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

Judicial Cloak of Protection

Ontario's highest court is the Court of Appeal of Ontario, established in 1867. As the Court of Appeal it is the last chance for justice, granted one can appeal to the Supreme Court of Canada but only some 2% of applications are heard. The Chief Justice of Ontario, Honourable George R. Strathy is assisted by the Associate Chief Justice, the Honourable Michal Fairburn in running the COA with some 3o judges on its roster. What happens when questions of bias, even obstruction of justice arise? Who will investigate a judge who broke the law willingly? Justice Peter D. Lauwers, Justice David M. Paciocco, and Justice Julie Thorburn, are a part of the COA roster and each face serious questions on how they administer the rule of law.

The Court of Appeal for Ontario was established as the Appellate Court for Ontario, it is the last place to seek justice. Issues from around Ontario where possible errors of interpretation of law, even worse, transgressions, are brought to the COA for its judges to determine the fate of people's lives. Not one of the judges who sit on the bench for the Court of Appeal does so without an ego. Let's be frank, they are human beings and as human beings are fallible. Human fallibility in some degree is understandable but personal bias, protection of its own ilk or worse, intentional breach of law is reprehensible. Yet what can be done even when undeniable evidence is brought forward that a judge has crossed the line?

Yes, there is the Supreme Court of Canada, headed by the Chief Justice of Canada, the Honourable Richard Wagner, but out of all the applications for leave to appeal from around the whole of Canada only approximately two percent are heard. Then there is the Canadian Judicial Council, chaired by none other than the Chief Justice of Canada, the Honourable Richard Wagner, and its record far more discouraging than the SCC.

On the Canadian Judicial Council's website there are a number of statements explaining or trying to clarify its role in the justice system. One of these statements refers to “Upholding the highest ethical standards.” In this rhetoric it claims, “Judges are the link between Canadians and their justice system. To maintain this link of trust, judges must adopt and uphold the highest standards of personal and professional conduct. Staying informed, inclusive and free of prejudice is an ongoing process, that's why we have provided them with guidelines to help them better to understand the challenges faced by all and to make the right decisions.” At least this sounds comforting.

Further down the line of the list of goals of the CJC is “fostering public confidence through increased transparency.” Our whole court system claims to be built on transparency and impartiality so these words are not new, still they come from the Canadian Judicial Council and should stand for something. The CJC states, “Transparency is an essential ingredient to ensure public confidence in our legal system. By creating links between the justice system, judges and Canadians, we are proud of the transparency of the communications, processes and operation that are implemented. We also provide all judges with the guidelines, tools and the best practices to help guide their work.”

The Canadian Judicial Council has 41 members, composed of chief justices and associate chief justices, and is chaired by Justice Richard Wagner. Sitting on the Council is Justice George Strathy of the Court of Appeal for Ontario and Associate Chief Justice Michal Fairburn. This fact alone destroys any confidence in the CJC's claims of transparency or impartiality, then add the fact that in its 50 year history the CJC has only ordered 11 public inquiries and only twice recommended that a judge be removed from the bench.

Law professor Alice Wooley of the University of Calgary Faculty of Law has criticised the CJC for not clearly articulating what constitutes misconduct worthy of sanctions. The CJC itself said that misconduct should not guarantee the judge's removal, and the gravity of the misconduct must be determined. Is there any surprise in the attitude of the CJC, after all it is composed only of judges? In our over zealous clambering for judicial independence we have installed our judges as royalty with no possibility of consequence for their breaches of law. Maybe it is time for all the supporters of establishing a Canadian Republic to stop worrying about Liz in London and look at our own backyard and the true meaning of equality and justice.

It is difficult for even the most fair-minded individual to have high confidence in a council such as the Canadian Judicial Council comprised of only Judges investigating Judges. In addition to the potential obstacle of a lack of confidence there is also the question as to which judge in this situation should have to answer a formal complaint to the CJC. The most egregious breach of the Charter of Rights, the Courts of Justice Act and more appears to be by ACJO Michal Fairburn. Yet it all started with a motion being heard at the Superior Court of Justice in St. Catharines, Ontario and Justice Paul Sweeny presiding. Justice Sweeny decided to not disclose his past position as President of the Ontario Bar Association and his very public and overzealous defense of lawyers. Yet he was hearing a motion to strike a claim of malicious prosecution against a lawyer.

