Wednesday, September 11, 2013

Appearing in Chambers: Master Cooper presiding

It should have been a very straightforward morning in the Master's Chambers. The Schoolteachers had put a motion on the Master's Uncontested list; it was their Motion for Summary Judgement. It's  called the "uncontested list" because the Court does not make the obvious assumption that I intend to oppose it; instead, I am called upon to appear before the Master and state my intentions. Naturally, I oppose the motion; and the matter then is transfered to the Contested List, and the parties are given time to file and serve their respective Affidavits, typically two to four weeks. The matter is then adjourned, to reconvene when the affidavits are due. It's a very straightforward process and that was all we really had scheduled for today.

Except in Green v U of W, nothing is simple and straightforward. This was our third appearance before the Master since July 30th, and our first before Master Cooper since we began proceedings a year ago. There are four Masters in the Queen's Bench: Lee, Sharpe, Berthaudin, and Cooper. This last round begain with an appearance before Master Berthaudin; it was adjourned for four weeks, and when we reconvened I was taken aback to see that it would be Master Sharpe presiding. (I told you about this in a previous post.) Nothing against Master Sharpe you understand...but the case file was getting pretty thick, and she had to review it from scratch. It seemed like a lot of extra work. Well, here we were again, and it was yet another different master on the third go-round!

And all the unfinished business from the previous two hearings was back on the table. Master Cooper started by asking if any of the parties (myself, Lindsay on behalf of the professors, and Geoff Mackwood on behalf of the schoolteachers) would like to start by listing the items before us, and where we stood in terms of what had been filed on each one. I deferred to Lindsay, and she began. "Well, there are four matters under considration today but three of them really go together..." and I'm thinking, right...
and then she starts listing them, and it's something like (my apologies if I've got this wrong) "so you see, your Honor, one of them involves both parties and three of them involve either my clients or Mr. Mackwood's clients..." and I say "Excuse me, your honor but that's not how I group them. I was thinking that the three that go together are the ones that involve my rights with respect to discovery."
And then everyone looks at each other for about two seconds, and I say, "Maybe we need to draw a Venn Diagram of everthing we've got on." And that kind of breaks the tension. I got the feeling Master Cooper has a bit more of a sense of humor than the other three Masters. At least I think she knew what a Venn Diagram was.

So we start arguing about how we want the matters to proceed. Of course Lindsay and Mr. Mackwood say that since  a victory by the Schoolteachers on the Motion for Summary would make everything else "moot", it should take precedence. I argue that my discovery rights, which had been put on hold since January, were back on as of June 27th when I won the Motion on Summary, and that my opponents should not be rewarded with a stay of proceedings on account of having stonewalled me all summer long. And furthermore, that the Schoolteachers had chosen to sit out the first Motion for Summary, only to have their crack at it eight months later, and now I was being forced to defend two consecutive motions for Summary without the benefit of discovery. That wasn't fair, I claimed. The Master then observed that "the one thing I can see for sure is than nobody agrees on anything. It looks like we need some case management here".

"Right!" I almost shouted. "Can we get you seized on this?" Since she was the first of the Masters who had come out and say that this was basically ridiculous the way it was going on (in terms of every Master having to come in and figure out from scratch what the last one had ordered), I figured she'd be a natural choice. "Well, actually...all the other Masters have been fine so far", I began to backtrack, and then trailed off almost inaudibly,"....but I think I'd like to have you seized on the case." Because sometimes you shouldn't wish for something in case you actually get it.  But in the end, it wouldn't matter what I fact, she was going to talk to the other Masters at lunchtime and see who could take it on.

I have to say that on sober second thought, I'm not entirely sure that I want "case management". I certainly think it makes sense to have one dedicated Master on the case, because the arguments from one proceeding constantly overlap with another. But beyond that, I think there's something else called "case management" whereby the Master basically takes charge of the whole sequence of events. I don't exactly mind that...but I'm afraid it lets the other side off the hook for the consequences of their actions. Right now, if for example they refuse to answer interrogatories, I have to make a motion to compel. If they refuse to set a date for discovery, I have to issue a Notice of Examination; if they fail to show up, I have to get a Certificate of Non-Attendance (which I did) and then I still haven't figured out what I do next. But the point is, I'm presently enforcing my rights through the Queen's Bench Rules, and I'm kind of having fun. I think the system "works"...and I'd kind of like to see how it plays out. Putting everything in the Master's hands removes the responsibility from both parties, and for my sake I'm not entirely sure it's necessary. But I'm willing to consider it.

