UPDATE: THE HEARING DID COMMENCED, TODAY, MONDAY, FEBRUARY 15, 2021, A STATUTORY HOLIDAY. IT STILL WENT AHEAD AND THE JUDGE HAS RESERVED HIS DECISION, AND WILL LET THE PARTIES KNOW, WHAT THE OUTCOMES ARE.
1. The Appellant wanted to raise the preliminary issues about the defendant's motion, but the judge allowed the motion to continue and both sides were given thirty minutes, to raise their arguments. Also the appellant's motion for a contempt order, against the defendant, was also brought up. Unfortunately, even though it was not a trial and the Divisional Court, is an appellate court, and that the whole basis of my appeal, was to point out the error of law, and to get from the court a remedy for it, in regards to the Board's, decision, in going ahead with the hearing, when it knew that I was not able to attend and to give a defense, being a self represented litigant, and that being ill at the time, had prevented me from attending the hearing, to give evidence in my defense, had gone ahead and made an eviction order, against me. The member claiming that he was not aware, or was in position of the medical document, the Board had received, prior to the hearing. So the grounds for the appeal was citing bias, or the presumption of bias and a lack of procedural fairness, on the part of the member and the Board. Those are errors of law.
2. The defendant's motion, which should have not been allowed to proceed, where arguments were then have to be made, and both sides suck at it, and that is to give arguments, like a professional lawyer, keeping in mind that one of those parties, was in fact a lawyer. The grounds for the motion to be dismissed, was that it was made by the defendant's counsel, or former counsel, Shellyann Pereira, who did not seem to be present, at the hearing and her affidavit was then argued by the defendant's other counsel, Jafari Deleram, on her behalf. This is significant too, legally, because she could not be cross examined, by the Appellant, since the deponent, was not at the hearing. Or was being very quiet and did not make her presence known. The judge Michael Penny, did not want to hear the fact, that the deponent, was still the counsel for the defendant, in her other matters at the Board, or at least the fact that she was her former counsel. This matters of course, in regards to the law. Whether the deponent was the former, or still the counsel for the defendant, it still raised the legal question, of a conflict of interest, in the eyes of law. Which only cared that the deponent and the defendant in the motion, did in fact have a counsel and client relationship at some point. There is no question, that the law view this relationship, as a conflict of interest, if the counsel is now giving sworn evidence, on behalf of her client, or former client. The judge cannot change that point, in the law. And he should not ignore it either legally, in regards to his decision, on the case. The deponent and paralegal Shellyann Pereira, relationship with the defendant, her client, is a conflict of interest. Regardless of how the judge want to see it personally. Judge Michael Penny knew, that there was a counsel and client relationship, between the deponent and the defendant, in the case.
3 The second argument against the motion, was that it was based on heresay evidence, since the deponent, was not a direct witness to any of the allegations, that were made in her affidavit and based on allegations, that were made at the Board, by the defendant. The fact is that the deponent, got her evidence from the defendant second hand. And that made the evidence, a hearsay evidence. And hearsay evidence is not allowed in a court of law. Worst, the deponent was not even present to be cross examined on the evidence, that she had provided in her affidavit. This should matter legally, in the decision of the court. I guess the judge's view was that because it was evidence that was already sworn, then it should be accepted as evidence by the court. But evidence sworn by who?. A third party, who was not a witness to the allegations made, in the affidavit?. I would accept that reasoning, if the deponent was the defendant and she had given her sworn statement, but did not later attend the hearing. But who would accept this evidence from a third party?. And much less the defendant's counsel at that?. So the grounds for a hearsay evidence, in the motion to dismiss my appeal, still stands. As well as the grounds for a conflict of interest, regarding the same motion.
