The Dark Face of Canada’s Justice

 The Court of Appeal for Ontario is the highest court in the province. It is headed by the Chief Justice of Ontario, The Honourable George R. Strathy and Associate Chief Justice for Ontario, the Honourable J. Michal Fairburn. What happens when the Associate Justice of Ontario decides with apparent full intent to breach the Courts of Justice Act s.132 the Charter of Rights s.11(d) and court law established since the seventeenth century and where do the people of Ontario go?

 

Canadians are generally known to be polite and more willing than most to say please and thank you. We are also people who believe that as citizens we are protected by our Charter of Rights and Freedoms. There is a sense of trust in our judicial system and although some in society may take a cynical view of lawyers, we still don’t see them as with intent in breaking the law.

We believe that our courts are run by a justice system that demands absolute impartiality and independence. All judges are guided by the Canadian Judicial Council and their handbook - Ethical Principles for Judges - and the Canadian Justice Act. Lawyers also have the Law Society of Upper Canada’s Rules of Professional Conduct, (but more on that at another time), which according to the Law Society express the high ethical ideals of lawyers.

Now what happens when a judge decides that his robes give him or her the power to break the law at will? What if the judge who sits in the highest court in the province and is the Associate Chief Justice of Ontario, and her decision to break the law and remove the rights from a Canadian citizen that the Canadian Charter guarantees, is premeditated and calculated?

As stated, earlier judges can rely on the handbook Ethical Principles for Judges prepared by the Canadian Judicial Council. In this ‘handbook’ there is advice on a number of issues such as dealing with conflict of interest and impartiality. Also, there is no judge wearing robes who would not be aware of the famous and universal dictum attributed to Lord Denning of England’s House of Lords; “justice not only has to be done, it must be seen to be done.” There is no translation needed for this, not for a judge or for any right-minded individual.

It is with alarm that the realisation that all these ideals fall from reality. An example can be found on uofOWatch.blogspot.com. The masthead of this blog post states, “UofOWatch exposes institutional behaviour that is not consistent with the public good.” In a March 6, 2014, post titled ‘Supreme Court of Canada refuses to address judicial bias - Complaint to UN Human Rights Committee to follow’ loudly rings very dangerous alarm bells as to how judges can cover up issues of bias raised against them. The article states: “A judge of the Ontario Superior Court in Ottawa had a financial and emotional connection with a party in a lawsuit, and a family connection with the law firm representing that party. When the defendant in the lawsuit requested to bring a motion regarding the judge’s appearance of bias, the judge threatened him with contempt of court.” It further states in the article that the defendant raised the issue of bias with six more judges, including the Court of Appeal, but all of them refused to consider the facts.

According to the article, the Canadian Civil Liberties Association made an attempt to come to the aid of the defendant, but without success. It is important to stress that the idea of bias in judges’ decisions is far from a rare event. The apprehension of bias has been dealt with in a number of cases heard by the Supreme Court of Canada, and cases such as Baker v. Canada (Minister for Citizenship and Immigration) 1999, R v. S (R.D) and more. The Ontario Court of Appeal in 2014 overturned a decision by Justice John A. McMunagle of the Superior Court of Justice, the appeal citation was Laver v. Swrjeski.

In fairness it is true that as human beings we are fallible and can make errors. Judges are no less human, and misinterpretation of law is possible. Yet what happens when the issue at question is not error, or misinterpretation but an apparent premeditated act of breach of law? How do we explain a judge’s action when she had with full intent and planning decided to strip Canadian citizens of their Charter rights? Can such an act be permitted to go quietly out of public attention?

Associate Chief Justice for Ontario, Justice Michal Fairburn heard a Motion to Stay Costs until the appeal process with the Supreme Court of Canada may reach a conclusion. This motion was heard by Justice Fairburn on August 19, 2021, with her written decision on August 20, 2021. Did Justice Michal Fairburn willfully and intentionally breach the Charter of Rights s.11 (d), did Justice Fairburn with full intent and purpose breach the Courts of Justice Act s.132? Justice Fairburn could have recused herself from hearing this motion. Nemo judex in causa sua developed and demanded since the seventeenth century, adhered to in England, Canada and America, protects the judiciary from questions of bias. Did Justice Fairburn err in deciding to hear the motion for stay?

