I’ve set up a new website, I’m getting organized for the next round, https://kuebervroyalvictoriaregionalhealthcentre.wordpress.com
I read, and I studied, I even saw, how others have published their factums, I didn’t see any reason why I couldn’t publish the factum for my appeal. Admittedly, it’s not perfect, I got a bit rushed and sleep deprived, but I got to dust it off a bit and with oral arguments I feel pretty good about it but, after the appeal, it could still drag on for years, thanks to their “scorch the earth” tactics, they’re perfectly willing to spend 5x as much taxpayers’ money as the possible settlement, to be certain their victims never live to collect a dime.
Factum of the Appellant (an unsigned, proposed copy to satisfy deficiencies raised by counsel during an appeal motion hearing conducted via telecom.)
Factum of the Respondent Royal Victoria Regional Health Centre [with emphasis added]
Cost submissions, maximum 7 pages 🙂
Here’s a summary of cases I relied on in the Ontario Superior Court, I filed this spread-sheet with the court during one of the 5 days of summary judgment. I should point out, the stuff filed for November 2015 was for the hearing in writing that I was permitted during the August 10, 2015 case teleconference, transcript not available (more like a feeding-frenzy) but that motion was never heard, there was another case management (more like plaintiff management) conference, and I got hit with costs and blocked from bringing motions, for trying to bring a motion in writing to determine matters in advance of the 2 remaining summary hearings. Summary of brief material relied on, filed in court
Initially, all parties agreed to have the hearings severed, to split the hospital off since their motion, and my cross-motion were only partial motions, neither were seeking dismissal, and yet, based on the cost endorsement just released by the Ontario Superior Court, instead of a Bullock or Sanderson order, the court essentially ended the rest of my case, this, after practically stating that MY motion, my motion proving that Royal Victoria Regional Health Centre failed to meet the standard of care required by a public hospital, in the province of Ontario, that motion, was successful at the close of hearings.
Admittedly, I don’t read every decision handed down any longer but, in my understanding Sanzone v. Schechter, 2016 ONCA 566 is still supra, like it was when it was drawn to the attention of the court by counsel, at my request. The View from one Canadian – Sanzone v. Schechter published July 13, 2016.
So, that’s why it’s difficult to understand how the hospital was successful and I, would be barred from justice, were it not that I scrounged and redirected and spent another 1200 hours on this appeal.
Is this what you call justice?
Is this what you call fair and equal access to justice?
Ontario, where our “independent” authorized transcribers, who pay, what is it? $0.05 per photocopied page, are allowed to extort, $4.86 per photocopied page, this is Ontario’s idea of providing fair and equal access to justice?
Oh ya, I considered your offer, duly…. forget it!
I trust you all got my withdrawal of offer to settle. Like I said, getting paralyzed wasn’t even considered, nor were the costs of my long-term care, should I be so lucky as to need it.
My injured life, may well still be worth a mere $361,000, at best, yes, at best my destroyed life is worth a few thousand hours of legal work, this is my Canada, and this is how much they value, we, the people.
Having read the first factum, I thought it might be useful to post my
October 10, 2017
Well, I was so pleased everyone seemed so responsible, we have that mutual agreement for electronic service, after I invested 1200 hours scanning in a copy of all the appeal material, all of it except that stuff that wasn’t properly served, as required by the rules, I can’t imagine why I just got 9 separate packages, over a foot of material from just one of the publicly funded defendants, one who would rely quite heavily on material not properly served, or filed in Superior Court, an over 10 hours+ of attendance for a tag-team cross-examination marathon.
I also got material from the hospital so I’m just waiting on the defendant physicians, then think I’ll need to motion to exclude some evidence, I read those rules, even SRLs are entitled to those certified copies, and I still haven’t had a response on my request to have our appeal declared electronic, since all the work is done and there is several feet of material, dragging 100s of pounds of material around is no longer an option, I really don’t understand why that would be refused, if need-be, I will ask for accommodation for my physical disabilities.
Here’s a copy of the Notice of Motion – Royal Victoria Regional Health Centre which seems relevant having just reviewed their factum.
I couldn’t find any precedent but, I’m going to rely on it anyway, in the absence of opposing counsel, I had the right to provide clarifying statements for the record.
So this one, Rules of Civil Procedure, RRO 1990, Reg 194, s 34.11 <http://canlii.ca/t/52gx1#sec34.11> retrieved on 2017-10-11
On Examination for Discovery
34.11 (1) A person being examined for discovery may be re-examined by his or her own lawyer and by any party adverse in interest to the examining party. R.R.O. 1990, Reg. 194, r. 34.11 (1); O. Reg. 575/07, s. 3.
