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.
The Respondent is restrained from contacting the Plaintiff's employer, DMA, her place of employment, or any clients of DMA;
Justice Horner was somewhat condescending, but pretty clear, as the excerpt from Transcript, October 9, 2014, starting at page 20 follows:
37 MR. UTTL: My second question, to the original ex parte 38 order granted by Justice Millar on September 26, that order (INDISCERNIBLE) as a 39 person contacting VMA (phonetic), Ms. Rensonnet’s employers and their employees. 40 41 THE COURT: Yes. 1 2 MR. UTTL: And does it also mean that (INDISCERNIBLE) 3 date as a officer of Biomere Inc., from serving VMA with this lawsuit -- with the lawsuit 4 of Biomere against VMA? 5 6 THE COURT: No. How do you propose to serve them, 7 Mr. Uttl? 8 9 MR. UTTL: By mail (INDISCERNIBLE). 10 11 THE COURT: The -- the -- by -- by -- the court -- the rules 12 require personal service but if you’re serving a corporation, you serve their registered 13 address -- 14 15 MR. UTTL: So, if Biomere sends -- 16 17 THE COURT: -- not their business address. 18 19 MR. UTTL: -- if Biomere sends a service to their registered 20 address -- 21 22 THE COURT: Right. 23 24 MR. UTTL: -- that’s not me contacting VMA. I’m not in 25 (INDISCERNIBLE) of the or -- in -- initial order. 26 27 THE COURT: Sorry, Ms. Davies, I’ll hear from you. 28 29 MS. DAVIES: All right. 30 31 THE COURT: Sorry, go -- go ahead. 32 33 MR. UTTL: So, if Biomere Inc., the corporation -- 34 35 THE COURT: Sorry, if Biomere Inc. is some company that 36 you’re an officer of, is that right -- 37 38 MR. UTTL: Yes. 39 40 THE COURT: -- and you want to sue Ms. Rensonnet’s 41 employer, is that right? 1 2 MR. UTTL: The lawsuit has been -- the lawsuit has been 3 already filed. 4 5 THE COURT: Right. 6 7 MR. UTTL: The service had -- had not been effected 8 because I was not sure about this order. 9 10 THE COURT: Okay, do you have any family members in the 11 city, Mr. Uttl? 12 13 MR. UTTL: Yes -- 14 15 THE COURT: Okay. 16 17 MR. UTTL: -- my brother. 18 19 THE COURT: So one of you have your whoever, your family 20 member, drop the doc -- the document off -- 21 22 MR. UTTL: Okay. 23 24 THE COURT: -- at the defendant’s address and then take an 25 affidavit of service by that person. Why do you have to be involved? 26 27 MR. UTTL: Thank you. No, I don’t have to be involved. I 28 just -- 29 30 THE COURT: Okay, well then -- 31 32 MR. UTTL: -- I just wasn’t sure how -- how that works. 33 34 THE COURT: -- just -- just abide by the order. You can serve 35 them -- 36 37 MR. UTTL: Thank you. 38 39 THE COURT: -- in a million different ways, only one of 40 which is having a family member or a friend drop it off. 41 1 MR. UTTL: Okay -- 2 3 THE COURT: Okay. 4 5 MR. UTTL: -- thank you. 6 7 THE COURT: Okay, thank you. Ms. Davies.
Ms. Davies presented a story, without any evidence, that I was trying to jeopardize Ms. Rensonnet's employment, Justice Horner bought it, and told me that I can not serve DMA with the lawsuit for an year.
