Litigants beware. Stand up for your rights. Unscrupulous, corrupt and abusive lawyers will ruin your life if they can get away with it and the latest vehicle that provides the opportunity is a document printed by the Ministry of the Attorney General © Queen's Printer for Ontario, 2008 - 2010 Last Modified: Thursday, December 09, 2010. The exact quote in this document which is subject to enormous abuse is the following;
"Motions, which must be made before a case management judge or case management master, may be heard at a case conference. Case conferences may be held in person, by conference call or in writing....(Motions) do not require a motion record or supporting material."
You can review the full text here: Civil Case Management and Mandatory Mediation provide early opportunities to settle lawsuits.
Backtrack 3 or 4 years ago; Wayne Laski, Alexandra White and I shared a coffee during a motion court break. Wayne Laski and Alexandra White are lawyers. We are adversaries and in my experience, they are one trick ponies. Their only strategy is to engage smear campaigns because the facts are on our side. The ability to smear is on theirs.
At one point during our "small talk" break, Wayne Laski startled me when he said, "I used to know somebody who worked for the Cuban Embassy who said, 'It doesn't matter whether you live in Cuba or in a democracy. If the government wants to get you, it will.'"
At the time, I shrugged the comment off as a joke, but I filed it verbatum, in the back of my mind, to be retrieved now because it evidently makes at least partial sense. I did not understand the power of the government when Laski made that comment but I certainly understand it now. The part that is still intriguing is the suggestion that the government is out to get me. Is that what Laski was implying? I am not in a position to understand unless Laski explains his comment, but the government has evidently modified Rule 77 of the Rules of Civil Procedure in a manner that gives Lawyers like Wayne Laski the opportunity to turn his nonsensical ramblings into a prophesy.
It appears that one of the legitimate intents of Rule 77 is to encourage productive Case Management, but in my experience, it is being used inappropriately and the following is essentially a case study, to expose how Rule 77 is being abused.
Wayne Laski had been planning to deploy the power of modified Rule 77 since at least May 19, 2011, but I was not even able to reach that understanding until June 1, 2011, after speaking with a lawyer. To understand this anomaly, you would need to carefully review and assess the significanse of this deceptive and misleading letter that I received from Wayne Laski.
As you can see, from Laski's communication, he is creating the false impression that the June 7, 2011 sheduled court appearance is Motion Scheduling Court, but my research was beginning to raise doubts and I therefore sent Mr. Laski the following email in effort to avoid being ambushed by a proceeding that I was not prepared to handle:
Sent: Mon, May 30, 2011 5:30:20 PM
Dear Mr. Laski,
In order to comply with my responsibility to attend to matters before the court
in an appropriate manner, I attended the court house today to enquire about
the availability of motion scheduling court dates and I was informed that
June 1, 6 and 8 are the reserved, motion scheduling dates.
Which do you prefer?
I was also told that Tuesdays and Fridays, including June 7, 2011 are reserved
for summary judgement matters. Are you trying to secure a summary judgement
decision in my absence?
Please clarify your intentions because mutual attendance demands mutual
cooperation.
In your letter dated May 19, 2011, you write, ""We will be attending on June 7
at Motion Scheduling Court, 393 University Avenue, Toronto, to set a date for
the motion to be heard."
At the very least, you should have enquired about my availability. Your tendency
to assume that you can move forward without my involvement is premature
and the following comment in your letter betrays an inadequate understanding of
your responsibility. To quote directly, you write, "Please be advised that given
the history of this matter, we will not be responding to any communication from
you until such time as the matter of a litigation guardian is resolved."
These comments are not appropriate because as you have also indicated in your
March, 19, 2011 letter, "We do agree that Justice McIsaac's order only applies
to that case."
As long as that is the case, I am deemed to be competent enough to represent
myself in this case and any suggestion to the contrary is consequently
irresponsible.
Please respond to these urgent concerns in a prompt, reasonable, comprehensive
and appropriate manner.
Louis Kakoutis
Wayne Laski responded with this misleading, false and defamatory letter, and the significance of this correspondence will become clear, in due time... stay tuned... Needless to say, you are probably wondering...What on earth does any of this have to do with Rule 77? -Good question.
I was obviously confused about June 7 because the manager of the scheduling office indicated that it involved a summary judgement matter and Laski was pretending that it was merely about scheduling a motion. Having been left in the dark, it is the following document which enabled the opportunity to begin to unravel Laski's abusive scheme to arrange a mandatory, summary judgement appearance before a Judge, without informing me regarding the nature of the proceedings:
Despite misdirection, the event information for the proceeding that Wayne Laski had scheduled for June 7, 2011 was "case conference" and reading between the lines of his letters, it had absolutely nothing to do with scheduling a date for a motion to be heard, as he repeatedly indicated.
In a panic, I went to speak to a lawpro lawyer who works probono at 393 University Avenue and I asked, "Do I have to be in attendance for a case conference?"
