What is the Measure of a Judge?

 Mark Twain said, “Action speaks louder than words but not nearly as often,” can such a simple yardstick be sufficient as a guide to judge Judges? Judges themselves would surely as a collective find it extremely impudent that anyone other than a judge would ever judge them. Yet in our modern society how can we allow such a small group of individuals to wield such absolute autocratic power? As J.J. McCullough of the Washington Post referred to Supreme Courts as an “institution of an arbitrary and unaccountable nine-member oligarchy.”

For so long our society has had an absolute trust and respect in our judiciary. Our democratic governments take such pride in the separation of state and bench in fact to such a degree that the judiciary is nothing more than an all powerful autocratic institution who are free of all consequence for their actions. Even our politicians can face senate or parliamentary hearings, legal action or in the very least they can be voted out of office. Can a judge be voted out and off the bench? The answer is no. There are those who will point to the Canadian Judicial Council where complaints relating to judges are directed for adjudication. Simply look at who comprises the Council and ask what has the Council done sine it was formed in 1971.

In 1998 the CJC published the Ethical Principles for Judges and in its Forward written by the Honourable Beverley McLachlin, then Chief Justice of Canada in this opening statement: “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.” This 60 page document is not a code of ethics for judges to follow and page 9 clarifies that where it states; “The Statements, Principles and Commentaries are advisory in nature. Their goals are to assist judges with the difficult ethical and professional issues which confront them and to assist members of the public to better understand the judicial role. They are not and shall not be used as a code or a list of prohibited behaviours. They do not set out standards defining judicial misconduct.”

With headings like Integrity, Diligence, Impartiality, Judicial Demeanour and Conflicts of Interest, none of these 60 pages are anything more than guidelines. Judges don't need to really bother with them and with the absolute independence we grant them, we get what we deserve according to the Honourable Beverley McLachlin, former Chief Justice of Canada.

The Canadian Judicial Council is where complaints relating to judges are steered to be heard. I was advised of this fact by the Minister for the Attorney General and the Supreme Court of Canada, should there be confidence in this advice? Since its inception in 1971 the CJC's record is far from anything that builds credibility of judges judging judges. The reality is, the CJC resembles a bad television sit-com with the head of the family being the Chief Justice of Canada aided by all the Chief Justices and Associate Chief Justices from the provinces. So this exclusive club which handles complaints of ethical misconduct such as improper demeaner, failure to properly disqualify when a judge has a conflict of interest, engaging in exparte communication and failure to execute their judicial duties, has said that misconduct should not guarantee the judge's removal, the gravity of the misconduct must be determined.

The CJC does not think that misconduct by a judge, the breach of trust committed warrants consequence, rather the discussion is on how bad the committed misconduct is! Yet the severity of the misconduct is judged by judges who themselves may have committed similar misconduct. Retired Supreme Court judge Rosalie Abella in an interview with CTV, May 2021 said, “The good faith in Canada's judges, with wisdom and the intelligence is extraordinary. I don't have a slight hesitation, their ability to deliver justice to the Canadian public.”

So we are back to the opening question, what is the measure of a judge? Dale Carnegie, the famous American motivator, went a little further than Mark Twain when he said, “Pay less attention to what men say, just watch what they do.”

To watch what judges do is not easy as most of their actions relate to matters they hear as members of the bench. Their words, well they are spread out in public whether through legal journals, interviews with mainstream media or depending on their position more widely spread public appearances. The first judge to face the well articulated yardstick of Mark Twain or Dale Carnegie is Justice David M. Paciocco.

Justice David M. Paciocco sits on the bench of the Court of Appeal for Ontario. This is the highest court in the province and the court of last resort, as trying to have the Supreme Court to listen to you is extremely difficult. Justice Paciocco has authoured several books on criminal law, he is a professor of law and in 2005 was nominated to receive an Honorary Doctorate from Laurentian University. He is a legal scholar, and is considered one of Canada's foremost experts on the law of evidence. Paciocco was elevated to the Court of Appeal for Ontario in 2017.

Prior to being appointed to the Court of Appeal for Ontario Justice Paciocco had to submit to a questionnaire which the Judicial Advisory Committee then provides the Minister for Justice with a list of “highly recommended” and “recommended” candidates. Parts of these questionnaires are made public and it is a chance to hear directly from Justice Paciocco. One would think that whatever Judge Paciocco said had to carry real meaning to him and was not said to simply impress the Committee.

The first quote from Justice Paciocco relates to what he sees as the role of judges in our Canadian constitutional democracy. “In our constitutional democracy the role of a judge is to decide cases by applying the law, and never based on personal or political beliefs. The reason is simple. Without commitment to the ideal that judges must decide cases based on the law, there is no law, only power. Indeed, requiring judges to follow the law diminishes the risk that power will be abused. It insulates against corruption and discrimination. On our conception of constitutional democracy it is this that gives legal decision their legitimacy.”

If this view of judges deciding cases by applying the rule of law is true at all times and for all judges, then surely we could claim to live in an oasis of equality with no discrimination. Sadly an alarming fact remains, judges face serious questions of bias and their decisions questioned, even overturned, but without consequence to the judge. Judges hold immense power affecting the lives of individuals and the fall of that gavel can be as dramatic as a large rock attached to an ankle of an individual dropped into the ocean.

Justice Paciocco claims to view the parties who have a legal interest in the litigation as people, he refers to them as “faces” not “cases” and says, “In a society that respects the integrity of persons, sheer human decency requires that those who will be affected by the use of power be spoken to, and not simply about. It requires that a judge who makes a decision to absolve someone, or to impose a burden on someone, will explain why this is being done.”

The judge isn't wrong in the fact that those people who need to face the courts for whatever reason do so with fear and worry. If one can afford a lawyer to manoeuvre the twists and turns of the corridors of justice then their pressure is somewhat relieved. Today, many have been forced to self-represent, to try and learn the court's procedures and administrative nightmare. True the Supreme Court of Canada endorsed a document called the Statement of Principles on Self-represented Litigants and Accused Persons, but the reality is that the discrimination self-represented litigants face in all fronts of the legal system have not diminished at all.

A final worthy reference to the judge's musings should possibly sound alarm bells in anyone who listens. On the issue of the rule of law Justice Paciocco said, “that the rule of law assumes that the law is known, when, in fact, there is often controversy about what the law is. This enables judges to manipulate precedents, or to choose a conclusion and then find a reason for it. At the very least, it is said, the law is malleable enough that judges, seeing things from their own perspective, will choose to believe the law is what they want it to be. For this reason, some are openly critical of the integrity and worth of the rule of law. The reality, however, is that any power can be abused, and any power can be used poorly.”

It is possible to write a whole thesis on such a statement by someone considered to be a legal scholar. At the same time these words by a judge beg the question whether such sentiment comes from experience or witness. Either way, any individual who believes that a judge has the right to command automatic respect or trust in his or her position as impartial and unbiased adjudicators has lost their standing.

Justice Paciocco's words raise a high level of confidence in the kind of judge he strives to be, but before comparing his actions in the real arena of court and his decisions there is value to review another judge of the Court of Appeal for Ontario. Justice Peter Lauwers was appointed to the Court of Appeal in December 2012 after serving as a judge on the Superior Court of Justice of Ontario since July 2008.