In the meantime, although Master Cooper wasn't going to rule on any of these issues pending appointment of a case manager, she still wanted to hear are arguments. I already mentioned our argument over the Schoolteachers Motion for Summary. Then there was the case of the three motions regarding my rights to discovery. Those were:

1. My Motion for Exclusion of Parties, filed last year and put on hold by their January Motion for Summary.

2. My Motion to Compel Answers to Interrogatories, filed in June.

3. Their Motion to Stay Discovery, filed on August 27th.

I told the Master that because these issues were so inter-related, I thought it made sense to put them all together and argue them in one single hearing. Lindsay didn't agree. She thought her motion (to stay discovery) should come first. Well, the Master wanted to know, which matters were ready to proceed to argument? In fact, my Motion for Exclusion of Parties was all set to go, the briefs and affidavits having all been filed. As for the others, the Affidavits were all in, all we need to file were the Briefs. "That's not quite right", objected Lindsay. "Mr. Green has expressed his intention to cross-examine on Affidavit on our Motion to Stay, so we'll need to arrange a time for that". And she went onto say that since the deponent, Colin Russell, was extremely busy, being Registrar of the University and this being September, that she didn't know when she'd be able to book him.

"Oh no you don't", I wanted to say, but I didn't. I should have pointed out (but wasn't quick-witted enough) that all summer long, opposing counsel had put off filing affidavits and motions because "everyone was on holidays"; and now that they were back from holidays, everyone was "much too busy". Instead, I explained to the Master that there was already another motion where we had been ready to proceed, but at the last minute the Professors filed to more Affidavits, and when we appeared before the Master I still hadn't had time to review them, so I was still considering cross-examination. As a result, the Master adjourned sine die (which meant without a date); it only took me a few days to decide I didn't want to cross-examine, but in the meantime the Professors were off the hook in terms of producing their Brief, and four months had passed since then. "I don't want the same thing to happen here", I said. Because although this was their motion, not mine, they were nevertheless primarily interested in delaying things. "This whole conflict is based on my wanting to get to trial as quickly as possible, and their wanting to do everything they can to stop me from going to trial." I told the Master that busy or not, the Registrar was readily available; that he was in fact the University's designated "point man" on all matters related to Marty Green, and that in any event the examination would be extremely short, consiting of exactly one question, which I predicted the Russell would refuse to answer! And then I would be coming back to the Master to get an order compelling him to answer the question. In fact, I could see no reason why the Court could not simply acknowledge this sequence of events and proceed to briefs on the basis that it had actually happened, instead of making us go through the motions. (It turns out that's actually done.)

Master Cooper wasn't ready to go that far. But she was curious. Just what was I planning to ask the defendants, and why was I so sure they wouldn't answer? I was a bit taken aback at this, but I looked around and said...well, I guess it doesn't hurt me to tell you here and now. In his Affidavit, Mr. Russell states that the University "has already spent considerable time and money defending itself from these action by Mr. Green." Very simply, I'm going to ask him: how much time and how much money?"

I swear that Lindsay's face turned white. "Your honor", she sputtered, "that would be...that..." What....irrelevant? confidential? Of course it would be. Except...that you've entered it as evidence. So now it becomes the everyone's business! Furthermore, I think it was scandalous and inappropriate for Russell have made that argument in his affidavit, and the punishment (having to disclose his legal bills!) should fit the crime. At least, that's what I would be arguing when I asked the Master to compel an answer. And I think Lindsay knew she was cornered.

I wrapped up by saying that there was no reason the discovery of Russell couldn't be arranged within a month, and then all remaining briefs could be filed on the three motions. And furthermore, I would be arguing that given the Defandants utter refusal to answer interrogatories, my only effective remedy would be to have my Discovery examinations held before a master (instead of a court reporter), so when they refused to answer, I could immediately turn to the Master and say..."Your Honor?"

At this, Mackwood jumped in and tried to justify the Schoolteachers blanket refusal to answer interrogatories. "He was asking for names and addresses of students, he intoned in a disapproving voice." Yes I was. And teachers as well. As I was entitled to. Who else were the witnesses to the horrible acts I was accused of? Mr. Mackwood surely knew that according to the Manitoba Rules, parties are allowed to ask the names and addresses of potential witnesses. And in any case, their refusal to answer was not limited to the names of complainants and witnesses, but included particulars of the acts I was accused of. Worst of all, as I pointed out to the Master, Mackwood was ignoring the fact that very early on in the process, I had attempted to discuss with him how he wanted to deal with the issue of confidentiality, and he had simply ignored my inquiries. 

Master Cooper listened carefully to all the foregoing arguments, and in the end, concluded that she was reserving decision on all these matters pending appointment of a case manager. We were now almost finished, except for one remaining item, involving only myself and the Professors. So Mr. Mackwood was free to go. He left, and then it was just the three of us.

And here's where it gets intersting. But since this has already been one of my longest blogposts ever, I'm going to finish this story when we return. 

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