Friday, November 30, 2012

In which I ask for Exclusion of Parties

I told you last time how I filed a Notice of Motion asking for the exclusion of co-defendants from attending each others' Examinations for Discovery. Today I'm going to tell you a little bit about my motion. I already said it's a little mixed up because I didn't exactly know the difference between a Motion, and Affidavit, and a Brief. So some of the things that were supposed to go in one, I ended up putting in another. But I think I've got them all in there one way way or another.

You can see that I begin each section of my Motion with a phrase in capital letters. This comes straight from the Court of Queen's bench templates, specifically Form 37a. The only problem is they don't tell you exactly what everything means. I think I'm OK when I say "THE MOTION IS FOR the exclusion of co-defendants....". But then they ask me the grounds for the motion. I list three grounds here, attempting to be as succinct as possible. I actually reviewed the case law to find what judges in other jurisdictions were looking for when they granted this kind of motion, and I tried to include as much of that as possible without getting into "arguments".

I was also supposed to included any "statutory provision" which I intended to rely on, and I had a bit of a problem here. I pored through the Queen's Bench rules, and couldn't find anything relating specifically to this situation. It seems that what lawyers do in this situation is they just cite the Queen's Bench Rules "in general", so that's probably what I ought to have done. But in fact, I am relying on the case law, not on the QB rules. Which brings us to the next item. "THE FOLLOWING DOCUMENTARY EVIDENCE will be used....".

This is where I list the cases I found. Of course that's messed up: a case isn't "documentary evidence". In fact, I'm supposed to list the cases I rely on, but I'm supposed to do that in my Brief. So they're out of place here. What I was supposed to put here is that I intend to file an AFFIDAVIT which will list the evidence I plan to bring. At least, I think that's what goes here. In fact, as we'll see, I do list several pieces of evidence in my Affidavit, and I'm quite sure I'm not supposed to list them twice...once in my Notice, and again in my Affidavit. So I think all I was expected to put here was to list my affidavit, which I ought to have then filed simultaneously with the Notice of Motion.

The other thing I included in my "list of evidence" was an undertaking to file a Brief in support of the motion. Again, I think this was unnecessary. If you file a brief, you file a don't have to tell them in advance. In any case, it's all done. And as of yesterday, I've also filed my Affidavit and my Brief. So as far as I'm concerned, my filings are all complete. When we return, we can talk about my Affidavit, which you can look at here.

Wednesday, November 28, 2012

In which I file a Motion

When we left off, I told you I had just filed a Notice of Motion to have the opposing parties excluding from attending the discoveries of their co-defendants. You can check out my Motion online and see how I've done it, but I have to caution you, if you're thinking of doing something similar yourself, that I'm not sure I've done it quite right.

I put a lot of effort into my initial Statement of Claim, and learned everything I could about what does and doesn't go into one. I can't say my Statement of Claim is perfect, but I can at least take some comfort in the fact that my opponents did not attempt to have it thrown out of court prior to going to trial, as is the fate of many claims, and not just those filed by self-represented litigants.

On the Notice of Motion, I'm actually on shakier ground. I'm learning the process as I go along, and I've had a couple of little bumps. I started off by using the template Form 37A found on the Queen's Bench website. Right at the start it tells you to state the time and place where the motion is to be heard. Not knowing any better, I put down an arbitrary date of Monday the 17th of December. I wanted to allow enough time to give notice to the other side so they could prepare their arguments, and four weeks seeemed about right. And I put down an arbitrary time of 10:00 am, because the form asks you to fill in a time. By coincidence, this happens to be the time when motions are actually heard before a judge. Perfect, right?

Not exactly. It seems I don't want to be heard by a judge, but by a "Master". I don't know what the difference is, but that's what I was supposed to ask for. And the Masters hear motions at 9:30 on Monday mornings.  Also, although I have little doubt my motion will be opposed by the other side, it seems that all motions automatically go on the "uncontested" list. If the other side shows up to contest it, the motion is automatically re-scheduled for a future date. So there was no need for me to wait four weeks before going before the Master.

