LEGAL
ARGUMENTS - FOR LEGAL SPECIALISTS (January 2017)
QUOTES: A)True Justice Robert K. Tanenbaum
'Well, basically, the system, not just this office, but every prosecutorial organization,
is essentially corrupt. It's so easy to pass laws, politicians love to pass
laws...we're so overloaded that we can't actually do what we're supposed to do.
So we perform an imitation of justice...because moving the system along becomes
the prime value, not making sure that the laws are carried out. Get it?...and
the corruption you get from power is an order of magnitude more serious than
the kind you get from what I was talking about, the necessity for pretense.
Because it's personal...They don't teach this in law school, do they?'
'No...So gradually things will improve?'
'No', said Karp sourly. 'Things will get worse. But we'll fight it all the way
down'
B)'The trial was a spectacle, a farce, a
ridiculous way to search for the truth. But as I learned, the truth was not
important. Perhaps in another era, a trial was an exercise in the presentation
of facts, the search for truth, and the finding of justice. Now a trial is a
contest in which one side will win and the other side will lose. Each side
expects the other to bend the rules or to cheat, so neither plays fair. The
truth is lost in the melee. The Racketeer John Grisham
C) 'The law's a farce, sonnyboy. You can plant evidence and suborn witnesses and
make sweetheart deals with the prosecution. The only laws we're really
interested in making stick are the laws of contract - because if commerce
doesn't work we're eating tree bark instead of bread.' Cassidy Morris West
D) 'What needs we fear it, for who can call us to account?' Lady MacBeth
E) 'A culture is unsalvageable if stabilizing forces
themselves become ruined and irrelevant.
...these 5
jeopardized pillars are... (5)
self policing by the learned professions Dark Age Ahead Jane Jacobs
N.B. NO oversight body will acknowledge my many complaints
against judges and lawyers, let alone rule one way or the other on the
issues=anarchy
F) 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.'
G) '...that whenever a thing seems at its zenith, you may
be sure its destruction has already started. Dictator
Robert Harris
H) D) 'If you can't find a lawyer who knows the law, find
one who knows the judge.' The Halls of
Justice L. Gruen.
CALLOW ARGUMENT - TAB 4 (2016) SC36993 (SK) c. 1997
FIRST ASPECT
OF THE COMPLAINT - THE PROPOSED ALTERNATIVE SETTLEMENT STRATEGY
(Letter from
Ottawa lawyer, Paul Conlin to B.C. Labour Board 1997)
The nub of part one of the Petitioner's complaint
before the B.C. Labour Relations Board ("the
Board") was that the Association failed to provide a fully considered
response to his request that the Association review, deliberate upon, and
assess the merits of his proposed alternative settlement strategy. The factual
assertions underlying this part of his complaint are set out in paragraphs 16
through 21 of the Petitioner's outline. The assertions are particularly germane
are as follows:
(a) The Association
through Mr. Yorke (see letter of February 24, 1997)
promised to "carefully consider (Mr. Callow's)
views concerning settlement";
(b) The Association had not previously (i.e. before the
Petitioner's request of July 14, 1997) considered the alternative strategy;
(c) Mr. Laughton provided
a "preliminary view" of the strategy only. His preliminary response
was given without knowledge of any legal support for the strategy, and with a
promise to "revisit" the issue on receipt of such authority;
(d) The Association (M.
Laughton) never indicated one way or the other, after being advised of the
legal foundation of the strategy, whether the strategy might have merit despite
three written requests from the Petitioner's counsel.
While the Board accepted (with hesitation)
that the Association had an obligation to respond to the Petitioner's request
"in a manner that accorded with its duty of fair representation", it
did not accept the Petitioner's factual assertions underlying the complaint as
it was required to do in making a S.13 determination. Rather the Board found
"there is no evidence from which it could be inferred that Laughton did
not review, or failed to be persuaded by, the Philip (SIC) authority either
arbitrarily or for reasons attributable to bad faith..." There clearly was
evidence (or factual assertions) as indicated in (a) (b) (c) & (d) above
from which it could be inferred that no full consideration of the strategy in
light of the legal authorities ever occurred, and that, if it did, the results
were not communicated to the Petitioner. In either case arbitrariness or bad
faith must be implied to Mr. Laughton. The only evidence that Mr. Laughton did
review the strategy was his initial response (Laughton letter of October 2,1997)
given with an admitted lack of knowledge of the legal basis for the strategy.
