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FACTUM OF THE ONTARIO CROWN RESPONDENTS

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                 FACTUM OF THE APPELLANTS IN SUPPORT OF MOTION
I. THE EXTRA-INHERENT JURISDICTION OF THE COURT

The dismissal of motion is granted without jurisdiction upon failing to notice that there was no jurisiction to
proceed and to deny the relief sought and breach of duty to analyze the jurisdiction every judicial officer is
always required to consider this quesiton of jurisdiction, on own motion even if it is not raised by
parties.(see:Okanagan Helicopters Ltd. v. Canadian Pacific Ltd. [1974] 1 F.C. 465, per Mahoney J.), The
jurisdiction herein was an adminstrative supervisory parens patriae jurisdiction invoked solely for the benefit
of the protection of a vulnerable adult and the court is not to be viewed as if acting as a statutory court or a
court of record where the usual Rules of Civil Procedure and cost orders apply. The dismissal of the motion
without taking the factual matrix into account renders the disposition a nullity given its inquisitional nature.
Jurisdiction was clearly lost by proceeding in writing while being aware that the matters were not proper for
disposition in writing as made clear by Laborsse J. A., who remitted the matter to the panel for (impliedly an
oral) hearing.
Proceedings are fatally flawed also because of failure to conform to the precedent set by the Supreme Court in
such circumstances in the cases like Bibaud v. Régie de l'assurance maladie du Québec, 2004 SCC 35 where
Eva Petras, a Montreal lawyer was appointed by the Court as amicus curiae and Cooper v. Canada (Human
Rights Commission), [1996] 3 S.C.R. 854 where the Court appointed an amicus curiae to present the argument
regarding the jurisdiction issue from the lawfirm of Raven, Jewitt & Allen,
The nature of the mischief and disrepute to the honor of administration of justice is of the seriousness of the
violations as was thoroughly canvassed by His Honour Judge Whetung, and by Mr. Justice LaForme. Mr.
Justice Whetung at page 32 of his Reasons for Judgment, that he concluded:
   ... not without great reluctance, that the administration of justice would suffer far greater disrepute from
   the admission of this evidence than from its exclusion. This Court must not be seen to condone conduct of
   this sort evidenced by the facts of the present case on the part of officials who wield substantial power
   over private citizens and who do not exercise this power in thoughtful or knowledgeable fashion, and in
   fact do so in an overt fashion without full knowledge of the powers available to them which are less
   overt and who do so in a fashion which is oppressive to the rights of individuals. (see : R v Norway
   Insulation Inc (1995) 95 DTC 5328 (Ont Gen Div) as applied to grant the application of the taxpyaer by
   Diehl PCJ, in R. v. Melnychuk, ( 6 Oct 1998) CanLII 13347 (SKPC) (1998), [1999] 3 C.T.C. 255 at
   http://canlii.org/sk/cas/skpc/1998/1998skpc10028.html and O'Neill Motors Limited v. Her Majesty The
   Queen, 96 DTC 1486, per Bowman PCJ cited by Bowie, J.T.C.C. in Jurchison v. The Queen, (30 Nov
   1999) CanLII 313 (T.C.C.) posted at http://canlii.org/ca/cas/tcc/1999/1999tcc981755.html )
The overriding legal principle that public interest is paramount (per Estey J., speaking for the Supreme Court of
Canada, in Canada (Attorney General) v. Law Society of British Columbia, 1982 CanLII 29 (S.C.C.), [1982] 2
S.C.R. 307 at 335 re-affirmed in Pearlman v. Manitoba Law Society, 1991 CanLII 26 (S.C.C.), [1991] 2 S.C.R.
869, referred to by Lord Diplock in Mixnam's Properties Ltd. v. Chertsey U. D.C., [1964] 1Q.B. 214 at 237,
adopted by the Supreme Court of Canada in Bell v. R., [1979] 2 S.C.R. 212 and Montréal (City) v. Arcade
Amusements Inc., [1985] 1 S.C.R. 385.) such that even if not unreasonable in the sense it is “not in the
public interest" and was therefore "contrary to public policy", as applied upon allowing the
appeal by Cameron J.A., for the court, in Simpson v. Chiropractors' Association of
Saskatchewan, 2001 SKCA 22 (CanLII) (2001), 31 Admin. L.R. (3d) 87; (2001), 203 Sask. R.
231 noting at para. 56 the fact that “Public policy” is a highly indefinite moral value.
The endorsement is a nullity for having been rendered wihtout a jurisdiction given that the court is bound to
protect the interests of the disabled party and the words of the panel fail to demonstrate that to be the case.


                        Factum of August 24, 2006 of the appellants C 44715 (motion M 34128 E)
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The endorsement is a nullity for unfairness, through offence to the rule that a fair trial is at the root of the
administration of justice and an unfair proceeding cannot be condoned. Rights of parties cannot be
determined without a hearing. Right to be heard has been outlined by Rosenberg J.A. in British Columbia
(Child, Family and Community Service) v. S.J.B. (30 June 2006) CanLII 22106 (ONCA) CFN-C43619 as
follows at para 23: As V. Mackinnon J. said in Ndegwa v. Ndegwa(2001), 20 R.F.L. (5th) 118 (Ont. Sup. Ct.
J.) at para. 15 “„Being heard’ [within the meaning of s. 41(1)(b)] entails knowing the case to be met and
having the opportunity to address the factual and legal issues in the case.” S.J.B. and her parents did not have
that opportunity.
rules are subject to the discretion of the court, whereas the statute is not
An order is fit to be set aside as illegal in the face of allegations of procedural irregularities if the reasons are
seriously inadequate and fail to support the order by not answering to the allegation of the losing party to
that effect as noted by Rosenberg J.A. in British Columbia (Child, Family and Community Service) v.
S.J.B. (30 June 2006) CanLII 22106 (ONCA) CFN-C43619 as follows at para 30 by noting : In my view,
the order of Jarvis J. is no answer to the appellants’ submission that they were deprived of a fair hearing.
Accordingly, on this basis as well, I would set aside the order of Paisley J.
The panel was not acting in accordance with the Canadian laws but in order to attempt to conceal the
corruption within the court regisries.
There is no jurisdiction to injure disabled parties and merely “the fact that it seems desirable for a certain
court to have jurisdiction does not create such jurisdiction” as noted by Beetz J., in The Queen (Nfld.) and
Churchill Falls v. Hydro-Québec, [1982] 2 S.C.R. 79 at 94.
Entitlement to the transcripts of the panel proceedins given that the review hearing of motion was expectd to be
conducted in a courtroom open to the public and notwithstanding that the matters proceeded in writing, the
deliberations of the panel ought to be made available to the parties. These are necessary to establish that the
procedure followed was fatally flawed and the disposition on merits is withou leagal force given that no material
was actually read and the panel was engaed in fraud on law.
Infringment of a Charter right does not of itself give rise to jurisdictional error.( Mills v. The Queen 1986
CanLII 17 (S.C.C.), (1986), 26 C.C.C. (3d) 481, 29 D.L.R. (4th) 161, [1986] 1 S.C.R. 863, per McIntyre J. at
pp. 500-1) but it does so when the Charter breach deprives the individual from access to s. 24(1) application
because of the remarks of McIntyre J. at pp. 500-1
There never was any burden on the appellants to establish merit in the right to state funded counsel in the
circumstances, because the procedural steps necessary for determination of Constitutional Questions are to be
assumed to be included in addition to the the express provisions of the Constitution which should be understood
as elaborations or summaries of the underlying, unwritten, and organizing principles found in the preamble to the
Constitution Act, 1867. Therefore the only conclusion that remains to be made is that the conclusion of absence
of merits in the reliefs sought is patently unreasonable and imposes a burden on the appellants that has been
discharged in the drafting of the preamble to the Constitution Act, 1867.
Charter rights should not be rendered illusory by imposing an impossible burden of proof
Charter rights should not be rendered illusory by imposing an impossible burden of proof on those claiming
this protection (Simon v. The Queen, 1985 CanLII 11 (S.C.C.), [1985] 2 S.C.R. 387, at p.408) per
McLachlin C.J. in Mitchell v. M.N.R., [2001] S.C.R 911 paras 27 and 28.

Hood, J. in Horn Abbott Ltd. v. Reeves (27 Jan 2000) No. S.H.No.156843, there is no power of the court to make
proprio motu orders to stall the proceedings or obstruct the process of the courts as has been done in the B. C.
courts and in the Supreme Court of Canada. Nova Scotia Court of Appeal in Global Petroleum Corp. v. CBI
Industries (1997), 158 N.S.R. (2d) 203 (C.A.) made it clear that the chambers judge in that case should not have
made an order of his own motion granting a stay without giving "the parties an opportunity to be heard".

                         Factum of August 24, 2006 of the appellants C 44715 (motion M 34128 E)
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In R. v. Siemens, (27 October 2000) Grand Forks Registry BCSC 2732                                          <
http://www.canlii.org/bc/cas/bcsc/2000/2000bcsc1015.html > McEwan J. Adopted the Crowns submissions at
para 20 to the effect : The Crown relied particularly on R. v. Erickson (1984), 13 C.C.C. (3d) 269
(B.C.C.A.) and R. v. Fraillon (1990), 62 C.C.C. (3d) 267 (Que. C.A.) for the proposition that it is
jurisdictional error for the court to grant a remedy of its own motion without giving counsel the opportunity
to address an issue.
Breach of duty to raise Charter issues on their own motion canvassed by Kelly, J., in Foster v. Kiehl, (29 Oct
2001), Halifax Reg. NSSC149 No. SH 169752 at para 18 and at 37-38 after citing R. v. Arbour (1990), 4
C.R.R. (2d) 369 (Ont. C.A.) And deP. Wright J., has outelined in some detail in R. v. Glaister (13 Jan 2004),
Thunder Bay Reg., No. 03-0062 the duty of judge to bring Charter applications proprio motu.
 Duty to raise a Charter issue not raised by the self-reprsented party (R. v. Arbour (1990) 4 CRR (2d) 369
(CA), R. v. Travers, (1 May 2001) NSCA 71 Halifax C.A.C.No.165406 and Korponay v. AG [1982] 1 SCR
41 @ 73) In R. v. Boron (1983), 8 C.C.C. (3d) 25 at 32-33 it is stated "It is, therefore, generally wrong in
principle for a trial judge to raise legal issues, including Charter issues, on his own motion in a penal
proceeding where an accused is represented by counsel unless counsel is totally incompetent."

The misconduct of the panel is one of dissipation of judicial resources.that was canvassed by Rosenberg J.A. in
British Columbia (Child, Family and Community Service) v. S.J.B. (30 June 2006) CanLII 22106 (ONCA)
CFN-C43619 posted at http://canlii.org/on/cas/onca/2006/2006onca10494.html at para 15
[12] Finally, it is not in the public interest to resolve those issues on this record. Because of the way in which
the case made its way to this court there is not a full evidentiary record relating either to S.J.B.‟s particular
circumstances or the operation of the Ontario consent to treatment regime.
[13] I take a different view, however, with respect to the procedural and related issues raised by this case. The
paramount consideration on this aspect of the case is the concern for judicial resources. The case raises issues of
a recurring nature but brief duration. The Ontario judges were presented with circumstances that required
immediate attention. Within hours of Paisley J.‟s order, S.J.B. was on an airplane back to British Columbia. In
circumstances such as these the dispute will always have disappeared before it can be ultimately resolved. See
Borowski at p. 361: “In my view, expending judicial resources is warranted in this case given the importance of
the issues and the fact that this type of case is evasive of review (New Brunswick (Minister of Health and
Community Services) v. G(J.), 1999 CanLII 653 (S.C.C.), [1999] 3 S.C.R. 46 at para. 45)”.