Justice Lauwers comes across as a thinker, he ponders on the Charter of Rights and its relevance in the rule of law, he seems to bathe in the psychology of judgeship and has even appeared to have some level of deference to the self-represented litigant. In a decision, Lauwers wrote for the Court of Appeal for Ontario cited as Grand River Conservation Authority v Ramdas, 2021ONCA 815, spending some eight paragraphs relaying his observations on self-represented litigants.

The numbers of self-represented in the courts are growing monthly and the reason is simple, lawyers have made it impossible for many to be able to afford them. Justice Lauwers acknowledges that the Supreme Court of Canada endorsed the Statement of Principles on Self-represented Litigants and Accused Persons in Pintea v Johns, 2017 SCC 23. He provides advice to apposing counsel on the treatment of self-represented opponents, even makes reference to Canadian Code of Conduct for Trial Lawyers Involved in Civil Actions Involving Unrepresented Litigants, Irvine: American College of Trial Lawyers, 2009.

Possibly one of the most important points Justice Lauwers raises is at paragraph 21 where he states that it is, “open to a judge to engage in active adjudication in order to obtain relevant evidence from a self-represented party who might not fully understand what is relevant and what is not.” He goes on to say that a judge is constrained by the principles of impartiality in how he or she helps make the judicial process accessible stopping short of becoming their advocate. Do the constraints of principles of impartiality prohibit a judge from going in the opposite side of being helpful to obstructive?, Justice Lauwers does not raise such a prospect.

Besides his apparent appreciation of the challenges that self-represented litigants face Lauwers has delivered speeches reflecting on Charter Values, and even making a call for Judicial Humility. In January 2018 Justice Lauwers delivered a speech at the Runnymede Society which he entitled 'A Call for Judicial Humility'. The Runnymede Society was founded by the Canadian Constitution Foundation in 2016 as a national student membership organisation dedicated to the ideas and ideals of constitutionalism, liberty and the rule of law.

In the opening to his speech Lauwers says; "If Dicey was suspicious of administrative tribunals, I am suspicious of judges, starting with myself. But so is the system of justice. Knowing from experience how seductive the size of power can be, the system of justice puts many constraints on judicial decision making." The 'Dicey' that Justice Lauwers pays homage to is Albert Venn Dicey (1835-1922), a British jurist and constitutional law theorist who wrote An Introduction to the Study of the Law of the Constitution (1885), and he fathered the belief that no one is above the law.

Lauwers goes on to say, “We are limited in what we can do by the issues in the case we hear, and by the evidence the parties adduce.” According to Justice Lauwers judges are “obliged to give reasons for our decisions that display the qualities of accountability, intelligibility, adequacy and transparency.” There is no mention of any consequences if the “many constraints on judicial decision making” are in fact breached by a judge. Are these “constraints” simply there as threats or are they real? Who do judges answer to?

The speech by Lauwers then evolves into discussion of human cognition and judging. According to Justice Lauwers there has been recent psychological research showing the need for constraints on judicial powers. He says that modern psychology now demonstrates that constraints are necessary, something “our ancestors” intuited from observation and experience. Yet what is the point of developing constraints when there is no one to enforce breaches and consequences?

Continuing, Justice Lauwers touches on a darker side of our system of justice, the psychology of judges. He says, “We understand that judges are imperfect human beings.” Is this to be taken as the beginning to an all encompassing excuse? Further Lauwers drops what any clear thinking individual would be alarmed over. “However, the evidence is that judges – like most adults – do not easily convert their emotional reactions into orderly, rational responses. When emotions take over, they distort deliberative reasoning, which can be transformed into motivated cognition or motivated reasoning. When that happens, instead of an impartial assessment of the evidence and the arguments, the decision maker looks for evidence and arguments that support the desired outcome in a way that is not impartial.”

How much human imperfection is society willing to accept in judges considering how much power is given to judges without any real oversight? There are no code of ethics for judges to follow and any complaints are handled by judges against judges. Judicial independence is constantly pushed to a point that a sitting government will not intervene when a judge breaks the law.

Towards the end of his speech Justice Lauwers says, “In our culture we do not understand judges to be Plato's 'golden-souled philosopher kings', disinterested and dispassionate. We understand that judges are imperfect human beings. The psychological research demonstrates that the broader the range of unbridled discretion open to a decision maker, the more likely it is that cognitive illusions, personal biases and attachments, will play a role in decisions. And that is just wrong.”

Dale Carnegie said to pay less attention to what men say and we have heard from both, Justice David Paciocco and Justice Peter Lauwers. Both Judges sit on the Court of Appeal for Ontario, the highest court of Ontario. It is time to examine what they actually do.

Both Justices sat on a Panel Motion at the Court of Appeal in December 2021. This Panel Motion was an appeal to overturn a decision made by a single judge who heard a motion at the COA. The grounds for the appeal were very serious ones, breach of the Courts Justice Act s. 132, breach of the Principles of Judicial Office, breach of Ethical Principles for Judges as published by the Canadian Judicial Council dealing with foundation principles of Impartiality and Conflict of Interest, and breach of the Charter of Rights. The panel comprised of Justice Peter Lauwers (president), Justice David Paciocco, and Justice Thorburn JJ.A.

What was before this panel of judges was very serious. Justice Michal Fairburn, Assistant Chief Justice of Ontario, had willfully and with intent breached the law. The material filed for the panel to consider was impossible to deny or argue, and the moving party for the motion were self-represented litigants.

Justice Paciocco has been quoted as saying that “parties must be spoken to as real people,” and Justice Lauwers in his decision at para 18, (Grand River ConservationAuthority v Ramdas 2021 ONCA 815) said “the court also has a duty to ensure that self-represented litigants receive a fair hearing.” He even refers to the court's obligations as outlined by the Canadian Judicial Council. This motion was only permitted to last 19 minutes. During that 19 minutes Justice Lauwers interrupted six (6) separate times with statements such as “what are we here for.” Every 3.16 minutes Justice Lauwers interrupted the attempts by a self-represented litigant to present his submission and evidence to the court. Is that to be considered a fair hearing by anyone's terms? Can anyone present a coherent complex legal argument with an interruption every 3.16 minutes?

Every appeal, every motion when filed has to have accompanying documents; a motion record, signed affidavit, factum, exhibits and a book of authorities as precedents cited. Each and every judge has to read all these materials before the hearing. So when Justice Lauwers said “what are we here for,” it was nothing more than an intentional insult. According to Justice Paciocco, as quoted earlier, in Canada “judges decide cases by applying the law, and never based on personal or political beliefs.” He also said that this insulates against corruption and discrimination giving legal decisions their legitimacy. Lauwers at his Runnymede Society speech said that “we (judges) are guardians of the Rule of Law and are also bound by it.”

The rule of law expects that a moving party to an appeal, whether self-represented or not be permitted to make his submissions and present his evidence. Principles of Judicial Conduct would not permit any judge to interrupt a submission being made 6 times in 19 minutes. What motivated Justice Lauwers and Justice Paciocco to show such disregard to the Rule of Law and Judicial Conduct? Justice Fairburn who was the centre and reason for the Panel Motion hearing in fact is the boss, as the Assistant Chief Justice of Ontario to both Lauwers and Paciocco, and for that matter Justice Thorburn JJ.A. Was that the motivation for their actions?

