Apr 19 2013 complaint - to CJ Joyal not responded

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.

My reaction to the process and the master’s decision, that depicts me unfairly without cause now stands online, similar to my experience of June 2009 to December 2010 with my FIPPA complaint against Labour Board as supported by the Ombudsman’s report (1). Once again, my response is influenced by my illness. I am preoccupied with the details, reliving my experiences in flash backs about process (known to be stressful at the best of times) is killing me. People don’t die from bipolar disorder but from the amount of stress in their lives—for me particularly onerous, and at times incapacitating. Bringing Down the Barriers: The Labour Market and Women with Disabilities (2) in Ontario notes: Another indicator of the extra energy used up by women with disabilities is the level of stress in their lives... in general have higher overall stress levels than any of the other groups regardless of living arrangements.

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 RossBrent 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.


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.


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..
5) Bock repeatedly ignored or made difficult service on him as follows:

  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. 
  f)  Ignored service of re-amended claim (and its existence or significance) at the August 20th hearing. When I asked: is the re-amended claim not a ‘game changer’ Berthaudin addressed the question to Bock with a smile: is it? Berthaudin failed in his duty to hold a fellow member accountable to QB rules thus compounding the time, efforts and costs of the matter and did so not in error but with malice and intent knowing it would cause me harm.  
  g)  Receipt dated August 9, 2012 showing $20 fee for the re-amended claim. The fact that Registrar did not register until August 15, 2012 would reflect careful scrutiny beyond the median number of days before acceptance.  
  h)  Berthaudin went with the August 15 registration date skewed in a derogatory way to prejudice me; that I had done something wrong and deceitful. 
  i)  The time period of the (not acknowledged but duly served) re-amended claim, and the timing of the August 20th hearing did not put the defendants at a disadvantage. There was nothing claimed to that fact at the hearing but Berthaudin made it an issue in his decision. There was a remedy available to the defendants by way of an adjournment, but that was not asked for.
  j) Request to discuss or clarify bill of costs—unacknowledged.  
Defendants Deceitful Tactics of Bait and switch –  
6) Defendants’ Notice of Uncontested Motion:
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.

Plaintiff’s Notice of Motion (May 25 –4 adjournments – August 20, 2012)  
7)   May 18, 2012 I attended at Law Courts (incurring further lost wages) to file Notice of Motion for referral to a judge (May 25, 2012) paid $100.00 fee.