 

BACKGROUND:

We (my daughter and I) filed a Motion to Stay Costs with the Court of Appeal for Ontario. This motion was filed so that costs would be stayed until our application for leave to appeal to the Supreme Court had been decided, and if appeal was granted then until the final decision is provided by the Supreme Court. The leave application was necessitated after an appeal filed at the Court of Appeal for Ontario was dismissed. The appeal was based on two major grounds, first was the apprehension of bias against Justice Paul Sweeny of the Superior Court in St. Catharines. A second major set of grounds was non-disclosure by Justice Sweeny and counsel Michael Kestenberg of Kestenberg Seigal Lipkus LLP of Toronto.

Our appeal was heard by a panel of three judges of the Court of Appeal led by Justice Michal Fairburn. Fairburn’s decision was only four sentences with no reasoning provided. Details of the appeal and Justice Fairburn’s decision were discussed in Mayorgate’s article, ‘Self Represent, Self Destruct’.

 

ISSUE AT HAND: Can a judge breach the Courts of Justice Act?

Only one of three counsels, Michael Kestenberg forced the need for a Motion to Stay Costs, both remaining two counsels were unopposed to the motion. We filed our Motion Record, Factum, Book of Authorities and then a Supplementary Motion Record. Our motion was heard on August 19, 2021, and the dark face of Canada’s justice system stepped forward.

I was taking part in the motion via phone and had it on speaker for my daughter to hear everything and my two witnesses. As the judge who was to hear the motion identified herself absolute shock hit both of us. Justice Michal Fairburn identified herself, she said she had read all our material and asked if I was ready to make by submission. It is not possible to describe what went through our minds. As a self-represented litigant if I refused to have Fairburn hear the motion then my fear was, I would be held in contempt.

When filing a Motion to Stay Costs pending completion of an appeal process, the applicant must satisfy a three-part test. Part one requires an assessment of the grounds of the appeal to determine whether the applicant has a good chance of having an appeal granted. Then parts two and three deal with the balance of convenience or potential harm that granting or not granting the motion to stay costs. The motion judge may not be hearing the actual appeal nevertheless he/she needs to understand the strength of the grounds, the material provided to support it and make a judgement on the potential success of the appeal process.

Our appeal was based on the Absense of Reasoning relating to a decision written by Justice Fairburn. Now it was Justice Fairburn who decided that she would be hearing the Stay Motion. It is like permitting a thief to sit as judge against himself for theft charges. What would any right-minded individual think the result would be?

Courts in Canada claim that they are transparent, unbiased and above all else totally impartial. According to the Ethical Principles For Judges, a guide assembled by the Canadian Judicial Council at page 27, part 6 has a statement: “Judges must be and should appear to be impartial with respect to their decisions and decision making.” The heading is IMPARTIALITY and as part of the general principles it further states; “Judges should strive to ensure that their conduct, both in and out of court, maintains and enhances confidence in their impartiality and that of the judiciary.”

The Court of Appeal for Ontario is headed by the Chief Justice of Ontario, the Honourable George R. Strathy, Associate Chief Justice of Ontario, the Honourable Michal Fairburn and 30 other judges. It is the last avenue of appeal for litigants in the province as only 2% of appeals are heard in the Supreme Court. So, the COA is the last stop where people’s lives are held in the balance by the judges who preside there.

As a final point under its General Principles for Impartiality in the CJC Ethical Principles for Judges it states: “The appearance of impartiality is to be assessed from the perspective of a reasonable, fair minded and informed person.” One has to stop and ask where does this mythical reasonable, fair minded and informed person sit? Or is this all a farce spread to appease the naïve into thinking we truly have a justice system that is impartial?

Cambridge Dictionary explains impartial to be “able to judge or consider something fairly without allowing your own interest to influence you.” Collins Dictionary explains it as; “Someone who is impartial is not directly involved in a particular situation and is therefore able to give a fair opinion or decision about it.” How could Justice Fairburn claim impartiality in hearing our motion to stay costs and why did she make the premeditated decision to hear it? There are some 30 judges at the Court of Appeal, why did Justice Fairburn choose to sit on this motion? Surely, she was fully aware of all the legal ramifications.

