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SUPREME COURT OF CANADA – OCTOBER 09-2012, 2012– STRIKE 4 (baseball, anyone?)

SUPREME COURT OF CANADA

MEMORANDUM OF ARGUMENT

 

1) For 27 continuous years, the plaintiff has initiated actions to deal with the propriety of his lay-off from his senior teaching position in West Vancouver, B.C. on June 26, 1985 under `BILL 35`which became law on July 1 1985. The first two actions – namely, an arbitration and the subsequent court appeal – were supported by the Union. Since that time, the petitioner’s action has been unitary and without judgment for jurisdictional reasons before over 30 judges including three inconsequential appeals to the Supreme Court of Canada. No compensation has flowed. The collective judicial action utilized appears to be one in which the plaintiff’s complaints are diminished in scope as a means of dismissing them.

2) The most recent rejection of a hearing for this case for a third time by the Supreme Court of Canada in December of 2011 illustrates the type of legal filibustering that this plaintiff has encountered for the past 27 years. Here, the Federal Court of Canada has acted in a highly questionable fashion. Unfortunately, the Administrative arm of the SCofC would base their rejection by making, I submit, an administrative decision to supplant  a proper judicial response to Section 40. The use of the word ‘may’ reflects the weakness of these two letters dated January 11 and 26-2012.

TAB 1  (i) Regulation 40 p.6

(ii) Dec. 14-2011 Rebuttal to Federal Court from Callow – 4 pages pp.7-10

(iii Jan./2012 SCofCANADA -  2 letters from court clerks pp.11-12

3) This current Appeal has, as its genesis, two earlier failed petitions to the SCofC . The arguments are outlined in two documents behind this current submission. TAB 2  

(i) Memorandum of Argument SCofC  March 31,2004 – 2 pages pp.13-14

(ii) Rebuttal to Vancouver Federal Court Order of Prothonotary Roger Lafreniere T-1386-11

November 9-2011 – 4 pages plus 1 page conclusion pp.15-20

4) This current appeal marks the first time in 27 years that this writer is responding personally to an issue; namely, the collection of fees from a surety paid by this respondent and as raised by the plaintiff Employer and Union.

5) This appeal relates to the alleged impropriety of the Employer and Union in collecting fees from a $10,000 surety paid into a B.C. court for the hearing of CA038538 which was never heard due to court action and is the basis of this complaint.

TAB 3  (5 letters regarding Union and Employer on fee collection Sept. 25-2012 - Oct. 4-2012)

(i) Sept. 26 letter Laughton to Callow – 3 pages  pp.21-23

(ii) Aug. 31 letter Callow to Laughton -  3 pages  pp.24-26

(iii) Sept. 11 letter Callow to Laughton – 1 page  p.27

(iv) Sept. 25 letter Laughton to Callow -  1 page  p.28

(v) Oct. 04 letter Litherland to Callow – 2 pages  pp.29-30

(vi)Response by plaintiff to Joint Book of Authorities CA038538 Surety Hearing before K.C. MacKenzie Dec. 20-2010 & 1 page conclusion – 3 pages  pp.31-33

6) This Appeal to the Supreme Court of Canada (SCofC) from an Order in the Appeal Court of the B.C. Supreme Court regarding payment from a surety claim to the Employer and Union in B.C. Court on September 25-2012 conforms to Regulation 40 of the SCofC. SEE TAB 1 for #40

7) The plaintiff was unable to participate in the hearing of September 25-2012  due to a prohibitive Order from Associate Deputy Chief Justice of the B.C. Supreme Court, Anne MacKenzie j. (2010) hereafter referred to as the `MacKenzie Creed’ or `Creed` TAB 4  page 34

8) In that creed, the plaintiff is barred from courts of law (at least in British Columbia) in any matter pertaining to his 27 year unresolved labour case in which, as noted above, no compensation has been paid. This creed which hamstrings pension rights reads in part;                   3) Any document or process filed by Roger Callow in contravention of this Order or any process inadvertently filed or received by the Registry is a nullity.                                                                         4) The defendants in this matter will not be obliged to respond to any process that is filed by Roger Callow in contravention of this Order or any document or process inadvertently filed or received by the Registry.

TAB 5  May 15-2008 - SO75775 illustrates the problem in collecting pension without a termination date – 2 pages pp.35-36

9) It was this creed which the plaintiff appealed under CA038538 which was rejected by an un-named court official. Chief Justice Lance Finch of the Appeal Court of the B.C. Supreme Court did not confirm this action of arguably `hiding a judicial decision behind an administrative action` TAB 6  Sept. 26-2012  letter to L.F. from Callow -  3 pages pp.37-39 (no response)

 

10) A similar problem applied to the Supreme Court of Canada in rejecting a Federal Court of Canada appeal by this plaintiff in what appears to be a misquote of Rule 40 by the administrative powers of the SCofC,or at worse, usurping judicial powers. TAB 7 Nov. 17-2011 -Letter from Appeal Court dropping CA038538 from docket -1 page 40 & November 25-2011 - plaintiff response – 4 pages pp.41-44

11) The failure of the SCof C on two earlier occasions is also noted: (a) universality of unions (b) ultimate remedy  which prompted the plaintiff to file Form 25C citing the connection of Chief Justice the Rt. Hon. B. McLachlin to all of these proceedings. In (a) she sat with former Chief Justice Rt. Hon. A. Lamer (d). and Hon. Cory (r). She was Chief Justice during the successive appeals. TAB 8 (form 25C)  December 28-2011 – 1 page 45

 

12) The application of the Employer and Union for expenses incurred in preparing for CA038538 is problematical and accounts for this appeal to the SCof C. TAB 9 – Sept. 12-2012 The letter to the Judicial Council of Judges enunciates those difficulties2 pages pp.46-47 (I) Under what authority may the judge act considering that the plaintiff was prohibited from presenting argument at this September 25 hearing due to the MacKenzie Creed. Should the SCofC have seen fit to hear this third appeal to them on `usurped judicial authority`; that question would need not have arisen. Now that question threatens the very underpinings of the Canadian Judicial System as the plaintiff has effectively been placed ‘outside’ the law by the September 25 hearings .