Paciocco said “any power can be abused,” and as a judge he has immense power. He not only abused that power he helped to decimate the Rule of Law and proved by his actions that his words are nothing but hypocrisy. At the Panel Hearing he interrupted the attempted presentation of submissions saying, in reference to Justice Fairburn, his boss, “it doesn't matter if she was wrong or right.” A judge who willfully and with premeditation breached the Courts of Justice Act was not an issue that Justice Paciocco saw was wrong.

Justice Lauwers ending his speech at the Runnymede Society said that we in our society understand that judges are not “Plato's golden-souled philosopher kings,” that we understand judges to be imperfect human beings. He added that personal biases and attachments will play a role in decisions finishing with “and this is just wrong.” Yet again Lauwers does not say what the Rule of Law and its so called constraints on judges actually does with a corrupt judge or his or her decision. The notion of resting on the fact that appeals at the COA had overturned decisions of lower courts, but what happens when the judges of the Court of Appeal commit corrupt acts? Before serious indignation on the uses of the word corrupt in reference to judges and the Court of Appeal erupts, remember that it simply means making something sound unsound. The Court of Appeal is the last port of call for 'justice' in the province, pointing your finger towards the Supreme Court is equivalent to buying a lotto ticket, unless your issue revolves around condoms (SCC 33 2022) or constitutional protection of sex offenders (SCC 38 2022).

Lauwers himself is a justice on the Court of Appeal of Ontario and at no time in his version of the sermon on the mount at Runnymede Society does he speak to the issue of how these constraints in actuality work. What can be the consequences that judges face if they breach the Rule of Law? Instead he finishes his speech saying; “We judges cannot do whatever we like. We are guardians of the Rule of Law and are also bound by it. The system of justice expects we judges to honour our oaths and do the right thing for the right reason, and in the right way, according to law. But we need the support of the Rule of Law, in all the mundane elements I have laid out earlier, to keep us on the right track, and off the wrong track of embedding our subjective moral commitments in law.”

This is when one realises that whether one takes Mark Twain or Dale Carnegie's observation the actions of an individual provide the real insight of the true nature of that individual. The self-aggrandising speeches are equal to a bald peacock strutting before your senses. If either Justice Lauwers or Justice Paciocco see this as somewhat harsh or unfair then maybe either Justice would like to comment on Court of Appeal file #M52839, Justice Thorburn would presumably remain silent as she did during the actual hearing.

From there a real strange event from the Court of Appeal for Ontario, reported by both Maclean's (Oops: The curious case of the wrong judge, by Jason Markusoff, August 16, 2019), and by the National Post (Ruling tossed after Ontario judge signed off on it without hearing the evidence, by J.Brean, August 16, 2019). It appeared that Justice Paciocco signed off on a 25 page ruling without hearing the actual case. The Court of Appeal in its usual mode of secrecy purged the file of many of the documents and provided no explanation as to how did Justice Paciocco sign a ruling with “I agree” when he did not hear the case.

Gore Vidal said, “On the throne of the world, any delusion can become fact.” These words thrown about by both Justices Lauwers and Paciocco show what may be considered humility or reverence to the Rule of Law and all those who need its protective embrace. Yet their actions proved something far more alarming. Judges sit on a throne that we give them, they do not take it by force or threat, and they sit there without consequence for their actions.

Lauwers and Paciocco are not the only examples of judicial corruption of the Rule of Law to suit their subjective delusions of their power. Justice Paul R. Sweeny, Regional Senior Judge for the Central South Region of the Superior Court in St. Catharines, is a senior judge in the Niagara Region. Justice Sweeny is fully aware of the Ethical Conduct for Judges as recommended by the Canadian Judicial Council, he knows of what constitutes issues of Conflict of Interest and Apprehension of Bias, and he is fully aware of the Principles endorsed by the Supreme Court on the treatment of self-represented litigants. Prior to becoming a judge Paul Sweeny held the position of President of the Ontario Bar Association. As president he was not an ordinary president, he was a publicly loud and vocal protector of lawyers and their reputations. In an interview with the Financial Post Paul Sweeny said, “I am not a shark, a scumbag, mouthpiece or liar. Me and 99 of my colleagues chained together at the bottom of the ocean is not a good start.” This statement gave a good indication as to who Paul Sweeny was and is.

Justice Paul Sweeny decided on February 13, 2020 that he was going to hear a motion, in fact 5 motions, to strike claims by two self-represented litigants. The leading claim was against a lawyer, Rachel Goerz, for malicious prosecution. Rachel Goerz was represented by a Toronto lawyer, Michael Kestenberg of Kestenberg Siegal Lipkus LLP. How could Justice Paul Sweeny decide to hear a motion to strike a claim of malicious prosecution against lawyer Rachel Goerz with his background? On this alone the questions of bias and conflict of interest were huge. In addition to questions of Apprehension of Bias, Justice Sweeny did not disclose to the self-represented litigants the fact of his background. Lawyer, Michael Kestenberg of Kestenberg Siegal Lipkus LLP also knew of Sweeny's background, he too did not disclose the facts. Full disclosure is a part of our Charter of Rights but it was not of interest to Justice Sweeny.

Still this was not enough. Justice Sweeny had a personal and business relationship with lawyer Michael Kestenberg who was representing lawyer Rachel Goerz. Both Justice Sweeny and lawyer Michael Kestenberg were directors on boards of Fanconi Canada at the same time. Sweeny was a past director of Fanconi Canada Inc. and Michael Kestenberg on the Board of Trustees. If ever there was a clear example of conflict of interest that had to be disclosed, this definitely was. Neither Justice Paul Sweeny nor Officer of the Court, Lawyer Michael Kestenberg disclosed any of the facts to the self-represented litigants. If either party wishes to argue this, a transcript of the whole motion is available. So there was no surprise as to Justice Sweeny's decision on Superior Court file Davidoff v Paderewski 2020 ONSC 1171. Is it possible to say that a judge of the Superior Court 'fixed' a court hearing? Simply look at the evidence and decide.

Motion before Justice P. Sweeny, Superior Court of Justice, February 13, 2020

So much for Justice Lauwers and his bloated hypocrisy that judges can't do what they want, that there are constraints on the power of judges. Can Justice Lauwers answer how was this possible if it is true that judges can't do what they want?

If this is not enough then there is Court of Appeal for Ontario file numbers C68308 (Davidoff v Paderewski 2021 ONCA 194) and file number M52712. File number C68308 was an appeal of the decision by Justice Sweeny The evidence provided to support the two major grounds for the appeal of Apprehension of Bias and Non-Disclosure was undeniable and absolutely conclusive. The appeal was heard by a panel consisting of Justice Michal Fairburn, (president), van Rensburg and Huscroft JJ.A. Justice Fairburn did all the talking and wrote the four sentence decision. Fairburn simply said the case was not proven and dismissed the appeal. No comment on the seriousness of the allegations or the hard evidence. Justice Fairburn threw a protective blanket over a fellow judge. Justices van Rensburg and Huscroft nodded in compliant silence and indifference to law. This is power, power of corruption. Later investigation revealed a personal connection between Justice Fairburn and Justice Sweeny similar to Sweeny's and Kestenberg's.

