The Cost of Seeking Justice

This article talks about some of the concerning aspects of the Judicial Review ("JR") against Whitten and Lublin Employment Lawyers, and how the court system in Ontario appears to be pretty good in penalizing those who believe that we have an independent justice system. The articles published in this regard are not meant to label the entire justice system to be reflective of the concerns described here, but they are intended to describe a real-world experience that is still ongoing.

Some of the related concerns have been described in previous articles:

• The 30-minute Judicial Review, The Final Chapter

• The 30-minute Judicial Review, the Transcript - Part I
• The 30-minute Judicial Review, the Transcript - Part II
• The 30-minute Judicial Review, the Transcript - Part III

The first article of the three above is the one that was hidden from Google and Bing search engine results, for a few weeks. The article was first published on Friday, May 24, 2024; it didn't take long after publishing the article for the Divisional Court to issue its judgment and release the Reasons for Judgment, on Monday, May 27, 2024.

The last three articles above describe how senior members in Mr. Doug Downey's office have been doing everything in their power to prevent the transcript for the JR from being produced in full, without errors. After multiple back-and-forth with the Authorized Court Transcriptionist ("ACT"), Ms. Shirley Chang, I have requested for two sections of the transcript to be corrected/completed. Up until now, she is not allowed by the Ministry of the Attorney General for Ontario ("MAG"), to make those corrections.

Case Citation

The case I cited during the hearing shows the discrepancy in the way the Order of the Court ("Order") for my claim against Whitten and Lublin Employment Lawyers was issued, versus that for another claim:

2360777 Ontario Inc. v. Anthony Mcpherson

Both motions, mine and that of the one above were:

• Heard on the same day, September 20, 2023.
• The relief sought by the moving party was to set aside the noting in default.
• Were presided over by Deputy Judge Jacqueline M. Harper ("DJ Harper").

The Order of my claim was:

On the other hand, the Order for 2360777 Ontario Inc. v. Anthony Mcpherson.

The difference is very important, DJ Harper didn't feel comfortable making the following statement in writing, "I am satisfied that the criteria of Rule 11.06 have been met".

Now, how is this related to the transcript, the ACT made everything she could think of, or instructed of, to make sure that the transcript doesn't have the correct citation that I referred to in the hearing. I have received several versions of the transcript, and none of them had the correct citation:

• June 24, 2024: 2730453 Ontario Inc. v. Anthony (indiscernible)
• July 2, 2024: 2730453 Ontario Inc. v. Anthony Mcpherson
• July 3, 2024: 27360777 Ontario Inc. v. Anthony Mcpherson
• July 4, 2024: 2736077 Ontario Inc. v. Anthony Mcpherson
• July 4, 2024: 27360777 Ontario Inc. v. Anthony Mcpherson

It is not hard to see how the MAG is concerned about how the same Deputy Judge ruling into two similar motions on the same day, granted the motion while she is "satisfied that the criteria of Rule 11.06 has been met" in one motion, while she was not willing to make the same statement about the other motion, in writing.

The Registrar

Towards the end of the JR hearing, the Registrar, Mr. Francesco Presta, made sure to mention the following statement: "Our next matter to the honourable court, is at 2 o'clock, if I understand correctly, and it is TA represented by their litigation guardian AA."

This was one of the hearings listed on the docket for May 21, 2024, which was the day of the JR Hearing The court docket for the Divisional Court in Ottawa was as follows:

10:00 am Madhoun v Whitten & Lublin Professional Corporation

10:00 am Serco Commercial Holding Inc. v Honey Glass & Windows Ltd.

02:00 pm T.A. as Represented by their Litigation Guardian A.A. et al

The Divisional Court usually hears two cases per day, each having 1/2 day assigned, and with the breaks, lunch, etc.., the two cases will consume the entire day. When someone looks at the schedule above, he/she would get the impression that May 21, 2024, was a busy day for the court; until one looks a bit deeper:

The hearing for Serco Commercial Holding Inc. v Honey Glass & Windows Ltd. was done in writing, it was a Motion for Leave to Appeal ("MLA"). This means there was no oral hearing to begin with, nor was there any need to list it on the court docket. However, the Administrative Judge for the Divisional Court in Ottawa, Justice Marc Labrosse must have found it convenient to list the proceeding on the docket. The endorsement for the MLA can be found on CanLII:

Serco Comm. Holding Inc. v. Honey Glass & Windows Ltd., 2024 ONSC 2835 (CanLII)

Furthermore, the MLA was heard by three judges of the Superior Court of Justice ("SCJ") in Toronto.

