April 19, 2013
Chief Justice Glenn Joyal
Court of Queen's Bench of Manitoba
Room 226 - 408 York Avenue
Winnipeg, MB R3C OP9
Re: Misconduct Complaint of Master Shayne Berthaudin
Rowan vs Thompson Dorfman Sweatman et al
Further to my letter dated January 22, 2013 please accept my complaint against Master Berthaudin under The Court of Queen's Bench Act with regards to conduct unbecoming, and neglect of duty of, and by a master. I wish to advise that I am the author of this and all other documents on record and that I have had no assistance at any time during the judicial process. I trust you will take that into consideration as to any irregularities in this document and allow me to clarify.
The complaint deals with the contested hearing of August 20, 2012 that was to include the combined motions: the conduct of Berthaudin and parties not held to procedure; disrespect to me; the flawed decision that goes beyond errors that of an appeal, and the circumstances and execution of the signing of the Order and Costs in a harsh, punitive manner contrary to past decisions.
I believe the lessons that can be derived from a thorough and unbiased investigation will be of huge significance to the public interest, can be used to correct any irregularities and/or difficulties particularly onerous to self-represented (“self reps”) skewed favouring and pliable to the advantage of lawyers; the need for courts to set clear boundaries for the legal profession and be more user-friendly to self reps.
Anyone who understands the disorder (3) would understand that I did not chose this battle but I could not back down from it either. To fail would lead to my demise. This was made clear on page 4(b) of the re-amended claim: March 15, 2012 emergency responders were called to the home by her eldest son. The plaintiff told him at the hospital she wanted to die. The situation with defendants "too much” How terrible that my government prescribed remedy ended up to be worst than the disease or consequence of murder. (4)
My experience is similar to that reflected in the comments of the Manitoba Law Reform Commission (5) (but to a lesser degree) wherein it reports on the difficulties self reps faced. In all instances one starts out in good faith and with the belief that they have a right to access to justice. Their greatest hardship (unlike me) comes with the cost of legal services. (6)
The noted wrongdoings which ended with Berthaudin reflect and incite hate of groups known to be disadvantaged without merit or justification (those not deemed normal) and viewed as a burden under normal circumstances. Then there’s ME. As is the case with hate crimes I have been under attack, not for being wrong but for what I represent. The hostility openly vented by members such as Elliott Levin (7) , hurling at me that I had no right …crossing the line --delving into a lawyers' world!
The difference between a conflict and mobbing (bullying) is that a conflict occurs between equally strong people. In mobbing, hostility is directed towards the underdog who is further weakened due to immense pressure as a result of the frequency and the duration of the attack—now over a year for me. (as relating just to the civil action)
March 27, 2010 Free Press article Poor conduct isn’t enough- Harassment tough to prove Judge Harapiak stated: Harassment is in the eye of the beholder. The alleged victim must prove legitimate concerns for safety – and a judge must find their fear logical. One of the elements in proving harassment is showing the contact was unwanted….…The victim would know the harasser, know what they’re capable of. (bold emphasis added by me—years of experience in legal)
Judge Harapiak further emphasized: Criminal harassment consists of a series of behaviours, which taken on their own are legal. It is the knowledge of the harassment and the causation of fear, that lifts these behaviours out of the ordinary and into the criminal realm.
I would respectfully request that you consider the totality of the actions as it relates to Berthaudin and ended with him, as well as the known vulnerability of myself as complainant (further details herein).
I first consulted Brent Ross (longtime family friend, cottage neighbor and advisor on legal matters) Aikins Law partner August 30, 2009 providing documents for his review, specifics relating to the defendants’ actions.
April 17, 2012 I emailed Brent Ross at work attaching a copy of the claim Subject: “Statement of Claim Rowan vs TDS. Ross responded as follows: I opened it up and realized it’s against another firm/lawyer …. Our firm is regularly retained by the law society to defend these cases…
At the August 20, 2012 hearing I repeatedly referenced communications with Ross “Brent Ross a senior partner of your firm--Aikins Law before you were even retained, and his professional opinion even then was, “Yeah, they certainly could have handled that better.” Berthaudin’s neglect of his duty to address, question or qualify what was meant by those statements and failed to note the fact that this was a no-no.
RECORD and “OFF THE RAILS”
1) On April 17, 2012 fees of $225.00 were paid Statement of Claim accepted and registered with the QB Court as file CI12-01-77387 Rowan vs Olson et al.
2) April 23, 2012 paid $20.00 fee and amended claim Rowan vs TDS et al entered by Registrar April 25, 2012. (Rule 26 – allowed for amending pleading).
a) Affidavit of Service of amended claim (delivery unknown between April 17-30th, 2012 to both defendants),
b) Knowledge of a pending claim (see pg 4 BACKGROUND) no doubt resulted in the unusual efforts required in effecting service. Canada Post investigator (as filed with this court) audio taped with permission told me: If I had any complaints I was to take them to Irene Hamilton.
c) Further support of an urgent need for an interlocutory order. To paraphrase ‘the defendants had a loaded gun and weren’t afraid to use it.’
Defendants’ Notice of Motion June 5, 2012
3) Defendants’ notice of motion filed May 14, 2012 for an uncontested hearing June 5, 2012 before a master.