In addition to his past position at the OBA, Justice Paul Sweeny did not disclose his personal knowledge of counsel Michael Kestenberg of Kestenberg, Lipkus, Siegal LLP. Both Justice Sweeny and counsel Michael Kestenberg served on the boards of Fanconi Canada. This led to an appeal filed at the Court of Appeal on the grounds of Apprehension of Bias. Justice Michal Fairburn led the three panel of judges who heard the appeal. Fairburn dismissed the appeal and considering how serious the issue was, how much evidence was provided to prove the bias she provided no reasoning at all. Justice Fairburn basically said, you didn't prove bias, go away.

Naturally an application for leave to appeal was filed with the Supreme Court of Canada, the grounds for the appeal were: Adequacy of Reasoning and Non-Disclosure. In addition to reasoning Justice Sweeny had a personal connection to Justice Fairburn as well. One might think enough is enough but things only became more alarming. A motion to stay costs was filed until the Supreme Court was to complete their process. Any stay motion would require that the application for leave would be assessed. Justice Fairburn decided she would hear the stay motion. Justice Fairburn decided she would assess the application to appeal a decision she herself wrote. This was in breach of court law dating back to the seventeenth century, in breach of the Charter of Rights and Courts of Justice Act.

The actions taken by Justice Fairburn should raise serious alarms in judicial circles. Our Chief Justice of Canada, Justice Wagner speaks of transparency and connectivity of the judiciary. Former Chief Justice of Canada Justice Beverley McLachlin in February 2011, at the Faculty of Law's Access to Civil Justice for Middle Income Canadians Colloquium, said “Access to justice is an issue dear to my heart. It is a fundamental right, not an accessory.” Believing that these words actually mean something, anything at all, the whole set of circumstances were sent to the Ontario Chief Justice, Honourable George Strathy.

Follow up Email to Honourable Chief Justice George Strathy, Ontario Court of Appeal

On November 1, 2021 an email was sent to Justice George Strathy detailing in full the breaches by his ACJO Justice Michal Fairburn. There was no way to misunderstand what the email had said and everything was supported by official court documentation attached with the email. Not one word of acknowledgement came from Justice George Strathy. As the Chief Justice, Honourable Justice George Strathy was made aware of serious breaches of ethics and law. Justice Strathy stayed silent. A follow-up email was sent to Justice Strathy on January 4, 2022, to this date the Chief Justice of Ontario, George Strathy has remained silent. The rule of law, our Charter of Rights appear to have little bearing on the Chief Justice.

In a search for justice a Panel Motion had been filed as an appeal against the decision by Justice Fairburn. Granted there was a great deal of skepticism as the panel of three judges were to be COA judges and Fairburn their ACJO. Still there was a semblance of belief that the rule of law has to be far more important than personal connections and associations or this mantra of I'll protect you simply because you wear a robe as well. Also there was a tiny degree of hope that someone like the CJO Honourable George Strathy had been informed of the situation then surely the rule of law will win out in the end.

According to the Canadian Superior Courts Judges Association (cscja.ca) describing 'The Role of the Judge' it states; “Judges play many roles. They interpret the law, assess the evidence presented, and control how hearings and trials unfold in their courtrooms. Most important of all judges are impartial decision-makers in the pursuit of justice. We have what is known as an adversarial system of justice – legal cases are contests between opposing sides, which ensures that evidence and legal arguments will be fully and forcefully presented. The judge, however, remains above the fray, providing an independent and impartial assessment of the facts and how the law applies to those facts.” Later the CSCJA states, “The judge is the 'trier of facts' deciding whether the evidence is credible and which witnesses are telling the truth.”

This Association attempts to educate the public and what “they are entitled to expect from judges in Canadian Courts and covers principles fundamental to our Justice System; concepts such as Judicial Independence and the Role of Law.” One of the Association's teaching tools is a video titled 'Judges in Canada – What they do and how they do it.' According to the Association, “the video identifies the citizen's legal entitlement to a fair hearing according to the evidence and the law regardless of age, race, religion, sexual orientation, or cultural origin.”

The CSCJA has a heading on their web page titled, 'How Judges are Held Accountable and by Whom'. Here they claim; “Despite their independence, judges are accountable for their actions and decisions. Hearings, trials and rulings are open to public scrutiny, so justice is seen to be done and citizens and the media can discuss and criticize the work of the courts. A judge's ruling can be appealed to a higher court and, if an error has been made, a new trial will be ordered or the decision will be corrected.”

