Review – Appeal August 23, 1996 Decision – Part I

This is a review of the June 3, 1999 Divisional Court Decision on the Appeal for the August 23, 1996 Decision of Justice John Carvarzon as heard by Justices Keenan, Semers and Cumming at the Superior Court of Justice, Hamilton.
(see scan 0 and scan 1a)

See lawyer letter of June 8, 1999 and attached Decision. This is the only copy received by the Appellant. (see scan_1b.pdf).

At first glance we ask “What is this document?”

This document contains no identification that it is, in fact, a Decision of Appeal of the Divisional Court, Superior Court of Justice.

NO recorded date of the decision.
NO signatures to confirm who heard the Appeal or rendered the Decision.

We question as to whether or not this decision “document” complies with prescribed Court Procedure and is, in fact, bone fide in law.

This vague and undefined document appears to be an attempt to suppress information concerning this particular Appeal process. Section 122 of the Criminal Code of Canada addresses suppression of information under Breach of Trust and Fraud.

Was this production by the Justices designed so as not to reveal who made the decision and the fact that the Appeal was heard at the Divisional Court which was later confirmed to have no jurisdiction to hear this appeal. See document filed with the Court, September 15, 1999, confirming the decision.
(see scan_2.pdf)

In the opinion of Gary Nichols, when we go back and review the correlation of events, it would appear that what in fact really occurred was not the administration of Justice, but a carefully conspired plan to subvert and obstruct Justice!

Review of the Facts:

A. Shortly after the Appeal was filed in November 1996, Peter Haney, lawyer for the Frank Cowan Insurance Co., contacted the Appellant’s lawyer Paul Amey, and requested that the Appeal be transferred from the Ontario Court of Appeal to the Divisional Court, Hamilton, to which Mr. Amey agreed, without any discussion with the appellant, his client.

At the beginning of the Appeal hearing on June 3, 1999, Appeals Justice Keenan, Somers and Cumming informed the appellant’s lawyer Paul Brooks that: “We did not receive the transcripts.” They then commented that they could use the Appeal books as reference and instructed Mr. Brooks to proceed with his presentation on behalf of Nichols Gravel Limited.

These Justices then proceeded to hear the appeal without prior reference to the sworn evidence of the transcripts from the trial. Further, they did NOT require the defense to provide input to the hearing, and after a short recess, returned with their decision and dismissed the appeal quoting, almost ver batim, the same errors in law as Justice Carvargan. No problem! (See Negligent Event #5)

Upon leaving the courtroom, Gary Nichols went directly to the office of the Court Recording Clerk to inquire as to what happened to the transcripts which the Justices stated they did not receive. Recording Clerk Deborah Merer responded to the inquiry: “We didn’t receive them.” Further investigation of the Court record, later confirmed that the Appellate certificate shipped along with the transcripts were sent by courier to the Court May 30, 1997, confirming that if the Appellate certificate was received at the court and recorded that day, the transcripts were also received that day. (See scan_d2.pdf)

Our lawyer later clarified that Court procedure requires that the appellate certificate and transcripts must be received and held on file by the Court before the court can set a court date for trial.

The court date was confirmed on May 5, 1999, obviously confirming that the transcripts were reviewed and held on file at that date, which further confirms that Deborah Mercer lied to Gary Nichols regarding receiving the transcripts when questioned on June 3, 1999. (See notice of Appeal hearing. scan_d3.pdf)

After the Appeal hearing and Decision of June 3, 1999, it was confirmed as a fact by lawyer Julian Falconer that Divisional Court does NOT have jurisdiction to hear cases where the value of the claim exceeds $25,000. The Claim for Damages of Nichols Gravel Limited was $3.5 million with proven monetary losses of approximately $211,240, which is far in excess of $25,000.

Why then was this case heard at Divisional Court of Appeal? Justice Carvarzan in his rambling 46 page decision, dismissed ALL claims for damaged by Nichols Gravel, but by mistake or on purpose neglected to state the dollar value of the claims that he dismissed. (See Negligent Event #1)

It should be clarified that Justice Carvarzon’s dismissal of all claims for damages and regardless of whether he stated the value of the claim or not, this does NOT in any way later or change the original claim as filed when it proceeds under appeal to another court. If the appeal had been granted, only at that point could the Appeal Court set and rule on the amount of the claim awarded.

Obviously Mr. Haney, acting for the Frank Cowan Insurance Company should have been well aware of prescribed Court Procedures in respect to claims for damages and court jurisdiction when he requested the case transfer to Divisional Court. (See Neglegent Event #2)

Mr. Amey, lawyer for the appellant should also have been aware of prescribed Court Procedure. (Negligent Event #3)

This transfer required Court approval and this was granted by Justice Osborne at the Ontario Court of Appeal.

Most certainly one would expect the Associate Chief Justice of the Ontario Court of Appeal, Justice Osborne to be thoroughly aware of court procedures and jurisdiction, when he improperly approved and granted the transfer to Divisional Court. It is interesting to note that Justice Osborne left that position shortly thereafter and now holds the office of Ontario Provincial Integrity Commissioner (See Negligent Event #4)

Now we must ask the question, did Mr. Haney and the Frank Cowan Insurance Company have contacts within the Ontario Court of Justice and at Divisional Court, Hamilton, who were willing to manipulate and obstruct the administration of Justice, or are all of these negligent events just one large, unexplainable, unfortunate coincidence?

Go back.

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