I already have material evidence that I believe is sufficient to win this action well beyond a balance of probabilities. However, I had sent the defendants' lawyer a "demand for discovery of documents", which was ignored. The motion to dismiss was the response.

Given the courts' previous involvement in this matter I will be making a very strong argument of institutional bias on the part of the courts, a matter I would raise even if the A.G. had not previously spent 20 years on the same bench.

I have been before the B.C. courts on four previous occasions as my own counsel. Those were the result of a judicial review petition (challenging Labour Board decisions), whereas this is a lawsuit. One of the unprecedented features of this action is that I am claiming a tort injury in my previous pursuit of justice, which failed because it was based on a perverse and illegally re-engineered statutory provision.

I am hoping that my previous experience as a self-represented litigant will assist me in prevailing in this action. I have met a number of other people acting as their own counsel who will attest that the challenge cannot be over-stated. Perhaps the Provincial Court and some tribunals are receptive to self-represented people, but the Superior Courts and the Labour Board are hostile to us, and they often make no effort to disguise that fact.

A point I now wish to raise in court is that the court system is paid for by all taxpayers, not just a few wealthy and privileged entities. If they want a private justice system from which the majority of citizens are excluded then they should pay for it themselves.

My research on justice and democracy in the Canadian context tells me that the reality is far removed from the theory. However, I believe that is because as citizens we are trained not to act on our own behalf and to rely on specialists.

The result of a privileged class of specialists who act almost exclusively in their own interest is systemic oppression. However, I believe we now have the means to assert ourselves and begin building a just and democratic society.

[ 01 May 2007: Message edited by: gbuddy ]

At this point, I guess I should also wish you the best of luck and I hope, despite the obvious weighted situation against you (suing the government or the rich is usually not a winning scenario, no matter how just or strong the case).

quote:

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A point I now wish to raise in court is that the court system is paid for by all taxpayers, not just a few wealthy and privileged entities. If they want a private justice system from which the majority of citizens are excluded then they should pay for it themselves.

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But that's part of the whole injustice of the corporate capitalist system: the wealthy and privileged get to control it; the rest of us working class folks get to pay for it (that's part of what makes them privileged and wealthy).

On another note, something else I have recently discovered provides an expanded context for this case. The real problem with the Labour Code is not the provision I am challenging. The real problem is the DFR provision, to which it is subordinate. I have always wondered why this provision got added to all the Canadian labour statutes. The answer seems to be a BC Supreme Court judgement from 1969 – Fisher v. Pemberton. I found and have read the judgement at the courthouse library. It makes for interesting reading.

This was evidently the first DFR case heard by a court in Canada. Or at least the first one that relied on the familiar language that had come out of an earlier American case. The interpretation of the Duty is very clear and very strong, and the judgement is that the union did not fulfill its duty. There is none of the obfuscation about the standard that litters the BC Labour Board’s decisions, and that reached its absurd zenith in the Chair’s Judd decision.

However, the plaintiff received damages in the amount of $1, and the detailed background in the judgement is clearly provided to explain why. If that background is to be believed, then the conclusion supposedly is that the plaintiff would never have prevailed in grievance arbitration even if the union had acted in his behalf.

Another interesting point is that one of the two lawyers representing the plaintiff was M. Southin. I believe that would be Mary Southin, the recently retired B.C. judge who gained some notoriety as the “smoking judge”. Even before her elevation to the bench therefore, Ms. Southin was intimately familiar with the labour relations regime and the dynamics of such cases. It is helpful to know this because the judges like to justify their deference to the Labour Board in part by giving the impression that the labour relations regime is an area they know little about.

An obvious conclusion from reading the Fisher v. Pemberton case is that the door had been opened for other cases that would result in real damages. Did any such cases make it before the Canadian courts? I don’t know yet. Quite possibly not. The establishment would have engineered other outcomes, even generous settlements if necessary, to forestall a flood of litigation. The answer they came up with was the statutory DFR. Move it into the quasi-courts where it would be heard by adjudicators appointed at the pleasure of the unions and employers.