37 THE COURT: Okay. Okay, okay. Now, Mr. Uttl, ordinarily, 38 I would say to you that you can serve Ms. Rensonnet’s employer by any means other than 39 your own and be within the confines of the September order but now that I’ve had it more 40 fully explained to me by Ms. Davies as to what’s really going on, you have a year to 41 serve Ms. Rensonnet’s employer with that -- with that statement of claim a year from the 1 date that it’s issued, okay. Was it issued in May of this year? 2 3 MR. UTTL: Yes, you only heard -- 4 5 THE COURT: Okay. 6 7 MR. UTTL: -- her side of the story and you haven’t -- my 8 side of the story. 9 10 THE COURT: I don’t need to hear your side right now, 11 Mr. Uttl. I don’t need to hear your side right now. 12Justice Horner is clear what I am supposed to put in the order on page 42 and 43 of the transcript:
37 THE COURT: -- then here you go. Here you go. So, the only 38 thing in the order, Mr. Uttl, is this trial business and the deadlines. Everything else is 39 just -- we’ve just been talking. I’m going to make a note but we understand -- it does -- 40 it’s not some part of my order but I understand we -- the way this case management or 41 the overall umbrella of this case management that I’m doing with you is to get this 1 familial action to trial as quickly as we can -- 2 3 MR. UTTL: That’s right. 4Earlier, in the same hearing, I asked Justice Horner what takes precedence, the Order as pronounced by the Justice, or the written order. Reason being, Justice Millar ordered the matter to trial on May 5, 2014, yet the Order, prepared by Tamasine Davies, Ms. Rensonnet lawyer did not mention it, and got signed and filed over my objection, completely outside the Rules of the Court. Justice Horner was again very clear (page 7 of the transcript, emphasis mine):
2 So, Mr. Uttl, we don’t have a ton of time so if you -- if you want to waste it reviewing 3 transcripts of things that happened in the past, that’s fine but I don’t -- I have -- I’m 4 leaving here at 2:00, okay. 5 6 MR. UTTL: Okay. Well, I guess I misunderstood what 7 takes precedence, what is what Justice Millar said or what was in the order 8 (INDISCERNIBLE)? 9 10 THE COURT: What takes precedence is the order. The only 11 thing that matters -- 12 13 MR. UTTL: Okay. 14 15 THE COURT: -- from the hearing is the order. 16 17 MR. UTTL: Okay. 18 19 THE COURT: Okay, that’s the -- that’s the relief that was 20 granted in that hearing. That’s it. So -- 21 22 MR. UTTL: So -- 23 24 THE COURT: -- this order says nothing. This is not an order 25 directing anything to trial and it’s certainly not an order restricting any of the issues at 26 trialTime went by, we had acquired Case Management Counsel, Ms. Catherine Christopher (who quickly became Ms. Rensonnet's negative advocate and told me I should just accept status quo as the trial justice will not change it -- details here) and the deadine of May 28, 2015 to serve the lawsuit to DuCharme, McMillen and Associates was fast approaching. On December 9, 2014, Ms. Rensonnet's lawyer, Ms. Davies, managed to get Justice Horner sign an order that I have to participate in New Ways For Families program. I did not see the order, Justice Horner was mistaken that it was a standard order, and signed it. Among other things the order stated that neither party can bring any applications to the court until the program is completed. The safe thing to do was to make an application to serve DuCharme, McMillen and Associates before the deadline, but on the other hand, Justice Horner's statements above (they can be served by anyone else than me, what matters is what is written in the order, we have just been talking,...) were pretty clear I did not need to make application.
I had someone deliver the Claim to the lawyer on record for DuCharme, McMillen and Associates, and so nor I, nor my agent, made any contact with DMA. Ms. Rensonnet made an emergency application on May 29, 2015. Notwithstanding what Justice Horner said on October 9, 2014, Justice Horner now claimed she had read the transcript and that she had said something else (page 5):
9 MR. UTTL: I will try. There’s nine reasons. So on the 10 October 9th meeting, I asked for clarification. 11 12 THE COURT: Yes I have the transcript and it’s very, very 13 clear to me Mr. Uttl that I told you, you could not without further order. So -- 14 15 MR. UTTL: You said -- 16 17 THE COURT: -- I said, I know -- I’ve read what I said. I 18 made it very clear to you, sir, you could not do it without further court order before me. 19 That is clear in the transcript.Justice Horner was now of exactly opposite opinion (Transcript, May 29, 2015, page 6, lines 12+):
12 THE COURT: Sir, the order of Justice Millar from September 13 of 2013 is very clear. You were restrained. Nothing that I have done since then has 14 given you permission or in any way derogated from that restraining provision.To compare the key utterances of Justice Horner, both in reference to the Paragraph 3 of Justice Millar ex-parte order of September 26, 2013:
|October 10, 2014||May 29, 2015|
|Okay, well then just -- just abide by the order. You can serve them in a million different ways, only one of which is having a family member or a friend drop it off.||Sir, the order of Justice Millar from September of 2013 is very clear. You were restrained. Nothing that I have done since then has given you permission or in any way derogated from that restraining provision.|
31 THE COURT: I’m going to, on my own motion, 32 Ms. Rensonnet, issue a stay and this will be a stay against yourself, Mr. Rensonnet (sic), 33 Biomere and any other corporation that you control, from this date forward, there is a stay 34 on any further actions being taken, except the matrimonial action which I outlined in my 35 order of October 9th, 2014. 36 37 The matrimonial matter with regard to custody and day-to-day access is going to trial, 38 Mr. Uttl, all your other actions are stayed.Ms. Rensonnet further bamboozled Justice Horner into mis-using Alberta Rule of Court 3.27, and Justice Horner set aside the service on DuCharme, McMillen and Associates, and extended the time for service for another year. The purpose of the rule is clearly to protect the plaintiff from defendant's conduct.