After learning all this, I went back to court the next day with an Amended Notice of Motion. So I was pretty dismayed to find out that once you file a motion, you can't amend it. Actually, the clerks at the Law Courts building had a bit of a time figuring out what I needed to do. At first it looked like I would have to abandon my original motion and file a brand new one, which would cost me another $100 for the filing fee.  But then they figured out that I could just adjourn the motion, and then I  re-open it before a Master, on whatever date I wanted. They even gave me my new appointment right then and there, for 9:30 am on Monday the 10th. But they couldn't let me adjourn the original date so easily...I had to get written consent from the other parties. Not a big deal, but it means a little more running around. No harm done, and I saved $100.

Having filed the motion, I'm not done yet. With a Statement of Claim, you put everything into one document, and that's it. A motion is somehow different...there are really three documents that need to be filed. First there's your Notice of Motion. Then you need an Affidavit of Facts. And finally you submit a Brief with your supporting arguments. (And if your Brief cites previous cases, your supposed to include a separate Book with copies of the judgements from those cases.)

You can see in my Notice of Motion that I undertake to file my Brief within ten days. What about my Affidavit? I think that was actually supposed to go in together with my Notice, but no matter; I'll include one when I do my Brief. What is confusing to me is to figure out exactly what goes in the Notice, what goes in the Affidavit, and what goes in the Brief?

As near as I can tell, the combination of the Notice of Motion and the Affidavit of Facts is more or less the equivalent of the Statement of Claim. You are notifying the other party of exactly what you are asking for, and including facts which, assuming they are true, would supposedly justify the granting of the motion. The Brief is different. In the brief you are arguing your case. That's something you don't do when you make a Statement of Claim. In that case, you don't make your arguments until you go to court. But in a Motion, they want you to put down your arguments ahead of time.

I've prepared my Affidavit and my Brief, and I think they're pretty good. I'll post them online for you in the next couple of days. I'm not sure that I've put everything where it facts and arguments may be spilling over from one document to another here and there, but I think the courts will give me some slack on that. The main thing is that if I take all three filings together...the Notice, the Affidavit, and the Brief...that I think I've covered all my bases. We'll see how that works out.

Sunday, November 25, 2012

In which I serve Notice of Examination

The first part of the discovery process is relatively straightforward. Both sides have to file an Affidavit of Documents, listing all documents in their possession containing information relevant to the case. I filed mine last week, and I am still waiting for my opponents to file theirs. In the meantime, once you have filed, you are entitled to summon the opposing parties to be examined. You do this by serving them with a Notice of Examination. This I have also done.

I am not exactly ready to conduct my examinations, but I served notice anyways. I did so because according to the Court of Queen's Bench Rules, the party who serves first is the party who gets to examine first. I want to examine them before they examine me. So I served notice requiring each of the parties to report for examination "at a location...and on a date and time to be agreed upon...". This is a bit irregular. You're expected to name a specific time and place, but I wasn't ready to do that. I just wanted to establish my priority.

So you're wondering: why do I care about priority and why wouldn't I name a time and place?

The priority issue goes back to the very start of my conflict with the university. They wanted me to tell them my side of the story first, before they would tell me what other people were saying about me. I wouldn't agree to this. That's what they call a fishing expedition. When someone's trying to build a case against you, it's a tremendous advantage if they can feel you out ahead of time.

So if I want to examine them first, why won't I name a time and place?

Now it gets complicated. Normally, when there are multiple defendants, they are all entitled to be present for the examinations. So while I am examining Party A, Parties B,C,D and E are sitting there observing. I don't want that. The crux of my case is that those parties got together to do me in, and the crux of their defense is that they didn't. They acted independently, motivated by nothing more than the desire to do their jobs. If I want to find holes in their narrative, it is a great advantage for me to be able to examine them separately, so they don't have the opportunity to harmonize their stories. Likewise, it is to their advantage to attend the examinations of their co-defendants.

I am therefore asking the Court to order that the various individual defendants be excluded from attending the examinations of their co-defendants. To this end, I have filed a motion with the court requesting just that. And until that motion is decided, I have no way of knowing what date I will be able to begin my examinations.