Once again words that sound good, even comforting and reassuring but reality raises a very different set of circumstances. When the CSCJA say “upon open to public scrutiny” how does that apply to the Court of Appeal of Ontario? Public scrutiny would require the provision of transcripts of all hearings yet the COA does not provide transcripts, not even to litigants. An individual can ask for, and pay a fee for an audio of the hearing but there is a catch. As a recipient of the recording you have to sign an agreement that you will not allow any part of the recording to be made public or duplicated, and a breach of that agreement can result in a prison sentence. Is that how public scrutiny works in the highest court in Ontario?

Also the Canadian Superior Courts Judges Association claim that “citizens and media can discuss and criticize the work of the courts.” How true is this? Is the truth true only part of the time, or is truth only considered to be truth all the time? Now there is a question for a panel of judges to mull over, and the reason for this jesting is this; an article in the National Post by J. Brean dated August 16, 2019 titled 'Ruling tossed after Ontario judge signed off on it without hearing the evidence.' In the article it states: “On Wednesday, the Post asked to see the court's file, but was not given access until Thursday, by which time the file has been purged of several documents, including anything else that might explain what had gone wrong or why.”

Is this what the CSCJA mean by public scrutiny or media discussion? Among all the scrutiny and discussion the CSCJA also say that “a judge's ruling can be appealed to a higher court and if an error has been made the decision will be corrected.” Then will the CSCJA call Justice Paul Sweeny intentionally not disclosing vital facts to self-represented litigants just an error? Those self-represented litigants appealed to a higher court, the Court of Appeal where Justice Fairburn, who has a personal history with Justice Sweeny, dismissed the appeal without providing any reasoning.

Reality versus placating empty words and the reality is truly alarming. The Court of Appeal in its procedures provides for an appeal to be filed to a Panel Motion in order to strike a decision by a single judge. After Justice Fairburn's obscenity in deciding to hear the stay motion there was no choice but to hang on to a belief that justice in Canada indeed can provide impartiality. That all these words by all these judges do in actuality mean something. Our appeal motion was heard by a panel of three judges on December 8, 2021. Justice Lauwers was the lead or president of the panel with Justice Paciocco and Justice Thorburn assisting.

Justice Peter Lauwers was appointed to the Court of Appeal for Ontario on December 13, 2012 after serving on the Superior Court since July 2008. Before being appointed Justice Lauwers was a partner at Miller Thomson LLP where he practised in all areas on civil litigation, constitutional law, human rights, and more. He has lectured in his areas of expertise to the Canadian Bar Association, Ontario Bar Association, the Centre for Cultural Renewal, McGill University, and as a judge has spoken to the Ontario Human Rights Commission, the National Judicial Institute, among others.

Justice David Paciocco was appointed to the Court of Appeal for Ontario on April 7, 2017. Justice Paciocco has authored a number of books on criminal law and is considered one of Canada's foremost experts on the law of evidence. His book 'Getting Away with Murder: The Canadian Criminal Justice System' discusses the Canadian criminal justice system intended for the public rather than for those who delve into inside theories. In 2010 a Toronto Star investigation surrounding Andre Marin revealed that since becoming Ombudsman he had apparently awarded Paciocco over $250,000 in untendered government contracts. Both Marin and Paciocco complained to the Ontario Press Council that the implications were unfounded, and the Council upheld the complaint.

Justice Julie Thorburn was appointed to the Ontario Court of Appeal September 2, 2019. She has been a sessional lecturer on Civil Procedure Workshops at Osgoode Hall Law School and served on a number of charitable organisations as director. She co-authored The Law of Confidential Business Information and was contributing author of Digital Democracy, Policy and Politics in the Wired World.

After hearing all the rhetoric of judges like Chief Justice Wagner, former Chief Justice Beverley McLachlin, or the Judicial Council and its guidelines for judges, one might have some confidence in our courts. In addition to these lofty sentiments we have the Charter of Rights and court law such as the Courts of Justice Act, surely we are in a secure frame of mind, armed with such promise.