On Cross-Examination on Affidavit or Examination in Aid of Execution
Timing and Form
Citation: Browne v. Dunn, 1893 CanLII 65 (FOREP), <http://canlii.ca/t/h6kw6>, retrieved on 2017-10-22
(certainly took your time posting that one Canlii!)
I’m still waiting on the last responding factum for my appeals based on “errors in law”.
Here’s the Endorsed Discovery Plan
Here’s the Summary Motion Timetable
(3) No other document need be served personally, or by an alternative to personal service, unless these rules or an order require personal service or an alternative to personal service. R.R.O. 1990, Reg. 194, r. 16.01 (3).
(a) shall be served on a party who has a lawyer of record by serving the lawyer, and service may be made in a manner provided in rule 16.05;
(b) may be served on a party acting in person or on a person who is not a party,
(i) by mailing a copy of the document to the last address for service provided by the party or other person or, if no such address has been provided, to the party’s or person’s last known address,
(ii) by personal service or by an alternative to personal service,
(iii) by use of an electronic document exchange of which the party or person is a member or subscriber, but, where service is made under this subclause between 4 p.m. and midnight, it is deemed to have been made on the following day, or
(iv) if the parties consent or the court orders under subrule 16.06.1 (2), by e-mailing a copy to the party or person in accordance with subrule 16.06.1 (1), but, where service is made under this subclause between 4 p.m. and midnight, it is deemed to have been made on the following day. R.R.O. 1990, Reg. 194, r. 16.01 (4); O. Reg. 260/05, s. 3; O. Reg. 575/07, s. 15; O. Reg. 170/14, s. 3.
Some of you, if you’re following this page, may indeed be wondering, will you bore us to death, I mean, what’s next, affidavits of service?!! Indeed, that is next, affidavits of service, coming up this afternoon, unless I get hacked again!
I haven’t forgotten about those “responding” factums but I still don’t have them all and only one was served with the required electronic factum so, I’m waiting.
Look what I found! November 12, 2015 Plaintiff’s trial management submission
Coming soon, my motion.
I’m adding the factums of the Respondents to the top. I do have them all but I haven’t yet scanned in the one from the hospital.
November 15, 2017
The Court of Appeal said I could bring a motion in front of a single judge last week so I spent the weekend creating new motion material based on alternative relief.
I’m polling counsel again to ask if they would agree to argue in writing based on the new draft Notice of Motion, I’m even trying to accommodate counsels’ very busy schedules, though I understand there is no requirement for that.
November 20, 2017
So, I duly served a Notice of Motion returnable December 7, 2017 on November 15, 2017, for a motion in front of a single judge. Counsel strongly objected and threatened me with costs (oh, there’s something novel!), so, I agreed to serve a Notice of Motion returnable December 20, 2017, in accordance with the Rules.
Here’s how that went for me, I was on the phone, most of the defendants traveled to Barrie so they could appear in person before the justice, really, it couldn’t have been more fair, though I’ve been accused of being sarcastic on occasion. Trial Management Transcript – November 13, 2015 (excerpt)
December 1, 2017
Assuming I can actually make it over to the post office, the motion material for the motion returnable December 20, 2017 is going out today.
December 11, 2017
So, there was an interesting development today, according to one of the defendants, my motion was not sent for filing properly. Now, this wouldn’t really be all that interesting except in the court below, Rules were things I was expected follow, now, the hens may finally be coming home to roost, since ya’ll bring up the Rules, I wonder how impressed the court will be with your affidavits of service…for stuff you knew you were late on. I on the other hand, a disabled SRL facing 4 law firms, wasn’t permitted to file my responding factum, served after 4 pm.
Now I can’t afford to serve and file again, or get back and forth into town and spend half the day riding around town so I can swear out another affidavit, and subsistence disability pension day isn’t until December 20, 2017 so, I’ll bring along a copy of those tracking details and you can fight to keep those off the record, I’ll be sure you all get copies (far be it from me to have to stoop to sand-bagging) and moreover, it will give ya’ll something else to complain about. The dates are July 3, July 6, Sept 1, Sept 2, and Sept 18, 2015.
So, late today, after one of the defendants kindly informed me my motion was being rejected by the Court of Appeal, I contacted the Registrar via the EFile and resent my affidavit of service. I’m confident it is only the wording I used on my cover-letter coupled perhaps with the slack-ass service from Canada Post, and that my emailed affidavit of service didn’t get matched with my motion material.