The disposition is contemptous to the Crown given that "Parliament never intended to give authority to make
such rules" (Kruse v. Johnson [1898] 2 Q.B. 91, per Lord Russell C.J.)
By commenting on the merits of the issue that properly constitute the matter of appeal the panel has engaged in a
mischief that is to be avoided as has been admonished and Lamer J.'s observation in Duhamel v. The Queen,
[1984] 2 S.C.R. 555 at 562 that "having regard to the efficiency and reputation of the judicial system ... the
scandal of conflicting decisions be avoided". The remaarks on merit of the constituttional question pre-judges
the issues under appeal rendering the appeal moot and abusive such that the right of the appellant to appeal has
been unlawfully denied.
Commenting on the merits also forecloses the opportunity to bring the bias as a ground for appeal.
where a judgment of the Superior Court is attacked on grounds of reasonable apprehension of bias, the
appropriate procedural avenue is an appeal.
The order is perverse becuase it inhibit the discretion of the judge hearing the trial of the issue (1497777 Ontario
Inc. v. Leon's Furniture, ( 13 May 2004) CanLII 25007 (ONCA)) **



                        Factum of August 24, 2006 of the appellants C 44715 (motion M 34128 E)
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The Chief justice must intervene in order to exercise the parens patriae jurisdiction as an adjunct to
controlling the court's own process, that appellate courts have invoked as ab ancillary powers in special
circumstances to prevent the frustration of appeal rights (see: Rocket v. Royal College of Dental Surgeons
of Ontario , (1988), 66 O.R. (2d) 73 (Ont. C.A.); R. v. Church of Scientology; R. v. Zaharia , (1986) 25
C.C.C. (3d) 149 (Ont. C.A.) where the court ordered that certain documents be sealed pending the hearing of
the appeal on the basis that it "possess[ed] ancillary jurisdiction to make the order sought in order to prevent
the frustration of the appeal".
This ancillary power of a court of appeal to prevent the frustration of appeals was also considered in R. v.
Keating 1991 CanLII 2612 (NS C.A.), (1991), 66 C.C.C. (3d) 530 (N.S.C.A. ) and R. v. Dempsey 1995
CanLII 4313 (NS C.A.), (1995), 138 N.S.R. (2d) 110 (N.S.C.A.). R. v. Power, 1994 CanLII 126 (S.C.C.),
[1994] 1 S.C.R. 601 where the power of the court of appeal to correct an abuse of process was recognized
even if that is being done by the judges of the Court of Appeal.

The appellants respectfully submit that the Registrar of Ontario Court of Appeal ought to be directed to
address the following six issues before the adjudication on the motions in the matters of Pradeep Kumar
Verma and the Ontario and B. C. Public Guardian and Trustees.
1. Convert the matters to an oral hearing
2. Appointment of an amicus curiae
3. Appointment of a counsel for appellant Verma
4. Adjournment for allowing a motion to quash the affidavits of PGTBC
5. Removal of the PGTBC as the guardian of appellant Verma
6. Inclusion of the review of the rulings of Justice Ponton and Justice Ross into the appeal.
The appellants submit that the panel of the Court of Appeal has acted in bad faith and in order to conspire
with the criminal activities of the respondents through the following unlawful activities
The panel proceeded to hear the matter without jurisdiction given that the decision to proceed without
appointing a counsel to render the proceedings constitutionally valid and the pre-judging of the question that
was the matter in the review motion had caused reasonable apprhension of bias causing the panel to lose
jurisdiction and render the disposition a nullity.
Zarzeczny J. outlienes in Hollinger Canadian Newspapers, LP (c.o.b. Saskatoon Star-Phoenix Newspaper)
v. Communications, Energy and Paperworkers' Union of Canada, ( 27 Sep 2001) SKQB 439 No. QB845 -
01JCS that patent unreasonable amoutns to fraud on court at para 10:
[10] That the "patently unreasonable" test for judicial review is a strict one and represents a high standard
was reinforced by the Supreme Court of Canada in the case of Re Syndicat des employés du production du
Québec et de l'Acadie and Canada Labour Relations Board et al., [1984] 2 S.C.R. 412 where at p. 420 a
patently unreasonable interpretation was described as an error "that amounts to a fraud on the law or a
deliberate refusal to comply with it". In the Saskatchewan case of Re Welk and Saskatchewan Social
Services Appeal Board et al. (1986), 28 D.L.R. (4th) 475 (Sask. C.A.) the "patently unreasonable" test was
alternately described as "outrageous, absurd, or ridiculous" and so beyond the bounds of reason as to amount
to "a fraud on the law or a deliberate refusal to comply with it" and thus subject to being set aside (see
Cameron J.A. at p. 477). (See also PSAC, supra, at p. 963 and 964 where the phrases "clearly irrational",
"evidently not in accordance with reason" and in Regina Board of Police Commissioners v. Regina Police
Assn. Inc. (1996), 134 D.L.R. (4th) 313 (Sask. C.A.) "irrational" were used in attempts to further explain or
define the phrase "patently unreasonable").
The test for fraud on law stated in Re Syndicat was recited by Beetz J., in U.E.S., Local 298 v. Bibeault,
[1988] 2 S.C.R. 1048, 1988 CanLII 30 (S.C.C.)(1988), [1989] 35 Admin. L.R. 153 and recently by Major
J., in Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre),
[1996] 2 S.C.R. 3, 1996 CanLII 190 (S.C.C.)[1996] 140 Nfld. & P.E.I.R. 63; (1996), 134 D.L.R. (4th) 1; at
para 13.
                        Factum of August 24, 2006 of the appellants C 44715 (motion M 34128 E)
                                                         21
Inference of malice is evident from the capricious brief and incomprehensible reasons contained in the
endorsement while wilfully depriving the appellants the opportunity to seek clarification of the reasons as
is generally permitted (see e.g. IBL Transport Co. v. Ontario (Minister of Finance), (3 Dec 2004) CanLII
45848 (ONCA)CFN-C40435 at para 5 ) **
The appellants submit that the endorsement is an act of crime by the panel of the Court of Appeal as held in
Bau-und Forschungsgellschaft Thermoform AG v. Paszner 69 B.C.L.R. (2d) 52, 1992, by Lambert J. A.
for the Court speaking of the use of R.41(24) noted that: "[t]he cases of grave and manifest injustice are
almost invariably criminal in nature" and the actions of the counsel for the respondents, the registry officers
and even those of the members of judiciary making those unconscionable and unprinciples orders are clearly
tentamount to grave and manifest injustice therefore criminal. This fundamental and powerful obiter of
Lambert J. A., hase been cited by and relied upon in The Toronto-Dominion Bank v. Cariboo Trail Hotel
Ltd., (5 Dec 1996) ,Vancouver Registry, BCSC No. H930866 by Clancy J., CIBC Mortgage Corp. v.
Puskas, (15 Nov 1994) BCSC H940132 by Koenigsberg, J.; National Trust Company v. Alexander, (25 Aug
1999) BCSC H970920 by Chamberlist,J.; Coughlin v. Kuntz, 1997 CanLII 2995 (BC S.C.); (1997), 43
B.C.L.R. (3d) 360 by Cohen, J; Homenuk v. Homenuk, 2004 SKQB 371 (CanLII); (2004), [2005] 1 W.W.R.
578; (2004), 252 Sask. R. 299 posted at http://canlii.org/sk/cas/skqb/2004/2004skqb371.html By Allbright
J.; Ragged Runner Enterprises Ltd. v. Victoria Sports Traders Inc., (3 Mar 1994), Kelowna Registry,
BCSC No. 10208 by Master Bishop; and also in Kenmar Inns Ltd. v. Letroy, (6 Dec 1994) ,Vancouver
Registry, BCCA No. CA015693 by a very gifted jurist of British Columbia bench , Southin J. A., quoting
the entire oral reasons rendered by the Learned Justice on 13 May 1992 for the British Columbia Court of
Appeal.
The clearly improper nature of the endorsement is evident from the following comments of Dawson J. in
Canada         Post      Corp.      v.      Varma,       (9      June      2000)       FCT      T-498-99        at
http://www.canlii.org/ca/cas/fct/2000/2000fct10640.html where the sole focus is upon insulating or
immunizing the manifestly criminal order from review by another panel of court of appeal, as can be
inferred from the following :
[36] I conclude, therefore, that this is an appropriate case to grant the relief requested. Nevertheless, there is
one exception to this order. This decision does not apply to proceedings in the Federal Court of Appeal in
Court File A-161-00. This is Mr. Varma‟s appeal from my order setting a date for the hearing of the
conclusion of this application. I make this one exception on the ground it is not, in my opinion, appropriate
for this decision to immunize my earlier decision in this matter from review.
Without the attempt to insulate the knowingly fraudulently rendered endorsement, the appellant would have
been able to have the order amended given the factual errors and errors of law through relying on the law
stated by Charron J.A. for the court in R. v. E.F.H., 1997 CanLII 418 (ONCA)(1997), 33 O.R. (3d) 202;
(1997), 115 C.C.C. (3d) 89; (1997), 98 O.A.C. 363 has noted that the court can set aside an order based on
inaccurate information. The court expressly noted that it could reconsider the matter since the previous
order, which was made the day before, had not yet been formally entered and consequently, the court was not
functus officio,after citing these cases - R. v. Deneault (1993), 33 B.C.A.C. 156, R. v. Blaker (1983), 6
C.C.C. (3d) 385 (B.C.C.A.); R. v. Findlay [1996], B.C.J. No. 1754; . R. v. Liscomb (1961), 131 C.C.C. 418
(Alta. C.A.) R. v. P(D.W.) (1989), 62 Man. R. (2d) 256 (C.A.) 675 R. v. Tenorio, (1991), 66 C.C.C. (3d) 429
(Que. C.A.) etc. The fact that the panel completely ignored the uncontradicted affidavit evidence filed by the
appellants is a serious enough error to support the allegation of inaccurate information.
 “A court has jurisdiction to decide wrong as well as right” McIntosh v. Parent (1924), 55 O.L.R. 552
(C.A.).

In the context of s.140 CJA, application the court is apparently coercing the respondents to bring this
application with the knowledge that it is contrary to the best interest of appellant Verma. Parliament has
never granted any such power with the Court of Appeal. Further it involves a waiver of the witness immunity
                        Factum of August 24, 2006 of the appellants C 44715 (motion M 34128 E)
                                                         22
and the immunity against being prosecuted directly available to a party under disability making the
endorsement a manifestly illegal act of conspiracy and contempt of the Parliament.

Dickson J. said for the majority in Marcotte v. Dep. A.G.(Can.) , 1974 CanLII 1 (S.C.C.) , [1976] 1 S.C.R.
108 at p.115: It is unnecessary to emphasize the importance of clarity and certainty when freedom is at
stake.

