Thursday, August 29, 2013

Going to Court Tomorrow Morning

Summertime is supposed to be a quiet time for civil litigation, but I think it's pretty fair to say that as between me and the university, all hell has broken loose since the end of June. It started when Master Berthaudin ruled in my favor on the University's motion for summary judgement. The University announced it would appeal, and scheduled an appearance before the Master on September 3rd. That's not the date when you argue  the's just a preliminary appearance. The idea was that nothing would happen for two months. At least that was their idea.

I had the idea that since I won the motion, I could move ahead with my case. A lot of things had been put on hold since they filed their motion back in January, and I wanted them back on track. And according to my reading of the Queen's Bench rules, the losing party is not, in general, entitled to an automatic stay of proceedings just because they're appealing the decision.

So I started writing letters to opposing counsel, listing one by one the things that I wanted to proceed with, and asking their position. I got no responses....except, that is, for the schoolteachers, who had been promising since last January that they were going to respond to the interrogatories I had filed in November. Remember, they had chosen not to participate in the Univeristy's Motion for Summary, so in theory the case against them was still on. And they kept saying they were working on their responses to the interrogatories, they just needed more time. Well, they had had a change of heart. No, they weren't going to respond to the interrogatories. They were going to file their own Motion for Summary Judgement.

No word on why they hadn't joined with the professors on the earlier motion, or why they'd waited until now to announce their intentions. Of course, no explanation was was obvious that the whole thing was planned for the purposes of getting the maximum delay, to avoid having to go to trial on the issues. We'll see how that works out.

Having gotten no responses to my inquiries as to moving forward, I started to take the initiative. The first thing I did was to approach John Corlett, the ex-VP of the U whom I had tried to examine for discovery back in January, but was interrupted by the University's Motion for Summary. Since then Corlett had left the U and taken a job at Grant McEwen in Edmonton. I already told you how Mr. Meronek blew his stack when he found out I was contacting Corlett directly.

So then I decided, why not call someone closer to home for examination. Actually, I took my cue from Mr. Meronek. In one of his letters to me, he had written
 " 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."
Well, why not? So I wrote Mr. Meronek asking if he could make Ken McCluskey, the Dean of Education, available sometime in August. Mr. Meronek did not respond. So I did what I had to do: I served him with a Notice of Examination for the 27th of August.

Meanwhile, the interrogatories were sitting there unanswered. I was entitled to have those answers in my hands before going into oral discovery, so I filed a motion asking the Master to order the opposing parites, both the professors and the schoolteachers, to answer the interrogatories. We went to court on July 30th for a preliminary hearing. The professors argued that their appeal of the Master's decision entitled them to decline to answer the interrogatories. The schoolteachers argued that their intention to file a Motion for Summary Judgement entitled them to the same. The Master did not agree. (Since then, the Schoolteachers have indeed filed, and we're down for our preliminary appearance on September 10th.)

And here's where it gets a little confusing. Both those parties were appeared to be arguing that my motion had no merit and should not be allowed to proceed. The Master did not agree. Now, I had already filed the motion and my affidavit. So it was their turn...if they were going to oppose the motion, they were entitled to file affidavits. How long would they need, the judge asked them.

Both sides pleaded the difficulties of getting anything done in the summer. The Master was not overly impressed, but he gave them until August 29th. On that date we would come back before him, and then it would be my turn to file my Motions Brief.

Or would it??? Yesterday I got the affidavits from both the professors and the schoolteachers, and they were not what I was expecting. But we'll come back to that later....

In the meantime, I had another matter sitting in limbo that I wanted to move ahead with. That was my Motion for Exclusion of Parties, which I had filed way back when, and which had also been put on hold since January. Now, so far I've told you about the Discovery of Ken McCluskey, which I initiated by serving a Notice of Examination. Then I told you about my Motion to Compel Answers, which I intiated by filing a Motion. What about my Motion for Exclusion? To get that back on the table, I submitted a Requisition. That's a very simple process that just gets you in front of the Master. I set it for July 30th, the same day as my Motion to Compel.

That was kind of a favor to the other parties. It doesn't hurt me to go to court over and over, since I don't have a job. But it costs the other side legal fees. So I put both my requests down for the same hearing.