Initially, Justice Horner had correct understanding of the Rules. From transcript, page 17:
13 MS. RENSONNET: There’s one more problem with that for DMA 14 is that since they’ve been served they technically have a lawsuit on their books and they 15 have to -- 16 17 THE COURT: I’m sorry there’s nothing I can do about that 18 now, Ms. Rensonnet, I really cannot. I’ve consider that, I can’t withdraw it, the May 25th 19 deadline has passed. I cannot extend the time that has already passed. So it would 20 leave -- it essentially would leave the action as a nullity which I cannot do, so they are 21 going to have to take my order staying the action and staying the necessity for them to 22 file a statement of defence and report it at the same time.Ms. Rensonnet, apparently representing DuCharme, McMillen and Associates, suggested a rule 3.27, and after "just a minute", Justice Horner changed her mind:
24 MS. RENSONNET: From talking to my counsel, apparently Rule 25 327 does allow you, under exceptional circumstances to extend that deadline for service. 26 27 THE COURT: Yes if it’s brought in advance of the deadline -- 28 it’s passing. 29 30 MS. RENSONNET: That’s 327 -- 326 -- I think 327 -- 31 32 THE COURT: Just a minute -- 33 34 MS. RENSONNET: -- I think 327 does allow exceptional -- does 35 allow exceptions. I was going to propose to dismiss this service but then extend the 36 deadline to later so that this whole thing can be revisited later so DMA can be exempted 37 from having to announce this lawsuit to anybody. 38 39 THE COURT: What’s the current trial date, Ms. Rensonnet? 40 41 MS. RENSONNET: November 13, I believe although I’m doubtful 1 that that’s going to be possible. 2 3 MR. UTTL: November 28th I think. 4 5 MS. RENSONNET: Sorry, November 28th, My Lady. 6 7 Order (Extension of Service) 8 9 THE COURT: My mistake, Ms. Rensonnet, it appears the law 10 changed with the new Rules of Court and that I may at any time extend the time for 11 service for the statement of claim, not just before the one year expiration period. So fine, 12 then Mr. Uttl, the service of the claim on DMA will be set aside and I will extend the 13 time for service to May 27th, 2016 for both yourself and Biomere. All right and we will 14 diarize that internally and revisit it before that expiration date. Okay Mr. Uttl?I have brought the fact that I was never married to Ms. Rensonnet to the attention of Justice Horner numerous times, to no avail. For example, at the hearing on October 9, 2014, before Justice Horner (transcript, page 8):
9 THE COURT: Okay, so in the familial matter, which you refer 10 to it, there are no issues of property between yourself and Ms. Rensonnet? 11 12 MR. UTTL: Not to my knowledge. 13 14 THE COURT: She makes no -- she makes no demands for 15 equity in the -- in the matrimonial home, nothing like that? 16 17 MR. UTTL: There’s no matrimonial home. We were not 18 married. This is not a familial -- 19 20 THE COURT: Okay, well, sorry --At the hearing on June 16, 2015, Justice Horner again stated (transcript, page 8):
37 THE COURT: Well, according to the orders that I’ve issued, 38 the issue of matrimonial property is also going to trial, Mr. Uttl. I’ve issued two orders 39 that has confirmed that. 40 41 MR. UTTL: My Lady, I appreciate that, but we are not 1 married and nobody made any claim, so I’m not quite sure how it’s going to go to trial if 2 there is no claim.On page 89 of the transcript, Justice Horner continues with the "matrimonial property", though she was told numerous times that the parties were never married to each other, and by simple logic, any kind of matrimonial property could not have ever existed.
20 THE COURT: Ms. Rensonnet, since the very first hearing with 21 your counsel in October of last year, the issue of matrimonial property has been raised. If 22 you have a claim you want to make, make it. 23 24 MS. RENSONNET: No. No. What I want is an order that states 25 that we have to make a claim by a certain date because I believe that Mr. Uttl removed 26 the matrimonial home from our -- from our matrimonial dispute, from our separation 27 dispute by getting Susan Mullholland to sue me over it. 28 29 THE COURT: Then make an allegation in this action. Amend 30 your action and bring a matrimonial property claim relative to that property.In conclusion, most Justices is easily manipulated. If it is to your advantage, repeat the word "matrimonial" as often as Ms. Rensonnet did, and the Justice will eventually believe it.