Simmons J.A., in General Conference of Seventh-Day Adventists, Review & Herald Publishing v. Tiffin, (
15 Jan 2002) CanLII 42036 (ONCA), (2002), 154 O.A.C. 89 CFN- C37098; M27887 has noted that Rule
59.06 is discretionary, and that unreasonable delay by the moving party may defeat a motion to set aside an
earlier judgment. In this case, there is no adequate explanation as to why the moving parties failed to act in a
more timely manner.
The conspiracy to create an injustice and maliciously deprive the appellants benefit of Rules 59.06 and 37.14
(6)(b) is evident from the implied right to reopen the matters where no reasons are given, as can be inferred
from the reasons of Sharpe J. A., in 677122 Ontario Limited v. Sagaz Industries Canada Inc., et al, 2000
CanLII 5624 (ONCA) (2000), 46 O.R. (3d) 760; (2000), 183 D.L.R. (4th) 488; at para 35 as follows:
[35] I note that the trial judge quite appropriately observed that the public interest in the finality of litigation
must be taken into account and that the courts must be wary of motions to re-open for they have the potential
to create an injustice. As was said in Charlesworth v. Relay Roads Ltd., supra, at 404, “there must be a
strong presumption against letting [a litigant] have a second chance, particularly after he has seen in detail
from the judgment why he has lost”.
The Court of Appeal erred in substituting [imposing] its discretion for that of the trial judge [and the
appellate panel] in deciding to reopen the trial. (671122 Ontario Ltd. v. Sagaz Industries Canada Inc.,
[2001] 2 S.C.R. 983, 2001 SCC 59)
Engaged in biased conduct by rendering a direction that is patently unreasonable for being based on a serious
misapprehension of facts i.e. presuming that material has been read, while it has not been read at all,
amounting to fatal factual flaw as outlined in Blanchard v. Control Data Canada Limited., [1984] 2 S.C.R.
476 at 494-95; 3391397 and in Manitoba ltd. v. Assessor for the City of Winnipeg, (18 Nov 1998) MBCA
AI97-30-03534 per Scott C.J.M speaking for the unanimous court and inflicts serious injustice on the parties
and constitutes a breach of duty of Court owed in the circumstances and as such amounts to an act of
Judicial fraud as outlined by Beetz J. in Re Syndicat des employés du production du Québec et de l'Acadie
and Canada Labour Relations Board et al., [1984] 2 S.C.R. 412 at p. 420 held patent unreasonableness as
found in the two conflicting endorsements of the same judge be a judgment that can be described as an error
"that amounts to a fraud on the law or a deliberate refusal to comply with it" or an offence as stated by
Lambert J. A., in Bau-und Forschungsgellschaft Thermoform AG v. Paszner 69 B.C.L.R. (2d) 52, 1992,
who held that: "[t]he cases of grave and manifest injustice are almost invariably criminal in nature" and the
duty owed by the respondents to the Court compels that they take steps to have the direction set aside upon
review by a different judge of Court of Appeal.
The endorsement is result of a misconduct of abuse of judicial office, acting without jurisdiction and willful
miscarriage of justice, all of which amount to breach of oath of judicial office, which Strayer J. (as he then
was) outlined in Gratton v. Canadian Judicial Council (T.D.), [1994] 3 F.C. 769 No. T-546-94 as "non-
behaviour or the incapacity to perform the office" which would be a ground for removal as a breach of good
behaviour citing Chief Justice Poitras stating:
    [a] judge [or Justice of the Peace] who is unable or unwilling to perform the duties of the office of
    judge fails to comply with the requirement of holding office "during good behaviour" and may thus be
    removed.


                        Factum of August 24, 2006 of the appellants C 44715 (motion M 34128 E)
                                                          23
Reliance of cost orders rendered without lawful basis for the rendering of the order as an attempt to block the
review of the will
The cost order is “a cruel and unusual treatment or punishment” that every Canadian has the right not to be
subjected to as guaranteed by s. 12 of the Charter. And offends the rule that stems from this "no law of Canada
should be construed or applied so as to impose or authorize the imposition of cruel and unusual treatment or
punishment" as required by s. 2(b) of the Bill of Rights. (Miller et al. v. The Queen, [1977] 2 S.C.R. 680) and is
inconsistent with the views of the Court who have held that cost orders are inappropriate in such circumstance.

Cost order is a nullity also because it has been made without taking submissions on that issue and offends the
usual practice of making the orders with the “benefit of argument on the subject of costs, the appropriate and
usual practice is for counsel to re-attend upon the judge and have the matter clarified before the formal order is
taken out” as explained by Finlayson J.A. (In Chambers) in Van Bork v. Van Bork, 1994 CanLII 444 (ONCA)
(1994), 5 R.F.L. (4th) 174 at http://www.canlii.org/on/cas/onca/1994/1994onca10185.html
Rendering a direction to stay filing of a review motion that the panel was aware would be brought under
Rule 37.14 (6) (b) where the order was made by a panel of the court, to the panel that made it or any other panel
of the court.
Panel has excercised the discretion under Rule 57 to make cost orders in an unconstitutional manner that offends
s. 15(1) of the Charter.
It is important for the court to note that “public confidence in the administration of justice requires that
judgments be reviewed and errors, if any, be corrected”. (per Arbour, J.A. (as she then was) in R. v. Farinacci
(1993), 86 C.C.C. (3d) 32 at 48)
Even if it is true that the motion of appellants Verma has no merit, it can be attributed ot the Courts negligence in
not appointing a lawyer to compensate for his disability becuase of the law stated by Koenigsberg J., in Christea
**
post offence conduct
59.06 (1) An order that … requires amendment in any particular on which the court did not adjudicate
may be amended on a motion in the proceedings.
this is an attempt by the judiciary to victimize a mentally disabled person.
The endorsement is an attempt on the part of the panel to deprive the appellants from all access to court in a
manner prohibited by ss. 7 and 24(1) of the Charter and s. 139 of the Crimianl Code that the panel intends to
compound by assuming jurisdiction pursuant to s.140 of the Courts of Justice Act while the Court of Appeal
has not been granted that jurisdiction.
It is abuse of power of the court through rendering a direction in excess of jurisdiction where the ability to
appeal as of right to the Court of Appeal is is clearly acquired, throgh s. 6 of the Couts of Justice Act, by
making the right of access to court conditional on future events, especially when hat are within the control of
the corrupt counsel of the Crown respondents.in contempt of the the law laid down by Supreme Court of
Canada held in R.. v.. Puskas , [1998] 1 S.C.R. 1207 at p. 1216, upon citing S cott v. College of Physicians
                   R v Puskas                                                        S
and Surgeons of Saskatchewan (1992), 95 D.L.R. (4th) 706 (Sask. C.A.) at p. 719) that clealy prohibits such
mischief.
A malicious attempt at denial of right to appeal a Charter matters in breach of law laid by McLachlin J., (as
she then was) in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, 120 D.L.R. (4th) 12; by
stating : Courts must be able to provide a full and effective remedy for any Charter infringement. This requires
more than the opportunity to address the trial court prior to the issuance of the ban and must include recourse to
an appellate tribunal.


                         Factum of August 24, 2006 of the appellants C 44715 (motion M 34128 E)
                                                         24
The endorsement is a nullity for being arbitrary for inadequacy of reasons Weiler J.A. in R. v. Peterson, (20
Oct           2005)         CanLII          37972          (ONCA)           CFN-C39132             posted      at
http://www.canlii.org/on/cas/onca/2005/2005onca10724.html noting at para 32 citing the Sheppard test as
interpreted by the Alberta Courts of Appeal in R. v. Dionne 2004 ABCA 400 (CanLII), (2005), 193 C.C.C.
(3d) 228 (Alta. C.A.) at para. 11 such that the brevity of reasons nullifies the endorsement given that that the
total absence of reasons renders it incapable of being reviewed for error.
without proper ruling on the material interfere with “the ability to have the material filed before the court
entered by way of submission” (R. v. Dhindsa, et al (1986) 30 C.C.C. (3d) 368 per Chief Justice MacDonald
Chief Justice of Nova Scotia citing R. v. Hajdu, 1984) 14 C.C.C. (3d) 563. cited by MacAdam J., in C.A.V.-F.
and L.R.F. v. The Queen et al, (7 Apr 2005) NSSC 71 (CanLII) CR. No. 226996 at
http://canlii.org/ns/cas/nssc/2005/2005nssc71.html at para 54.)
The disposition is contrary to public interest.
The disposition is a nullity for beign tainted with manifest bias given that the recusal motion was never
adjudicated upon
The cost order is a criminal offence being contrary to ss. 346 and 426 of the Criminal Code.
a vivid example of the well-known understanding that "fraud vitiates everything." stated in Brown & Root v.
Aerotech Herman Nelson Inc. et al, 2004 MBCA 63 (CanLII) (2004), 238 D.L.R. (4th) 594; [2004] 11 W.W.R.
23; (2004), 184 Man. R. (2d) 188
Date: 2004-05-04
Docket: AI03-30-05461
 permitted collateral attack on the motion of the appellants in breach of the Rule aginst that as outlined by
Senrior Master Marriott.
Disregarded the principle mandating the protection of the intersts of party under disabiliy as paramount.
Excercised the residual inherent power to control courts process in a pervers and coercive fashion and conspired
with the resopndent Attorney General of Ontairo in breaching its statutory duty to provide prompt access for
restoration of breached Charter rights before an impartial court.
Not appointing a lawyer to assist with the determination of the Constitutional Quesiton is incompatible with
"courts' obligation to develop the common law in a manner consistent with Charter values" (per Iacobucci J., in
R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76 (CanLII) (2001), 205 D.L.R. (4th) 512; at para 23)
Collaborated with ther espondents in offending numersous provisions of the Criminal Code.
   Court of Appeal has exercised discretion in proceeding by writing in an unconscionable manner which
   offends the law explained by Bateman, J.A., for the court in R. v. Murrins, (22 Jan 2002) NSCA 12 (CanLII)
   (2002), 201 N.S.R. (2d) 288; (2002), at http://canlii.org/ns/cas/nsca/2002/2002nsca12.html as follows at para
   87 after citing see Slaight Communications Inc. v. Davidson 1989 CanLII 92 (S.C.C.), [1989] 1 S.C.R. 1038
   at §87 that a judge may never exercise discretion or inherent powers in a manner that adversely impacts
   “security of the person and liberty interests in violation of the Charter” or violates s. 7 or any other
   freedom of Charter..
Total disregard for Rules of Civil Procedure especially Rules 7, 15.01(1), 59.06, 61.16, and 37.14 (6) (b) and
therefore an act of the panel of the Court of Appeal contrary to s. 126 of the Criminal Code, Given that Rules of
Court have the force of statute law and the congruent legislative effect (see: Boleak v. Boleak, (30 Dec 1999)
BCCA 776 No. CA026580 at para 21 quoting Esson J., as he then was, in Robitaille and Robitaille Enterprises
Ltd. v. Vancouver Hockey Club Limited (1979), 13 B.C.L.R. 309 (B.C.S.C.) (1981), 30 B.C.L.R. 286 (C.A.);
Klein v. Bell, [1955] S.C.R. 309; Bearhead v. Moorhouse (1978), 5 B.C.L.R. 380; adopted in Callender v.
Callender Estate (6 August 1999) BCSC. 1833 ,Vanc. Reg., No. A983254 by Bauman, J.