I'm not sure it was a good idea. It seemed to complicate things. After going through the whole rigamarole over the Motion, the Master looked at my Requisition and said, well, there are a lot of other motions pending now so why don't we put this off until August 29th when we come back? So don't quite know where I stand there....except the other parties got a free month.

Not that I couldn't use the break either. I also had my criminal trial pending, for September 3rd. And what should have been a fairly simple process of calling witnesses turned into a huge pissing match between myself and Mr. Meronek which ended, as I told you earlier, in total capitulation on his part. I got my subpoenas, and Mr. Meronek had to deliver them.

So finally on Monday I got the Affidavits I had been waiting know, on my Motion to Compel Answers. I don't know if you can imagine my surprise when I opened them up and found them to be....Affidavits of Answers to Interrogatories! The professors had answered my Interrogatories after all...and later that day the schoolteachers followed suit. What was happening?

I'm still not quite sure, but I have a theory. When the Master told them they had four weeks to file their affidavits, maybe he meant their Affidavits on Interrogatories, not their Affidavits on the Motion to Compel. In other words...I had already won my motion! The Master had ruled in my favor with me even knowing it.

Or maybe the Master meant they should file their Affidavits on the Motion, and opposing counsel misunderstood and thought he was ordering them to respond with Affidavits to my interrogatories. I still don't know exactly what happened. Maybe I'll find out tomorrow.

But it gets trickier and trickier. Yes, the other side had responded to my Interrogatories. But it was a peculiar type of response. To every question, they had put down: "refuse to answer on the grounds of confidentiality" or "refuse to answer on the grounds of relevancy" or something equivalent. I think there was one question that Principal Skull actually answered...her answer was "I don't know".

Perhaps my opponents thought they were being clever...if the Master wanted them to answer the interrogatories....well, here are the answers. We'll see how that works out for them.

But there's more. Along with the Answers to Interrogatories, Mr Meronek had filed (on behalf of the professors) a Motion for a Stay of Proceedings. He had belatedly realized that he simply wasn't going to get his stay unless he made a motion to that effect. And there it was, scheduled for the 29th, tomorrow morning, the same day we're also speaking to my Motion to Compel (unless I've already won it) and my Requisition to continue with my Motion on Exclusion of Parties. So there are three things on the table for tomorrow morning.

So then I thought, why not go for four? The Master had ordered costs in my favor on the Summary Judgement, with the pithy remark, "if costs cannot be agreed, an appointment may be made to address that issue". Well, I almost have to think he was engaging in a little bit of judicial humor here: how in the world were we going to agree to costs, when we hadn't agreed to anything else yet? In fact, I had made a couple of approaches to the other side attempting to discuss the issue, with no response. So I filed a Bill of Costs, and put in a requisition to appear before the Master tomorrow morning to make an appointment to resolve the issue.

Oh, I forgot...what about my Examination of Ken McCluskey, which took place this morning? Actually, it didn't. I had finally heard back from Mr. Meronek last Friday, informing me that he had no intention of presenting Mr. McCluskey for examination. Instead he was going to file a Motion for a Stay of Proceedings, which I would be receiving later that day, or Monday at the latest. Well, I didn't see how his intention to file a motion entitled him to blow off discovery, and I told him so Tuesday morning when I still hadn't received his motion. (It came later that afternoon). Well, I went ahead with the discovery (with an empty chair) and asked the Court Reporter to make out a Certificate of Non-Attendance. Well see if the Judge things Mr. Meronek was entitled to stay home or not.

So what is there now still on the table...Motion to Compel, Motion for Exclusion, Costs on the Summary Judgement, Motion to Stay (professors), new Motion for Summary (schoolteachers), Appeal on Summary (professors) Motion (pending) for Non-Attendance at Discovery...have I forgotten anything? (Not counting my Claim for Defamation against Professor Bush and his wife for accusing me of Home Invasion. But that's another story. Not to mention my Application for a Grade in Professor Metz's course.) Well, I guess we'll see how all that works out. Oh yeah....And don't forget my criminal trial coming up on Tuesday morning....

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