That's why I left the time and place on my Notice of Examination "to be agreed upon". It's rather irregular and I'm not sure that it's going to fly. But as far as I'm concerned, I'm on the record as having established my claim to priority. The real issue now is going to be my Motion for Exclusion.

I've posted my motion online, so you can look it over here. When we return, I'll explain how the process works and the way I plan to argue it.

Saturday, November 24, 2012

The Legal Process moves forward

Last month I told you about how I filed a Statement of Claim, initiating legal proceedings against the U of W. I even posted my Statement of Claim online so you could see what it looks like. Well, a few things have happened since then. The Manitoba rules allow the defendants twenty days to file a response to a Statement of Claim. I named five individual respondents plus the University of Winnipeg, and in due course I received two Statements of Defence: one from the firm of D'Arcy and Deacon, representing the University and its staff members, and another from the firm of Aikins, MacAulay and Thorvaldson representing the teachers from Gordon Bell.

My opponents claim they did not act with malice towards me, and that their actions were motivated by legitimate concerns about my behavior as a student teacher. Their position is summarized most succinctly by the letter from the Principal of Gordon Bell to the Director of Student Teaching at the university, requesting my removal from the school:

"As a follow-up to the documentation and our conversation about our concerns with Mr. M. Green, we are requesting that he do his student teaching block in another location/school. The reasons for our request are stated in the meeting summary and include:
 -refusing to submit lesson plans in   any   recognised standard format

-refusing to state or accept, that a lesson plan involves more than a “topic”

-refusing to follow teacher directions related to planning of lessons, lesson content and               disciplinary issues with students

-level of agitation and confrontation with staff: pacing the room while talking very loudly   (when asked to plan lessons and stick to the curricular topics), leaving the classroom  when he did not get exactly what he wanted, stating that things will only be done “on            his terms”, and “I trust no one, I trust myself”

-aggressively confronting and touching students

-students, in Grade 11 and 12, asking the teacher to please re-teach or teach the lessons  due to the lack of clarity and the refusal to answer questions.

-apprehension stated, about his erratic behaviour by both teachers and students

If you need further clarification, please call me.
Arlene Skull"
 I have to admit that these allegations make me look pretty horrible; but of course, that's what the court case is going to be all about. I don't think they're going to be able to sustain those claims; and more importantly, I don't think they're going to convince anyone that those claims were anything but malicious slanders designed to get me kicked out of the program. But that's an argument for another day.

The point is that all parties have now completed what they call their "pleadings", and the battle lines are drawn. This is significant. There was a distinct possibility that my opponents would try to have my Statement of Claim thrown out of court even before it got to trial. In my case there would be two obvious grounds for throwing out my claim: first, by saying that I have "failed to disclose a reasonable cause of action"; and second, to argue that it is the University's internal disciplinary bodies and not the Court which ought to have jurisdiction of matters of this kind. In fact, the lawyers for the University make both of these claims in their Statement of Defense. I originally thought that they meant thereby to have my claim struck down before it was heard; but it seems this is not the case. If they wanted to have my claim struck, they would have made a motion prior to filing a Statement of Defence. Once they file a Statement of Defence, it means they are going to trial. They will certainly make those arguments before the judge in the course of the trial, but I'm not worried about that.

And that pretty much brings to a close the first stage of the process, the so-called "pleadings". The next stage is called "discovery", and it is basically a matter of "you-show-me-yours-and-I'll-show you mine". (Just like sex, this "discovery" stage is often preceeded by extensive "pleadings".) Both sides are required to file a list of all documents in their possession, which they will subsequently be required to produce for the inspection of the opposing side. That's the first part of the discovery process. The next part is called examination. The litigants of both sides are required to make themselves available for detailed examination by the other party's lawyer. It's a little hard for me to believe that this is how it works, but apparently both sides are expected to divulge all relevant facts prior to the case going to trial. Whether or not this works in practise remains to be seen. I don't know how you force someone to answer a question if they claim to have no knowledge of the matter, even if you know they're lying. But in theory each side is entitled to full disclosure from the other side. We'll see how that works.