The hearing for T.A. as Represented by their Litigation Guardian A.A. et al is an interesting one. And is the one that the ACT is not allowed, by the MAG, to make reference to. The hearing doesn't have the name of the Plaintiff because he/she is under the age of majority and the proceeding was commenced by the Litigation Guardians. It is very convenient proceeding to be listed on the court docket because one can assume that any court document, if it exists, would be subject to a publication ban. The question is why would the MAG be concerned about including reference to this proceeding in the transcript?

Based on my research, I have reasons to believe that this proceeding doesn't exist in the first place. The proceeding was originally commenced before the Human Rights Tribunal ("HRT") in Toronto, back in 2022 and a final decision was issued by one of the MAG members, Ms. Eva Nichols, on December 8, 2022.

So, even if the litigation guardians wanted to challenge the decision of the HRT, they would have done so before the Divisional Court in Toronto, which is in session all-year long. Whereas the Divisional Court in Ottawa is in session for one week, every three months.

There is another reason that makes me conclude that the proceeding didn't exist in Ottawa, but it is best not to disclose it at this time.

The Costs Outlines

Like any civil proceedings, both Whitten and Lublin Employment Lawyers and I were expected, and agreed to, to share the Costs Outlines ("Outlines") with each other, and file them with the court, at least one week before the JR hearing. The hearing was scheduled for May 21, 2024, and the deadline for exchanging the Outlines, among other documents, was May 14, 2024.

On May 14, 2024, I served and filed my Outline. On the same day around 12:43 PM, Whitten and Lublin Employment Lawyers served its Oral Argument Compendium ("Compendium"), but without Outline.

Later in the day, around 2:02 PM, I received an updated version of the Compendium:

This meant, effectively, that Whitten and Lublin Employment Lawyers was not seeking costs in the JR. The reason for that is that the one-week deadline was stipulated in multiple places:

• The Consolidated Practice Direction for Divisional Court Proceedings, effective June 15, 2023 ("Practice Direction"). The Practice Direction is put and maintained by the office of the Chief Justice of the Superior Court of Justice ("SCJ"), the Honourable Geoffrey Morawetz, and has a provision that stipulates the following:

• Both parties, Whitten and Lublin Employment Lawyers agreed to exchange documents one week before the hearing.
• There was a Case Management Conference ("Conference") on March 20, 2024; which was an attempt to limit the time allocated for my oral argument to 15 minutes, and was presided over by Justice Marc Labrosse. The endorsement of the Conference, was issued on April 4, 2024 ("Endorsement"), and had the following paragraph:

Hence, the one week deadline was to be respected, by both parties.

The Change of Mind

On May 15, 2024, one day after the deadline for document exchange, Whitten and Lublin Employment Lawyers changed its mind and served me with a copy of their Outline. A copy of the Outline was also uploaded to CaseLines:

In hindsight, I don't think Whitten and Lublin Employment Lawyers made the call to put together the Outline, nor would it have been allowed to file it after the deadline, if it wasn't for an instruction it received from specific members of the MAG, and perhaps the judiciary. That is, the staff of the Divisional Court in Ottawa must have received an explicit approval from Justice Labrosse, in his capacity as the Administrative Judge, to allow the Outline to be filed.

The reason for this change is the following paragraph that I included in my Outline:

I was referring to the first Conference that took place on February 27, 2024 and I refused to participate in; simply because it violated the very minimum of any procedural fairness. I was, effectively, asked by Justice Labrosse, and the Registrar to join a call without having a chance to be provided with any brief outlining the relief sought by the Respondent, and the basis in law it relied upon.

Clearly, some of the members of the MAG, and judiciary didn't like me making reference to the Conference.

