein Statement of Claim, dealing with essentially the same issues as did 12-54944 Claim struck out/dismissed by Justice Maranger, which result was upheld by the Divisional Court.
R. The Maranger Decision was based on requesting a return to salary (including all back pay) until this 29 year unresolved case was resolved by the courts. The MacKenzie Creed, it was noted, was hamstringing my efforts to get a judicial finding in B.C. The current request is based on the Cullen Creed of July 2013 which, it is alleged, is proof positive that the Justice System has, for a first time, abandoned the case hence compensation may now be applied. Due to being blocked from a B.C. Court of law by the Cullen Creed, I must seek that remunerative action outside that Province under the rule of 'inherent jurisdiction'. In brief, while both creeds are highly questionable judicial actions, nonetheless, I rejected the MacKenzie Creed and accepted the Cullen Creed. Nowhere does the Defendant make reference to these creeds in the current action which is why I submit that the court must accept my interpretation of events.
11. The Defendant has initiated an Application to have the Plaintiff declared a vexatious litigant in Ontario (Court file No. 13-59060) ("the Vexatious Litigant Application").
R. The Defendant would wish to ape the B.C. courts in driving this litigant out of 'due process' in Ontario courts. This matter will be appealed should they be successful.
12. The Vexatious Litigant Application is scheduled to be heard by the Ontario Superior Court of Justice on April 10,2014.
R. The major action regarding the effects of the Cullen Creed (13-58607) are to be heard on March 13-2014.
13. The Defendant requests that the herein claim be dismissed with costs to the Defendant on a substantial indemnity basis.
R. Now that we know the intention of 13-59060 is to usurp the judicial process in the fashion outlined above, the plaintiff wishes to increase his costs from $10,000 'maintenance' to $30,000 maintenance. The court is also asked to censure the Defendant in this regard.
Date: January 23, 2014
Hicks Morley et al
cc Ontario - Wynne/Hudak/Howarth
SCofC Justice R. Wagner
Law Society of Upper Canada
media (e.g. Peter Mansbridge CBC)
Board of School Trustees (West Vancouver #45)