Court of Appeal file number M52712 was an astonishing breach of law by a judge that simply has been permitted to have happen. It was a motion to stay costs until a Leave to Appeal decision was made by the Supreme Court. Courts of Justice Act s. 132 prohibits a judge to hear a matter that the judge had previously heard and therefore has self-interest in its outcome. Justice Fairburn decided to hear the motion even though the Leave Application was related to an appeal decision she made. Fairburn with premeditation breached the Courts of Justice Act, principles of judicial conflict of interest, issues of apprehension of bias, Charter of Rights, even Human Rights. Justice Fairburn did not care.

At the start the question asked was whether one measures a judge by his or her own words or their actions, and after examination the answer stands loud and clear. Judges are given immense power over our lives and that power corrupts even the most well intentioned. Society must find a middle ground between judicial independence and the need to really constrain the abuse of power providing real and tangible consequences for identified abuses. Whether one listens to the sales pitch offered by Justice Paciocco in his submission to the Judicial Advisory Committee, or the bloated rhetoric of Justice Lauwers in his speech, it becomes clear how empty each sounds. Associate Chief Justice for Ontario, Justice Fairburn takes the abuse of power to a more frightening level with premeditated breach of court of law. One could possibly tip the hat and offer Kudos to Justice Sweeny, after all his words were mirrored in his actions. As President of the OBA (Ontario Bar Association) he stood for the protection of lawyers and their reputations, and as a judge he was willing to breach all principles and 'fix' a court hearing to that end.

A quote by Abhijit Naskar, author of The Art of Neuroscience in Everything may leave a seed to germinate in the judicial sphere, or it may not. “It is easy to fight power, when you have none, when you feel like the victim. The real battle begins when you start to have a taste of power. It takes an impossible character to stand by their principles till their last breath, as well as the convenience of power.”

Does such an “impossible character” as a judge exist?

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Part 1 - Self Represent, Self Destruct

Part 2 - 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 6 - Are there consequences for a Judge's Breach of Law

Supreme Court of Canada commits highest aberration of its own law

Supreme Court of Canada is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian Law. It was established in April 1875 and authorised by the Constitution Act of 1867. On November 25^th, 2021 the Supreme Court of Canada committed its greatest aberration of its own previous decisions and work of two of decades.

The Supreme Court of Canada hears appeals from all over Canada, its roster of nine judges is led by the Right Honourable Richard Wagner, Chief Justice of Canada. Although applications for leave to appeal come from all over the country, the SCC only hears approximately 2% of those applying. Such low odds of approval for leave applications leave many Canadians shattered as the Supreme Court of Canada is the last and highest stage to attempt to redress 'judges' errors.

Prior to 1949, the Supreme Court did not constitute the court of last resort, litigants could appeal to the Judicial Committee of the Privy Council in London. Some cases could bypass the Supreme Court and go directly to the Judicial Committee from the provincial courts of appeal.

Criteria at the Supreme Court for the acceptance of a leave application is somewhat daunting. Most appeals are heard by the Court only if leave is first given. Leave to appeal is granted by the Court if, for example, the case involves a question of public importance or if it raises an important issue of law (or an issue of both law and fact) that warrants consideration by the Court. The Court's decision whether to grant leave to appeal is based on its assessment of the public importance of the legal issues raised in the case in question.

The majority of applications for leave to appeal are decided by the Court on the basis of written submissions filed by the parties. The Court considers an average of 800 applications for leave to appeal each year, and only approximately 2% are heard.

Canada's Supreme Court is led by the Chief Justice of Canada, and currently it is his Honourable Justice Richard Wagner who took office in December 2017. Justice Wagner was interviewed by Justice Michal Fairburn, of the Court of Appeal for Ontario on June 8, 2018 at the Advocates Society's annual End of Term dinner. At the informal Q&A by Justice Michal Fairburn, Wagner said that one of his first initiatives after being appointed Chief Justice of Canada in December was to release summaries of legal decisions written in lay people's language, along with full reasons in appeals. “We decided to find a way to communicate better... to allow people to understand decisions,” Wagner told Fairburn. ('New SCC chief justice speaks at Advocates' End of Term dinner by Elizabeth Raymer, Canadian Lawyer, June 8, 2018).

Quoting from the Supreme Court's scc-csc.ca, Role of the Court it states: “The importance of the Court's decisions for Canadian society is well recognised. The Court assures uniformity, consistency and correctness in the articulation, development and interpretation of legal principles throughout the Canadian judicial system.” These are the Court's own words as published on their official site for all to read. The Supreme Court assures us as Canadians “uniformity, consistency and correctness” and this assurance is put in writing, made public and not some hot rhetoric thrown about at a cocktail party. All this uniformity and so forth is assured as a part of the SCC's “articulation, development and interpretation of legal principles throughout the Canadian judicial system.”

So our Supreme Court of Canada assures, or guarantees us that it will articulate, develop and interpret legal principles with uniformity, consistency and correctness throughout the Canadian judicial system but what happens when it can be proven to be absolutely not true? What if the evidence and proof is undeniable, irrefutable and in the form its own documents and record? Who will remedy the situation? Will the Chief Justice of Canada, the Honourable Justice Wagner step forward? Our Supreme Court is the last port of call for justice yet injustice appears to be its captain. If injustice is proven beyond doubt, and assurances of uniformity, consistency and correctness exposed as empty hollow sounds, then should a remedy be immediate? A more alarming question comes forward when one tries to understand where does one turn to get a remedy when the evidence is undeniable? The Chief Justice of Canada, Honourable Justice Richard Wagner would be the natural, logical individual who would, or should investigate, but will he?

Our Supreme Court has led the way to reinterpret legal principles and develop a new set of principles. In cases such as Grant v Torstar and WIC Radio Ltd v Simpson, the law of Defamation was refined and new defence was articulated. Issues of Apprehension of Bias relating to decision makers had been discussed and standards of examination advanced in Weywakum Indian Band v Canada.

One question that has been brought before the Supreme Court is the issue of Adequacy of Reasoning. The importance of this question cannot be overstated. Just imagine presenting your case before a judge and that judge tells you that you are wrong or you did not win, but did not provide any reasons as to why your were wrong. The more serious an issue before the judge the more serious the lack of adequate reasoning becomes.

The Supreme Court in its decision in Canada (Minister of Citizenship and Immigration) v Vavilov 2019 SCC 65, recognises the level of importance of this at paragraph 4; “This area of the law concerns matters which are fundamental to our legal and constitutional order, and seeks to navigate the proper relationship between administrative decision makers, the courts and individuals in our society.”

It has been more than two decades since the Supreme Court has grappled with the issue of procedural fairness as a legal obligation to provide reasons for a decision. In Baker v Canada (Minister for Citizenship and Immigration) 1999, 2 R.C.S. at paragraph 43 L'Heuruex-Dube J. writes: “In my opinion, it is now appropriate to recognise that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong argument demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is statutory right to appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in common law elsewhere. The circumstances at bar, in my opinion, constitute one of the situations where reasons are necessary. The profound importance of a decision to those affected, as with those at issue in Orlowski, Cunningham and Doody, militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.”

