A De Novo Hearing

Wednesday was a gruelling day in court. We appeared before Justice Martin of the Queen's Bench to argue my appeal of Master Berthaudin's award of Summary Judgment to the Schoolteacher Defendants in Green v Tram, my claim for Conspiracy to Injure. That motion was argued before the Master in December, and his decision in favor of the Gordon Bell defendants was a serious blow to my case.

But just as the University defendants (the Professors) were appealing the same Master's earlier dismissal of their motion for Summary Judgment in the same case, I was now appealing the Schoolteachers ruling. I filed my Notice of Appeal in February and shortly thereafter we appeared before Justice Chartier to set down timelines.

I was a little concerned about the protocol here, because according to the Queen's Bench rules, an appeal from a Master to a Judge is a de novo hearing; which means, you're basically starting from scratch. Well, that made sense for the Professors; because they lost before the Master, so their appeal before the Judge was just like they were starting all over again. But what about this case? Here the Schoolteachers had won their motion, and it was I, the losing party, who was appealing. But if we were starting literally from scratch, wasn't it still the Schoolteachers Motion for Summary which was the order of the day, and not my appeal?

It makes a difference because...who goes first? I tried to ask Justice Chartier if the Schoolteachers shouldn't file their brief before me? Well,  I get the feeling that some judges don't like self-represented guys like me, who they call "hobby litigants", coming in and telling them what the rules are. And so he basically bitch-slapped me for wasting the Court's time with an idiotic question. It was my motion so I had to file my brief first. Simple as that. And that's how we did it. I filed my brief, and they filed their response. Fortunately, Mr. Mackwood for the Schoolteachers played it pretty straight...he didn't come up with any novel arguments (as he would have been entitled to on the de novo theory) so I didn't need to file a subsequent rebuttal brief. Both parties based their arguments on the reasons for decision as set down by Master Berthaudin in his "short form" judgment. ("Short Form" means its a written judgment that doesn't get reported, so you won't find it if you search the archives like you will if you look for the reasons for decision in the Professors earlier hearing .)

Anyhow, when we appeared before Justice Smith on Wednesday, Mr. Mackwood was there and I was all set to argue my case. So we were both pretty surprised when the Judge entered the chambers and said, "Well, this is a de novo hearing, and it's your motion, Mr. Mackwood, so go ahead."

I had to laugh a little, and when it was my turn to speak, I couldn't resist telling the judge that I got some satisfaction that my original inquiry before Judge Chartier wasn't as ignorant as they seemed to make it out at the time. True, the question of who files the brief first isn't the identical question as to who argues first, but its the same general idea, and Justice Smith seemed to it all in good humor.

And then things got interesting.