RELEVANT FACTORS RE SERVICE CONTRARY TO QB RULES:
4) Service by regular mail to me worked without incident in juxtaposition to Bock’s disrespectful, deceitful behavior to me contrary to how opposing counsel is to be treated. See excerpt from Canadian Lawyers Insurance Association "Safe and Effective Practice" all members including judiciary would belong to,
The lawyer who has been negligent (emphasis added) should not try to be the one who repairs the situation....But it is important to realize that if the Law Society makes use of able and imaginative lawyers from the earliest possible moment ... the number of ways in which this may be done are infinite... It is very instructive to see what can sometimes be done in what is usually assumed to be the most hopeless of cases..
a) Amended claim served on defendants; Bock told me I had to serve him;
b) Given the personal defendant had been served before the corporate defendant, I offered (by email) as a sign of good will and indication as to how I would conduct myself in this matter, an agreement to hold off filing default until such a time he could prepare a proper co-defence.
c) Bock’s actions can only be described as “slimy” (would never have been done to opposing counsel) -- slinking off to file uncontested motion. More evidence of need for an order to force civility.
d) Request to Admit and Interrogatories: Bock never asked for leave to not respond, and later (after the time deadline when confronted) simply told the court he would not be responding. (Question: who’s in control here?)
e) Notice of Disclosure along with Amended Claim: Section 73 of The Partnership Act requires firms to disclose without delay a list of the partners.
i) A self-addressed postage stamped envelope was included but never acknowledged. (disobeying a statute = need for interlocutory injunction.).
ii) Bock refused to clarify when asked by the court who he was actually representing. Of course he ignored me but the presiding judge or master never pressed for an answer. However, affidavit of Kayla Deroche includes correspondence to me with blind copy to The Law Society of Manitoba Attn: Tana Christianson Director of Insurance. Another conflict given LSM’s mandate to protect public interest.
a) Page 1 para. 1: The Motion is for: an order to strike out under Rule 25.11 Not a motion under Rule 20 for summary judgment which Berthaudin freely included in his decision.
b) Motion to strike was baseless and done so in a panicked response to my email (see pg 6, para. 5(b). Counsel presented no evidence and sought to strike out the defunct claim (April 17, 2012). As an expert, Bock would know he would need to present more than a “see for yourself – there’s no cause of action” for such a serious action as a motion to strike.
c) Defendants dragged out the time and cost of these motions by improperly seeking remedy under Rule 25.11, when its intent for remedy under Rule 20;
d) Defendant and counsel (in the hundreds-Aikins & TDS) chose to be absent from my contested hearing set to contest (bring evidence) and address the flawed logic.
e) The opposing members’ deliberate and unlawful action resulted in a number of unnecessary appearances, cost me financially, emotionally and the unfair hostile reproach against me as to a confirmed bias (that I had to be the screw up not an experienced litigator) by the presiding judge. (ex parte communications both before my hearing and during hearing (as admitted by presiding judge-“I have to speak to Bock”).
f) As stated, there was no brief for the June 5, 2012 hearing. Service of the brief was not effected until two days after the scheduled hearing (see QB rules re service by courier).
g) The Argument in defendants’ brief introduced the switch for summary judgment contrary to its motion admitting ‘cause(s) accepted [para. 19: intentional infliction of mental distress and negligence] but now wishes to argue on weight of evidence and the bait is hooked for summary judgment.
"... the day after filing of the statement (by Mr. Schmidt) bang, you're suspended. It's unbelievable. Your client (Federal Government) has done everything it can to kill this thing...The court doesn't like that...We see that in different countries that we don't like. ...Canada is still a democracy."
i) Police respond to urgency, without second guessing whether I’m really in need of help or just ‘claim’ to need help.
ii) Police reports (accessed) refer to me--not as an annoying problem – but “the victim".
iii) Handling care instructions provided with humanity intact.
i) Person with disability identified as “a chronic complainer” and support an order to “shoot to kill my complaint”-- damage to me collateral.
ii) Next order of business is to publicly humiliate complainer online in posted decisions.
VULNERABILITY OF THE COMPLAINANT
RE-AMENDED CLAIM (excerpts)
The Plaintiff claims:
Pg 1 paras 1-6 (disability common thread --claim evolved around disability)
All facts assumed to be true with the exception of Master Berthaudin who took on the role of judge, jury and executioner.
Page 2 para. 11 (confirmed diagnosis)
Page 2 para. 12 (conditions in support of health);
Page 2 para. 14 (vulnerability due to disorder – sick leave)
Page 3 para. 15 (a) (defendant Olson – acted in oppressive manner, discriminatory to a person with a disability – contrary to law with knowledge – harmful to a person with a diabilty – outrageous (pg 4 para. 18 (experts-higher standard ) pg 7 para 27 (c) “unique access to the facts” “sensitivity or susceptibility to injury” “pre-existing condition”
Page 3 para. 15 (b) Corporate defendant (conduct of employee known –encouraged)
9) There are other issues which I intend to present based on related decisions such as SEN vs “the Doctors” similar in many ways but in this case it was found the self rep did not make her case. There is a very distinct difference in how the decision was handled and how costs were not awarded.
10) Also the issue of costs needs to be addressed which I will submit at a later date.
As always I am open to meet, discuss the issues at hand in a respectful manner. It is not my intention to place blame, shame or pain on any member of the legal profession, but rather (realizing they are a necessary evil), it is best to work at fixing what are clearly problems with a positive belief for a better future for everyone.
Respectfully submitted and God bless,