These two quotes from two decisions of the Supreme Court some 20 years apart clearly point to the importance the Court places on issues of reasoning being provided for decisions. At least it seems that way.

The Supreme Court's work on the issue of providing reasons for a decision handed down had continued through over two decades. In another Supreme Court decision, Newfoundland and Labrador Nurses Union v Newfoundland and Labrador (Treasury Council) 2011 CSC 62 (2011) 3. R.C.S. 708, Abella J.A. wrote: “In Dunsmuir v New Brunswick 2008 CSC 9 (2008) I.R.C.S. 190 which transformed administrative law, this Court explained that the purpose of the reasons, in cases where it is to be set out, is to establish “the rationale for the decision (as well as) transparency and ... intelligibility of the decision-making process.” (paragraph 47).

Would it be difficult to understand for anyone, an ordinary citizen or someone from the legal profession, as to why reasons are required to be provided with a decision? In case the clarity of the Supreme Court's efforts on this issue are somehow missed, the Court in R v R.E.M. (2008) 3.5 C. R. at paragraph 11 provides three main functions for reasons:

“1. Reasons tell the parties affected by the decisions why the decision was made. As Lord Denning [Lord Denning was a judge who sat on the highest court in the U.K, the House of Lords] remarked on the desirability of giving reasons, “by so doing (the judge) gives proof that he has heard and considered the evidence and arguments that have been addressed before him on each side; and also that he has taken extraneous considerations into account.” The Road to Justice (1955) at paragraph 29.

2. Reasons provide public accountability of the judicial decision; justice is not only done, but is seen to be done. Thus it has been said that the main object of a judgement, “is not only to do but to seem to do justice,” Lord Macmillan, The Writing of Judgements (1948) 26 Can Bar Rev. 491 at p. 491.

3. Reasons permit effective appellate review. A clear articulation of the factual findings facilitates the correction of errors and enables appeal courts to discern the inferences drawn, while at the same inhibiting appeal courts from making factual determinations from the lifeless transcript of evidence, with the increased risk of factual error.” M. Taggart 'Should Canadian judges be legally required to give reasoned decisions in civil cases' (1983), 33 U.T.L.J. 1 at p.7”.

All these quotations and references to previous cases are important to note. Cases heard, decisions made by the Supreme Court become 'case law' for lower courts to follow, and one would expect for the Supreme Court itself to follow. The consistency, uniformity and correctness assured by this highest court in the country is in fact nothing more than hypocrisy and a myth. All these previous decisions quoted were in fact erased by the Court on November 25, 2021 in their decision for SCC case file #39748, and just as a final sale at Walmart there is no return or exchange.

An attempt has been made to reach out to the Chief Justice of Canada, the Honourable Richard Wagner regarding this issue, but little is expected regardless of the speeches on communication and transparency by Justice Wagner.

Filing an Application for Leave to Appeal to the Supreme Court of Canada is not one full of confidence, with the success rate only at 2% of all applications. Yet with the Court's record on the issue of Adequate Reasoning we, my daughter and I, felt that our application would have to be heard. Our main ground for the appeal was the absolute lack of reasoning from a decision by the Court of Appeal for Ontario.

Application for Leave to Appeal - Supreme Court of Canada File No. 39748

Justice Michal Fairburn, ACJO of the COA wrote the decision, with Justice Katherine van Rensburg and Justice Grant Huscroft JJ.A signing in agreement. That decision read; “The appellants raise one ground of appeal. They are of the view that the dismissal of their claims involves a reasonable apprehension of bias. Although they correctly articulate the legal test for a reasonable apprehension of bias, in our view, there is no basis to support this very serious legal claim. Moreover, there is no basis to support the suggestion made by the appellants that any counsel on this matter behaved inappropriately.”

All three judges, Fairburn, van Rensburg and Huscroft agreed that this was a “very serious legal claim” that was put before them. Yet their decision defied every concept of logic and stood in arrogant opposition to two decades of work by the Supreme Court. Our application for leave was allocated a file number and confidence grew that the Supreme Court would not, could not allow this to pass without a full appeal to be heard.

The appeal that the COA dismissed without providing any reasoning, without acknowledging the concrete undeniable evidence was based on apprehension of bias. It was based on a motion, in fact five motions, heard by Justice Paul Sweeny of the Superior Court in St. Catharines. Justice Sweeny did not disclose his past position as president of the OBA, (Ontario Bar Association) nor did Justice Sweeny disclose his personal association to counsel Michael Kestenberg. Counsel Michael Kestenberg did not disclose his personal association with Justice Sweeny, nor did counsel Kestenberg disclose his knowledge of Justice Sweeny's position with the OBA. A fair-minded individual, given all the details of the situation may easily see this, in colloquial terms, as a fixed court hearing. Could anyone excuse it as a judge's error? On the other hand could any Canadian believe that such a thing could happen in a Canadian court?

Whatever confidence we may have had with a file number allocated, case laws that we studied and filed with our leave application and trust we had in Canada's Supreme Court, all of it was wiped away. On November 25, 2021 the Supreme Court simply dismissed our leave application. Naturally this was done in secret and we cannot know which of the nine judges chose to make this decision, nor were we given any reasoning.

Supreme Court of Canada Notice of Dismissal

The Supreme Court itself wrote in Canada (Minister of Citizenship and Immigration) v Vavilov (2019), at paragraph 19; “On this point, we recall the observations of Gibbs J, in Queensland v Commonwealth (1977) 139 C.L.R. 585 (H.C.A) which this Court endorsed in Craig, at para 26. No justice is to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgement as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the Court. A Justice, unlike a legislator, cannot introduce a programme of reform which sets at nought decisions formerly made and principles formerly established. It is only after the most careful and respectful consideration of the earlier decision, and after giving due weight to all the circumstances, that a Justice may give effort to his own opinions in preference to an earlier decision of the Court.”

This quote from the Supreme Court decision in Vavilov came in 2019, and it was an agreed joint reasoning for judgement, from paragraphs 1 to 197 by Justices; Richard Wagner, Michael Moldaver, Clement Gascon, Suzanne Cote, Russell Brown, Malcolm Rowe, and Sheilah Martin. Two other judges, Justice Rosalie Abella and Justice Andromache Karakatsanis also wrote a joint concurring reasoning spanning paragraphs 198 to 343.

In the concurring reasoning Justices Abella and Karakatsanis dealt with the issues of Stare Decisis, precedents or prior decisions, in greater depth. At paragraph 256; “Apex courts in several jurisdictions outside Canada have similarly stressed the need for caution and compelling justification before departing from precedent. The United States Supreme Court refrains from overruling its past decisions absent a “special justification,” which must be over and above the belief that a prior case was wrongly decided.

Paragraph 257; “Similarly, the House of Lords “require[d] much more than doubts as to the correctness of [a past decision] to justify departing form it.” Then Paragraph 258: “New Zealand's Supreme Court views “caution, often considerable caution” as the “touchstone” of its approach to horizontal stare decisis, and has emphasized that it will not depart from precedent “merely because, if the matter were being decided a fresh, the Court might take a different view.”

