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| 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).”
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| Michael Kestenberg's Draft Order of January 19, 2022 |
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 26th 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.
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| Draft Order Amended to Reflect Facts of Panel Motion at Court of Appeal for Ontario |
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| 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 8th. 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.
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| 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.
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| Court of Appeal for Ontario Final Sealed Order |