It is patently unreasonable to interpret that response as satisfying the
Association's duty to respond (a duty which the Board found to exist) without
arbitrariness or bad faith.
Having thus denied the Petitioner's
factual underpinnings and having determined, without jurisdiction, that the
Association did provide a meaningful response, the Board went on to conclude
that the "response" was reasonable.
In doing so, because there was no
Association response to the legal foundational elaboration of the strategy as
set out in Conlin's (Plaintiff's legal counsel)
letter of October 2, 1997, the Board had to review Mr. Laughton's
"preliminary view" following his cursory introduction to the strategy
(see Laughton letter of September 22, 1997). Here also the Board,
misinterpreted or failed to accept the factual assertions of the Petitioner.
The Board interpreted the Petitioner's factual position as being that the
success of the alternate strategy rested on either a judicial/arbitral finding
of liability, or an admission of liability. The Board's reasoning appears to be
that since the Association had a right not to pursue arbitration (which the
Board concluded was the only means of determining liability) and since the
School Board was not likely to admit liability, the Association's refusal to
pursue the alternative strategy was reasonable.
The Labour Board
based its finding that the Association had a right not to pursue arbitration on
its own determination of the issues in the Petitioner's first complaint. The
Board's decision on the first complaint is under judicial review but no date
for a hearing has yet been set. The Board's conclusion that its decision had been confirmed by the
Supreme Court and Court of Appeal is therefore erroneous, both in relation to
the procedural (timeliness) issue, and in relation to the merits of whether the
Association had a right not to pursue arbitration.
If the Board, when referring to Court
confirmation of the Association's right not to pursue arbitration, was alluding
to the decisions of the B.C. Supreme Court and Court of Appeal in proceedings
initiated by the Petitioner not involving the Board, it was mistaken as to any
such confirmation. All such decisions by either the Supreme Court of B.C. or
the Court of Appeal involved other issues and were decided on the basis that
the Petitioner, as a member of a collective bargaining unit, had no status to
pursue his claims. Far from determining that the Association had a right not to
pursue arbitration or that arbitration was precluded, Mr. Justice Spencer
(1995) suggested a method of getting arbitration on the rails. Further, because
the circumstances giving rise to the Petitioner's lay-off grievance predated
the Association's certification and the mandatory applicability of the Labour Relations Code to the Petitioner's
complaint, it is open to the Petitioner to have the unsolved issue of the
merits of his first complaint determined in Court, quite apart from the
judicial review of the Board's untimeliness decision
on that complaint.
The Board's error in finding that the
Association's action in refusing to pursue the alternative strategy was
reasonable goes beyond the Board's mistaken premise that the Association had a
right not to pursue arbitration in aid of reinstatement. It compounded its
error by extending its approval of the Association's decision not to pursue
arbitration in aid of reinstatement to the Association's decision not to pursue
arbitration in aid of compensation. It did so even though in finding that the
second complaint was timely, it carefully distinguished the actions of the
Association in pursuing reinstatement on the one hand, and financial settlement
on the other (see paragraph 31 of
decision). It correctly found that the two remedies were independent of
each other. Similarly the means of achieving those remedies ought also to have
been viewed independently.
The conclusion therefore reached by the
Board that the Association acted reasonably in deciding not to pursue the
alternative strategy was based on a faulty premise, namely, that the
Association had a right not to pursue arbitration and, by extension, that the
Association was under no obligation to have liability determined under any
circumstances. To say that it is reasonable to be unwilling to determine
liability or an unreasonable position on compensation for Mr. Callow, no matter
which strategy is pursued, is either futile or entirely dependent on the benevolence
of the School Board. The Board's conclusion is therefore patently unreasonable.
Parenthetically, the School Board has failed to demonstrate any such
benevolence. In fact in negotiations with the Association it initially denied
Mr. Callow's right to any interest on any
compensation that might be agreed to, and later offered a partial payment only
of court order interest. That offer was subsequently withdrawn. Both the School
Board and the Association seem more intent on immediate collection of legal
costs awarded against Mr. Callow as a result of his effort to achieve fair
compensation than they are in providing fair compensation to him.
MY ADDENDUM (2016)
1) If you
can get through the legalspeak, compensation depends
on the legitimacy of the lay-off of Mr. Callow in June of 1985. To date there
is no decision (arbitration quashed) leaving him in limbo for 30 years; a preposterous position for any litigant. No
compensation has been paid.
2) Any such
enquiry held by the Labour Board or courts would have
forced disclosure and the fact that
Justice Southin covered-up a conspiracy of massive
proportions in 1986.