4. The third reason for the defendant's motion to be dismissed, is the fact that it contained evidence, that were not before the court. Which the lawyer, Jafari Delaram delved into in great detail. Particularly, evidence about previous hearings at the Board and what was said and done. And none of those evidence also contained, any mention of any violence of the Appellant, against the defendant, for which the order on December 18, 2020, was made by the member, Alex Bryic. Interestingly, Shellyann Pereira also kept the information, about the medical illness from the Board at the hearing, even though she knew of its existence, as the Board also did. But the member at the hearing on December 18, 2020, claimed that he did not see such a evidence, at the hearing and then made his order, against the tenant. The tenant and appellant should not be blamed, for the member not having the information, regarding her medical illness, since the Board had the medical document and made sure that the member allegedly did not get it. Or that the member, Alex Bryic, simply ignored that evidence, in his decision. Either way, his decision was bias against the tenant (he could have for instance, inquired about the medical document, from the Board itself, rather than to rush and make a decision against the tenant, that would expedite an eviction against the tenant, based only on some allegations, that were made by the landlord, with no single document of evidence, proving such allegations). And to separate the tenant's application, when the matters were originally scheduled to be heard together and to only proceed, with the landlord's application, was also bias against the tenant/appellant, at the hearing on December 18,2020. So the appellant has every right, to claim a lack of procedural fairness and bias, on the part of both the Board and the member, Alex Bryic, in the order against her. Those are legal grounds for any appeal in the Divisional Court.
5. Will Judge Michael Penny, view the evidence at the hearing, on Monday
February 15th, through the eyes of the law, which he is also bound by,
or based on his own views on the matter?. It remains to be seen. Will he
overlook the role of the deponent, Shellyann Pereira's evidence, for
which the motion is entirely based on?. That both she and her evidence,
in her affidavit, is not admissible. Because as the counsel, or former
counsel for the defendant, this posed a conflict of interest and also
that her evidence is based on hearsay and that she was not a direct
witness, but got her information, from her client, secondhand?.
6 The respondent's motion, against the appellant's appeal, must also stand the legal test, if it is admissible or not. Which it did not, for the reasons already cited. And the appellant's appeal should be allowed to proceed, as part of her right to the have the protection of the court, when it was violated by the lower Board, in this case.
7 As for my motion for a contempt order, against the defendant for defying, the order of the Divisional Court, that was made on January 4th, and to try to evict the tenant on her own terms, by changing the locks on the doors, does not take away from the fact that she has committed the deed. It took another judge of the Divisional Court, to get her to produced the replacement keys, to the appellant. This fact should also figure into the judge's decision, regarding the contempt of court motion, against the defendant, Angela Sterling. And if he believes that she is sorry over her actions, he should think again. This is someone who has a history, of ignoring court orders and notices. Take her illegal rental building for instance, she has never gotten around to closing it down, despite the notice to do so. And that was almost two years ago. And as for illegally changing the locks on the doors and locking the tenants out, she has done this three times already, within the last four month. Including to a disabled tenant.
8. I also believed that I have met the three point test, regarding an in the Divisional Court and I have certainly, provided a lot of case law evidence, to back up every area of my appeal. Being forced to do so, at this stage of the proceeding, by the defendant's motion, against my appeal. It is the defendant's motion, that should be dismissed, by the court, because of the way, it was brought before the court. It was a "no rules apply" motion, where the law, was concerned. Where the defendant's counsel, seeing that I am a self represented litigant, wanted to take advantage of the process, and to present a motion before the court, that disregarded the law, in every area. Conflict of interests, (based on counsel/client relationship), hearsay evidence, presented by a third party, who was not the defendant, and also full of the opinions, of the deponent, counsel for the defendant. And last but not least, the affidavit evidence contained information, that was not before the court. Those are indisputable facts, about the motion. To start off with, we know that the deponent in the motion, is not the defendant. And the rest follows after that fact.
9. The question is, will the judge and the court, allow that motion to stand?. Since it did not meet the legal test in the first place, to proceed. Or will he ignore the evidence, that just on the merits alone, the motion should not proceed?. And I have cited the reasons, many times in this article, not based on my opinions, but on the direct evidence, from the motion itself. That is, those legal issues, or questions, that must be addressed by the judge in the motion, before it even has the legal grounds, to proceed. Unless the judge wants to overlook, those evidence, that goes against such a motion. Example: Is Judge Michael Penny, now going to say that a counsel for a client, formerly, or otherwise, can now be the deponent, in the defendant's motion and the only deponent whose affidavit evidence, on which the motion relies upon, is now acceptable under the law?. Or does the Conflict of Interest Act, S.C. 2006, c 9 s. 2 and other laws come into play here?