The Courts of Justice Act s.132 states; “A judge shall not sit as member of a court hearing an appeal from his or her own decision” R.S.O. 1990 c.C.43. This is court law; it is not an online advice column. Justice Fairburn as the Assistant Chief Justice of Ontario would be fully aware of this law. As a judge of the Court of Appeal for Ontario, Fairburn broke that law but with what intent in mind? How does she justify this? Can she claim judicial discretion? Can she claim that she was going to be impartial?

There may be some right-minded individuals who would question why had Justice Fairburn, an Assistant Chief Justice of Ontario, decide to hear our stay motion in breach of the Courts of Justice Act. Our application for leave to appeal to the Supreme Court was based on the grounds that the decision of the COA was completely absent of reasoning and the potential of apprehension of bias. Justice Fairburn wrote that decision as the lead judge of the COA panel who heard the appeal. A quote from another decision of the Court of Appeal for Ontario in 2000, Benedict v. Ontario 51 O.R. (3^rd) 147, this decision was written by Justice Doherty of the Court of Appeal:

“It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed, an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice.”

As previously stated, a Motion for Stay of Costs has a three-part test which needs to be satisfied, and part one is an assessment of the Supreme Court leave application. Can a fair and right-minded individual think it possible that Justice Fairburn had a clear and definite self-interest in our stay motion?

Courts greatly rely on previous decisions made for guidance in their deliberations. Those case laws not only guide a judge but they also put into perspective the direction of the current law to ensure fairness and uniformity of decision making. Quoting from R. Bow Street Metropolitan Stipendiary Magistrate, ex p. Pinochet Ugarte (No.2) 1999 1 A11 E.R. 577 (H.L), Lord Browne-Wilkinson states under the heading – Apparent Bias:

“In my judgement, this case falls within the category of case, viz where the judge is disqualified because his is a judge in his own cause. In such a case, once it is shown that a judge is himself a party to the cause or has a relevant interest in its subject matter, he is disqualified without any investigation into whether there was a likelihood or suspicion of bias. The mere fact of his interest is sufficient to disqualify him unless he has made sufficient disclosure.”

Disclosure is a key component to all legal hearings before any court and it applies equally to all parties involved, including the judge presiding over the matter. This concept, this law of full disclosure ensures fairness in a hearing and eliminates so called justice by ambush. Fairburn made no disclosures of any kind, again as already stated she simply said she read all our filed material. Now here lies the secretive nature of the Court of Appeal for Ontario, no transcript is available of any proceeding. No public scrutiny is permitted at all. One can request an audio recording but you have to agree not to use it in any way at all other than supplement your own notes. This agreement carries the threat of a prison term if breached. So much for transparency and democracy.

The legal principle that no man should sit in judgement in his own cause is an accepted principle in any democratic jurisdiction in the world. It has found its origins in Latin from the seventeenth century: “nemo judex in causa sua debet esse.” In United States v. Morgan (1940) 313 US 409 at page 421, Mr. Justice Frankfurter (an assistant justice of the United States Supreme Court 1939-1962) states:

“In a wide range of other situations the impression may be received that an adjudicator is likely to be biased. A person ought not to participate or appear to participate to an appeal against his own decision, or act or appear to act as both prosecutor and judge: the general rule is that in such circumstances the decision will be set aside.”

This legal principle has been echoed through the House of Lords with references by Lord Browne-Wilkinson, Lord Denning and Lord Diplock. In Canada this most basic principle is endorsed by the Court of Appeal for Ontario in Benedict v. Ontario 2000. One question remains, what was the motivation behind Justice Michal Fairburn’s decision to hear our motion to stay costs?

Chief Justice of Ontario Strathy set out the test for stay of proceedings pending an application to the Supreme Court. In deciding this kind of motion, the court must consider the following factors: 1) whether there is a serious question to be determined on the proposed appeal; 2) whether the moving party will suffer irreparable harm if a stay is not granted; 3) whether the balance of convenience favours a stay. This test was set out by Strathy C.J.O. in Livent Inc. v. Deloitte & Touche, 2016 ONCA 395, 131 O.R. (3^rd) 784, at paras, 4-5.