                        Factum of August 24, 2006 of the appellants C 44715 (motion M 34128 E)
                                                          25
Slatter J., in Robertson v. Edmonton (City) Police Service (#10), ( 6 Jul 2004) ABQB 519 No. 0103 16123 at
http://www.canlii.org/ab/cas/abqb/2004/2004abqb519.html as following at para 194:
[194] As I have previously pointed out, the Regulation in question is unfortunately rigid. The inflexibility in the
Regulation is undesirable, whether it be constitutional or not. But since the Regulation on its face appears to
contemplate the infringement of a Charter value in the exercise of the discretion, Slaight Communications
holds that the Regulation itself must be tested for validity.
18 In my respectful view, Doherty J.A. effectively pre-empted any judicial review of the constitutional validity
of the statutory provision by infusing Charter principles as part of the interpretative process. In doing so, he
exceeded the proper limits of Charter values as an interpretative tool. It has long been accepted that courts
should apply and develop common law rules in accordance with the values and principles enshrined in the
Charter: RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (S.C.C.), [1986] 2 S.C.R. 573, at p. 603; Cloutier v.
Langlois, 1990 CanLII 122 (S.C.C.), [1990] 1 S.C.R. 158, at p. 184; R. v. Salituro, 1991 CanLII 17 (S.C.C.), [1991] 3
S.C.R. 654, at p. 675; R. v. Golden, 2001 SCC 83 (CanLII), [2001] 3 S.C.R. 679, 2001 SCC 83, at para. 86; R. v.
Mann, 2004 SCC 52 (CanLII), [2004] 3 S.C.R. 59, 2004 SCC 52, at paras. 17 19. However, it is equally well
settled that, in the interpretation of a statute, Charter values as an interpretative tool can only play a role where
there is a genuine ambiguity in the legislation. In other words, where the legislation permits two different, yet
equally plausible, interpretations, each of which is equally consistent with the apparent purpose of the statute, it
is appropriate to prefer the interpretation that accords with Charter principles. However, where a statute is not
ambiguous, the court must give effect to the clearly expressed legislative intent and not use the Charter to
achieve a different result. In Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 (CanLII), [2002] 2 S.C.R.
559, 2002 SCC 42, at para. 62, Iacobucci J., writing for a unanimous court, firmly reiterated this rule:
It is established in Canadian jurisprudence that "if, in a particular case, it was established that a discretion was
exercised for improper or arbitrary motives, a remedy under s. 24 of the Charter would lie": U.S.A. v. Cotroni,
1989 CanLII 106 (S.C.C.), [1989] 1 S.C.R. 1469; R. v. Power, 1994 CanLII 126 (S.C.C.), [1994] 1 S.C.R. 601;
U.S.A. v. Leon, 1996 CanLII 238 (S.C.C.), [1996] 1 S.C.R. 888, Beare v. R., 1988 CanLII 126 (S.C.C.), [1988]
2 S.C.R. 387) . Where discretion is exercised to frustrate s. 24 itself it must be remedied through Criminal
prosecution pursuant to s.126 of the Code, for applying the constituting statute (s. 96 of the Constitution Act
1867 and Courts of Justice Act) in a manner contrary to s. 7 of Charter.
Absent exceptional circumstances, a defence not raised at trial would not be considered on appeal: R. v. Ullrich
1991 CanLII 235 (BC C.A.), (1991), 69 C.C.C. (3d) 473 (B.C.C.A.); R. v. Walker 1992 CanLII 880 (BC C.A.),
(1992), 74 C.C.C. (3d) 97 (B.C.C.A.); R. v. Daigle (1994), 80 W.A.C. 257 (B.C.C.A.). The mischief behind
raising grounds of defence for the first time on appeal lies in the fact that it unjustly deprivies the other party the
right to call evidence which would have been easier to exercise at trial, (see: R. v. Fertal (1993), 85 C.C.C. (3d)
411 (Alta. C.A.); R. v. Rees 1994 CanLII 1372 (ON C.A.), (1994), 19 O.R. (3d) 123 (Ont. C.A.); R. v.
Trabulsey, 1995 CanLII 1414 (ON C.A.), (1995), 97 C.C.C. (3d) 147 (Ont. C.A.).)
The endorsement is “overly broad and not in accordance with the principles of fundamental justice, it must be
determined whether the means chosen to accomplish the provision's objectives are reasonably tailored to effect
its purpose. Where legislation limits the liberty of an individual in order to protect the public, that limitation
should not go beyond what is necessary to accomplish that goal”. (R. v. Heywood, 1994 CanLII 34 (S.C.C.),
(1994) 94 C.C.C. (3d) 481)
 The endorsment of September 1, 2006 is made without admitting any evidence in violaiton of the rule of “no
evidence, no order” staed in Crown Life Assurance Co. v. A.E. LePage (Ontario), Edmonton, C.A. 8803-0459
A.C., Oct. 3, 1989 as applied by Master Funduk in Pirot (Re) (Trustee of), (20 Jul 2000) ABQB 498 (CanLII)
CFN- Bk03-78555 http://www.canlii.org/ab/cas/abqb/ 2000/2000abqb498.html
Rendered an endorsement in breach of s. 14 of Evidence Act, R.S.O. 1990, c. E.23 and thereby knowingly
breaching a statute in a manner prohibited by s. 126 of the Criminal Code, given that the panel has made “ a
decision without any evidence whatever” as termed arbitrary in Douglas Aircraft Co. of Canada v.

                         Factum of August 24, 2006 of the appellants C 44715 (motion M 34128 E)
                                                         26
McConnell, [1980] 1 S.C.R. 245, per Estey J., at p. 277, Lester (W. W.) (1978) Ltd. v. United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, 1990 CanLII 22
(S.C.C.), [1990] 3 S.C.R. 644, at p. 669 per McLachlin J., as cited in Toronto (City) Board of Education v.
O.S.S.T.F., District 15, [1997] 1 S.C.R. 487 Cory J. and canvassed in R. v. Transcanada Pipelines Limited,
2000 CanLII 5713 (ONCA) (2000), 186 D.L.R. By Borins J.A. The so called “evidence” being
uncorroborated and inadmissible for the purposes of disposition of the matters before the panel. And further
compounding the errors by not intending to pay any regard to applicable principles of law.
Motivated by the attempt to conceal the fact that fabrications have been introduced by the respondents in the
courts.
proceeding in writing to adjudicate on the six or seven motions that are or ought to be before the panel is
inconsistent with “normal and proper operation of the judicial system contemplates that judicial errors be
corrected through the appeal process” (R. v. Scott, [1990] 3 S.C.R. 979 per Lamer C.J. and La Forest and
McLachlin JJ. (dissenting)) and the appellants have no confidence in the process to be able to properly
determine the issues when there is no clarity what is being undertaken by the panel, such that it is completely
unimaginable that the errors of the judges of the Superior Court of Justice and the three judges of Court of
Appeal in chambers have a reasonable prospect to be corrected and there is a high probability that a
meaningful access to the appellate process would be denied to the appellants largely through denying the
appellants a fair opportunity to discharge the heavy burden appellants are expected to discharge. The result
of the above is that the panel is in contempt of the legal rule stated by McLachlin J., in Dagenais v. Canadian
Broadcasting Corp., [1994] 3 S.C.R. 835, 120 D.L.R. (4th) 12; to the effect that “Courts must be able to provide
a full and effective remedy for any Charter infringement. This requires more than the opportunity to address the
trial court prior to the issuance of the ban and must include recourse to an appellate tribunal” and the panel is
engaged in a gross miscarriage of justice through denial of the Charter rights and the relevant appellate access
that amounts to fraud on law if not an offence. The language used by the Chief Justice is clearly mandatory and
ought not be ignored, instead collateral attack rule ought to be relaxed so that courts allow an “effective
judicial procedure for challenging judicial orders based on a Charter infringement”, a legal principle, after
relying upon Dagenais has been explicitly explained by Klebuc J., in R. v. Canadian Broadcasting Corp., (20
Jul 2004) SKQB 320 (CanLII) (2004), [2005] 3 W.W.R. 77; (2004), 251 Sask. R. 161 posted at
http://canlii.org/sk/cas/skqb/2004/2004skqb320.html at paras 26-27 of his reasons. Additionally where liberty
interests are engaged, or serious Charter breaches are of an ongoing nature (R. v Wise), it is also mandated that
appeals should ordinarily be dealt with promptly as emphasized by Twaddle J. A., in R. v. Torres, (20 May
1998) CanLII 5171 (MBCA) CFN-AR97-30-03312 http://canlii.org/mb/cas/mbca/1998 /1998mbca62.html
A declaration on court's own motion in accordance of the well settled law {as per Mosely J., in CAD v
Canada, Chapnik J, in Catholic Children's Aid Society of Metropolitan Toronto v. O.(L.M.), (1996) ONSC)
Jones J., in Catholic Children's Aid society of Toronto v. T. K., (9 Jan 2004) CanLII 16117 (ONCJ) read
together with J. F., Re, (2005) NLCA; Eldridge, Winters, N.B. v. G. (J.),[1999] 3 S.C.R. 46; British
Columbia (Minister of Forests) v. Okanagan Indian Band; Doucet-Boudreau v. Nova Scotia; Nova Scotia
(Minister of Health) v. J.J., [2005] 1 S.C.R. 177; Multani v. Commission scolaire Marguerite-Bourgeoys,
[2006] 1 S.C.R. 256}and held the result that the law set by Molloy J, ought to be upheld, upon concluding
that Paluska v. Cava, (6 May 2002) ONCA M28254;C37150 has been wrongly decided and suffers from
jurisdictional error due to a failure by the Court of Appeal to give due weight s. 52 of The Constitution Act
1982, given that the court failed to permit s. 109(1) Courts of Justice Act to prevail over s. 24 of The
Constitution Act 1982, and s. 96 of The Constitution Act 1982.(judicial independence) was an error of law
going to Court's jurisdiction, such that the Court of Appeal erred in failing to concur with Molloy J., that
Joseph John Paluska Jr. was entitled to a state funded counsel ex debito justitiae, pursuant to the parens
patriae obligation and the duty of the Court to control its process and before the hearing of the matters,
without requiring compliance with s. 109(1) Courts of Justice Act as the applications are not s. 24 Charter
dependent until there is a counsel appointed to litigate that portion of the proceedings and that the decision of
the Court of Appeal is of no legal force due to a jurisdiction error while motion ruling of Molloy J., does.
                        Factum of August 24, 2006 of the appellants C 44715 (motion M 34128 E)
                                                         27
A declaration to the effect that failure on the part of the Ontario Legal Aid to provide a legal counsel to cure
the non-availability of videoconference equipment for the benefit of the appellants in these proceedings is in
breach of doctrine of reasonable expectations due to the discriminatory position adopted by the Legal Aid
Ontario through failing to conform to the precedent set by the Dalhousie Legal Aid Halifax in Nova Scotia
;Nova Scotia (Minister of Health) v. J.J., [2005] 1 S.C.R. 177 and reasons of Mosely J., in CAD v Canada,
and such the proceedings would be tainted with a reasonable apprehension of bias stemming from breach of
doctrine of reasonable expectations by the Ontario Legal Aid.
THE LEGAL BASIS FOR RELIEF SOUGHT ARE:
The Court has misapprehended the fact or failed to pay due regard to facts that meet the test of R 58.06 for
being “facts arising or discovered after it was made” because for the Courts point of view they are such facts
and they include that the moving party initially sought to have the motion heard “in writing”. Although it is
true that the first motion M 33564 was requested to be dealt with without requiring the personal attendance of
the parties the real intent behind that was that the court would impose a direction upon the respondents to
advance funds to the moving parties/appellants to be able to retain a counsel and then the matters could
proceed orally given that the nature of the matters is so involved, complex and in need of interactivity that
they are not suitable for disposition in writing, a procedure reserved solely for simple matters where the law
is settled which is not the case herein. The reason for not proceeding orally or via videoconference in the past
has been the coercion by the registry staff who would not permit the filing of a motion if it did not state that it
is to be heard in writing and upon refusal to provide the videoconference facility. The true intent of the
appellants has been clearly expressed in the motion M 34128C served yesterday (Aug 22) which states:
TAKE NOTICE that appellant Brown on behalf of appellant Verma makes a motion in writing before the
panel of Court of Appeal (until converted into an oral hearing) initially returnable September1, 2006 to seek
one of the two alternative reliefs listed below:
With respect the moving parties/appellant also hold that the imposition of the cost of these proceedings and
the renting of the videoconference equipment upon the moving parties/appellant instead of the Ontario
Attorney General and Ontario Legal Aid amounts to pre-judging the legal question that is the issue
The Court has misapprehended the fact that the moving parties/appellants intend to ask that the motions be
heard by videoconference. In reality it is a compromise being coerced upon the them by the respondent and
being permitted by the Court.
The Court has misapprehended the circumstances of the moving parties/appellants by failing to notice that
they are not in Ontario but located in British Columbia at this time. As a result in addition to providing the
necessary equipment, the Court has exceeded jurisdiction by implicitly ordering that a self represented party
also provide the premises for the hearing of the motion, which cannot be the Parliamentary intent behind
Rule 1.08 (3). This direction is distinct from the circumstances where counsel are permitted under the Rules
to attend as officers of the Court by telephone from their offices, (viewed as extensions of Court-rooms) but
to date to the knowledge of the moving parties/appellants there is no precedent that procedure to be followed
for video conference, at least not for the self-represented parties. All past directions to self-represented have
compelled their attendance in person.
The Court has proceeded without permitting the moving parties/appellants to reply to the position of the
responding parties whose position to not consent to the request was not revealed to the moving
parties/appellants until after the endorsement was rendered, which offends audi alteram partem. In reality it
was an error to hear the respondents on the issue given that the relief was sought on courts own motion to
insure procedural fairness which is a statutory obligation of the provincial crown through granting access to
the court which includes providing the necessary equipment and in the instant matters, a counsel.
While the moving parties/appellants are much obliged to the Honourable Court and greatly appreciate the
attempt of the Court to accommodate the disabilities that raise insurmountable hurdle for them and the