"Yes you do" he replied, and that immediately set off another panic button, because, if you look at the case event list I obtained on June 1, 2011, it indicates that another case conference had been scheduled for November 1, 2007, and if my attendance was mandatory, why hadn't I been notified?
I told the lawpro lawyer that I didn't know anything about a case conference in the civil litigation context and he said, "Under case management rules, this is rule 77.08, (and he encouraged me to write this down) a Judge or case management master may at any time convene a case conference on his or her own initiative or at a party's request."
"Aren't they supposed to notify me about this?" I anxiously inquired.
"Well, it sounds like you have been notified" the lawyer responded, adding, "you know when it is." To be sure, but in my experience, a Laski notification is merely a gimmick to secure some perceived advantage. In fact, by June 1st, 2011, I had survived 1475 days of that sort of abuse, I think I know what I am talking about.
If I was a victim of the improper use of a case conferences, I needed to review my file to be able to determine what to expect on June 7, 2011. Unfortunately the filing office claimed that it had been archived and I would have to wait at least 7 days before I was provided the opprtunity to review it.
Neither the people at lawpro nor I could understand why an active file was archived. My anxiety was beginning to mount and the receptionist at lawpro evidently noticed because she interrupted my meeting with the lawyer to say, "Sorry, this is a case conference that happened in 2007?"
I was understandably frustrated because I had wasted over an hour trying to reason with the people "upstairs" the way the receptionist was suggesting. Like her, I could not understand why my file was allegedly archived and therefore not available for review, when it involves an ongoing matter.
I was in the dark without the opportunity to review my file, but the fact that Wayne Laski had misrepresented the purpose of the June 7, 2011 court appearance was absolutely clear and the fact that he intended to abuse Rule 77 to execute his will without warning, was also beyond reasonable dispute.
In desperation, I filled out a form to retrieve my file from the archives, but when I tried to obtain confirmation that I would receive it in time to review it for the June 7, 2011 hearing, the clerks and even the manager sounded very skeptical. I therefore decided that I could not justify wasting the $61 fee on a wild goose chase. I needed an active file, not an archive, so I left without bothering to order anything. Moreover, it was becoming clear to be that since a case conference was scheduled, my file was possibly not available to me because Wayne Laski had intended to make it available to the Judge who would preside over the June 7, 2011 case conference.
I was placed is a difficult situation. The court expected my attendance because it is mandatory when a case conference is scheduled, and I did not want to be ambushed, again.
I am not a conspiracist, I am a skilled researcher who was trying to evade a trap. Wayne Laski was planning to use Rule 77 to obtain a summary judgement decision and I resisted -it's as simple as that. I researched information about case conferences at the Bora Laskin Law Library, discovered that they are a controversial aspect of family law practice that is subject to extreme abuse and I did not want to become just one more victim of lawyers who abuse the process
Having assessed all the evidence which relates to Laski's efforts to manipulate the process and given my limited resources, I wrote the following email, to evade Wayne Laski's malignant trap:
Sent: Wed, June 1, 2011 6:41:03 AM
Dear Mr. Laski,
Given your persistent tendency to bad-mouth me, please do not use the courts for
that purpose unless I am present. In particular, if you are seeking to prejudice
me in front of a Judge in my absence, it will constitue an abuse of process and
any rendered decision will consequently be invalid.
Outside of your routine tendency to prejudice the court against me, a case
conference is designed to deal only with the procedural issues that your letter
dated May 19, 2011 alludes to. Substantive issues ought to be dealt with on
consent, but unfortunately, that has never been your intention because you have
never responded to any of my communication in a substantive manner.
Fairness is about giving proper, clear and unequivocal notice of any step in a
case where a judge is going to make decision affecting the substantive rights
and responsibilities of the parties. Your letter dated May 19, 2011 evidently
reflects the improper use of a case conference because you don’t even
acknowledge having scheduled one. How am I supposed to figure it out if you
don’t notify me? The only reason I know that you have scheduled a case
conference without my consent is because I scrutinized your deceptive letter
dated May 19, 2011.
Have you scheduled other case conferences in the past without my consent or is
this the first time?
You ought to know that the courts have affirmed that the denial of a fair
hearing may render a decision invalid, and that is evidently the only
justifiable resolution regarding Justice McIsaaac’s endorsement –the one you
are seeking to expand by defaming me behind my back.
A case conference (despite your deceptive and misleading letter dated May 19,
2001) is not a motion and to merge the concepts would be productive of mischief
to the litigants and to the justice system. If you in fact would like to
schedule a motion, as your letter dated May 19, 2011 indicates, I will make
myself available on any of the following dates: August 1-31; September 1-30;
October 1-31.
If you attend what you call, Motion Scheduling Court, on June 7, 2011, please
provide the Judge with a copy of this letter, to facilitate your stated
intention. I have made it clear to you that I am not available neither in person
nor by telephone-conference, on June 7, 2011, but why should that matter since I
have clearly provided you with all the information you require to schedule a
motion on consent?
I trust this resolves all outstanding issues regarding the need to schedule a
motion.