Further in Livent Inc. at para 7-8 it states, “Deciding whether there is a serious issue to be determined requires a preliminary assessment of the proposed merits of the appeal, as well as the proposed merits of the application for leave to appeal. The threshold at this stage is low.”

Justice Fairburn, ACJO, Court of Appeal decision, file: C68308.M52712

Justice Fairburn in her decision to dismiss our stay motion wrote, “First, there is no serious question to be determined on the proposed appeal to the Supreme Court.” Fairburn also refers to Livent Inc. quoting the three-part test.

Would any fair-minded individual see this statement from Fairburn agree that she had made an assessment and judgement of an appeal against her own previous decision? I repeat the Courts of Justice Act R.S.O. 1990, c.C 43 s.132; “A judge shall not sit as a member of a court hearing an appeal from his or her own decision.” Referring to Justice Michal Fairburn’s own words, would that same fair-minded individual find that Fairburn breached the Courts of Justice Act?

Does the law matter in Canada? Are judges permitted to do as they please and act as demi-gods for the halls of justice? A panel motion had been filed to strike Fairburn’s decision and it is to be heard on December 8^th. This panel of three judges are of the Court of Appeal for Ontario, and Justice Fairburn is the Associate Chief Justice for Ontario. What is to be expected as a result?

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Part 1  -  Self Represent, Self Destruct  

Part 3 -  Judicial Cloak of Protection

Part 4 -  Supreme Court of Canada commits highest aberration of its own law

Part 5 -  What is a Measure of a Judge

Part 6 -  Are there consequences for a Judge's Breach of Law

Self Represent, Self Destruct

In Canada our system of justice is considered to be amongst the best in the democratic world. Equality is guaranteed to all Canadians by the Charter of Rights and Freedoms. Enforcement of our laws is bound not only by the Charter of Rights, but also by the various criminal and civil codes of procedure. Equally our courts are bound by those same codes as well as the legal expectation of procedural fairness. The judiciary in this country is free from any outside influence or pressure, providing unbiased and fair decisions. Finally, those who practice law, the lawyers and legal counsel, are also bound not only by the various codes, but also by Professional Codes of Conduct.

It would seem that such ideals should bring us as near to perfection as possible, and true that may be the case if reality was to be totally ignored. Reality becomes the guillotine that separates the ideals from what actually happens day to day in our justice system and aiding and abetting reality is human fallibility. For the average individual access to the law is not an easy thing. Lawyers charge insane amounts of money for their services, making it often impossible for the average individual to find the funds to pay out. For that reason, many do not even bother to fight for themselves regardless of how badly they may have been wronged.

There are those who will take on the challenge to represent themselves, and that is the purpose of this article. Deciding to self-represent is a truly daunting decision to make. A myriad of rules have to be mastered together with dozens of forms that need to be served and filed. Abraham Lincoln is attributed as saying, “A man who represents himself, has a fool for a client.,” but then Lincoln was a lawyer. Necessity is a strong motivator though there are times during the legal process obstacles flown in the path become difficult to deal with.

The most disturbing fact that anyone who represents themselves must come to grips with is that equality is nothing more than idle chatter. I can go on with analogies or opinion, but the best course of action is to provide an ongoing current legal situation. All of which is spoken of is fully documented, nothing comes as a sloppy allegation or accusation. Facts, documents are presented and it’s up to the reader to decide if there is something very wrong with Canada’s justice system. 

Background to this goes back to 2014 and an article published in Mayorgate. That article spawned a lawsuit by the Paderewski Society Home (Niagara) for defamation. Justice Henderson’s decision after trial was somewhat uneven and that decision is still waiting for an appeal to be heard at Divisional Court. It can be understood why the Building Manager Stella Fensom and the President Sabina Glowacki did not want any of the facts discussed in the article made public. 

Mayorgate’s article dealt with fraud of public money, the fixing of an annual election for members of the Board of Directors and President, and allegations of abuse of residents. At trial Forensic Auditor, Robert Forsyth, named under oath Stella Fensom as the fraudster. Yet Stella Fensom is still in the same position as building manager. During trial Robert Forsyth was asked who the victim of the fraud was, and he answered, “Paderewski Society House and Niagara Regional Housing, and therefore the public purse.” It is incredulous to think that Fensom would still be in her position at the Paderewski Society Home, but she is. 