                        Factum of August 24, 2006 of the appellants C 44715 (motion M 34128 E)
                                                         28
exercise of Courts discretion pursuant to Rule 1.08 (3) of the Ontario Rules of Civil Procedure, in directing
that the motion be heard by videoconference it only partly cures the problem.
The interpretative presumption that facilities for videoconference to be provided by a party 1.08 (1) have
been erroneously applied by the Court because they are being done in a fashion contrary to s. 15(1) of the
Charter according to the law held in R v Rehberg (1994) 111 D.L.R. (4th) 336 and as adopted by Your
Lordship (Laskin J. A.) in Falkiner v. Ontario (Ministry of Community and Social Services, Income
Maintenance Branch) (2000) 189 D.L.R. (4th) 377 (C.A.), leave to appeal to S.C.C. granted, [2002]
S.C.C.A. No. 297 but appeal abandoned, where my Lord, found that the status of being on social assistance
is an analogous ground and the circumstances of appellant Verma are even more egregious given that he is
not in receipt of even social assistance
In light of the recent order of Mosley J. in Canadian Association of The Deaf v. Canada (11 Aug 2006) FC
971 T-1720-04 which can be quickly accessed at                            the URL, http://decisions.fct-
cf.gc.ca/en/2006/2006fc971/2006fc971.html the terms imposed by the Court as are NOT just as per the
Parliamentary intent behind Rule 1.08 (3) and offend ss. 7, 14 and 15(1) and 15(2) of the Charter.
Neither the moving party nor his representative Carole Ann Brown whose status as the litigation guardian has
not yet been formally decided by any court, (but seems to have been erroneously assumed, in a manner that is
prejudicial) are in possession of funds or access to the court resources in Nanaimo, nor able to travel to
Ontario to pursue them, which has the effect of rendering the endorsement self-nugatory and despite the
appearance moving parties/appellants draw no practical benefit from this endorsement or that the
directions/order therein is without any practical effect on the proceedings because the court has omitted to
order Attorney General to fund it and thus offends the legal rule contained in the maxim cuicunque aliquis
quid concedit concedere videtur et id sine quo res ipsa esse non potuit stated: he who grants something to
anyone is deemed to grant also that without which his grant is worthless (see: Tock v. St. john's
metropolitan area board, [1989] 2 S.C.R. 1181), that entitles the appellant to a cost order against the
repondents for videoconference.
Neither the moving party nor his representative Carole Ann Brown are able to secure the funds necessary to
provide for the premises and the equipment for the hearing of the proceedings before the Ontario Court of
Appeal, there would still be a Charter breach through the failure of the respondent Crown who is a party to
these proceedings, who would benefit from these Charter breaches, through failing to provide the funds to
secure the services of the interpreters that have been deemed mandatory by Mosley J. in CAD v. Canada.
And if the Court were to order the cost for the RTC/ASL interpreters there would remain no just cause for
not extending that to the premises and the videoconference equipment given that granting a partial remedy
would still be of no practical value and would taint the proceedings with procedural unfairness.
There is a need to cure a jurisdictional error that inadvertently occurred because of necessary implication that
Court has presumed without deciding, with serious prejudice to the moving parties/appellants that the cost of
these proceedings ought to be borne by the moving parties/appellants.
With respect, the appellant Brown also holds the view the Court has not yet granted her standing before the
court such that a direction could be made pursuant to Ontario Rules of Civil Procedure, to direct her to make
the necessary arrangements for the videoconference, in doing which the Court has also erred through shifting
the duty of the Court to provide for the videoconference upon a citizen, which is in addition to the failure on
the part of the Court to provide for the basic needs and the cost of counsel to prosecute these matters before
the court. Further without the assistance of the Court the time allowed of less then five days is totally
insufficient, given that besides meeting the day-to-day needs of the appellant Verma, a party under legal
disability from incapacitating head injury, has to spend substantial time in preparing and transmitting the
legal documents and stay up-to-date with the Charter law as is developing in relation to those under
disability in addition to hold a full-time job as a veterinarian and cope with her own medical concerns.

                        Factum of August 24, 2006 of the appellants C 44715 (motion M 34128 E)
                                                         29
The Court has failed to notice that the proper and effective remedy, which does not require engagement of s.
24 of Charter or s. 109 of Courts of Justice Act, and not even the inherent jurisdiction or parens patriae
jurisdiction is the courts power to control its own process that in the views of the appellants, flows from s. 96
of the Constitution Act 1982.
The panel has offended the rule that a stautory body “cannot, with impunity, ignore the requisites of its
constituent statute and decide questions any way it sees fit . If it does so, it acts beyond the ambit of its
powers, fails to discharge its public duty and departs from legally permissible conduct.” . (Service
Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Association of Nipawin et
al. (1973) 41 D.L.R. 6 (S.C.C.), per Dickson J.'s (as he then was) at p. 11, cited in Teamsters Union v.
Massicotte, [1982] 1 S.C.R. 710 and in National corn growers assn. v. Canada (Import tribunal), [1990] 2
S.C.R. 1324, 1990 CanLII 49 (S.C.C.) (1990), 74 D.L.R. (4th) 449; per Wilson J., in Saskatchewan (Labour
Relations Board) v. Saskatoon (City), 1994 CanLII 4700 (SKCA), (1994), 116 D.L.R. (4th) 261; and in
John Doe v. Ontario (Information and Privacy Commissioner), 1993 CanLII 3388 (ONSCDC) (1993), 13
O.R. (3d) 767; (1993), 106 D.L.R. (4th) 140 )
the endorsement does not lead to the appearance of an honourable adjudication contained in the aphorism
that “Justice must be seen to be done” (see: R. v. Sussex Justices; Ex parte McCarthy, [1924] 1 K.B. 256,
[1923] All E.R. Rep. 233, per Lord Hewart C.J. at p. 259, Metropolitan Properties Co. (F.G.C.) Ltd. v.
Lannon, [1969] 1 Q.B. 577 (C.A.), per Lord Denning) and exhibiting 'fair play in action' (Furnell v.
Whangarei High Schools Board, [1973] A.C. 660, (NZCA) per Lord Morris of Borth-y-Gest, writing for the
majority of three at p. 679) and honestly act beyond the mere appearance of justice being done, to insure that
justice not only appears to be done; “it must in fact be done” as stressed by Cromwell, J.A., in Griffin v.
Corcoran, (3 May 2001) NSCA 73 No. CA-161519; 193 N.S.R. (2d) 279, at
http://www.canlii.org/ns/cas/nsca/2001/2001nsca73.html at para 68 cited in Boehner Trucking and
Excavating Ltd. v. United Gulf Developments Ltd. et al., (14 Sep 2004) NSSC 180 Halifax S.H. 192466, SH
192467 by LeBlanc J. at para 68) And fairly balancing the likelihood of “procedural and substantial injustice
to both parties” before the court, as outlined by MacDonald J.A. in Clayton v. British American Securities
Ltd. et al., [1935] 1 D.L.R. 432 (B.C.C.A.) at pp. 440-441.
The appellants submit that the procedure being adopted by the panel at this time is so seriously flawed that it
is sufficiently tainted with bias for being driven solely by protecting the interests of the respondents Crown
and not of the appellants and is inconsistent with the standard of diligently and insuring the avoidance of the
unilaterally directed (therefore biased) adjudication through inflicting procedural and substantial injustice to
one or both parties, even if through genuine mistakes, oversights or poor or insufficient judgment as
explained by Cromwell, J.A., in Griffin v. Corcoran, (3 May 2001) NSCA 73 No. CA-161519; 193 N.S.R.
(2d) 279, at para 69, by stating this example : Here, it appears the judge acted on the basis of the risk of
procedural injustice to Mr. Corcoran if the case were reopened and did not consider the risk of substantial
injustice to the plaintiffs if it were not.
The appellants submit that the procedure being adopted by the panel at this time is in breach of even the
disciplinary or quasi-judicial tribunals' duty to act fairly or the duty to act in accordance with the rules of
natural justice, (see: Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602 at 629, per
Dickson J., Howe v. Institute of Charter ed Accountants of Ontario, [1994] (ONCA) (1994), 19 O.R. (3d)
483; (1994), 118 D.L.R. (4th) 129;. and Misra v. College of Physicians & Surgeons of Saskatchewan
(1988), 52 D.L.R. (4th) 477, at p. 490 as adopted at para 106 of Blencoe v. British Columbia [2000] 2 S.C.R.
307) The procedural breaches are particularly pertinent in light of the s. 140 Courts of Justice Act application
of the PGTBC against appellant Brown who is not a party to the motion review in the Constitutional
Question regarding the right to state-funded counsel, the most egregious aspect of which being that this ws
done in a factual vacuum.



                        Factum of August 24, 2006 of the appellants C 44715 (motion M 34128 E)
                                                         30
The appellants submit that the entire appellate procedure is contrary to public interests in administration of
justice, because it has been rendered nugatory and illusory without any chance of appellants being given any
opportunity to exercise their rights given that the procedure being adopted not only offends the doctrine of
legitimate expectations outlined at para 58 by Laskin J.A. and Charron J.A., (now JSCC) but also the
procedural fairness guarantee canvassed by Rosenberg J.A in his dissenting reasons in Ahani v. Canada
(Attorney General), 2002 CanLII 23589 (ONCA) (2002), 58 O.R. (3d) 107 as follows at paras 88 and 106:
[88] The principle that I have described easily meets these criteria, at least when applied in the domestic
context. It would offend our societal notion of justice to allow the government to frustrate a statutory
procedure for review without some reasonable justification. This principle can be applied in a manner that
yields understandable results. Indeed, appellate courts do so daily in considering applications for bail pending
appeal. Finally, it is a legal principle. It is not some vague generalization based only upon notions of ethics
or morality. It is based on the same principle that animated such decisions as R. v. Morgentaler 1988 CanLII
90 (S.C.C.), (1988), 37 C.C.C. (3d) 449 (S.C.C.) at 476, where Dickson C.J.C. held that as a matter of
fundamental justice, “when Parliament creates a defence to a criminal charge, the defence should not be
illusory or so difficult to attain as to be practically illusory”. Similarly, when Parliament enacts a process for
review of decisions that deprive individuals of their liberty or security of the person, the state cannot, without
reason, act to render that right of review illusory or practically illusory. [In R. v. Pan; R. v. Sawyer
(2001), 155 C.C.C. (3d) 79 (S.C.C.) at 120, Arbour J. assumed a constitutional principle that any review
provided by statute or common law “must proceed fairly.”]
[106] In my view, the right to access the Human Rights Committee is not absolute and the appellant may not
have an unconditional right to stay in Canada indefinitely. As McLachlin J. said in Cunningham v. Canada
(1993), 80 C.C.C. (3d) 492 (S.C.C.) at 499:
The principles of fundamental justice are concerned not only with the interest of the person who claims his
liberty has been limited, but with the protection of society. Fundamental justice requires that a fair balance
be struck between these interests, both substantively and procedurally....