  a)    Set as contested motion for a determination before trial in response to the uncontested hearing of June 5-- the matter was clearly contested; 
  b)   Stonewalling served the purpose of delaying the need to file a statement of defence (and self-interests in not answering pre-trial questions). It is believed the members’ ability to go off the rails was an intentional show of power. This was their court, their rules and their LSM members presiding.   
  c)   As a plaintiff, I am entitled to know the case I have to meet with regards to the defendants’ motion to strike. The lack of supporting evidence which I questioned to three judges and two masters went unanswered. 
  d)  August 20, 2013 (supposedly joint hearnig) Berthaudin informed me that defendants were not required to provide evidence in support of its motion. I doubt from the rules that’s true. Note: In my experience as a legal assistant, I am aware of the practice of filing ‘anything’ just to avoid being in default--just amend it later.  
  e)   Given my unwavering belief in the Constitution (includes God and order of law) I wholeheartedly believe that had the QB rules been properly applied and/or enforced, I am most certain my motion to strike would have been successful. More evidence to support the urgent need for my Order in light of the collective power of members to “kill this thing” similar to the Toronto Star's January 19, 2013 article, “Government Lawyer Edgar Schmidt Courageously Blows the Whistle” a lawyer who filed a complaint against the federal government in defiance of practices he knew to be inconsistent with the law and not in accordance with the Constitution. The presiding judge had this to say about the motion to strike,
"... 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."
  f)   My (May 25th-no show by defendants or counsel) motion was to efficiently deal with the two outstanding motions and for a determination by judge before trial to weigh the evidence and rule out and avoid another motion filing by defendants as to claim being frivolous, vexatious or scandalous in anticipation of the defendants next step.  
  g)   Self reps are the only people not getting paid to attend hearings and likely another reason why the conflict with lawyers who look at adjournment as perks (charging fees without doing work) whereas self reps would truly rather just get it over with without costing the farm.  
  h)   To avoid any more shenanigans, an interlocutory order was required (in addition) due to the circumstances of a known well documented history of multiple hospitalizations, psychosis and police warrants involved in interventions.  
  i)    Interpretating Accommodation : City Police and RCMP  (Aug 5 2000):
 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.
 j) Government of Manitoba – Manitoba Justice – Manitoba Courts (June 2008-present)
 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.
  k)   As stated herein, the defendants chose not to attend my hearing. The rules are clear and yet were not followed and noted in decisions that attendance is not optional. See King v. Chapman, 2012 MBQB 189 MARTIN J. The issue of both counsel and defendant not appearing is dealt with sternly seven (7) times: paras. 10, 11, 14, 24, 28, 29 and 30 in stark contrast to the no mention by Berthaudin in his reasons for decision.  
  l)    As in both motions (King supra), the defendants had provided no evidence, no written argument or oral submissions for the hearing of my (May 25) matter. The rules are clear and should have followed that the undisputed affidavit evidence and allegations of fact in my motion are found to be true. Did not happen. 
 m)   There was a re-amended claim entered by Registrar on August 15 (see receipt dated August 9, 2012 as date submitted). 
 n)    It is then ultimately for the court to determine, by a review of the reamended claim itself, whether the principles set out in the precedents relied upon by the defendants in support of its motion to strike (filed way back in June 5, 2012 have been applied in the new drafting. Berthaudin’s decision does not reflect this was done as it was in fact not done. At the hearing co-counsel Thomas Reimer just read off the old motion.   
 o)   When I asked “isn’t the re-amended claim a ‘game changer’ Berthaudin smiled and said, “I don’t know…is it Mr. Bock? More neglect of duty.   
 p)    The flaws complained of in in June 5 brief of being scandalous, frivolous and vexatious” those statements had been removed in the new drafting. Clarity was given in respect to the relationship between the plaintiff and the defendants and yet the decision makes no reference as to any improvement. The corporate defendant is not even mentioned at all in the decision.  
 q)    At the onset of the August 20 hearing the master stated he was caught unaware that my motion included an interlocutory order despite the fact that it was clearly entered in the QB Registry and his duty to be prepared.   
 r)    Berthaudin failed to take my vulnerability into consideration, or consider that a person with my disorder would have difficulty in articulating verbally on the spot in such a stressful situation, made even more frustrating believing the rules said one thing but their actions reflected the opposite. I believed the process to be out of control and any person (let alone someone with an intellectual disability) would clearly be in a panicked state and not clear of thought.  
 s)   I asked Berthaudin to rely on my written submissions due to the fact that presenting orally was difficult under my circumstances. I needed to break for water due to dry mouth; thoughts were whirling, and feeling under attack with discriminatory comments. 
 t)    Berthaudin clearly did not read or include my written submissions which put me at a great disadvantage made even more incredible given I had asked for accommodation. . The decision stated he “relied on verbal testimony”.   
 u)     His action in de-railing my interlocutory motion into a 6th adjournment is in clear violation of the Chief Justice Practice Direction in effect January 3, 2012: a motion is required to be dealt with no later than the third time.   
 v)    Berthaudin also allowed personal attacks against my mental ability by co-counsel Thomas Reimer (yeah, they really needed two lawyers). He was allowed to hurl out ongoing hurtful and discriminatory comments at me that I was not able to follow the rules and “see … she can’t follow rules”. The Master did not interject. Seemingly okay to deny me accommodation then make fun of me in front of my 18 year-old son sitting in the court room.   
8)   Affidavit of Kayla Deroche said brief was emailed which was a lie. Also includes as an Exhibit letter dated June 5, 2012 from Aikins Law to me with blind copy to Law Society of Manitoba Attn: Tana Christianson (known as Director of Insurance).


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,

Marielle Rowan

[1] Manitoba Ombudsman Report buried with Recommendations under FIPPA Case 2009-0636. Disclosure not authorized
[2] Bringing Down the Barriers:The Labour Market and Women with Disabilities in Ontario  http://www.ccsd.ca/pubs/2000/wd/sect2b.htm
[3] Chief Justice Joyal has stated in a conversation we had back in 2009 that he was very familiar with the disorder given his first wife was diagnosed with the disorder. I also made it clear at that time that my survival required that I see the complaint process through despite risk to my health see 911 to Chief Justice .
[4] QUEEN vs (publication ban-see Peace and Goodwill to all with Mental Illness) after only 15 months of committing murder. Madam Justice Joan McKelvey accepted bipolar disorder as a criminal defence stating, "Clearly, at the time (of the killing) she suffered a break from reality that has now been addressed through treatment" based on a claim of bipolar disorder (not actual diagnosis).
[6] Anne-Marie Langan, “Threatening the Balance of the Scales of Justice: Unrepresented Litigants in the Family Courts of Ontario” (2005) 30 Queen‟s L.J. 825 at 828. 
[7] See Electronic Signatures-Rubber Stamping-Good Grief , Elliot Leven member of the Law Society of Manitoba and board member of Human Rights Commission who was the reason complaint delegated to the Yukon HRC)

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