 

The Panel hearing was December 8, 2021 and Justices Lauwers, Paciocco and Thorburn showed what Canadian justice really meant. A transcript cannot be obtained and the audio recording carries serious threat on how it can be used, so what is provided here is a form of 'transcript' from notes and corrections from the recording. There may be some 'ahs' missing but there is a lack of desire to peer at the world through COA enforced bars, so they stay missing.

As court hearings stand the Panel Motion came across more like a modern version of Abbott and Costello's 'Who's on First'. All three judges before sitting down had to have read the filed material. Our Factum was clear in its coverage of the very serious issue at hand. Filed Authorities also had to be reviewed by all three judges, and two of the Authorities were Bow Street Metropolitan Stipendiary Magistrate v Pinochet and the COA's own Benedict v Ontario stood out as most relevant. An oral submission would simply expand on the important points of the Factum which these judges 'supposedly' had reviewed.

That being said, one stands before these judges thinking they know why you are there, what you need of them and now one only needs to make the final oral appeal. As I began my oral submission Justice Lauwers interrupts with; “Mr. Davidoff there is a problem with your case and I just wanted you to address that if you would.” Justice Lauwers then says, “Your motion was before Justice Fairburn to get a stay of costs order.”

Under no circumstances was that true, not in the literal nor fundamental sense. I had filed a motion to stay costs pending our leave to appeal application and Justice Fairburn chose to hear that motion in breach of the Courts of Justice Act, the Charter of Rights and of court law. Justice Fairburn chose to break the law, as an ACJO she has to know court law. Then Lauwers says that our motion to stay costs till the leave application was decided, and that was correct. He then said that the Supreme Court had dismissed our leave application, and that was correct. Yet Justice Lauwers decided to omit crucial facts.

Justice Lauwers omitted the fact that Justice Fairburn heard the motion in August 2021. He omitted to state that the Supreme Court decision was in late November 2021. Why did Justice Lauwers omit those facts? He also said that our appeal panel motion was so they decided on the “issue in front of us whether her decision was right or not.” The issue in front of the panel was that Justice Fairburn had illegally heard the motion. Our factum was clear on that and if Justice Lauwers would allow me to make my oral submission I would have emphasised that fact further.

So Justice Lauwers finishes by saying, “explain to us why are we hear today.” I begin again admitting the Supreme Court dismissed the leave application, and then raise the Courts of Justice Act s.132. Justice Lauwers interrupts again saying this time; “I am sorry I am not understanding what that has to do with what's in front of us, your appeal is for her refusing a stay, you have to pay the cost orders.” I tried to respond that I am not here to argue costs when Justice Lauwers interrupts again with, “So what are we doing here.” I respond with the fact that the motion shouldn't have been heard, and before I could continue Justice Lauwers interrupts again.

This time Lauwers says, “Your argument is she shouldn't of heard the motion and the costs of that motion you shouldn't have to pay. It's all about the costs before Justice Fairburn, is that it?” I tried to stay calm and responded, “It's not the judge who wrote the decision under appeal, she shouldn't be assessing that appeal which is part of the courts of justice.” My grammar was somewhat shaken but it didn't matter anyhow because Justice Lauwers interrupted again with, “So the only thing at issue here is, I just want to pin it down is that you don't want to have to pay the costs of the motion before Justice Fairburn, she shouldn't of heard the motion is that what it comes down to.”

I tried to respond with, “She shouldn't have heard the motion, that's correct.” Justice Lauwers interrupts again, “But the only consequence of that is that are the costs, have I got that right.” Again I try and respond, “Because of the fact,” and Lauwers again interrupts saying, “Anything else, Mr. Kestenberg, I assume Miss Bailey.” That was it for me and Michael Kestenberg, counsel for lawyer Rachel Goerz begins.

Now Kestenberg has been a lawyer for quite a few years passing the bar in 1976. He is the founding partner of his law firm Kestenberg Siegal Lipkus LLP and is called the “lawyers lawyer.” So Michael Kestenberg has been 'lawyering' (Mater's word from Pixar's movie, Cars) for over 40 years, it may be expected he would know or be aware of court law that's been in place since the seventeenth century? That being said Michael Kestenberg states, “She applied the correct principles, she did it. This motion is to tilt at windmills. The appeal was denied, there was no impropriety by Justice Fairburn to hear the motion notwithstanding that she was on the panel that dismissed the substantive appeal. Unless you have any question.”

