Today I'm going to tell you how our last appearance before Master Cooper ended. If you refer back to the Venn Diagram I posted on Thursday, you'll see there were a number of overlapping matters between myself, the Schoolteachers (represented by Mssrs. Mackwood and Bock of Aikins MacCaulay) and the Professors (represented by Mr. Meronek and Ms. Mulholland of Darcy and Deacon). We had just finished dealing with all the overlapping matters, so Mr. Mackwood was leaving. In fact, those matters were all adjourned until our next appearance, which has since been scheduled for the Friday the 27th, when one of the four Queen's Bench Masters will be assigned complete jurisdiction over all matters invovling Marty Green. For now, it was me, Master Cooper and Lindsay, and there was one remaining item on the agenda: the deadline for her Brief on the Motion for Summary Judgement in Green v George and Heather Bush.
That's the defamation lawsuit I initiated after the Bush's accused me of trying to force my way into their home last winter. Opposing Counsel had moved for Summary Judgement, and provided supporting affidavits from the Bushes, where they "more or less" denied having made any such accusations. When we appeared before Master Sharpe, she asked me if I wanted to cross-examine on affidavits. No, I didn't. I didn't think I needed to. I'm not going to tell you just why, here and now, because I don't want to tip my hand. The point is, I thought I could beat the Motion for Summary without cross-examination.
Then Master Sharpe did something which still has people shaking their heads. She gave opposing counsel three weeks to file their Motions Brief, and told me I would have to file my Affidavits afterwards. "But your Honor", I sputtered, "I thought the Affidavits all came before the Briefs". But Master Sharpe was not put off. "It's a matter of my discretion", she said. (I think she's probably right.) And since Lindsay, on behalf of the Bushes, didn't seem to object, that's how it was set down.
(I have to say that just three weeks ago, we were before Master Sharpe on another matter, and she told me she wanted me to submit my motions brief by such-and-such a date....which was also before the other party had filed their affidavit. I said, "Your Honor, I feel I would be prejudiced if I were required to state my arguments before they had filed their evidence"; and she said, "very well, let them file their affidavits first". So I think Lindsay could have asserted her rights back in May, and gotten them. But she didn't, despite my more-or-less raising a red flag on her behalf.)
I walked out of that appearance back in May thinking I had gained an unexpected strategic advantage. I waited for their brief, and when it arrived, just before our next appearance...it wasn't their brief at all. It was new affidavits, by Metz and Grainger, the people I had claimed were the recipients of the defamatory information from the Bushes. Metz and Grainger swore (more or less) that neither George nor Heather had told them anything that evening about any kind of home invasion.
This was a problem for me. In the absence of evidence, I am entitled to the presumption that everything in my Statement of Claim is a provable fact. But once evidence to the contrary is entered, the onus shifts to me to prove that I have an arguable case. That's how Summary Judgement works. Did these new affidavits give the Bushes the evidence they needed to have my case dismissed on Summary? More to the point...would I need to cross-examine on those affidavits? Because if I wanted to cross-examine, I would have to file my affidavits first...thereby losing the strategic advantage of making them commit their arguments before seeing my evidence. In front of Master Sharpe, having just received these new affidavits, I simply didn't know. I told her I needed time to figure out my next step. And so the matter was adjourned sine die...without a date.
Well, it took me a few days to figure out where I stood. I still thought I could beat the Motion for Summary without cross-examining Metz and Grainger. So I wrote opposing counsel and told them I wouldn't be cross-examining, so could they please let me know when they planned to file their Motions Brief?
And that's where we were last Tuesday: it was four months later, and they still hadn't filed their brief. And now there was a new complication: I was in criminal court, defending myself against the Trespassing Charges that had their basis in the barring order issued as a result of the so-called "home invasion". I told Master Cooper that by hearing my testimony in the criminal case, opposing counsel would effectively be learning the gist of my evidence which I would later be filing by Affidavit. Master Sharpe had specifically given me this peculiar strategic advantage, and I was about to lose it. Opposing Counsel was going to profit from their own negligence in failing to file their brief in a reasonable time.
Master Cooper looked at Lindsay: "Do you agree that this was the intent of Master Sharpe's instructions?" Yes she did. "But your Honor, the Affidavits are supposed to come before the Briefs". I reminded Master Cooper (she really didn't need me to remind her, but I did) that one Master does not ordinarily second-guess the instructions of another. "Master Sharpe was there to hear both parties, and she may have had her reasons, although I cannot pretend to know what they were". Master Cooper agreed.
But she didn't quite see how it was a problem for me if they filed after hearing the Criminal Case evidence. How did that prejudice me? "Your honor, it's a strategic advantage that I was given, and I've been trying to maintain it, going so far to waive my rights to cross-examination in order to do so".
"But what are you afraid they'll learn?", the Master wanted to know.
I told her that I wanted them to commit to their defense before hearing my evidence. "There are two ways they can defend themselves against this claim", I told her. They can say, "We never said nothing 'bout no home invasion". That's one way. The other way is, they can say, "Yes, we accused him of home invasion. Because it's true...he did try to force his way into our home". Those are the two defences available to the Bushes. "And if you read their Statement of Defence," I continued, "and all their Affidavits...its still not crystal clear which one of those defences they intend to stand on. I want them to commit one way or the other before they hear the evidence in the Criminal Trial on the 25th."
"Your Honor, it's just not going to happen," Lindsay began. "We are already swamped with other deadlines involving matters with Mr. Green..."
"Oh no you don't," I interjected. "I wrote you just the other day telling you I was waiving all my rights on other matters so you could make this your first priority. I am not going to note you in default in Green v Anchan...I've told you already you can start counting your twenty days after the 25th. And the same goes for all the other matters between us..."
Master Cooper had heard enough. She still didn't quite get my point about losing the strategic advantage, but she was simply not impressed by Lindsay's excuses for her tardiness. "You've had this for four months. I see no reason why you shouldn't file your Motions Brief within ten days. You'll have it in by the 23rd of September."
And that was that. I didn't count it in the "win" column in yesterdays tally, but it sure felt like I'd won something.