Paragraph 259; “Restraint and respect for precedent also guide the High Court of Australia and South Africa's Constitutional Court when applying stare decisis.”

Paragraph 260; “The virtues of horizontal stare decisis are widely recognized. This doctrine “promotes the even handed, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” (Kimble, at p. 2409, citing Payne v Tennesee, 501 U.S. 808 (1991). This Court has stressed the importance of stare decisis for “[c]ertainty in the law.” Other courts have described stare decisis as a “foundation stone of the rule of law.”

Stare Decisis is a Latin term meaning “to stand by things decided,” and a court doctrine not only in Canada but in the United Kingdom, United States of America, Australia, New Zealand and South Africa. It has been a guide for judges for decades building uniformity in the rule of law and has become a foundation stone of the rule of law. To ignore it is to overturn all the work of the Court and open the flood gates to questioning previous decisions.

Our leave application was dismissed by a panel or maybe a single judge of the Supreme Court and no one will identify the judge or judges. This secret from the highest court in Canada further exposes the hypocrisy of our justice system. Whether it is the current Chief Justice of Canada, Justice Wagner or our past Chief Justice, Justice Beverley McLachlin, rhetoric of transparency appears to be based on matters of convenience. Not only are the decision makers shrouded in a cloak but the decision is camouflaged by the fact that no reason is provided. The decision to dismiss our application for leave to appeal by the judges of the Supreme Court was an affront to the Court doctrine of Star Decisis. Our leave application was based on the question of Adequacy of Reasoning, in fact the complete absence of reason in a decision written by Justice Fairburn, ACJO of the COA. Ample case law, precedent, was filed in the form of a Book of Authorities. Cases such as R v Sheppard, Clifford v The Attorney General of Ontario and Canada (Minister of Citizenship and Immigration) v Vavilov.

Before the COA on appeal was an extremely serious question on the Apprehension of Bias against a judge of the Superior Court in St. Catharines, Justice Paul Sweeny. Our appeal was based on absolute fact and undeniable evidence of the facts of the matter, all were provided with the filing. The decision written by Justice Fairburn did not acknowledge the damning evidence in any form. Of equal importance is that Justice Fairburn completely ignored the issue of Non- Disclosure by both Justice Sweeny and Counsel Michael Kestenberg.

Justice Fairburn in her written decision stated that we made only one ground of appeal – the apprehension of bias. It is hard to understand such an error by a judge who read the Factum, the filed evidence and listened to my oral submission. The issue of non-disclosure was equally as important and was highlighted in the Factum and in the oral submission. As evidence a transcript was filed to ensure no denial was possible. A fully informed and fair-minded individual upon examining all the evidence may come to the conclusion that the deliberate decision made by Justice Sweeny and Counsel Michael Kestenberg of their association, and of Sweeny's past position might be an attempt to remove the impartiality from the court hearing for personal gain. Was the non-disclosure decided on because we are self-represented litigants?

Since Justice Fairburn 'erroneously' stated in her written decision that we raised only one ground of appeal, then can her fourth and final sentence be explained? She wrote; “Moreover, there is no basis to support the suggestion made by the appellants that any counsel on this matter behaved inappropriately.”

We did not make any 'suggestion'. The Oxford Dictionary describes suggestion as “an idea or plan put forward for consideration.” We stated in our Factum and oral submission that Counsel Michael Kestenberg had not disclosed his association with Justice Sweeny nor did Michael Kestenberg as counsel for Rachel Goerz disclose Justice Sweeny's association with the Ontario Bar Association. It was a clear fact not an “idea” supported with evidence in the form of a transcript of the hearing. At the same time neither of the other two counsels disclosed anything, both Kristen Bailey and Scott Crocco remained silent.

The Supreme Court had before them what could be called an open and shut case. It fell within the parameters of all the precedent setting cases the Supreme Court had ruled on. Case law was filed in the form of a Book of Authorities. If the Court's own decisions were not enough than a COA decision Clifford v The Attorney General of Ontario et al. at its opening page states; “Procedural fairness imposed a legal obligation on the Tribunal to give reasons for its decisions. The standard of review of the obligation to give reasons is correctness. The sufficiency of reasons must be assessed functionally. In the context of administrative law, reasons must be sufficient to fulfill the purpose required of them, particularly to let the individual whose rights, privileges or interests are affected know why the decision was made and to permit effective judicial review.”

What more did the Court need? Stare Decisis would have expected, even demanded that leave application be approved and such miscarriage of justice remedied. Justices Abella and Karakatsanis had clearly and succinctly put the Court's position on stare decisis publicly. It is the foundation of the Rule of Law. So why did the Court dismiss our application for leave to appeal? Why has the country's chief justice refused to respond as the Honourable Justice Robert Wagner has?

A more alarming and disturbing question, when one examines the facts further our application was dismissed on November 25, 2021 and the Vavilov judgement was rendered on December 19, 2019. That is a little more than 18 months apart. All nine judges of the Supreme Court: Chief Justice Wagner, and Justices Abella, Moldaver, Karakatsanis, Gascon, Cote, Brown, Rowe and Martin agreed jointly on the Vavilov judgement, including the additional reasoning by Justices Abella and Karakatsanis. When the application for leave was dismissed two of the originating justices who signed the Vavilov judgement had resigned. Justice Abella and Justice Gascon were replaced by Justice Nicholas Kasirer and Justice Mahmud Jamal.

Now comes the question, of the nine originating justices seven were left at the time of the dismissal of our leave application. Which of the justices who agreed upon and signed the Vavilov decision and its lengthy reasoning, then some 18 months later overturn that reasoning? Which of the same justices decided to discard “clarity and certainty in the law”? (paragraph 263 from Vavilov).

Aharon Barak described by Princeton Press as, “one of the world's foremost judges and legal theorists,” is a lawyer, former President of the Supreme Court of Israel, (1995-2006) a justice of the Supreme Court of Israel (1978-1995), a professor of law who taught at Yale Law School, Georgetown University Law Centre and the University of Toronto Faculty of Law, published in the Israel Law Review Journal 'Overruling Precedent' (1986). At page 275 he states; “overruling precedent damages the public's conception of the judicial role, and undermines the respect in which the public holds the courts and its faith in them. Precedent should not resemble a ticket valid only for the day of purchase.”

To return to Vavilov again at paragraph 261; “Respect for precedent also safeguards this Court's institutional legitimacy. The precedential value of a judgement of this Court does not expire with the tenure of the particular panel of judges that decided it.” In this case the same judges who provided these words overturned the very words they had provided! In paragraph 263; “The majority's reasons, in our view, disregard the high threshold required to overturn one of this Court's decisions.” What was the threshold reached in dismissing our application for leave and overturning the Court's own precedent developed over years of deliberation?

Precedents were set by the Supreme Court of Canada on the issue of providing adequate reasons for decisions. Which of these past decisions did this panel disagree with? Was it R v R.E.M. Or Dunsmuir v New Brunswick, or was it Newfoundland & Labrador Nurses Union v Newfoundland & Labrador Treasury Council, or maybe Baker v Canada (Minister for Citizenship & Immigration?