3) It would
also permit an Employer to argue that under BILL 35 conditions, the courts and
Union under the collective bargaining rules had no jurisdiction in this matter
and why they claim they owe no compensation in this matter as the Arbitrator's
Report is the final word; not that of the court.
3) The SCofC in 1997 compounded that cover-up by refusing to hear
this matter under the 'universality of
unions' thus compromising the entire
Union movement.
4) The SCofC in 2004 refused to hear this matter under 'ultimate remedy' hence 'no legal answer
became a legal answer' That reduced Canada to Third World status.
5) In 2016,
in the SCofC appeal of QC failure to produce 'disclosure' on June 09-2016 decimates
the entire justice system as all written law becomes redundant. That's anarchy.
6) Whom runs
Canada? SCofC Chief Justice B. McLachlin
or Prime Minister Justin Trudeau?
The West Vancouver school board should
reinstate dismissed teacher Roger Callow in light of a B.C. Supreme Court
decision earlier this week, B.C. Teachers Federation president Elsie McMurphy said Thursday...McMurphy
said the teachers' federation is pleased with the decision, as it should
discourage school boards from using the legislation in a way it was not
intended to be used. She said it was encouraging that Justice Southin stressed teachers' rights to due process if they
are to be terminated...She said she doesn't like the idea of sending it back to
the arbitrator, because it would be difficult for him to admit he's wrong. He
(Callow) should be simply reinstated by the board....
Commentary
1) The
failure of the Union to place the School District 'into dispute' was a signal to the authorities that the Union did
not want any investigation of my charges of fraud against an administrator
(until 1988, administrators were part of the Union). My return would have
forced that issue.
2) There
were a number of attempts by other School Boards to use BILL 35 which the Union
talked out of leaving the case in West Vancouver to proceed under highly
dubious circumstances.
3) The
matter did not go back to arbitration due to the intractability of both the
Union and Employer in this squeeze play leaving me in limbo in this unresolved labour case. The B.C. courts (Spencer j. Decision 1995)
decided that I had no status under these conditions to gain compensation (deferred
salary plus pension rights- for 30 years as it turns out). The 'Cullen Creed'
expelled me from B.C. in July of 2013 forcing me into other court systems which
have fallen on their sword in order to derail this case. All of Canada is
poorer for these judicial machinations.
4) The Union
had no intention of proceeding to court to appeal the arbitration. It was my
change of lawyers which prompted a 'delayed' support; much like the CBC's Jian Ghomeshi case.
...' West Vancouver
taxpayers will happily pay whatever cost is necessary to ensure the teachers
standing in front of their children have current demonstrated ability,'
chairman Mike Smith said after the board voted this week to take the matter to
the B.C. Court of Appeal....
But Smith said the board
is going ahead with an appeal, which he estimated could cost at least $10,000.
(they lost RC) "because we believe the judge erred. (my italics) According to BILL 35, the decision of the
arbitrator is binding. There is no right of appeal. (There is if fraud is
shown. That is the importance of disclosure
of the School Board meeting notes of June 1985.)
In her ruling, the judge said: "There
was evidence upon which the arbitrator could reasonably have concluded the
board used the act to rid itself of a troublesome pedant. Mr. Callow ...has
been a thorn in the side of the West Vancouver school board." (euphemism
for 'whistleblower')
COMMENTARY
5) 'current
demonstrated ability' is undefined in BILL 35 and in law in general but may not
be used to refer to teacher competence as BILL 35 was in addition to and did
not cancel out any of the provisions of the collective bargaining process. The
current SCofC #36993
seeks to challenge the ultra vires nature of this BILL 35 making the lay-off into a
nullity.
6) This
basic challenge between 'imposed' government
legislation and the jurisdiction of the courts (the SCofC
challenge #36993 SK ) is at the
heart of the smooth operation of our democracy. Failure first by the B.C. Labour Board in 1996 and then the SCofC
in 1997 to hold an open enquiry established the nature of the cover-up which
extends to the present day in 2016. That failure has led to the decimation of
the Justice System in 10 separate court systems and over 40 judges. On June
9,2016, the SCofC is to act on the Quebec excesses (#36883) in this case. Failure once
again - there have been two SCofC failures to date
(1997 & 2004) - would be 'strike 3' for the Justice System forcing the
Prime Minister to take executive action.
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. 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.
8. Whatever
approach is made, disclosure as outlined above is at the root of any
successful remedy.