The appellants submit that the procedure being adopted fails to achieve the legally mandated balance to
conform to principles of fundamental justice noted at para 133 in Hitzig v. Canada, 2003 CanLII 30796
(ONCA)(2003), 231 D.L.R. (4th) 104, which Saunders J. A. has canvassed this principle guided by
protection of society (which takes a special gravity literally in the context of the mentally incapable adults)
further in Griffith v. Matsqui Institution, (10 Mar 2006) BCCA 121 (CanLII) CFN- CA032454 posted at
http://canlii.org/bc/cas/bcca/2006/2006bcca121.html as follows at para 18:
[18] In Cunningham, McLachlin J., now C.J.C., addressed the liberty rights of a person. . . .The principles of
fundamental justice are concerned not only with the interest of the person who claims his liberty has been
limited, but with the protection of society. Fundamental justice requires that a fair balance be struck between
these interests, both substantively and procedurally (see Re B.C. Motor Vehicle Act, 1985 CanLII 81
(S.C.C.), [1985] 2 S.C.R. 486, at pp. 502-3, per Lamer J.; Singh v. Minister of Employment and
Immigration, 1985 CanLII 65 (S.C.C.), [1985] 1 S.C.R. 177, at p. 212, per Wilson J.; Pearlman v. Manitoba
Law Society Judicial Committee, 1991 CanLII 26 (S.C.C.), [1991] 2 S.C.R. 869, at p. 882, per Iacobucci J.).
In my view the balance struck in this case conforms to this requirement. McLachlin J. then addressed the
substantive and procedural effect of the law, concluding that the balance struck was not contrary to the
principles of fundamental justice.
The appellants submit that the panel has failed to bring the procedural fairness to the level that was attempted
in order to become satisfied that this court has jurisdiction to deal with the appellant‟s appeal notwithstanding
that the appellant was not competent to make an informed decision to be present when oral submissions were
to be made where the appellant was not criminally responsible by reason of mental disorder and the question
whether evidence met the test for fresh evidence was in issue as contained in the reasons of Rosenberg J.A.

                        Factum of August 24, 2006 of the appellants C 44715 (motion M 34128 E)
                                                        31
(Laskin and Moldaver JJ.A concurring) in R. v. Ta, 2002 CanLII 44898 (ONCA) (2002), 58 O.R. (3d) 737;
posted at http://canlii.org/on/cas/onca/2002/2002onca10197.html at para 34 as follows :
[34] I conclude from this consideration of the legislative scheme that it is open to an appellate court to deal
with an appeal by an “unfit” appellant. That said, the court of appeal must accord the appellant sufficient
procedural protections to ensure that he or she is dealt with fairly. In R. v. Pan; R. v. Sawyer 2001 SCC 42
(CanLII), (2001), 155 C.C.C. (3d) 97 (S.C.C.) at 120, Arbour J. assumed that a statutory review of a
conviction “must proceed fairly” and cannot be “arbitrary, irrational or unjust”. In my view, both the
Crown and this court have, so far as possible, ensured that the appellant was dealt with fairly. When it
became clear that the appellant was unable on his own to deal with the appeal, the court appointed counsel.
When Mr. Green felt unable to continue to act on behalf of the appellant, the court appointed him as amicus
curiae to ensure that the appellant‟s interests were protected. When it became apparent that an injustice
might have been occasioned at trial, the court made several orders to obtain the necessary evidence about the
appellant‟s mental state. We now have reports of two psychiatrists and they have been cross-examined by
Crown counsel and amicus. Finally, the Crown has taken extensive steps to ensure that the appellant was
made aware of the state of the proceedings and the possible outcome of the appeal. In the absence of a
statutory scheme for rendering an appellant “fit”, I do not see what else could have been done to protect the
appellant‟s rights and also ensure that an apparent injustice did not go un-remedied. In the absence of a
constitutional attack on the appellate scheme, I see nothing more that could or should have been done.
The appellants submit that in addition to ignoring R. v Ta, the procedure being adopted by the Court of
Appeal is also inconsistent with the caution found in procedural fairness requirements outlined in R. v.
Demers, [2004] 2 S.C.R. 489, 2004 SCC 46 (CanLII) : (2004), 240 D.L.R. (4th) 629 by Iacobucci, and
Bastarache JJ, . upon citing Swain and Winko, in the context of the protection of the public from significant
threats to its safety at 19-20 and shows a neglect of the duty of the court owed to both the public and the
disabled party. Guidance provided by McDonald J.A. in MacInnis v. Canada (Attorney General) (C.A.),
[1997] 1 F.C. 115, 1996 CanLII 4088 (FCA), (1996), 139 D.L.R. (4th) 72 stressing the requirement that the
protection of society be the paramount consideration in the determination of any case before the National
Parole Board in the application of Corrections and Conditional Release Act citing Cunningham is also
pertinent to the case at bar.
The endorsement is clearly inconsistent with the “dignity of the judiciary and the integrity of the judicial
process.” and must be immediately terminated by appointing another panel, to insure a fair proceeding that
would be legally valid, in accordance with the reasons of judgment of Thackray J. A., who wrote for the
unanimous court, upon allowing the appeal, setting aside the acquittals and ordering a new trial in R. v.
Duchcherer and R. v. Oakes, (7 Apr 2006) BCCA 171 (CanLII) CFN-CA32387 posted at
http://canlii.org/bc/cas/bcca/2006/ 2006bcca171.html at para 26 as follows:
[26] Madam Justice Hennessy first reviewed Colbourne and Eng and then referred to the dissenting reasons
of McLachlin J. in R. v. Scott, 1990 CanLII 27 (S.C.C.), [1990] 3 S.C.R. 979, a case in which the facts bear
no resemblance to those in the case at bar. However, in the context of abuse of process Madam Justice
McLachlin spoke of the “evil of judge-shopping.” At pages 1008 and following she said that the Crown
procedure in that case raised concerns for the dignity of the judiciary and the integrity of the judicial
process. As well she expressed concern “for the impartiality of the administration of justice, real and
perceived” through the Crown‟s “use of the power to stay, combined with the reinstitution of proceedings as
a means of avoiding an unfavourable ruling”. She stated that the “normal and proper operation of the
judicial system contemplates that judicial errors be corrected through the appeal process.” She added: “That
process should not be subverted without good reason.”
 The appellants submit that the Registrar of ONCA must be directed to include the motions dated August 2,
2006 (entitled Final Directions and referred to as M 34128A by the appellants) returnable August 21, 2006
and the Rule 61.16(5) Supplementary Motion (referred to as M 34128 B) August 22, 2006 (not permitted to
                       Factum of August 24, 2006 of the appellants C 44715 (motion M 34128 E)
                                                         32
be filed) and that the concealment of this motion from the Court was attempted by the Registrar in order to
assist with the concealing of the fabrications that have been introduced into court records by the Respondents
that preclude that from being exposed in B. C. Courts such that the Registrar of ONCA is guilty of an offence
under s.341 of the Criminal Code but is attempting to insulate herself from penal sanctions by manipulating
the docket C 44715 that fits the definition of post-offence conduct.


 The panel has fettered jurisdiction by failing to answer the questions brought before it by the appellants 1)
whether Labrosse J.A. was correct in holding that a single judge of ONCA is not a court of competent
jurisdiction for a s.24(1) application and that a single judge of ONCA is not bestowed with the inherent
procedural relief granting jurisdiction to order a counsel to assist the court with the hearing of a matter
before the court 2) whether the panel of ONCA has the same powers that a single judge does not.
 The appellants respectfully submit that an adjournment ought to be granted after allowing the six reliefs
sought above at para one of this document, so that the Constitutional Question can be properly and lawfully
determined for the benefit of the disabled across Canada which the appellants believe is a question of high
public importance and there is no other way to determine it.
 Notice that in order to not offend the Constitution Acts 1867 and 1982, it is necessary to read it as
suspending the operation of endorsement of the Court of Appeal dated September 1, 2006 in accordance with
the principle stated at para 32 by Cronk J.A. ( Juriansz J.A. concurring) in Kallaba v. Bylykbashi, (14 Feb
2006) CanLII 3953 (ONCA) C42537; M32086.
 1. A reconsideration or review pursuant to Rule 61.16(6)of the endorsement made in writing by the
Chambers Judge, on July 26, 2006 setting it aside for unconstitutionality and violation of numerous legal
principles
2. A ruling that Rule 59.06 has implicit application in all court orders for court order nullifying fraud and
according to common law rules of fairness the material filed on March 8, 2006 can be considered by the
court waiving a strict compliance with pursuant to inherent power of court to control its process.
3. A ruling that the appeal could not be lawfully heard without effectively granting the reliefs of lifting the
stay and the granting of the publicly funded counsel to assist with the hearing of the appeal as proposed.
4. Recklessly decline to grant the order granting an advocating amicus curiae to assist with the proceedings
in a manner contrary to the legal principles enuncaited by Rosenberg J.A. (Laskin and Moldaver JJ.A
concurring) in R. v. Ta, 2002 CanLII 44898 (ONCA) (2002), 58 O.R. (3d) 737; posted at
http://canlii.org/on/cas/onca/2002/2002onca10197.html at para 34
Recklessly declined to grant the order n Order granting the relief of state funded counsel and remitting the
matter for trial on fraud issue which could not be dealt with in writing especially in light of the endorsement
of Labrosse J. A. an errod compuned by failure to adjourn the hearing of the appeal in writing and setting an
urgent date to be heard orally.
Maliciously fettered courts jurisdiction by dealing with only one of the six motions and rendering a direction
precluding the bringing of a R. 59.06 motion to have the matters not dealt with brought before the court
which was done largely to conceal the corruption within the Canadian courts as is being perpetrated with
impunity by the Court registry officials.
Acted in a fashion that raises a reasonable apprehension of bias through rendering a direction prohibiting an
anticipated recusal motion against the panel that the appellant were entitled to bring in order to have recuse
the panel that is acting clearly biased in violating all possible principles of Canadian law that can be
breached.
Perpetrated a Charter tort by dismissing the application without answering the Constitutional Question,
where liability ought to be assessed against the Crown and the judges in light of the fact that in Mariner et al.
                        Factum of August 24, 2006 of the appellants C 44715 (motion M 34128 E)
                                                         33
v. Rivard et al. (1985), 23 D.L.R. (4th) 1 (S.C.C.), the majority considered the extent and nature of the
immunity conferred on superior court judges in Canada, and concluded that it is essentially absolute,
allowing for potential liability only where a judge is shown to have knowingly exceeded his jurisdiction in
bad faith. or acted maliciously and without reasonable and probable cause


Given that the dismissal order being a refusal to discharge the inquisitional and supervisor duties of the court
could not have any connection with their legal responsibilities at para 91 of Rivard and the manner of
proceeding is such that it can be concluded that the matters did not arise in the execution or purported
execution of the office of a judge and that a cause of action can arise is for trespass to the person (unlawful
arrest or imprisonment) or trespass to goods (unlawful distress): see Polley v Fordham (No 2) (1904) 91 LT
525, [1904-7] All ER 651, O'Connor v Isaacs [1956] 2 All ER 417, [1956] 2 QB 288.
There being no application to the principle underlying this rule of judicial immunity that if one judge in a
thousand acts dishonestly within his jurisdiction to the detriment of a party before him, it is less harmful to
the health of society to leave that party without a remedy than that nine hundred and ninety-nine honest
judges should be harassed by vexatious litigation alleging malice in the exercise of their proper jurisdiction
given that the Court owes a special duty of protection of the vulnerable adults who can never be a party that
can be left without a remedy in a civiilzed society.
Urgency doctrine of expediency.