 It is not just the duty of judges to ensure that all parties receive a fair hearing. Lawyers are required to do so as well. Counsel are not required to assist parties opposite on matters of substance. Nor do they need to make or even to ensure that the parties opposite understand the strategic choices that might be available to them. But, they are required to assist on scheduling and similar matters to ensure that the other side has an opportunity to present his or her evidence fairly. It is the fairness of the process that differentiates the justice system from a street fight or trial by battle. Lawyers are not just hired guns. They are professionals who advance our system of civil justice that is premised upon fairness, efficiency, affordability, and proportionality. To ensure a just outcome, all parties are entitled to a fair opportunity to present their cases in a fair hearing. It is the responsibility of all of the participants in the legal system, lawyers, judges, and court administration to strive to ensure a fair outcome. I have no doubt that the defendants’ counsel will fulfill their roles as advocates in accordance with the best traditions of the bar.
Well holy website hits!
Seriously though, you guys better study and start following those rules, seriously.
Yours ever so truly,
Barbara Kueber, SRL
So, the Court of Appeal recently said in a proper case they would consider the use of the audio as opposed to a written transcript, @ $4.86 per photocopied or original page. Well, I submit this is such a case, I was put on trial, without a shred of evidence, just bald assertions, and the officers of the court were allowed to give testimony, without ever being sworn.
Anyway, it’s all there, in the cost endorsement, it shows even after finally releasing the further reasons, the justice hearing the motion didn’t understand whose burden it was on motion, nor did he appreciate how invalid the hired-gun testimony was, which, if accepted clearly pointed to a lack of standard of care either on the part of the clinic, or her doctors. Then in the further reasons, at para 6-7 he says, he didn’t have to consider my evidence because the defendants met their burden, clearly, he didn’t appreciate that if the defendants met their burden, the burden was then passed on to me.
At the close of hearings the justice hearing the motions indicated I was successful with my partial motion against the Royal Victoria Regional Health Centre, that I was successful in proving they failed to meet the standard of care expected of a public hospital in the province of Ontario. It is my submission, this case is perfectly suited to have portions of the court audio record of the 5 days of summary motions, entered into evidence.
December 13, 2017
Oh, how sweet it is. Check out the affidavit sworn by the 2nd lawyers at Lerners LLP, I’ll post the retraction to the material misrepresentation that I evaded service a bit later, I have bunch of stuff to scan in. Who’d have thought that UPS would fake up their records (though I have should have remembered that incident with the General Manager of United Chemicon and that plate of bird-seed I was served at that posh restaurant over that incident) ….further commentary regarding the conduct is redacted, seriously, judge for yourself.
Sure no trouble, I mean why should you include the correct index, or numbered pages on your motion record, I mean you can do or say anything it seems!!
***link added Feb 16, 2018, I just noticed this richness, there is quite a bit but, I especially enjoyed this part here, with emphasis added:
15. We immediately worked to rectify the incorrect Index in the Defendant physicians’
Motion Record, which had the wrong list of Exhibits to my Affidavit affirmed on July 2, 2015. All other information in the Index was correct and I verily believe that the errors were insignificant as the Exhibits were plain and obvious from reading my Affidavit. Only July 21, 2015, our office served an Amended Index on all parties, as well as delivering a copy to the Court. A true copy of the letter to ail parties dated July 21, 2015 is attached hereto and marked as Exhibit “C”.
July 21, 2015 Cover letter and tracking for service or material due to be served and filed by July 3, 2015, in accordance with the Rules.
Well holy website hits!
So, indeed, I’m setting up a new website.
I haven’t kept this up to date. I’m going to post the whole story about the case and the summary motion below, and the evidence by defendant (you can each have your own page) but briefly, after I filed the motion I constructed to be heard by 3 justices, the registrar told me I was wrong and I had to put my motion in front of a single justice. So I did, but, turns out it the registrar also set the motion down as “for directions”, the justice said my motion should have been brought before 3 justices, and I got slammed with costs again, even though I was partly successful to boot! And I can’t imagine how that motion material got filed, aren’t you supposed to serve stuff first…see they’re still doing like they did below, what ever they wanted.
Late service, wrong index, unnumber pages in motion records never remedied, no 53.03 2.1 compliance, no duty of experts filed, no expert opinions, transcripts not properly entered, 911 records not properly entered, medical records never served or properly entered….and I’ve been trying to release defendants since 2014….it’s beyond broken, it is indeed an abject failure, a complete betrayal, a systemic failure.
So, I brought the fact the registrar told me to put my motion before a single justice to the attention of the justice, but that didn’t seem to matter, at all.
I’ve set up a new website, I’m getting organized for the next round.