OMNIBUS BUDGET BILL, C-38
- Thread starter Mancilla
- Start date
JUSTICE BARNES DECISION IN ANOTHER COUPLE OF WEEKS
The meeting with managing judge was a major disappointment. He has never bothered to read the motion he directed me to file and which was ready for review on July 13th. Because opposing counsel are taking off next week -- Monday is a holiday in Ontario -- it will be at least another two weeks before Justice Barnes is likely to decide it.
Justice Barnes has made it clear, however, that he had made up his mind even before I had put pen to paper. As a result, I will be sending him a letter asking him to reflect on whether he is capable of allowing the facts to dislodge his preconceived position. When I appeared before him before, he appeared to adhere to the principle that he should set aside his personal opinion and render a decision consistent with the law and the facts, which he did. Thus, I do not hold the view that our cause is hopeless if Justice Barnes renders the decision.
Justice Barnes' view is that s 87.4 (the beheading provision) is the most powerful provision in the statute, that no other provision has the force of law. That view, however, is patently false. We will see whether, as a consequence of his conduct at the last two conferences -- and in between -- he should have a different judge decide the motion. As I said, I do not believe that all is lost; I just do not know whether he is man enough to admit error and rule in our favour.
DoJ counsel had asked for a conference, but, instead of giving us our own conference, he lumped us into the class-action group, revealing that he believes that our situation is no different than the other 85,000 applicants. He, however, was alone in the room in holding that view. Our opposing counsel clearly hold a different opinion, as do the applicants' counsel in the class-action lawsuit. And, I shall be making that point in the letter I will be sending him this coming week. It was only after the class-action lawsuit issues had been canvassed that, at DoJ's request, he turned his attention to our issues, which were left unresolved because the time ran out.
One issue was inclusion of additional litigants. Justice Barnes left that issue unresolved when he was signing off, prompting me to speak up, saying that we really do need guidance on the issue. DoJ asserts that the Agreement only applies to those who had signed on by June 14th. I take the view that it applies to everyone whom the Court added to the group. The judge's final words were to the effect that "the group will probably have to be closed at some point," implying that it remains open to additional litigants. He invited us to make written submissions on the matter. My take is that, if he ever agrees that our group is different than rest of the 85,000 applicants whose files s. 87.4 closes, he will close the group. In view of his handling of this issue -- no one denied that on June 26th he authorized me to add litigants to the group -- I expect him to permit all those who have joined (so long as the number is not too large) to be included in the group. I do not anticipate that decision coming out next week but may come the following week depending on how DoJ responds to the letters I will be sending to the Court. I will mention that two of the three lawyers are away for the week and suggest that the time they have to respond should commence the week of August 13th. Thus, the group will likely remain open for additional litigants until the week of August 20th.
So, the struggle continues. It is still up hill , but there is also still hope. The brightest rays of hope arise from Justice Barnes' admission that he had not read our submissions before having presumed that s. 87.4 precludes implementation of the Agreement and his prior willingness to set aside his own personal view to render a decision consistent with the law. Let us hope that he will do the same again.
The meeting with managing judge was a major disappointment. He has never bothered to read the motion he directed me to file and which was ready for review on July 13th. Because opposing counsel are taking off next week -- Monday is a holiday in Ontario -- it will be at least another two weeks before Justice Barnes is likely to decide it.
Justice Barnes has made it clear, however, that he had made up his mind even before I had put pen to paper. As a result, I will be sending him a letter asking him to reflect on whether he is capable of allowing the facts to dislodge his preconceived position. When I appeared before him before, he appeared to adhere to the principle that he should set aside his personal opinion and render a decision consistent with the law and the facts, which he did. Thus, I do not hold the view that our cause is hopeless if Justice Barnes renders the decision.
Justice Barnes' view is that s 87.4 (the beheading provision) is the most powerful provision in the statute, that no other provision has the force of law. That view, however, is patently false. We will see whether, as a consequence of his conduct at the last two conferences -- and in between -- he should have a different judge decide the motion. As I said, I do not believe that all is lost; I just do not know whether he is man enough to admit error and rule in our favour.
DoJ counsel had asked for a conference, but, instead of giving us our own conference, he lumped us into the class-action group, revealing that he believes that our situation is no different than the other 85,000 applicants. He, however, was alone in the room in holding that view. Our opposing counsel clearly hold a different opinion, as do the applicants' counsel in the class-action lawsuit. And, I shall be making that point in the letter I will be sending him this coming week. It was only after the class-action lawsuit issues had been canvassed that, at DoJ's request, he turned his attention to our issues, which were left unresolved because the time ran out.
One issue was inclusion of additional litigants. Justice Barnes left that issue unresolved when he was signing off, prompting me to speak up, saying that we really do need guidance on the issue. DoJ asserts that the Agreement only applies to those who had signed on by June 14th. I take the view that it applies to everyone whom the Court added to the group. The judge's final words were to the effect that "the group will probably have to be closed at some point," implying that it remains open to additional litigants. He invited us to make written submissions on the matter. My take is that, if he ever agrees that our group is different than rest of the 85,000 applicants whose files s. 87.4 closes, he will close the group. In view of his handling of this issue -- no one denied that on June 26th he authorized me to add litigants to the group -- I expect him to permit all those who have joined (so long as the number is not too large) to be included in the group. I do not anticipate that decision coming out next week but may come the following week depending on how DoJ responds to the letters I will be sending to the Court. I will mention that two of the three lawyers are away for the week and suggest that the time they have to respond should commence the week of August 13th. Thus, the group will likely remain open for additional litigants until the week of August 20th.
So, the struggle continues. It is still up hill , but there is also still hope. The brightest rays of hope arise from Justice Barnes' admission that he had not read our submissions before having presumed that s. 87.4 precludes implementation of the Agreement and his prior willingness to set aside his own personal view to render a decision consistent with the law. Let us hope that he will do the same again.