In the 19th Century, English Philosopher Jeremy Bentham warned against secrecy in the administration of justice: “Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.” Those words still ring true today. In countries sharing the common law tradition, the open courts principle is a fundamental, indeed a constitutional principle.
Right Honourable Beverley McLachlin, P.C.
My name is Jan Uttl, I am the father of two boys, who are 7 and 6 years old. Since 2013, I have been involved in Family Law litigation with my former common law partner, Ms. Anne Rensonnet. I filed an appeal from the decision of the Trial Justice, G. Poelman, which made Ms. Rensonnet the primary caregiver even though Justice Poelman found Ms. Rensonnet established pre-trial status quo through a series of unilateral, sureptitious and pre-emptive actions. The Notice of Appeal was filed on March 15, 2016, but the formal order was not available yet. I was led to believe by the Court of Appeal Registrar that the appeal can not proceed without it. This resulted in a sequence of letters, Rensonnet to Registrar on May 20, 2016, followed by Uttl to the Panel on May 24, 2016, with detailed analysis of the case law and the new rules, followed by another letter from Rensonnet to the Registrar on June 3, 2016, another plea to adjourn the appeal until the "Judgment roll is finalized", that is, into the Fall 2016. Uttl replied to Rensonnet's letter Uttl to Panel, urging the Court to follow the rules and hear this fast track appeal. In the end, the Rules prevailed and the appeal was heard as scheduled, on June 16, 2016.
This appeal is from decision of Justice Gillian Marriot in Queen's Bench Family Law Chambers in Calgary courtroom #1004, on May 3, 2017. Briefly, Justice Marriott refused to hear my argument, refused to see evidence, and conclude that 10 day long denial of access was nothing the Court could do anything about. My entire factum, as filed, is available here: Factum of the Appellant, and the Notice of Appeal, filed May 16, 2017. The remaining documents, Extracts of Key Evidence, and Book of Authorities were filed together with the factum, on May 19, 2017, well in time for the June 12, 2017 opening of the sittings of the Court of Appeal.
From a letter Ms. Rensonnet sent on May 26, 2017, Rensonnet to Registrar, it appears that the Registrar had sent two letters on May 19, 2017, which I am yet to receive. While the Notice of Appeal does have my fax number, and the last time the Registrar sent me a fax was on May 19, 2017 (on unrelated matter) the Registrar sometimes prefers to use snail mail instead, perhaps especially when time is of essence.I have replied to the letter, Uttl to Registrar, the same day, and quoted the relevant rules. The registrar wrote a letter on May 29, 2017, and faxed it to me on May 30, 2017 at 12:26, fax from Registrar dated May 29, 2017 and replied that while my understanding of the rules is correct, the June 12, 2017 date is no longer available and the appeal was scheduled for October 10, 2017. Minutes later, on May 30, 2017, at 12:28, another fax arrived, fax from Registrar, dated May 30, 2017, confirms that the appeal will be heard on October 10, 2017.
Curiously though, both hearing lists, downloaded from the Court of Appeal website on May 30, 2017 at 22:10, show available slots:Hearing List Courtroom 1 and Hearing List Courtroom 2
I have sent an urgent, but brief, letter to the Chief Justice and the Registrar, Uttl To Registrar, May 31, 2017, indicating that the lists show available slots even on June 12, 2017. This letter was followed by more detailed letter, Uttl to Chief Justice, Minister of Justice, which has all the details and enclosures.
Finally, on May 31, 2017, at 13:24, I received a Letter from Court of Appeal, indicating that the Calgary List Managers have identified two options: (1) The appeal may be scheduled for Monday, June 12, with a filing extension for the respondent's materials to Monday, June 5; (2) The appeal will remain set for October 10, with the possibility to moving it to September. The letter requested a reply by 4pm.
I promptly faxed the reply Uttl to Registrar, May 31, 2017, 13:44, granting the extension to the filing of respondent's materials.
Ms. Rensonnet also faxed a reply Rensonnet to Registrar, May 31, 2017, now being amenable to the June 12 hearing date, because her main concern was to have sufficient time to get her response factum done.
I have also received, by fax, on May 31, 11:09, the two letters dated May 19, 2017, and they also arrived in my postal mailbox couple of days later.
All is good which ends good - on June 2, 2017, at 07:57, I received another fax from Registrar, dated June 1, 2017, confirming that the appeal will be heard on June 12, 2017, at 10:00 a.m. at TransCanada Tower, 2600, 450 1st St SW, Calgary.
It seems inconceivable that the Registrar would not know nor consult the Rules regarding such basic tasks as timely scheduling of appeals. The lesson learned here is to watch, check and cross-check every step of the process. In hindsight, I should have made sure the Registrar knows the rules when I filed the appellant's materials.