In the end after several attempts to get an investigation into the theft, now confirmed by a forensic audit and a Superior Court justice who found the actions of Stella Fensom very suspicious, I decided to file a lawsuit against the Paderewski. The lawsuit was for malicious prosecution and filed against the Paderewski lawyer Rachel Slingerland, now Goerz, the Paderewski Society Home and Niagara Regional Housing. My daughter filed her lawsuit against Rachel Goerz (nee Slingerland) and the Paderewski Society Home for what was done to her. At trial, the defamation action against her was dismissed by Justice Henderson as being without probable cause.

Now the games were to begin. Both of us are self-represented but not uneducated in the lay of the land legally speaking. We are aware of the rules of full disclosure, torts, filing deadlines etc. Arriving in court on February 13, 2020, we were expecting an adjournment for a long motion date. Justice Paul. J. Sweeny was the presiding judge, Michael Kestenberg of Kestenberg Siegal Lipkus was representing lawyer Rachel Goerz (nee Slingerland), Kristin Bailey for Vanda Santini of Agro Zaffiro LLP were representing Paderewski Society Home (Niagara), and Scott Crocco a Regional Niagara staff lawyer representing Niagara Regional Housing. Then there were the two of us, self-represented. 

Justice Sweeny made the appearance that he was going to adjourn it till Michael Kestenberg got up to speak. Kestenberg said that discussions between all three teams of lawyers had resulted in a decision that he, Kestenberg would speak for all three parties and that this could be handled on that day. None of this was disclosed to us, the self-represented, as it should prior to the motion. I objected and Justice Sweeny ignored my objection. 

The motion was heard, and the ruling went against us, striking our claims. There was no sense to be made of the hearing, nor Justice Sweeny’s decision. As the supposed lead lawyer for all three teams, and three individual parties with separate and individual interests, Kestenberg’s submission only dealt with his own client, lawyer Rachel Goerz. He spoke of a lawyer’s absolute right to privilege and the mantra of best interests of a client. Nowhere in his submission did Kestenberg mention the NRH nor the Paderewski. The Motion’s Transcript is a total of 45 pages, Kestenberg speaks for 17 of those pages and only about his client, lawyer Rachel Goerz. It did not make sense.

Nothing made sense except that the decision had to be appealed. An appeal required research especially for self-represented parties like us. This is what provided the bomb that blew away thoughts of equality in our justice system in Canada. All those comforting words of the Charter of Rights and Freedoms, Rules of Civil Procedure and professional guidelines or codes of conduct for lawyers and judges, are simply empty and hollow. 

Research first surrounding Justice Paul Sweeny revealed that he held the position as president of the Ontario Bar Association, whose main objective is to protect the reputations of the legal profession. If Sweeny was simply a past OBA president, then the impact may be a little less shocking. Yet as President Paul Sweeny displayed even publicly a very zealous attitude towards lawyers and the perception that he claimed the public had of the law profession. 

When Paul Sweeny was crowned as president of the OBA, the Financial Post published a story and interview with Sweeny titled, “OBA president Paul Sweeny defends the legal profession.” Under this title there is a quote from Sweeny, “I am not a shark, scumbag, mouthpiece, or liar” says Paul Sweeny, president of the OBA, “Me and 99 of my colleagues chained together at the bottom of the ocean is not a good start.” Further in the article it states, “Mr. Sweeny sees an alignment between the viceregal’s message and his pledge to the OBA, which is to work to improve the public perception of lawyers. If Mr. Sweeny’s got a chip on his shoulder, it’s that the public seems to have a chip on its shoulder about lawyers.” In another publication called Briefly Speaking published by the OBA, Sweeny provided a lengthy interview. Much was said that further explored Sweeny’s mindset on protecting the legal profession. One comment stood out though, “our PR problem is the gap between the actual positive contributions of lawyers to society and the public’s understanding of the value and benefit of what we do.”

