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.”
**********
Part 2 - The Dark Face of Canada's Justice
Part 3 - Judicial Cloak of Protection
Part 5 - What is a Measure of a Judge
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