And so it appears the first DFR provision was added to the Ontario statute in 1971, and to the new B.C. statute shortly after that.

[ 13 May 2007: Message edited by: gbuddy ]

From an initial reading I would say this argument would fail in any competent, impartial court. It concludes:

42. Respectfully, this is improper use by the Plaintiff of the civil court process; this action constitutes an abuse of the processes of this Court.

43. Therefore, the Province will respectfuly submit that this action should be struck under Rule 19(24), with costs to the Defendants ordered as special costs.

Apart from all other issues, I find the matter of costs most revealing. I was specifically awarded costs against CUPE in the first judicial review judgement and never pursued the matter. After two more court hearings the court registry had approved costs against me for CUPE and the City of Vancouver totaling over $20,000. There has never been any attempt to collect, which seems to support the conclusion that in cases like mine the awarding of costs is primarily intended to encumber the plaintiff and stop any further attempt at litigation.

I do not know what is meant by "special" costs but this motion of the defendants is clearly itself an abuse of process, brought entirely in bad faith, so maybe I'll get "special" costs.

A link to your press release about labour code violations has been posted on the Babble website.

This has reminded me that quite recently I attended a meeting in my Vancouver neighborhood with Adriane Carr, the subject of which was justice. I intended to contact her office with information about my specific efforts in that regard, but have been too busy lately. Perhaps this can be forwarded to her office.

There is an appendix in Mr. Arthurs lengthy report that lists the names of parties who provided submissions. When a copy of the report arrived for me in the mail I wondered why because I had forgotten that I had made a submission. It was about the scourge of workplace bullying and it may well be why that topic has been addressed with specific recommendations in the report.

On June 1 I will be in court arguing a case that reveals that to a large degree workplace bullying is the direct result of the profound problems with the Canadian justice system. The culmination of litigation that began for me in 2000 with a labour arbitration hearing is now a lawsuit for misfeasance in public office that I initiated in January against B.C.'s Attorney General and other defendants.

Last November I received at home a phonecall from a well respected retired judge who, on the basis of my Open Letter cited below, encouraged me to proceed with this lawsuit despite the fact that I cannot hope to secure counsel. This is one of a handful of positive signals I have received from members of the establishment. Otherwise I have faced stonewalling, evasion, and even outright hostility.

On June 1 I will be arguing that mine is a public interest case that warrants funding, while the defendants will try to have my lawsuit dismissed without a trial. They may succeed, in which case I will appeal, and I will also put the entire case online so that it can at last be judged by the court of public opinion. I am optimistic that they will fail, in which case there will be a full trial of unprecedented consequence.

Copied below is an email that I sent in March to the former Chief Justice of B.C. and to the President of UBC. I have since included a copy of that email with a letter to the current Chief Justice of the BC Supreme Court, in the hope that it may result in justice finally being served on June 1.

Attached also is the Outline I have received from the defendants which provides their perspective on this case. Ironically while I am seeking interim funding they are seeking special costs against me, a proxy for punitive damages, so the outcome of this hearing should be quite interesting.

I remain very optimistic that I will ultimately be successful with what has admittedly become a personal crusade. I have gained enormous insight into the inherent problems with Canada's governing institutions, which I believe could be substantially addressed with some very simple reforms.

If I am successful with this case, hopefully I will have some leverage to successfully advocate for those reforms.

As I want to bring everything I have uncovered to the attention of the Canadian public you are free to share this correspondence with anyone.

Regards,

The defendants' lawyer had no surprises for us. He even declined to rebut my argument except to complain that I had impugned his character by pointing out that the most important precedent - the Hunt v. Carey case - was notably missing from his Book of Authorities.

I had emphasized during my opening that I would like the judge - given that we had a whole day - to give us the bottom line orally. Would she grant the defendants their summary dismissal or not?

Not surprisingly, after we were finished, she declined to do so. I couldn't make out a word of her explanation for this refusal. Hopefully it will be on the transcript.