Back to Vavilov and these judges' own words in paragraph 266; “Overruling these judgements flouts stare decisis principles, which prohibit courts from overturning past decisions which “simply represent a preferred choice with which the current bench does not agree.” (Couch at para 105). Did the current bench not like who was at the centre of the application for leave to appeal? “The entire idea of stare decisis is that judges do not get to reverse a decision just because they never liked it in the first instance.”

What was the basis for the decision to dismiss? How was the application seen not to fall completely and succinctly into the form of precedents already dealt with by the Court? Who made the decision to dismiss and why is the process for decision making so sensitive? Stare Decisis as a revered court practice had been wiped from existence by this dismissal and hypocrisy put in its place.

Reading these quotes delivered by learned men and women of our judiciary, justices who shape our democratic rule of law and its interpretation, then examining the dismissal of SCC file #39748 and one is left aghast. Justice Rosalie Abella is quoted saying, “The good faith in Canada's judges, the wisdom and intelligence is extraordinary. I don't have a slight hesitation [in] their ability to deliver justice to the Canadian public.” ('Examinations 2022 – Changing a Course Through Challenging Appellate Terrain, Lerners.ca, March 9, 2022).

Another attempt has been made to contact the Chief Justice of Canada, Justice Richard Wagner on June 6, 2022. To date of writing the only response has been an automated acknowledgement of receipt and nothing else, then on July 13^th a letter from the Supreme Court arrived. Mind you it was only on behalf of Chief Justice Wagner with an opening ... “This is further to your letters to the Chief Justice of Canada of March 7, 2022 and June 6, 2022.” This letter was signed by a Chantal Carbonneau a registrar, not a senior registrar or a deputy but simply a registrar.

There is no way of knowing who wrote the letter but one fact is true, it is bedazzled with empty hollow words that do not answer either of the letters to the Chief Justice of Canada Wagner. Ms. Carbonneau again explains how many applications are received by the Supreme Court and how many are granted. She then states that the court does not reconsider decisions “unless there are exceedingly rare circumstances in the case that warrant consideration by the court.”

The Chief Justice of Canada Richard Wagner was asked how was it possible that he and his judges decided to breach stare decisis with such disregard to their own, very own words. He as the Chief Justice of this country had been given direct evidence of a senior judge who decided to with premeditation to break the law. The response was something that left a logical mind numb with disbelief. Justice Wagner's mouthpiece said, “As for your concerns pertaining to the practices of a judge, the Court is only empowered to consider matters that have arisen on appeal from the decisions of the highest courts of final resort of the provinces.” These matters did arise on appeal from the highest court in Ontario and were committed by the second highest judge in the province!

In the end, one can decide for themselves if this reply was better received or not. Justice Wagner's multitude of public statements on better communication, transparency and accountability are shown for what they really are.

Part One - Self-Represent, Self Destruct

Part Two - The Dark Face of Canada's Justice

Part Three - Judicial Cloak of Protection

Part Five - What is the Measure of a Judge

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

 

 

Order UP!

Iron Palisade - Court of Appeal for Ontario,
Osgoode Hall, Toronto

 Wikipedia describes a Court Order as “an official proclamation by a judge that defines the legal relationship between the parties to a hearing, a trial, an appeal or other court proceedings.”

A Court Order is the final step issued by a judge after a court matter is concluded. That being said there are many different types of orders including some that can be requested during the process of a matter being heard. For instance Family Court can issue a temporary Order relating to children's schooling whilst a divorce procedure is in progress. Here for the purpose of this discussion or analysis it is a relatively common order issued after the hearing of a motion by the court.

The Order that is required is from the Court of Appeal for Ontario after a Panel Motion was heard by Justices Lauwers, Paciocco and Thorburn. Although an oral decision had been provided at the conclusion of the hearing, the written judgement was reserved until January 11, 2022. After the written judgement is issued usually the winning side to the action draws up a Draft Order. Each party to the action is first provided with a copy of the draft order to examine and agree on form and content. Once consent is obtained then the draft order is filed with the court's Registrar to be issued.

Here is when the whole process becomes convoluted in an apparent attempt of distortion of the facts. As stated an order can only state the facts from the actual hearing, nothing more or nothing less.

A panel motion was heard at the Court of Appeal for Ontario on December 8, 2021. The moving party were Alexander Davidoff and Alexandra Davidoff, (my daughter and I). Responding party was Rachel Goerz, represented by counsel Michael Kestenberg of Kestenberg Siegal Lipkus LLP. Rachel Goerz and her counsel, Michael Kestenberg were the only responding party who filed material in opposing the motion and had made oral submissions at the motion hearing, and cost submissions at the conclusion of the hearing. Appearing only as an observer was counsel for the Paderewski Society Home (Niagara), Kristen Bailey, assistant to Vanda Santini of Agro Zaffiro LLP. Kristen Bailey had appeared on behalf of Ms. Santini from the beginning with the Motion heard in Superior Court in St. Catharines by Justice Paul Sweeny in 2020. 

Kristen Bailey nor Vanda Santini opposed the motion, they had not filed any material on behalf of their client, nor had Kristen Bailey made any submissions. As a lawyer Bailey had enough experience, being called to the Bar in 2017 to know what an observer is, for that matter Michael Kestenberg with a great deal more experience than Kristen Bailey, knew that Bailey was only an observer, he took part in the hearing. Yet on January 19, 2022, Michael Kestenberg sent a copy of the Draft Order seeking consent, that simply was astounding.

In his draft order, Michael Kestenberg said: “On Reading the Applicants' Motion Record, Factum and Book of Authorities, the Responding Factum, of the Responding Party, Rachel Goerz, and on hearing submissions of the Applicants on their own behalf and counsel on behalf of Responding Parties, Rachel Goerz and Paderewski Society Home (Niagara).”

Michael Kestenberg's Draft Order of January 19, 2022

Kestenberg knew that Kristen Bailey, counsel for the Paderewski Society Home (Niagara) was only an observer, she made no submissions. Why would a lawyer with years of experience misrepresent the truth? Justice Lauwers had awarded Bailey $200.00 in costs as an observer! Regardless of that fact an order cannot state something that is untrue, and if it is not true then logically it is the opposite. This same Draft Order had to be sent to Vanda Santini for approval and consent to form and content. If Ms. Santini approved the Draft Order then serious questions arise. Sandra Napier, Mr. Kestenberg's assistant, did not divulge whether Ms. Santini was provided a copy of the Draft Order as normal procedure would require. Nor did Ms. Santini copy us with her consent if she gave it.

What was the motivation for such an untruth? Did Kestenberg's assistant Sandra Napier simply take it for granted that since Justice Lauwers awarded costs to Kristen Bailey it had to be for a reason and not for being simply an observer? Can Michael Kestenberg, a lawyer since 1976 and charging quite a hefty hourly fee simply didn't bother to read what he put his name to? He was at the hearing and knew Kristen Bailey made no submissions nor filed any material and only sat as an observer.