The Hearing

During the hearing, Justice Reid made sure to enforce the 75-minute time limit ordered by Justice Labrosse. Yet, neither his honour, nor any of the other honourable judges in the panel (Justice Myers and Justice Leiper), appeared to be concerned with Whitten and Lublin Employment Lawyers' late submission of its Outline.

The Costs

Whitten and Lublin Employment Lawyers Outline was written in a manner that I found excessive, unrealistic, and vexatious. The following are two sections of the Outline:

None of the points made by Mr. Kitay are serious enough to warrant a detailed response. The following two sections will provide some context that the reader can benefit from in judging the allegations made by Mr. Kitay.

The LinkedIn Articles

Mr. Kitay accused me of using my LinkedIn profile to 'begrudge' the Endorsement. The articles I published on my LinkedIn profile are readable to everyone who has Internet access, and the comment section is open to the public. I published a few articles about the '30-minute Judicial Review' raising genuine and fair concerns about how Justice Labrosse has acted outside his jurisdiction in the manner the Conferences were scheduled, and in the orders he made via the two Endorsements.

Public Trust in the Justice System

According to Mr. Kitay, the public had full confidence in the justice system in Ontario, especially under the MAG's current leadership, Mr. Doug Downey. However, once I started publishing articles on my LinkedIn profile, the public trust eroded. I would like for Mr. Kitay to watch the news more often. The following cases are good examples of how strong the public trust is:

• Mr. Kitay made reference to the number of times I contacted the court staff. In my open letter to Mr. Doug Downey, I have listed the number of times I contacted members of the MAG, and judiciary to get a copy of the Affidavit of Service ("AOS") that was filed when I perfected the Application for JR. I had to go through more than twenty-five (25) attempts to get a copy of a document that the Registrar of the court, Ms. Jean Saikaley should have sent to me once the Application was perfected.
• During those attempts, Ms. Saikaley sent me a fake copy of the AOS that was put together using Adobe Photoshop.

When examining the metadata associated with the attached file: AOS - Applicant - MADHOUN – 10-JAN2024.pdf, one can see the following:

• The same fake AOS was shared with me by Justice Marc Labrosse, the Administrative Judge for the Divisional Court in Ottawa. He attached the AOS to the Endorsement and referred to it as 'I have obtained a copy of what the court staff believes is the Affidavit of Service sought by the Applicant. It is attached to this Endorsement'.

Justice Labrosse knew, or ought to have known that the AOS he attached to the Endorsement is not the legitimate copy issued by the court.

• In 2019, the Ottawa Citizen published an article about Justice Labrosse's judgment in a criminal proceeding: 'P**** spared prison, judge strikes down mandatory minimum sentence for trafficking minors.'

The details of the article are so disturbing to the point that I don't feel comfortable commenting on it on a LinkedIn article.

The Judgment about Costs

The judgment that was issued by the honourable judicial panel will be challenged before the Court of Appeal for Ontario. But I find it appropriate to comment on the Costs awarded by the panel to Whitten and Lublin Employment Lawyers. Here is an except from the Reasons for Judgment:

There are a couple of points that are worth mentioning here:

• Whitten and Lublin Employment Lawyers didn't seek costs on full indemnity basis; rather on substantial indemnity basis. Yet for some reason, the judicial panel made its judgement based on the assumption that it was seeking costs on full indemnity..
• The pleadings in my Application for the JR had no 'abusive allegations'. Rather, it had legitimate concerns that are backed by solid evidence. Without getting into the details of my pleadings, it would be good if someone from the MAG could explain to the public a couple of points:

1. Why was the JR not permitted to be heard in Ottawa and was moved, virtually, to Toronto?
2. Why is Deputy Judge Albert Ferranti no longer a sitting Deputy Judge at the Toronto Small Claims Court?

Any feedback the MAG can provide about those two points will help provide the public with some perspective as to whether my allegations were well-founded.

Concluding Remarks

The Application for JR was not dismissed because it had false allegations, but due to other reasons that will become clear once the proceeding before the COA is complete. The costs award was a way for some members of the MAG and, unfortunately, judiciary to 'warn' me about speaking up about the consistent and repeated miscarriage of justice that has been ongoing at some of the courts in Ontario, for years.