Friday, July 26, 2013

Butting Heads with Opposing Counsel

I started to tell you yesterday about my recent moves to recapture the initiative in my legal proceedings since getting a favorable ruling in the U of W's Motion for Summary Judgement. I don't want to give away all my moves here but one thing I've done is contact John Corlett, former U of W VP now occupying a similar post at Grant McEwen University in Edmonton, to feel him out with regard to bringing him back to Winnipeg on Examination for Discovery. Yesterday I showed you a copy of the letter I sent to Mr. Corlett just last week.

Mr. Meronek of D'Arcy and Deacon wrote back to me shortly thereafter, with a copy to Mr. Corlett, indicating that he would oppose any attempt on my part to examine Mr. Corlett on behalf of the University; that there were other current employees who would be more suitable as the University's designate on Examination for Discovery, and further, that my attempts to reschedule discovery were in any event premature pending the resolution of his appeal on the Summary Judgement motion.

I think Mr. Meronek was wrong to write that letter. The Queen's Bench Rules on Examination for Discovery state that when a corporation (which is to say, the U of W) is being examined, the examining party (that's me) is entitled to name the person to be examined, who can be a present or former employee (that would be Mr. Corlett).

I don't know why the rules are written that way. Probably because often there is a lapse of time between the filing of a claim events and the examinations, so that in the natural course of events employees come and employees go. But then there is the possibility of the "disgruntled ex-employee" scenario. The officers of the corporation are naturally going to be hostile to the party who is suing them, and will be very guarded in what information they are willing to divulge on discovery. In the case of an ex-employee, however, not necessarily. That is of course the reason why I chose to name Mr. Corlett as the University's designate, and that is undoubtedly why Mr. Meronek is so vehemently opposed to my selection. I don't know if Mr. Corlett is disgruntled. For all I know, he may be perfectly gruntled (although the tone of Mr. Meronek's response leads me to think otherwise.) But in either case he is no longer under the strict control of the U of W, so there is the possibility that I might get something out of him that I wouldn't get if I examined, say, Lloyd Axworthy. That's worth something to me.

What can Mr. Meronek do about it? In fact, the Queen's Bench rules do allow him to oppose (on a motion) my choice of examinee. But I'm not sure he'd succeed in such a motion. The rules, after all, specifically allow me to choose whom I will examine; if they also allow him to oppose that choice, surely it must be on the basis of something more than "we don't want Mr. Green to examine Mr. Corlett".

These are all interesting questions, and it's hard to say exactly where we're going with this. (And there are of course things that I could say but I won't for strategic reasons.) What I found objectionable about Mr. Meronek's letter was that it seemed to me, at least, to imply that there was something improper about me trying to examine Mr. Corlett...and in conveying that impression to Mr. Corlett, he was in effect making it more difficult to obtain his cooperation as a witness.

I didn't think that was fair play, so I wrote back to Mr. Meronek, with a copy to Mr. Corlett, insisting that Mr. Meronek write back to Mr. Corlett with a more explicit statement of his duties in the event that I were to subpoena him, including a stipulation that it was my right to designate Mr. Corlett as the University's representative.

And I told him if he didn't, I would consider filing a complaint with the Law Society.


When I started writing about this yesterday, I said I didn't want to start posting  excerpts from people's confidential correspondence. But I think I'm going to have to make an exception here. I've already posted the gist of what Mr. Meronek wrote me, and I've criticized what I called the "implication" of his remarks. So it really isn't fair of me to leave it at that. Here, then, is the text of the letter of Mr. Meronek which I objected to:

   We will oppose any attempt to have John Corlett examined. He is no longer associated with the U of Winnipeg & there are other current employees who have the requisite knowledge. In any event, as you are aware , we are appealing the decision of the Master & you are also facing a Summary Judgment motion from the other Defendants. Until those proceedings are resolved , it is pre-mature to arrange Examinations for Discovery.

And while we're at it, for the record, here is how I responded to this letter:

Dear Mr. Meronek:

I am concerned that your letter of this morning, which you copied to Mr. Corlett, may have given him the impression that he is not required to appear for examination, even if I proceed to subpoena him; or at the very least, that there is something improper about my attempts to examine him for discovery.

If this is indeed how you, as an officer of the court, wish to advise Mr. Corlett, then I think you ought to say so explicitly; in which case, I will consider filing a complaint with the Law Society; I am not a lawyer, but I would think such advice would constitute a form of obstruction of justice. Otherwise, I would urge you to advise Mr. Corlett that under the Queen's Bench Rules:

 i)  that I am indeed entitled to name an employee, past or present, as the university's designate for purposes of discovery; 
 ii) that having filed my Affidavit of Documents last year, I am now entitled to proceed to oral discovery;
 iii) that notwithstanding your appeal of Master Berthaudin's recent decision, there are at present no outstanding interlocutory motions in this matter which would entitle you to an automatic stay of proceedings.

Ordinarily it would not be my place to make demands as to how and when you ought to advise a third party; but in the present circumstances, where your letter has so severely compromised my legitimate rights to discovery, I do not see what lesser remedy would be sufficient.