This was Paul Sweeny as president of the OBA, in addition to the OBA he was president of the Advocates Society. Can anyone logically accept the concept that former OBA president Sweeny changed his feverish beliefs now as Justice Paul Sweeny? Justice Sweeny decided to hear a motion to strike two claims of malicious prosecution against lawyer Rachel Goerz (nee Slingerland). With his attitude in protecting lawyers and their reputations, his belief that the “public seems to have a chip on its shoulder about lawyers,” Justice Sweeny was able to strike the two claims without a defense being filed, without a trial conducted where evidence is presented. Under no circumstances was Justice Sweeny able to hear this motion without full disclosure of his position with the OBA and the Advocates Society. Justice Sweeny did not disclose anything because he knew we were self-represented and how could we know these facts. 

At the same time lawyer Michael Kestenberg without any hesitation knew of Sweeny’s background, and he too did not disclose any of these facts. In fact, that is why it was only Kestenberg who really made any submissions out of all three parties and concentrated his whole submission on his lawyer client. This alone is more than enough to strike Justice Sweeny’s decision but there is far more alarming evidence of the connection between Sweeny and Kestenberg. 

The Ontario Judicial Appointments Announcement by the Government of Canada, 2015, provides a short bio on Paul Sweeny. In this bio is this statement: “He had been a director of Fanconi Canada Inc. since 2006.” Research into Fanconi Canada provided a list of members of their Board of Trustees, at the bottom of page 3 is the name of Michael Kestenberg, a partner in Kestenberg Siegal Lipkus LLP. Justice Sweeny is confirmed by the Government of Canada as director at Fanconi, and Fanconi’s own list of their Board of Trustees confirms Kestenberg’s position. Can anyone say that a Director and a Member of a Board of Trustees of the same organisation are complete strangers to each other? 

How was it possible that Justice Sweeny permitted Michael Kestenberg of Kestenberg Siegal Lipkus LLP stand before him to argue a case to strike a claim against his client, a lawyer, Rachel Goerz? Neither Justice Paul Sweeny nor Michael Kestenberg disclosed any of these facts, and the alarming question is why? Is it possible that in a courtroom in Canada a court hearing was fixed by a judge and a lawyer with full intent? As one reads these facts and looks at the material or evidence provided what would be the answer from that individual? 

In our system of justice, our courts permit the raising of a question of Apprehension of Bias against a judge. All such allegations are discussed, dissected and all evidence or exhibits examined in detail before any such decision is passed. The threshold to prove apprehension of bias is extremely high. One of the most often referred to case law relating to bias is Wewaykum Indian Band v Canada where at paragraph 60 it states: “the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining therein the required information. In other words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [decision maker], whether consciously or unconsciously, would not decide fairly.” 

Would a reasonable, right minded, and informed person viewing the matter of Justice Sweeny’s past position as president of the OBA and Advocates Society, his very public outspoken position on lawyers and the public, who is now hearing a request by a lawyer to strike a claim of malicious prosecution against a lawyer, consider bias? In addition to these facts Justice Sweeny has a personal and business association outside the court arena with the lawyer making the submission to strike. Finally, neither Justice Sweeny nor the lawyer Michael Kestenberg disclosed any of these facts to the self-represented parties. Can a reasonable and right-minded person see the potential of bias? Can a reasonable and right-minded person see the potential for an illegal fixing of a court hearing in this matter? 

We served and filed a Notice of Appeal with five points of error by Justice Sweeny. Our Factum set out all the details and our Book of Authorities provided numerous case law. The responding parties served their Factums and to an absolute unanimous shock none of them commented on the issues of bias other than quote the test. Their factums simply re-argued their motions. Michael Kestenberg in particular did not deny his association to Justice Sweeny, nor did he in any way try to explain any allegation. Kestenberg only quoted the test for Apprehension of Bias, nothing more. 

Quoting from the Canadian Judicial Council, “Ethical Principles for Judges” at page 32: “The judge’s fundamental obligation is to strive to be and to appear to be as impartial as is possible. This is not a counsel of perfection. Rather it underlines the fundamental nature of the obligation of impartiality which also extends to minimizing any reasonable apprehension of bias.” Going to the Court of Appeal, the highest court in Ontario, we could not accept or believe any possibility that the evidence, exhibits and facts complied and filed can in any way be ignored. More so when all three responding parties did not question the evidence or claims. Especially the silence of Michael Kestenberg. 