(ll) How may the presiding justice ascertain damages considering that there was no hearing from which costs may flow for CA038538 due arguably to judicial chicanery as noted above.

(lll) A corollary to the above is that it was the court, and not the plaintiff who dropped CA038538 from the docket for reasons best known to themselves SEE TAB 7

(1V) The above in 12) cites why the MacKenzie Creed is the most heinous judgment in Canadian Judicial Jurisprudence seeking, as it does, to outlaw a litigant from access to the judicial system in an unresolved legal matter which the court recognized at one time as one requiring a judicial decision.

 

13) A success of the current petition for interim compensation would have one concrete benefit in that the Ontario Teachers Pension Board would be able to finalize pension allotment. Currently, this plaintiff is receiving a partial pension from this Board based on contributions from both the B.C. fund and the Ontario fund as per transfer regulations although it should be noted that four years transpired before that action commenced. While the B.C. Public Teachers Pension Board would not dispense any pension – apparently on the grounds that a final court disposition had not been made although we really don’t know as they never responded to my enquiries – the Ontario Private Pension fund did not feel obliged to follow these B.C. judicial decisions or lack thereof.

 

ISSUE AT QUESTION: Under which circumstance(s) may a Justice or Registrar act as an agent of one of the respondents at the expense of another respondent?  May that Order be conducted in such fashion that the normal sequence of pursuing a matter to the Supreme Court of Canada is truncated?

 

ACTION REQUIRED

 

1) To quash the Order(s) of September 25 of the Employer and Union as being ‘ultra vires’.

 

2) To return the $10,000 surety to the plaintiff as he has no access to a B.C. Court to apply for this purpose.

 

3) To declare the 27 year unresolved legal matter, in which the courts in their wisdom decided to allot the powers solely to the Employer and Union to resolve,  to have been breached by any reasonable interpretation of any ‘statute of limitations’.

 

4) Provide the plaintiff with full judicial recognition which he always believed that he had anyway although the SCof C failed to handle this most important issue regarding the collective bargaining relationship under the ‘universality of Unions’ question.

 

5) Assign the plaintiff back to salary as per the collective bargaining rules as he should not have been cut off until a resolution had been found. All back pay plus interest appropriately compounded to November 4-1985 is requested. Lay-off date was June 26-1985 Under BILL 35 which was declared law on July 1-1985.To this end, an action has been filed in Ontario Superior Court (#12-54944) to be heard November 1-2012. That action preceded the current surety actions. In #12-54944, the Employer repeatedly refuses to provide an argument as to why they are not culpable in that regard of paying interim compensation which belongs to this plaintiff apart from judicial outcomes.TAB 10 Sept. 4-2012 letter from Hicks Morley to Callow 1 p.48

 

6) In all of the above, the over-riding challenge is one of natural justice reminiscent of this line:

In the words of Justice Estey (St. Anne Nackawic)…’What must be avoided at all costs is a fundamental deprivation of justice under the law.  He must have prophetically had the Employee’s Case(Canada) in mind.

 

7) Whatever other remuneration the SCofC would assign this plaintiff (or respondent as the particular case may be) .

 

LOWER COURT JUDGMENTS – SEE TAB 3 pages 28-30

 

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For legal interests, TAB 3 pp.13-14, these 2004 comments should be of interest although the current action is restricted to surety payment irregularities which, as they do, challenge the whole judiciary order.

 

MEMORANDUM OF ARGUMENT

 

1. This case for which leave to appeal is sought raises the following issues of national or public importance:

a) Where an employer and union conspire against an employee in a collective bargaining grievance process, in circumstances where the Labour Relations Board does not have exclusive jurisdiction to hear unfair representation complaints, does the court have jurisdiction to hear a claim by the employee based on that conspiracy?

b) Even in analagous conspiratorial situations where the Labour Relations Board has exclusive jurisdiction to hear unfair representation complaints, is that jurisdiction premised on the validity of the collective bargaining agreement?

c) If so, does the alleged grievance process which goes to the very root of the public policy trade off (abdication of personal rights to pursue a grievance in return for collective representation by the union) vitiate the collective bargaining agreement?

 

2. It is incorrect to conclude that The School Amendment Act (1985) or its repeal affects the national or public importance of the issues raised. While The School Amendment Act (1985) did contain the deemed provisions of the collective bargaining agreement in this case, the issues raised transcend this particular agreement and apply to all collective bargaining agreements. Further the issues raised are not dependent on the legal basis of the employer’s termination decision, be it The School Amendment Act (1985), some other legislation, or the common law. The issues raised presume a grievance has arisen for whatever reason, and the issues are related to the grievance resolution process, not the underlying grievance.

 

Dated at Ottawa March 31, 2004   N.B.  SC of C failed to hear this submission

 

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TAB 5  pages 35-36 illustrates the problem of collecting pension without a court finding. Once again, this petition was not heard due to a lack of status (only Union may act for client):

S075775  Vancouver Registry  May 15,2008

Between:  Roger Callow   Petitioner

And: School District #45(West Vancouver) & West Vancouver Teachers Association Respondents

AFFIDAVIT

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. Attached as Exhibit `1` is correspondence received from the teacher`s pension plan.

8. 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.