Associate Chief Judge Christie of this Court in Carma Developers Ltd. v. The Queen, 96 DTC 1803, where
he considered the question of the extent to which the Court may go in determining questions under Rule 58,
absent any evidence
Bowie        J.T.C.C. in        Jurchison v. The Queen, (30 Nov 1999) CanLII 313 (T.C.C.)
http://canlii.org/ca/cas/tcc/1999/1999tcc981755.html has outlined to need to rely on a modified application of
Rules in order to address serious constitutional questions as follows by stressing the well established fact that
the Rules contain sufficient flexibility at para 19:
   [19] Nevertheless, I take the view that when a serious constitutional question is raised, as here, and
   when it has been, at least in large measure, determined in another proceeding leading to conclusions there
   which, had they been pleaded, would no doubt give rise at least to issue estoppel as to certain facts in the
   appeals in this Court, procedural hurdles ought to be overcome if it is possible to do so while still doing
   justice between the parties. In those cases where there is a serious constitutional violation at the heart of
   the Appellant's application, and it is clear that the Appellant is entitled to relief, then I think this Court
   ought to be prepared to entertain a motion under Rule 58. The Rules contain sufficient flexibility to permit
   a judge to exercise that discretion.
[Tax Court Rule 58(1): A party may apply to the Court,(a) for the determination, before hearing, of a
question of law raised by a pleading in a proceeding where the determination of the question may dispose of
all or part of the proceeding, substantially shorten the hearing or result in a substantial saving of costs]
Discretion to order cost has been clearly abused through not adjourning the question of cost to the hearing of
the appeal but making the cost order in the motion while the issue on appeal and the motions poses the same
legal question and ordering of the cost pre-judges that the appeal is bound to fail or at least produces an
inconsicy if the appellants were to succeed on appeal.
Recklessly dismissed the motion despite the knowledge that the Court was without jurisdiction to refuse to
grant the relief in the benefit of the appellant in discharge of its parens patriae duties owed to the appellant
Verma who is the sole appellant in the proceedings, and therefore perpetrated a tort tort by dismissing the

                        Factum of August 24, 2006 of the appellants C 44715 (motion M 34128 E)
                                                         34
application in breach of parens patriae duties as mandated by the law stated in Nova Scotia (Minister of
Health) v. J.J., [2005] 1 S.C.R. 177, 2005 SCC 12.
Recklessly dismissed the motion despite the knowledge that the Court was wihtout jurisdiction to refuse to
grant the relief in the benefit of the appealant in discharge of its parens patriae duties owed to the appellant
Verma who is the sole appellant in the proceedings.
Granted validity to the standing of the PGTBC as the guardian of appellant Verma while concealing the fact
of null nature of that wardship of the Crown and thereby assisted with the abandonment of appellant Verma
contrary to s. 215 of the Criminal Code.
Awarded $1000 cost to Attorney General of Canada even though no response was filed by Attorney General
of Canada and the inclusion of the Attorney General of Canada was required by the s. 109 of Courts of
Justice Act mandating a duty on the Attorney General of Canada to file a response before the panel in the
determination of the Constitutional Question.

Despite the compassionate endorsement that attempts to accommodate the appellants, the procedural fairness
being sought is “difficult to attain as to be practically illusory” as explained by Your Honor, (Laskin J.A.,) in
R. v. Ruzic, 1998 CanLII 5265 (ONCA); (1998), 41 O.R. (3d) 1; (1998), 164 D.L.R. (4th) 358;at para 66
(http://canlii.org/on/cas/onca/1998/ 1998onca10497.html):
[66] Other s.7 cases from the Supreme Court suggest at least a limited right of review. For example, in
Morgentaler, Smoling and Scott v. The Queen 1988 CanLII 90 (S.C.C.), (1988), 37 C.C.C. (3d) 449 at 476
(S.C.C.), Dickson C.J.C., after noting that "the principles of fundamental justice are to be found in the basic
tenets of our legal system," wrote that "one of the basic tenets of our system of criminal justice is that when
Parliament creates a defence to a criminal charge, the defence should not be illusory or so difficult to attain
as to be practically illusory."
Dickson C.J. at para 31 of Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, 24 D.L.R. (4th) 536; upon
initially stating that "the principles of fundamental justice are to be found in the basic tenets of our legal
system," for the first time, added that “They [principles of fundamental justice] do not lie in the realm of
general public policy but in the inherent domain of the judiciary as guardian of the justice system.” which is
part para-statement (and needs further qualification) because Dickson C. J., did not imply the usual inherent
powers of the court but an extraordinary operationally inherent power which the appellants wish to call a
residual extra-inherent jurisdiction that even the statutory courts clearly possess in order to control courts'
own process, as explained by Chapkin J., in Catholic Children's Aid Society of Metropolitan Toronto v.
O.(L.M.), (6 Sep 1996) @ pg. 13 of M 34128 D i.e. this motion record) and by Jones J., in Catholic
Children's Aid society of Toronto v. T. K.- @ pg. 14 of M 34128 D) which the Appellants respectfully
submit that the Court of Appeal adopt and hold that “a court mandated to perform a task does not need
“inherent powers” to perform its duty” This extraordinary jurisdiction or extra-inherent jurisdiction is
canvassed by Rosenberg J.A., for the unanimous court in the reasons of R. v. Felderhof, at para 41 (@ pg. 19
of M 34128 D) as well without using this descriptive name specifically.
Weiler J.A. (Rosenberg J.A. and Gillese J.A. concurring) in Fresh Taste Produce Ltd. v. Sovereign General
Insurance Company, (27 Sep 2005) CanLII 34559 (ONCA) noted the following at para [7] The doctrine of
reasonable expectations was recognized by this court in Chilton v. Co-operators General Insurance Co.,
1997 CanLII 765 (ON C.A.), [1997] 32 O.R. (3d) 161. At that time, Laskin J.A. recognized that the doctrine
of reasonable expectations applies primarily when the court is required to construe an ambiguity in a
provision of the contract. Application of the doctrine of reasonable expectations to the public authorities is
distinct from contract law as explained by Doherty J.A in Libbey Canada Inc. v. Ontario, 1999 CanLII 1530
(ONCA) (1999), 42 O.R. (3d) 417; (1999), 169 D.L.R. (4th) 416; by quoting Lord Justice Bingham at para
61of his reasons by quoting his Lorship in R. v. Board of Inland Revenue Ex Parte M.F.K., [1990] 1 All