Leaving a benefit of the doubt hang in the air we did not approve or consent. Our email to Mr. Kestenberg stated that his Draft Order did not state the facts. Revised Draft Orders were prepared. In the revised Draft Order it was made clear that counsel for the Paderewski Society Home (Niagara), Kristen Bailey was only an observer. Counsel for Niagara Regional Housing, Scott Crocco did not appear at all. Copies were sent to Michael Kestenberg on January 25, 2022, which he approved for form and content. On January 26^th the revised Draft Orders were sent to the Court of Appeal Registrar for signature, with a copy of Kestenberg's consent. Mind you Michael Kestenberg had copied his consent to both Vanda Santini and Scott Crocco and neither appeared to object.

Draft Order Amended to Reflect Facts of Panel Motion at Court of Appeal for Ontario

Michael Kestenberg's Consent to Form of the Davidoff Draft Order, copied to Vanda Santini, Counsel for Paderewski Society Home (Niagara) and Scott Crocco, Counsel for Niagara Regional Housing

On February 28, 2022, just a month after the Revised Order was filed with the Court's Registrar, together with a copy of the consent of responding counsel, an email was received from the COA Registrar. Registrar Tanasha Adams requested that the Draft Order sent to the court just over a month ago be put onto a Word format. An email in response was sent to Registrar Adams for clarification, being self-represented I did not want to make any errors. No response came forward from Registrar Adams until March 30, 2022. This email was received from Michael Kestenberg's assistant, Sandra Napier. In her email to Registrar Tanasha Adams, Ms. Napier confirms conversation of the Draft Order to Word format. Ms. Napier also confirms consent from counsel for Rachel Goerz and counsel for Paderewski Society Home (Niagara) Vanda Santini.

Why did COA Registrar Tanasha Adams ignore a request for clarification for a month and then contact the assistant to the responding party's counsel? Was it because I am a self-represented individual? What can possibly be the reason to ignore a request for clarification from the individual who wrote the Draft Order?

After contacting the assistant of counsel Michael Kestenberg, COA Registrar Tanasha Adams sent an amended copy of the Draft Order to all parties on April 8^th. There were a few technical amendments changing ordinary language to legal style language that were of no consequence, but Registrar Adams decided to change the actual facts of the hearing the Order was for. Registrar Tanasha Adams changed the Order to read: “and on hearing the submissions of the Applicants on their own behalf, counsel on behalf of the Responding Party, Rachel Goerz, cost submissions of counsel of behalf of the Responding Party, Paderewski Society Home (Niagara), ...”. Adams struck out, removed or however you prefer to put this, the fact that counsel for the Paderewski Society Home (Niagara), Kristen Bailey was only an observer.

Court of Appeal for Ontario Registrar makes amendments to Davidoff Draft Order,
removing crucial facts of Panel Motion Hearing

It is difficult, in fact impossible, to understand why would a Registrar who had nothing to do with the hearing, who was not present for the hearing, change the facts of the hearing. There could only be one possible explanation to this, the fact that Justice Lauwers had awarded costs to Kristen Bailey. Observers do not get costs awarded, they simply sit and watch, they do not file material and do not take part in the matter as heard by the Court. Justice Lauwers' actions are completely without reasoning or explanation.

Whatever the reason for the COA Registrar changing a draft order that had consent to form and content by all parties was difficult to understand, and the fact that it was wrong brought an objection from us. In my response to Tanasha Adams I told her she should listen to the recording of the Panel Motion. I also quoted this directly from the audio recording, as Michael Kestenberg finishes his cost submission and Justice Lauwers says, “Thank you and Ms. Bailey.” Kristen Bailey counsel for the Paderewski Society Home (Niagara) then responds... “We advised Mr. Davidoff we do not take a position on this Motion, um... so we do not file any material and do not have any cost submissions however if the court does deem it, relying on Mr. Kestenberg's submissions that the Supreme Court I would seek my costs of attendance today at $200.00.” Justice Lauwers then says, “Sorry how much?” and Kristen Bailey simply says, “$200.00”.

To the credit of the COA Registrar Tanasha Adams, she did listen to the recording of the Panel Motion and replied to my objection stating in writing, “counsel for the Paderewski Society Home (Niagara) did not make any costs submissions.” The Registrar then amended the Order again to reflect that fact. All responding counsels approved the form and content of the third amended Order.

A mountain of questions now arise from this exercise. First being, why would Counsel Kestenberg state something totally untrue in his version of the Draft Order when Kestenberg was present for the Motion hearing? Of greater confusion is why would Vanda Santini, who knew that her assistant Kristen Bailey made no cost submissions consent to form and content when it stated that she did make cost submissions? What was the motivation behind Vanda Santini's actions?

A greater set of questions arise from Kristen Bailey's short response to Justice Lauwers on the issue of costs. She admits she does not make any cost submissions, that she had not filed any material or even had a position regarding the Motion. Yet, she put the hat out for “costs of attendance.” As an Observer with no position in the matter before the Court it is purely by choice that she sits to observe. Counsel Scott Crocco did not bother to attend as he had no position in the matter either. Kristen Bailey sat as an observer in August when the Stay of Costs Motion was heard by Justice Fairburn, why did she not ask for “cost of attendance” on that occasion?

As one analyses Kristen Bailey's short response to Justice Lauwers more questions arise. After all, lawyers are expected to be masters of our language, who frame their responses in a courtroom setting to have impact, to have purpose. So what did Kristen Bailey mean when she said, “relying on Mr. Kestenberg's submissions that the Supreme Court...”? She had no position in this Motion on behalf of her clients. In fact neither Vanda Santini nor Kristen Bailey made a response to the Supreme Court in the first instance, it was only Michael Kestenberg who provided a reply.

Or should Kristen Bailey's words, “relying on Mr. Kestenberg's submissions...” be examined further? In February 2020 when Justice Paul Sweeny heard all five motions, to strike our claim, Michael Kestenberg spoke on behalf of all three parties. Ms. Bailey barely made submissions before Justice Sweeny that lasted 5 minutes. It was the same case for Scott Crocco, Counsel for Niagara Regional Housing. That hearing was the basis of the COA appeal and eventually leading to the Supreme Court Leave to Appeal. 

In 2020, Kristen Bailey was a fresh face at the Bar, being called to the Bar in 2017. Now the questions flood in. Did Kristen Bailey rely on Kestenberg's submissions before Justice Sweeny? Kestenberg provided the bulk of the submissions, and although he was supposed to be speaking on behalf of all three lawyers he barely mentioned Bailey's client Paderewski Society Home (Niagara) or Crocco's client, Niagara Regional Housing. His submission was primarily on his client, a lawyer, Rachel Goerz. Was Bailey made aware by Kestenberg of his past association with Justice Sweeny through Fanconi Canada? Or was Bailey made aware by Kestenberg of Justice Sweeny's past position as President of the OBA (Ontario Bar Association) and his strong proclivity in protecting the reputation of lawyers?

The Motion heard by Justice Sweeny in the Superior Court in St. Catharines in 2020 has become the catalyst for events that raise alarming questions about the justice system. No less bewildering is how a young lawyer, Kristen Bailey and her senior associate Vanda Santini may have been involved with the series of events culminating with Justice Lauwers' award. For now the Order had finally been correctly drawn and signed. Counsel for the Paderewski Society Home (Niagara) correctly recorded on the Court Order as only an Observer. A copy of the Order has now been filed with the Supreme Court of Canada in an application for Leave to Appeal.

Court of Appeal for Ontario Final Sealed Order