I called Wayne Laski on June 6, 2011 and he assured me that I did not have to attend on June 7, 2011 and he made that crystal clear when he said, "if you could attend, I would not have to be there". At the same time, he wanted to speak to me on the phone in the morning of June 7, 2011. He claimed he wanted to verify my availability for the motion he wanted to schedule but I told him that he could pick any date he wanted and I would make myself available, so there was no need to phone me. His overwhelming zeal to contact me no matter what, on June 7, 2011 made it abslutely clear to me that Wayne Laski was obsessively seeking to trigger the authority of Rule 77, but I thwarted his malignant scheme. The phone ran off the hook in the morning of June 7, 2011 but I refused to respond.
The date is precise because it preceded an email that was sent to Wayne Laski on, May 30, 2011, at 5:30 pm, which included the following;
"In order to comply with my responsibility to attend to matters before the court in an appropriate manner, I attended the court house today to enquire
about the availability of motion scheduling court dates and I was informed that June 1, 6 and 8 are the reserved, motion scheduling dates. Which do you prefer?"
Wayne Laski rejected all of those dates, probably because he wanted to appear before a specific Judge at a specific time, and the following, May 30, 2011 conversation makes that quite clear:
Scheduling Office Clerk: "Well, when you go to see Justice Himel -What day are you going to Triage Court?"
Louis Kakoutis: "I don't know yet. I'm going downstairs to the lawyers, to give me advice." (I went to the library to do some research and went to speak to a lawyer the next day.)
Scheduling Office Clerk: "Oh, okay. Well whatever date you pick, that's triage court. That's actually the boss of the Judges that you are going to go see on that day when you come in. You can tell her what's happening, and maybe she can assure you that the Judge Hearing the motion on that day will be a competent Judge. I mean, that's about it. So any concerns you have with the judiciary, that's the perfect place to raise it because she is the boss of the Motion Judges. So there you go, killing two birds with one stone."
That all went in one ear and out the other because I didn't even know what Triage Court was. In retrospect however, it is quite clear to me that if this person knew that I was scheduled to appear before Justice Himel, as early as May 30, 2011, then so did Wayne Laski, who had scheduled the court conference under false pretense.
I believe that if Justice Himel knew about this evident manipulation and abuse, she would or should throw the book at Wayne Laski because his efforts to undermine a proceduraly fair process are not excusable.
On June 7, 2011, Wayne Laski appeared before Justice Himel in my absence, and the evidence is clear. That would not have happened if Wayne Laski had not corrupted the process.
It would have been extremely dangerous and potentially fatal for me to appear before Justice Himel unprepared because she finds that a judge can indeed initiate a summary judgment motion (even though Rule 16 clearly states that it is "a party" who may bring such a motion) and I was very, very fortunate to be able to thwart yet another typical, Wayne Laski, routine effort to obtain a summary judgment ruling without having to serve motion material -like killing two birds with one stone.
Psychology Professor, Tom Tyler, suggests there are four basic expectations that encompass procedural fairness.
* Voice: The ability to participate in the case by expressing their point of view.
Wayne Laski has clearly proved to be the epitomy of what it means to deny procedural fairness.
Subject: I am not available on June 7, 2011.
You are fundamentally mistaken if you believe you have the authority to dictate
your will.
In particular, it is not appropriate to schedule a court appearance without
soliciting my availability.
Sincerely,
ps. As long as you inappropriately assume that you can exclude my involvement in
this case it is your duty and responsibility to inform my sister about these proceedings
because she is also a party to this lawsuit and your failure to notify her is therefore
inappropriate.
"Yes" I responded and she said,
"We can't help you down here. The problem is with the courts now because they didn't send you a notice or anything like that." She advised me to obtain my file to be able to review what happened in 2007 and when I told her that my effort to do that were repeatedly thwarted, she said, "well you can see your file. You can go upstairs to the file room and see it. It's public information." (this is not verbatum but it's accurate)
Subject: I am not available on June 7, 2011.
My sister and I (both parties to this lawsuit) are extremely disappointed by
your failure to respond to the forwarded email in a substantive manner.
Moreover, please note that your false and derogatory letter dated May 31, 2011 is
immaterial because it does not affect the facts of this case.
Sincerely,
Louis Kakoutis
CONCLUSION: It appears to me that the only reason my family and I are being harassed in this manner (by a fickle lawsuit that should not be in court) is because the process has been corrupted, and I do not believe that the following conversation I had with a motion scheduling office clerk on May 30, 2011, leaves any room for doubt.
* Neutrality: Consistently applied legal principles, unbiased decision makers and a "transparency" about how decisions are made.
* Respect: Individuals are treated with dignity and their rights are obviously protected.
* Trustworthy authorities: Authorities are benevolent, caring and sincerely trying to help the litigants - this trust is garnered by listening to indivuduals and by explaining or justifying decisions that address the litigants' needs.
Next: New Rules make summary judgment more accessible.
Comments - Questions? -