On March 25th, 2021, the Court of Appeal for Ontario heard our appeal. The presiding judges were Fairburn A.C.J.O, van Rensburg, and Huscroft JJ.A, with Justice Michal Fairburn as the lead judge, and the bastardization of our system of justice took a new, frightening, and alarming turn. 

The actual appeal was heard via video conference. I made our submissions taking approximately 30 minutes. At the end of my oral submission, I was asked by Justice Michal Fairburn if the apprehension of bias was our only point of the appeal. The question made no sense, I had just finished my submissions and raised the bias and non-disclosure as the main issues, but there were three other secondary points. A question such as the one asked by Justice Fairburn made me feel like she did not bother to listen at all and that she had not read any of our appeal material. A few moments later Justice Fairburn told the three responding lawyers they did not need to make any oral submissions!

It was like being doused with ice cold water. All three responding lawyers filed factums without a single mention of the five points or grounds for the appeal. Granted we are self-represented, but we know that your factum is your full argument, your side of the story, and the oral submission becomes the accompaniment. It is also an opportunity for the appellant to be able to answer any inconsistencies or false claims. I must stress here that the Court of Appeal for Ontario does not provide transcripts of appeals or any actions before it. The registrar called the COA a court without public record! All I can do is request an audio recording and sign an agreement that I will not use the recording or any party of it any way at all. I even have to agree to keep it in a safe location. If I breach my agreement, I could face imprisonment for up to six months! This is the Canadian version of transparency of our justice system.

Justice Michal Fairburn then turned her attention to me in our appeal. Fairburn said that we did not prove the apprehension of bias and dismissed the appeal. Justice van Ransburg and Justice Huscroft sat through all of this without a sound, not a squeal, or a squeak, not even a light cough to clear their throats. It was as if they did not exist or were too afraid to speak. Was it possible Justice Michal Fairburn made her mind up on the decision before putting me through the patronizing act of having to make an oral submission? 

How is it possible to accept such a decision without any adequate reasoning provided? This matter before the court was of such important significance. All the evidence presented raised the possibility that a judge and a lawyer had fixed a court hearing. That same lawyer did not deny anything in his factum. To play the childish game where Kestenberg would not acknowledge the evidence because he didn’t want to give it credibility, only works in the movies. Kestenberg and Sweeny could not deny the truth. 

Justice Michal Fairburn did not make any comment on the evidence provided to justify her decision. Both Justices, van Rensburg and Huscroft stayed silent. How was that possible? The exhibits, the evidence could not be denied, and it wasn’t. 

 

Researching again, this time the centre of attention was Justice Fairburn and decisions provided without adequate reasoning. As it turned out the Supreme Court of Canada has grappled with this issue since the 90's. When a decision is handed down by the Ontario Court of Appeal there is little room to get a review. After all it is the highest court in Ontario and there is only the Supreme Court left. Getting the Supreme Court to listen is not easy.

Case after case was discovered that provided some degree of confidence that our application for leave to appeal had serious substance and reason to be heard. Some of the notable cases were Baker v. Canada, Stuart Budd & Sons Ltd v. IFS Vehicle Distributors, Clifford v. The Attorney General of Ontario, Dunsmuir v. New Brunswick, R. v. R.E.M, R v. Sheppard and from 2019 Canada (Minister for Citizenship and Immigration) v. Vavilov. 

Information uncovered relating to Justice Michal Fairburn became frightening. Quoting once more from the Canadian Judicial Council, ‘Ethical Principles For Judges’ at page 44: “Judicial impartiality is concerned both with impartiality in fact and impartiality in the perception of a reasonable, fair minded and informed person. In judicial matters, the test for conflict of interest must include both actual conflicts between the judge’s self-interest and the duty of impartial adjudication and circumstances in which a reasonable fair minded and informed person would reasonably apprehend a conflict.” 

