Saturday, October 12, 2013

Send In The Clowns: Part 2

I told you how last winter Mr. Meronek made a big stink about how I supposedly hadn't served him properly with my Affidavit on his Motion for Summary Judgment. Well, I thought that was the end of the matter until about two weeks ago. In the meantime, his Motion had been argued before Master Berthaudin and dismissed with costs; subsequently, he filed a Notice of Motion to appeal the dismissal.

Actually, after the little encounter outside the Master's Chambers which I told you about the other day, it seems Mr. Meronek had had enough of me altogether; subsequently, he brought in Miss Mulholland, a young lawyer with his firm, to assist on the case, and it is Lindsay with whom I had been dealing ever since; in particular, it was Lindsay who had given me a copy of their Brief on their appeal of Berthaudin's ruling. I was therefore astonished upon reviewing the brief to read the following:

"Of additional concern to these defendants is that the Plaintiff, having specifically relied upon the documents in his Affidavit of Documents, refused to provide these Defendants with a copy of the documents, but at the hearing provided a copy of those documents to the Master. These defendants raised this concern at the hearing. Nevertheless, Master Berthaudin proceeded to hear the Motion notwithstanding that these defendants did not have access to the Plaintiff's material which the Master had before him."

What was especially astonishing to me was that they were making this argument without presenting any evidence to back it up. I don't think they can get away with that. I decided that I would, at the earliest opportunity, ask the Court to order opposing counsel to file evidence backing up the bizarre accusations concerning not only myself but Master Berthaudin's conduct. And by "evidence", I meant the transcript of our appearance where we argued the motion back in April.

The next time I saw Lindsay was just before our appearance on September 27th before Master Lee. I told her I was concerned that she had made those claims without filing evidence to back them up, and that I intended to ask the Master to order a transcript filed as evidence. Lindsay at first didn't understand; surely, I remembered introducing evidence from my Affidavit of Documents that she hadn't been given. "Of course you had those documents", I explained. "Those were the same Affidavits that Mr. Meronek made such a fuss over".

And then it dawned on me. Lindsay hadn't been brought into the case until after the little to-do over the Affidavits. When she told me that she had gone into court with nothing but a bundle of divider tabs and mini-affidavits, I understood what had happened. Mr. Meronek had simply ignored my email service and given Lindsay the supplemental package which I had dropped off at his office, the one where I told him if he didn't have a hole-punch he could send his people to my house and I would let them borrow mine.

When I explained this to Lindsay, she assured me she would go back to the office and get to the bottom of this. So I didn't raise it before Master Lee. I told her there was no reason for me to embarrass her before the Master on account of Mr. Meronek's "jackass behavior". I think she appreciated the heads-up.

Well, I didn't hear back from Lindsay the following week, so last Monday I sent the following email, addressed to her and Mr. Meronek:
Dear Counsel:
As I discussed with Lindsay prior to our last appearance, I wish to dispute your allegation that Master Berthaudin accepted evidence from me at our hearing on April 30th  which had not been previously disclosed to opposing counsel. Accrodingly, I am asking that you undertake to order the transcripts of that hearing and file them with the Court. (That would be with respect to your Appeal on Summary Judgment.)
If I do not hear from you by the end of this week, I will understand that you do not intend to order the transcripts and I will proceed accordingly. They are available from Transcript Services and estimated at 93 pp x 3.00/page = 279.00 plus GST.
Thank you for your consideration of this matter.
Marty Green
Lindsay wrote back the same day:
Mr. Green,

Please be advised that we will be filing an amended legal brief re: summary judgment appeal to a judge.  Our amended appeal brief will omit our position that the Defendants had not received your summary judgment documents.  For efficiency, so the Defendants can simultaneously respond to any of your legal arguments if necessary, our amended appeal brief will be filed once we have received your responding brief,.

Please contact me if you have any questions.


Lindsay M. Mulholland, B.A., LL.B.

Well, I did not find this entirely satisfactory. I thought that having made an improper allegation, it wasn't enough to simply file an amended brief in which the allegation was "omitted". She really ought to withdraw it explicitly. So I wrote back:
Lindsay, I feel I ought to tell you I am not entirely satisfied with the outcome whereby you are able to quietly withdraw the allegation without repercussion. I am not sure what leverage I actually have in terms of, say, putting you to the expense of ordering the transcript, but I am still considering my options. Pehaps you feel secure in your position and wish to take the attitude, "go ahead, do your worst". I don't object to that; as you understand, I will do whatever I feel is in my best interests, and I expect you to do the same for your clients.

To make a long story short, I feel I caught you with your pants down on this matter and would still like to squeeze some more mileage if possible out of it. The most straightforward outcome, from my point of view, would be for you to file the transcripts and follow up with a supplementary brief which explicitly admits that you were in error in your original argument (rather than merely "omitting" it). As I said, I really don't know what rights I have in this matter, but if I don't hear from you I hope you understand that I will  be considering my options.


Marty Green

Lindsay replied the following day:
In response to your comments below I can provide the following information:

-        The confusion concerning which evidence you were relying on before Master Berthaudin arose due to the fact that your Affidavit, sworn January 23, 2013, indicated that you were relying on “the exhibits included herein are the same documents as those identified in my affidavit of documents as item 15(j)(Outbox) under the heading “Email Correspondence with Terri Einarson”.

-        The hardcopy which you served on the Defendants’ counsel did not include the exhibit documents you were relying on, rather it provided Registrar stamped cover pages.

-        You have since informed us that the full exhibit documents you were relying on were served via email.  The documents attached via email, however, were not court stamped.  Ultimately, there was no way to determine whether the documents you served via email were in fact the same documents served with the court, as they were not officially marked exhibits.  It is arguable whether your exhibits fully complied with the QB Rules, however, given the number of issues already pending, the Defendants are choosing not to bring this argument before the Court.

So she was claiming that it was my fault after all...that I served her with hard copy, and subsequently tried to claim the documents were served as email attachments. She then says it is "arguable" whether my exhibits complied with the QB rules. And she was refusing to file the transcripts. Well, it seems to me if opposing counsel wished to "argue" the admissibility of my affidavits, Mr. Meronek should have done so when he got my package with the cover letter about how he could borrow my hole punch. Instead, he apparently got himself in a big snit and sent Lindsay into court on his behalf not even knowing about the whole brouhaha over the email attachments. And now here she was holding the can!

So I sent her back the following letter:
Lindsay, with regard to the unsupported claim in your Motions Brief, as I explained to you just before we saw Master Lee, I was giving you advance notice of the situation because I didn't want you to be personally embarrassed on account of what I think I characterised as the "jackass behavior" of Mr. Meronek.  So I am disappointed that your firm is still taking the position that there was anything improper about my service of Affidavits on you last January. Under the circumstances, I hope you will understand that I cannot acquiesce to a situation where you can serve me via email (which I have been accepting as a courtesy to you), while my service by email is considered improper. I will therefore no longer be accepting service via email. Please serve me in the future according to QB rules as a self-represented party.
I regret having to write this letter.
Marty Green
And then it gets interesting. But that's a story that will have to wait for another day....

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