Perhaps you have other advice which you feel justified in offering Mr. Corlett; that is your right. In any event, if you do not satisfy me that you are taking immediate steps to correct what I believe is a very wrong impression that you have given Mr. Corlett, then I will proceed accordingly.

I hope you understand my position in this matter.

Marty Green

Thursday, July 25, 2013

Things Get A Little Nasty

I've been posting rather sporadically as of late because a lot of what's going on involved correspondence between myself and opposing counsel; and I don't want to give them any reason to think they shouldn't communicate freely because their words might re-appear on this blog. But that doesn't mean I can't tell you what's going on.

As you know, if you've been following the case, the Master rejected the University's motion for Summary Judgement. In the meantime, various things have been put on hold, most notably:

1. The University has refused to file its affidavit of documents.
2. They have refused to provide answers to written interrogatories which I have filed and served.
3. They have refused to cooperate on oral Examinations for Discovery which I have been trying to schedule.

There is also the matter of my Motion for Exclusion of Parties which I filed last November and which has been on hold since January. That's the one where I ask the Court to exclude the University's various witnesses from each other's testimony so they don't have the opportunity to tailor their evidence. That motion has been on hold since January.

And there are also various other things sitting in limbo including Application for the Court to order Professor Metz to give me a grade on an assignment which he refuses to mark, and the Motion for Summary Judgement in my defamation suit against Professor Bush and his wife for accusing me of carrying out a home invasion, where I am still waiting for the University to file its Motions Brief.

To make a long story short, I wrote a number of emails over the last few weeks asking opposing counsel to inform me of their intentions on these and other matters, and I received basically no response. In the meantime they have appealed the Master's Ruling, and the Gordon Bell schoolteachers (the other defendants in this case) have announced that they intend to also file their own Motion for Summary Judgement.

So I finally decided I'd take matters into my own hands. I have been trying since last year to proceed with oral Examinations for Discovery, and had already scheduled an examination of former Academic Vice-President John Corlett when the University moved for summary judgement. Since then, Corlett has moved to Edmonton, which complicates my attempts to examine him. So I wrote him directly, explaining my intentions and asking him to comment. I copied my correspondence to opposing counsel and waited. A few days later, Corlett wrote back, saying only that he would comply with his legal duties.

It's understandable that a person just starting a new job (he's a Vice-President at Grant McEwen University in Edmonton) wouldn't want to get involved in old disputes involving his former employer. I respect that. So I wrote him back as follows, copying as always my correspondence to Mr. Meronek of D'Arcy and Deacon: (I don't intend to make a habit of reposting private correspondence in the blog, but I don't think I'm compromising anyone's confidentiality by showing you the letter I sent to Mr. Corlett).

Dear Mr. Corlett:
Thank you for your response to my inquiry. As you probably understand, your strict legal obligations are not engaged until such time as I serve you with a subpoena. However, I think it is not unusual in these situations for the parties to confer ahead of time on logisitics, e.g. convenient dates, acknowledgement of service, etc. Sometimes this is done through opposing counsel, but in this case I am not sure they have been communicating my intentions to you. That is why I approached you directly.
I am wondering if you would care to inform me as to dates, in August if possible or otherwise later in the fall, as to when you might be available; if you would agree to the sum of $600 as satisfactory compensation for travel and expenses which I am obliged to cover (Mr. Meronek can advise you if necessary on how this is calculated); and whether you would be willing to acknowledge service of Notice of Examination by return mail rather than put me to the expense of hiring a process server in Alberta. I hope you will let me know how you wish me to proceed in this regard.
Marty Green

And then things got interesting...

Sunday, July 14, 2013

Don't Call Us, We'll Call You

Haven't posted for a few weeks because there's some legal maneuvering going on that's not exactly reportable But I just heard an old song from the 70's on the radio and I had forgotten how clever it was. "Don't Call Us, We'll Call You" was recorded by a two-hit-wonder band called Sugarloaf and it's about a group trying to get a record contract and getting the brush-off wherever they go. It has the lines:

"Listen boys, you paid for the call:
You're not bad, but I've heard it all

and then the guitar lick "da..da..da-da-da DAH...da, da da..." while the voiceover says "sounds like John Paul and George". (It's a Beatles lick). I just love the way they work that kind of thing in. So I looked it up on Wikipedia, and it turns out there are a few more zingers. Notably, they touch-tone beeping you hear at the start of the song is actually an unlisted number at CBS records, who had just turned the guys down for a contract. Very smart.

Anyhow, if you've been following my fight with the University, I told you I won a judgement in my favor on their Summary Judgement motion last month. Well, the judgement has now been posted online at, so you can read it here if you're interested. You'll see that I've been awarded costs, which theoretically should come to something in the neighborhood of $2000 if and when I can collect it. The University has now turned around and appealed the ruling. That doesn't hurt me: I beat them once and I'll beat them again. But they gained six months on their losing motion, and I guess if they gain another six months is worth another few thousand to them. Anything to stop me from having my day in court.

So we'll see what's next. Meanwhile, here's that song I was talking about...