Justice Michal Fairburn is not an ordinary judge, she is the Associate Chief Justice of Ontario. Before Justice Fairburn, was a case of Apprehension of Bias against Senior Regional Justice Paul Sweeny, and could Justice Fairburn permit any minute question about her own impartiality? Fairburn sits on the Civil Rules Committee and this committee makes rules of court for the Court of Appeal and Superior Court of Justice in relation to the practice and procedure of those courts in all civil proceedings, subject to approval of the Attorney General. Regional Senior Justice Paul Sweeny also sits on the Civil Rules Committee, yet this in not the end. A bio from Stockwoods Barristers, where Fairburn was a partner, states that she “served as a Director of the Advocates Society from 2010 to 2013.” The Ontario Judicial Appointments Announcement for March 2015 from the Department of Justice, Ottawa shares a bio on Justice Paul Sweeny. Here it states: “He is a past director of the Advocates Society 2006-2009.” 

Michal Fairburn was the incoming new director and Paul Sweeny was the outgoing director. Can it be safe to assume that Michal Fairburn worked closely with Paul Sweeny to ensure a smooth transition of power? What legal acumen permitted Justice Michal Fairburn to hear a matter relating to apprehension of bias against Justice Paul Sweeny? Not only did Justice Fairburn take this on she gave a decision without any reasoning at all. What would a fair, right-minded person say to this situation? 

It goes without saying that none of them, not lawyer Michael Kestenberg, not Justice Sweeny, nor Michal Fairburn expected self-represented individuals to uncover this cannibalisation of our Canadian Justice System. The big question is what can be done about this?

I’ll leave the final words in this matter to The Right Honourable Beverly McLachlin, former Chief Justice of Canada, in her Forward for the Canadian Judicial Council ‘Ethical Principles for Judges’: “The ability of Canada’s legal system to function effectively and to deliver the kind of justice that Canadians need and deserve depends in large part on the ethical standards of our judges.”

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Part 2  -  The Dark Face of Canada's Justice 

Part 3  -  Judicial Cloak of Protection

Part 4  -  Supreme Court of Canada commits highest aberration of its own law

Part 5 -  What is a Measure of a Judge 

Part 6 -  Are there consequences for a Judge's Breach of Law

Silence is not an option – Mayorgate Reawakens

To all my Mayorgate readers I apologise for the lengthy absence, Mayorgate has been silent for a reason. As author and publisher of Mayorgate I had been thrown the challenge to survive a serious set of events that threatened my health culminating in amputation. The road to recovery had taken time, for many days it felt like I had been transported into the painting by Edvard Munch, and I was simply screaming. According to Munch himself, The Scream was a picture he painted to represent his soul, for me that inward scream became more deafening and demanded the reawakening of Mayorgate. During recovery the legal battles continued and there was no care that I was shorter on one side. Yet it was not the battles that had an effect but what those battles revealed, and that needs to be spoken about. All our values of equality and law are simply a farce. The corruption and intimidation within our court system cannot be allowed to continue in silence. The issues that Mayorgate had exposed relating to the Paderewski Society Home (Niagara), its lawyer at the time, Rachel Goerz (nee Slingerland) have compounded dramatically.

We Canadians believe that our courts are transparent in every aspect. We expect our judges to be unbiased and free from all influence. Those of us who may choose to self-represent ourselves before the courts believe that equality will be a guarantee. Sadly, these lofty ideals are nothing more than pie-in-the-sky. Traditional media rarely questions the status quo, but silence is not an option for Mayorgate.

Mayorgate has faced legal threats in the past for bringing the light of day on issues that traditional media, in particular local Niagara media, had stayed silent on. One such threat came in the form of a defamation lawsuit filed by Debbie Zimmerman, a former Niagara Regional Councillor and previous Chair in the Regional Municipality of Niagara, after allegations of an affair she had with former St. Catharines Mayor Brian McMullan, who also had a seat on Niagara Regional Council. Affairs and divorces are literally a dime a dozen but these both sat on Regional Council and questions of possible conflict of interest were troubling. The source of the allegations came to Mayorgate by way of copies of the divorce papers filed by the former Mrs. Pat McMullan. As an update the defamation claim filed by Debbie Zimmerman has been dismissed by the Superior Court of Justice. Maybe Debbie became hesitant or concerned with what a trial would make public.