It would appear from this statement by Michael Kestenberg that the Courts of Justice Act does not seem relevant, especially section 132. In section 132 the 'principle' is clear that a judge who is party to the decision under appeal cannot assess that appeal. Yet it was the actions of Michael Kestenberg and Justice Paul Sweeny that set all of this in motion. As Kestenberg finished Justice Lauwers asked, “Miss Bailey any submissions?” It is very important to highlight her reply, remember Kristen Bailey assistant counsel for the Paderewski Society Home (Niagara) was only an observer, she had not filed any material for the motion. Bailey answered, “No submissions your honour.” Lauwers then gave me the right to reply.

I knew I could not be interrupted making a reply to Kestenberg's submissions. So I tried to bring as much forward as I could. I raised the Courts of Justice Act s.132, the Charter of Rights s.11(d), I referenced two of the most relevant authorities on this issue, but I was wrong. Justice Paciocco interrupted. Justice Paciocco sat as a mute until now, he spoke to Michael Kestenberg not to me, even though I was making my reply.

Justice Paciocco said, “Excuse me Mr. Kestenberg there are areas of law, so you were seeking the principle you state is an important one given the nature is a decision she was asked to make it was not clear that she's wrong, today it doesn't matter if she was wrong or right.” This is a judge saying that it doesn't matter “if she was wrong or right.” A judge who wrote a book titled 'Getting Away with Murder: The Canadian Criminal Justice System,' and he truly helped with the murder of law and justice. Paciocco continued, “There's no point in us hearing it, we don't hear appeals that don't matter. And although a decision can be wrong it can become unimportant because of later events, it doesn't matter that an error occurred that's what Mr. Kestenberg said, do you understand?”

Justice Paciocco said, “a decision can be wrong, it can become unimportant because of later events.” So if an individual is convicted of murder and sentenced to life, but years later proof is brought forward he was innocent do we say it's become unimportant. Can we leave that individual to remain in jail? How does a judge say “it doesn't matter that an error occurred.” These words came from a judge, that the law doesn't matter. A judge, we are supposed to trust and respect, one who is paid several hundred thousand dollars a year, to this judge the law didn't matter.

All three judges left and upon their return Justice Lauwers dismissed the appeal and asked for submissions for costs. I made mine, then Michael Kestenberg and then a shock, Kristen Bailey. It is important to remember that Bailey had not made any submissions, she had not filed any materials for this appeal motion, nor did she oppose the appeal motion. Bailey had passed the bar only in 2017, and is an associate at Agro Zaffiro LLP. So, when cost submissions by Kestenberg and myself were made, Justice Lauwers asked Kristen Bailey for costs even though he was aware that Bailey was only an observer. Then Kristen Bailey asked for $200! She was an observer when Justice Fairburn heard the stay motion and did not speak or put her hand out. Does this 'associate' know what an observer is? How did she think she had the right to be awarded costs for not being part of the appeal? Now many questions arise. Was Kristen Bailey or Vanda Santini, (her superior) aware of Kestenberg's connection to Justice Sweeny? How much has Kristen Bailey or Vanda Santini been aware of the whole situation from the beginning? For a licensed lawyer who is an observer to an action before a court and not a part of the action to ask for costs is simply astounding!

Decision of the Panel Motion Hearing,
heard by Justice Lauwers, Justice Paciocco, Justice Thorburn

As members of society we are led to believe that judges should be respected without question. There is often great debate in democratic government to ensure the complete independence of the judiciary. Impartiality of judges is paramount to real justice, justice in its appearance and justice in its practice. Yet these are hollow ideals, our Prime Minister Justin Trudeau proved that if an apparent need arises then pressure on a Federal Minister of Justice was acceptable. Case after case is on record appealing the bias of presiding judges. When these cases are heard and bias identified it is simply referred to as error made by a judge.

In our rush to ensure independence and impartiality we as a society have allowed the actors who strut the stage of justice to do so as peacocks. They are free of any consequence regardless of any possible transgressions. Change is needed and true equality brought to what we are led to believe is justice.

I have waited for several months for an Order of the decision by Justices Lauwers, Paciocco and Thorburn to be provided. As of date of publishing no order has been delivered. An application for Leave to Appeal to the Supreme Court has been filed.

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Part 1  -  Self Represent, Self Destruct 

Part 2  -  The Dark Face of Canada's Justice 

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

Part 5 -  What is a Measure of a Judge

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