Supreme Court Act (SCofC)
40. (1) Subsection to subsection (3), an appeal
lies to the Supreme Court from any final or other judgment of the Federal Court
f Appeal or of the highest court of final resort in a province, or a judge
thereof, in which judgment can be had in the particular case sought to be
appealed to the Supreme Court, whether or not leave to appeal to the Supreme
Court has been refused by any other court, where, with respect to the
particular case sought to be appealed, the Supreme Court is of the opinion that
any question involved therein is, by reason of its public importance of any
issue of law or any issue of mixed law and fact involved in that question, one
that ought to be decided by the Supreme Court or is, for any other reason, of
such nature or significance as to warrant decision by it, and leave to appeal
from that judgment is accordingly granted by the Supreme Court.
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.
CHARTER OF HUMAN RIGHTS AND
FREEDOMS 1982 (excerpts)
One of the most notable
effects of the adoption of the Charter was to greatly expand the scope of judicial review,
because the Charter is more explicit with respect to the guarantee of rights
and the role of judges in enforcing them than was the Bill of Rights. The courts, when confronted with violations of Charter rights,
have struck down unconstitutional federal and provincial statutes and
regulations or parts of statutes and regulations, as they did when Canadian case law was primarily concerned with resolving issues of federalism. The Charter, however, granted new powers to the
courts to enforce remedies that are more creative and to exclude more evidence
in trials. These powers are greater than what was typical under the common law
and under a system of government that, influenced by Canada's mother country
the United Kingdom, was based upon Parliamentary
supremacy. As a result, the Charter
has attracted both broad support from a majority of the Canadian electorate and
criticisms by opponents of increased judicial power.
The Charter only applies to government laws and actions (including the laws and
actions of federal, provincial, and municipal governments and public school
boards), and sometimes to the common law, not to private activity
Equality rights:
Section 15:
equal treatment before and under the law, and equal protection and benefit of
the law without discrimination.
The notwithstanding clause
authorizes governments to temporarily override the rights and freedoms in
sections 2 and 7–15 for up to five years, subject to renewal
Interpretation and enforcement
The task of interpreting and enforcing the Charter falls to
the courts, with the Supreme Court of Canada being the ultimate authority on
the matter.
With the Charter's
supremacy confirmed by section 52 of the Constitution Act, 1982, the courts
continued their practice of striking down unconstitutional statutes or parts of
statutes as they had with earlier case law regarding federalism
In general, courts have
embraced a purposive interpretation of Charter rights...
This is tied to the generous
interpretation of rights, as the purpose of the Charter provisions is
assumed to be to increase rights and freedoms of people in a variety of
circumstances, at the expense of the government powers.
The only values mentioned
by the Charter's preamble are recognition for the supremacy of God and the rule of law,
Most importantly, from a lawyer's perspective,
is the fact that the principle of stare decisis does not apply to tribunals. In other words, a
tribunal adjudicator could legally make a decision that differs from a past
decision, on the same subject and issues, delivered by the highest court in the
land. Because a tribunal is not bound by legal precedent, established by itself
or by a reviewing court, a tribunal is not a court even though it performs an
important adjudicative function and contributes to the development of law like
a court would do.
Although stare decisis
does not apply to tribunals, their adjudicators will likely nonetheless find a
prior court decision on a similar subject to be highly persuasive and will
likely follow the courts in order to ensure consistency in the law and to
prevent the embarrassment of having their decisions overturned by the courts.
The same is true for past decisions of the tribunal.
Among the federal tribunals, there is a small
group of tribunals whose decisions must be appealed directly to the Federal
Court of Appeal rather than to the Federal Court Trial Division. These
so-called "super tribunals" are listed in Subsection 28(1) of the Federal
Court Act (R.S.C. 1985, Chapter F-7) and some examples include the National
Energy Board, Canadian International Trade Tribunal, the Competition Tribunal,
the Canada Industrial Relations Board (i.e. federal labour
board), the Copyright Board, and the Canadian Radio-television and Telecommunications
Commission ("CRTC").
The superior courts from the provinces and
territories are courts of inherent
jurisdiction, which means that the jurisdiction
of the superior courts is more than just what is conferred by statute.
Following the principles of English common law, because the superior courts
derive their authority from the Constitution, they can hear any matter unless
there is a federal or provincial statute that says otherwise or that gives exclusive jurisdiction to some other court or tribunal. The doctrine of
inherent jurisdiction gives superior courts greater freedom than statutory
courts to be flexible and creative in the delivering of legal remedies and
relief.