                        Factum of August 24, 2006 of the appellants C 44715 (motion M 34128 E)
                                                         35
E.R. 91 at 110-11: - ... If a public authority so conducts itself as to create a legitimate expectation that a
certain course will be followed it would often be unfair if the authority were permitted to follow a different
course to the detriment of one who entertained the expectation, particularly if he acted on it. This mandates
that a legal aid of one province of Canada uphold the policies followed in another province of Canada.
This doctrine had been offended by Legal Aid through failing to provide a lawyer to assist with the hearing
of this motion orally or by videoconference which taints them with a reasonable apprehension of bias and the
ability of the respondents to unconstitutionally manipulate the outcome of the proceedings in their favour and
has offended procedural fairness guaranteed by failing to follow the precedent set by Dalhousie Legal Aid,
Halifax in Nova Scotia (Minister of Health) v. J.J., [2005] 1 S.C.R. 177, 2005 SCC 12 where a legal aid
lawyer was allowed and ARCH lawyer participated in the appeal before the Supreme Court of Canada, for a
similar plaintiff seeking identical relief by the Dalhousie Legal Aid, Halifax such that refusal in the instant
circumstances is discriminatory and offends the doctrine of reasonable expectations if not the Charter,
although the appellants believe that Charter is offended.
II. Need to cease the breaches of doctrine of reasonable expectations
This procedural fairness breach is further supported by reviewing the reasons of Mosely J., in CAD v
Canada, Canadian Association of The Deaf v. Canada (@ pp. 11-12 of M 34128 D)and by adopting the
analogy that a sign language interpreter is to a deaf person what a competent counsel is to a mentally disabled
party acting in person. Past directions of the court that such a party access the courts only when deemed
capable is flawed because it offends the doctrine of reasonable expectations by producing a 'proceedings-
nullifying' procedural unfairness through the sheer delay-induced administrative misconduct referred to
in Blencoe v. British Columbia (Human Rights Commission) 2000 SCC 44 (CanLII), (2000), 190 D.L.R.
(4th) 513 that has been perpetrated by the Ontario Legal Aid and other respondents, through denial of a legal
counsel although repeated requests have been made to that Crown agency since 1998 while prejudicing
important Charter rights of appellant Verma that have been deemed evidence of bad faith conduct by Cory J,
for the majority in : R. v. Wise (1992), 70 C.C.C. (3d) 193 at p. 266 that no court ought to permit.
Also noteworthy is what McLachlin J. (now CJC) wrote in Cunningham v. Canada 1993 CanLII 139
(S.C.C.), (1993), 80 C.C.C. (3d) 492 (S.C.C.) at 499: The principles of fundamental justice are concerned not
only with the interest of the person who claims his liberty has been limited, but with the protection of society.
Fundamental justice requires that a fair balance be struck between these interests, both substantively and
procedurally…. Implication from that is that substantive rights may not be determined without insuring
procedural fairness, which could not be achieved by imposing unreasonable economic burdens on the
impecunious in a fashion that offends s. 15 of the Charter,which has the unjust effect of condonation of the
mischief of the Attorney General of Canada and Attorney General of Ontario to rely on its own misconduct
of failing to provide prompt access to an impartial courts as a defence to the misfeasance in public office,
Charter and other torts.
Condoning the multiple and serious breaches of the Charter rights of the legally disabled patient through
declining to fund the videoconference equipment and the counsel to assist the appellants amount to prima
facie bad faith conduct of the Crown servants, and could not be adopted as proper submission by the Court
and ought to have been rejected because allowing the endorsement to stay as it is rendered has the effect of
bringing administration of justice into serious disrepute and results in a serious undermining of public
confidence and respect in the competence, fairness and impartiality of Canadian judiciary.
Failing to cure the deprivation of the benefits of the parens patriae or better still the extraordinary
jurisdiction that would permit access to parens patriae jurisdiction of the court would incurable deprive the
legally disabled patient his right to have enforced his Constitutional rights which the court has a
statutory and parens patriae duty to protect, which becomes compounded through rendering the proceedings
unfair causing loss of jurisdiction through a reasonable apprehension of bias. In order to discharge this duty
the court is mandated to abandon the usual the role of an impartial umpire through playing an activist
                        Factum of August 24, 2006 of the appellants C 44715 (motion M 34128 E)
                                                         36
role as is necessary in protection proceedings where guardianship of a child or a legally disabled individual is
in issue (Catholic Children's Aid Soc of Metro, Toronto v. O.(L.M.)). (@ pg. 13 of M 34128 D).That
offends a fundamental legal doctrine of ubi jus, ibi remedium principle – where there is a right, there is a
remedy - canvassed by Sharpe J. A., in Freeman-Maloy v. Marsden,(31 Mar 2006) CanLII 9693 (ONCA)
CFN-C43539 upon citing the seminal authority of Ashby v. White (1703), 2 Raym. Ld. 938, 92 E.R. 126 and
therefore denying the vulnerable appellant Verma of any protection and all benefits of Canadian justice
system which permits the respondent to irremediably succeed in their conspiracy to injure the appellant
Verma. The over-riding doctrine of paramountcy of the rights of the legally disabled patients over the
rights of all others has been quoted so widely in the jurisprudence that there should be no need to cite
caselaw, although that has been summarized in the four-page summary annexed to previous motions.
By not ordering the Registrar to provide the videoconference equipment the court is declining to cure the
breach of its own general duty of fairness that must be imposed on all government decisions affecting the
rights, interests, property, privileges and liberty of any person. [per Dickson J. (as he then was) in Martineau
v. Matsqui Institution Disciplinary Board (1979), [1980] 1 S.C.R. 602.]
 Miscarriage of justice is bound to ensue if the court were to knowingly proceed in a fashion that is
manifestly not in accordance with the principles of fundamental justice and depriving the appellants of a
meaningful right to present their case while compounding that error through imposing an unjust evidentiary
burden, thus depriving a right to an oral hearing. (Singh v. Minister of Employment and Immigration,
[1985] 1 S.C.R. 177, at p. 212, per Wilson J.) Depriving the appellant of a fair opportunity to have his case
“fully presented and fairly considered” as mandated in Baker v. Huchinson et al (1976), 13 O.R. (2d) 591
(C.A.), at pp. 596-7 by Dubin J.A., through compelling the appellant to meet that burden solely via affidavit
material, which ought never be done before the panel of Court of Appeal for the first time, especially when
faced with an “enhanced standard of proof to prove fraudulent acts (Bater v. Bater, [1950] 2 All E.R. 458
(C.A.), at 459 per Lord Denning) which is now one of the six motions that need to be heard by the panel.
It must also be noted that refusal to provide the funds to make these proceedings legally valid is in reality a
conduct that can be best characterized as post-infraction misconduct of fraudulently securing
unconscionable Court orders (R. v. Peavoy 1997 CanLII 3028 (ON C.A.), (1997), 117 C.C.C. (3d) 226 and
R. v. White 1996 CanLII 3013 (ONCA), (1996), 108 C.C.C. (3d) 1 (Ont. C.A.) affirmed 1998 CanLII 789
(S.C.C.), (1998), 125 C.C.C.(3d) 385 (S.C.C)
Granting a right to the respondents to be heard in the matters is clearly an error, while that right or standing
ought to have been presumed waived or ought to have been denied for egregious State misconduct, and
because the right to be heard had either not been exercised or not permitted by the Superior Court of Justice,
while the endorsements had been rendered on courts own motion and not pursuant to the submissions of the
respondent Crown such that the scope of respondents right of audience by the Court of Appeal ought to be
limited only to the justification of the endorsements of the Superior Court of Justice, failing to do which
offends the rule of appellate proceedings prohibiting raising matters in the review courts that were not before
the tribunals or courts of first instance. (R. v. Giagnocavo,(1995), 82 O.A.C. 319; Tyler v. M.N.R. (1990)
120 N.R. 140)
Miscarriage of justice would result through compelling the appellant under legal disability to conform to and
access only the statutory jurisdiction of the court upon providing the expenses for the proceedings that was
found unconstitutional by MacAdam J. in Pleau v. Nova Scotia (Prothonotary), (22 January 1999) Halifax
Registry NSSC S.H.No.151044 @ pg. 17 of M 34128 D) http://www.canlii.org/ns/
cas/nssc/1999/1999nssc10004.html and refusing to cure the jurisdiction loss (fetter) and deny the services
of a state-funded legal counsel to protect the rights of the legally disabled patient, appellant Verma. This is so
because all of the expenses for proper and effective court operation are legitimate expenses of the public
purse (tax dollars) and ought not to be transferred to the parties electing to use the court services, for that is
clearly unconstitutional. The cost of videoconference herein is equal to a fee.
                        Factum of August 24, 2006 of the appellants C 44715 (motion M 34128 E)
                                                         37
The court is compelled in the circumstances to cure the cumulative prejudicial effect of admission of
illegally obtained evidence while depriving the right of a fair legal representation. (R. v. Bartle, [1994] 3
S.C.R. 173) and failing to apply the combination of doctrine of extra-inherent jurisdiction that was applied by
the court in many cases where similar reliefs were granted pre-emptorily (Bergeron v. Gillstrom, (17 Jan
1997) 3753 (BCCA) (@ pp. 10 of M 34128 D); Mennes v. Legal Services Society (11 Jan 1995) BCCA (@
pg. 16 of M 34128 D);Nova Scotia (Minister of Health) v. J.J., [2005] 1 S.C.R. 177, (see pg 170-74 of
MBDC*) and in J. F., Re, (7 June 2005) NLCA 34 (see pg 160-65 of MBDC))
Breach of the doctrine of expediency and introducing unconscionable delays (Riddle v. Riddle (1952), 85
C.L.R. 202, at p. 214 per Dixon J., an Australian High Court judge) in the context of parens patriae duties by
failing to consider compelling individual circumstances, such as personal safety and mental and physical
health related issues, thus unlawfully fettering of the Court's discretion to issue the mandamus against the
Registrar that constitutes an error of law. (Courtney v. Canada (Solicitor General), (21 Apr 2004) FC 591
citing Prasad v. Canada (MCI), 2003 FCT 614, [2003] F.C.J. No. 805 (T.D.)(QL) per Russell J., in at para
26 and 32) therefore contrary to s. 180, 215,216,217, and 219(1) of the Code. These decisions compel the
public authorities to consider health needs in decision making.
III. Why Paluska v. Cava, (6 May 2002) ONCA M28254 C37150 OUGHT TO BE REVERSED.
Your Lordship (Laskin J.A,) wrote for the unanimous court at the outset of his reasons that Molloy J. decided
that Mr. Paluska had a constitutional right under s. 7 of the Canadian Charter of Rights and Freedoms to
publicly-funded counsel to represent him on the appeal. She ordered the Government of Ontario to pay his
counsel's legal fees. This judgment of the Court of Appeal is made pursuant to a jurisdictional error given
that the jurisdiction to appoint counsel was pursuant to s. 96 of the Constitution Act 1982 and not s. 24(1).
Appellants believe that correct law would permit a single judge of any Court to declare the judgment of
Paluska v. Cava, (see pg166-69 of MBDC*) a nullity upon preferring (although the concept of extra-inherent
jurisdiction would render both views to be flawed and inapplicable due to distinctions that stem from the fact
of disability) the view of Wood J. A., (in dissent) in Canada (Attorney General) v. Yukon (Territorial
Court), 1996 CanLII 3294 (YKCA); (1996), 106 C.C.C. (3d) 130; (1996), 47 C.R. (4th) 281 posted at
http://www.canlii.org/yk/cas/ykca/1996/ 1996ykca291.html who held at para 14 that in Schachter v. The
Queen, 1992 CanLII 74 (S.C.C.), [1992] 2 S.C.R. 679, “the Supreme Court of Canada concluded that the
question is not whether the courts can make decisions that impact on budgetary policy when granting
Charter remedies but, rather, to what degree they can appropriately do so. The financial commitment
entailed in meeting orders made under s. 672.24 is said to be so insignificant as to have no inappropriate
impact on budgetary policy”. This when read in light of Eldridge and CAD v Canada, and the obiter of
Dickson C. J., in Re B.C. Motor Vehicle Act, would permit setting aside the appeal granting views of Rowles
J. A., (Ryan J. A. concurring) at para 105 The Queen v. Schachter, 1992 CanLII 74 (S.C.C.), [1992] 2
S.C.R. 679, 93 D.L.R. (4th) 1, “contains a helpful discussion in regard to the management of public funds
and the budgetary repercussions of judicial decisions, within the context of the remedial options available
under s. 52 of the Charter” (see p. 21, D.L.R.). Further Schachter is distinguishable from the right to
equality before the courts, given that the benefit there were being granted under a Unemployment Insurance
Act which need only to conform to s. 15(1) of Charter, for the s. 52(1) of Constitution Act, 1982 analysis, and
not under the court's extra-inherent powers and access to at s. 52(1) analysis, would require that s. 96 prevail
over it in order to permit that analysis ab intio.
The grounds for allowing the overruling of the view of majority in Canada v. Yukon are implied in the views
of Dickson C. J., by exercising the courts power to overrule the policy decision of the executive where the
policies interfere with judicial independence, because the law stated by the Court in Re Motor Vehicle Act
leaves the decisions like compelling the Attorney General to fund the videoconference and solicitor remains
strictly in the “domain of the judiciary as guardian of the justice system” and cannot be subject to any
executive discretion, especially where it is also unconstitutional, given that there are judicial traditions and
                        Factum of August 24, 2006 of the appellants C 44715 (motion M 34128 E)
                                                         38
powers that are not written in the Constitution Acts but have been traditionally time-honoured as unwritten
rights of Canadians and unwritten powers of the Courts.
Appellants submit that a single judge of Court of Appeal has power to issue a certiorari upon finding a
jurisdiction error and quash the decision of this Court, in accordance with the rule that appeals are "neither
desirable nor necessary and should not, as a general rule, be encouraged"(Knox Contracting Ltd. v.
Canada, 1990 CanLII 71 (S.C.C.), [1990] 2 S.C.R. 338, per Cory, J. at p. 354) as well as "allow the [legal]
system as a whole to escape the charge of arbitrary toleration of injustice" (see: M. Jamal & H.P. Glenn,
"Selective Legality: The Common Law Jurisdictional Appeal" (1994) 73 Can. Bar Rev. 142. citing
Chouinard, J. in Goodman v. Rompkey et al., [1982] 1 S.C.R. 589 in a case arising from the Quebec Code of
Civil Procedure, stating the rule that an order made without jurisdiction should always be subject to appeal.
(or being promptly quashed some other effective way)). And this certiorari must issue notwithstanding the
fact of their being made by Superior Court judges for having been rendered in excess of egregious or
malicious fettering of jurisdiction in breach of duty of court owed to the legally disabled party, which is the
proper remedy in the circumstances (Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835,
Kourtessis v. M.N.R., [1993] 2 S.C.R. 53). In light of the fact that the cost of the appeal would be borne by
the Crown, it is in the public interest to save those scarce public funds. Application of certiorari instead of an
appeal is also desirable in the proper exercise of judicial discretion in light of the remarks of Goodfellow, J.
in in Gilfoy v. Kelloway (11 Apr 2000) SCNS S.H.No.140935, 152387C as following (NSSC) (2000), 184
N.S.R. (2d) 226 at http://canlii.org/ns/cas/nssc/2000/2000nssc10058.html for example to avoid unnecessarily
lengthening of the duration of the proceedings pointed out at para 27(5).
Finally, the granting of 30 minutes to the Moving Party and 30 minutes to the four Responding Parties is
grossly inadequate in light of the fact that there are six motions before the court and the sixth motion alone
raises 30 grounds for the relief being sought. The moving parties/appellants further hold that the matters are
so complex that at a minimum six (6) days would be required to hear the motion, because the relief sought in
the motion is the subject matter of the appeal and the subject matter of the Orders of B. C. Courts that the
appellants propose to have declared legal nullities for offence to the Charter. In order to give the court an
overview of the time requirement it might suffice to say that the supplementary factum filed on August 4,
2006 is fifty (50) pages in size and a recent one submitted yesterday by mail, is thirty-two (32) pages and
ordinarily reading a page without any interruptions takes a minimum of five minutes.
The paternalistic obligations (see: Childs v. Desormeaux @ pg. 15 of M 34128 D)owed by the respondents
to the appellant Verma entitles him to all of the reliefs being sought There is an element of urgency that
should compel the court to consider the legal principles applied in In Jane Doe, 2005 NLTD 72 (29 Apr
2005)- 2004 01T 3234 (see pg 145-148 of MBDC*) and in Covarrubias v. Canada(1 Sep 2005) FC
1193.(see pp. 112-121 of Affidavit of April 21, 2006), Beattie v. Canada, (13 Jan 2006) FC 24 T-2134-00,
see pp. 122-25 of Affidavit of April 21, 2006, Nova Scotia (Minister of Health) v. J.J., [2005] 1 S.C.R. 177,
(see pg 170-74 of MBDC*) and Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791. At a minimum
an amicus curiae ought to be appointed in keeping with the principles applied in R. v. Charbonneau, (15 Mar
2004) ABCA 109 (@ pg. 18 of M 34128 D) and Shepherd v. HMTQ, (see pp. 54-57 of M33745). By not
providing the necessary funds for the proper conduct of the proceedings the Court would be punishing the
appellants for factors beyond their controls while not giving them as was done in Kostello v. Kostello, (6 Dec
1996) CanLII 1089 (ONCA) CFN- C23755 (see pg 10 of M34027) thus offend the doctrine of reasonable
expectations.
Recklessly offended the Rule of Law and bruoght the proper administration of justice into disrepute.

 The unjust economic burden of funding the videoconference equipment is being imposed upon appellant
Brown pursuant to the fettering of the extra-inherent jurisdiction to control courts own process, and is best
remedied through discharge of court duty to protect the vulnerable adults and to cure the procedural
unfairness in the proceedings through directing the Registrar to make the necessary funding arrangements
                        Factum of August 24, 2006 of the appellants C 44715 (motion M 34128 E)
                                                       39
for a solicitor as permitted by s. 78 of Courts of Justice Act, as mandated by the the duty to pre-judge
matters in favour of the legally disabled patient and no other person (Re Young [1942] 3 D.L.R. 185
(Ont.C.A.), and in the result tainting the proceedings with bias through serious breaches of procedural
fairness.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

  DATED AT NANAIMO: September 8, 2006

                                  (by Carole Ann Brown as de facto litigation guardian of appellant Verma)




                      Factum of August 24, 2006 of the appellants C 44715 (motion M 34128 E)

				
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