From Robert G. Smith
svpantera@yahoo.com
Gerry Stevenson v. Smith & Fairley BCSC 04 4214
Gerry Stevenson v. Robert Smith BCSC O4 4215
Smith v. Rusk CA 2009 396 and CA 2010 38973
October 29, 2012
JUDICIAL MISCONDUCT, BAD FAITH, SUBVERSION OF JUSTICE OF JUSTICE
Firstly, for those other than the BCCA justices to whom this is initially addressed, I wish it to be clear
that Chief Justice Finch indicated at the beginning of the hearing (Smith v. Rusk CA 2009 396) to the
effect that it wasn't necessary for me to address issues raised by the transcript of the hearing before
Madam Justice Nielsen, as she was then. He advised that the court had read the transcript on appeal,
and I assume, her Reasons For Judgment. My comments to William Southward, my lawyer at the
time, on the BCCA decision, the day after I received it, are contained within a four page letter of April
30, 2009, in Appeal Book #2, pages 111-114. But for poverty, the decision would have been appealed.
The easiest thing to do in the British Columbia Justice System (“Just Us System”?) is to commence an
action against whoever you want. It only takes a few hundred dollars to file. The second easiest thing,
ordinarily, is maintaining that action. Unless, that is, your action is against anyone in a black robe, one
of “The Club” and thus protected by the “black wall” of bias, bad faith, misconduct, and subversion of
justice, as herein. “Circle the wagons boys and girls, we're under attack.”
According to the authorities, including the Supreme Court of Canada, all that is ordinarily needed to
maintain a cause of action is “a germ or scintilla of a cause of action” Jaffe v. Miller Ont. C.A. So
why has this matter dragged on over eight years now, further from justice each of those years? It is
often said, “that justice delayed, is justice denied. I agree.
From Mr. Michael Armstrong's case law authority (defending the conduct of the LSBC/LIF, Ms.
Leanne Wood and Mr. Chris Bolan) Hunt v. Carey Canada inc. [1990] S.C.R. 959, “The test to be
applied is whether it is “plain and obvious” that the plaintiff's claim discloses no reasonable claim.
ONLY IF THE ACTION IS CERTAIN TO FAIL BECAUSE IT CONTAINS A RADICAL DEFECT”
will an action be struck. Hold that thought.
Master McCallum didn't even bother to look for a radical defect, and it seems the only “radical
defect” found by Madam Justice Nielsen, completely absent even a “germ or scintilla of proof, was
that Mr. Harold J. Rusk is forgiven his involvement in a fraud because he was “authorized” by his
client, to commit fraud on his behalf. New meaning to “incomprehensible” and “inexplicable”
conduct as defined by The Supreme Court of Canada in defining “Immunity as it relates to “Bad
Faith”. Finney v. Barreau [2004] 2.S.C.R. 17, 2004 SCC 36, at P.39 “….. the concept of bad faith
that was examined in Roncarelli v. Duplessis, 1959 S.C.R. can and must be given a broader meaning
that encompasses serious carelessness or recklessness. Bad faith certainly includes intentional fault,
a classic example of which was found in the conduct of the Attorney General of Quebec. Are you
listening Ms. Bond/Mr. Andrews? (Ms. Shirley Bond is the AG for British Columbia, Mr. Mark
Andrews the special Prosecutor appointed by Crown Counsel in this matter.) Such conduct is an abuse
of power for which the state, or sometimes a public servant, may be held liable. However,
recklessness implies a fundamental breakdown of the orderly exercise of authority, to the point that
absence of good faith can be deduced and bad faith presumed. The act, in terms of how it is
performed is then “inexplicable” and “incomprehensible”, to the point that it can be regarded as as
an actual abuse of power, having regard to the purposes for which it is meant to be excercised.”
-2“In summary, within Finney, The supreme Court of Canada found that: “Total disregard for the
interests of others”; “lack of diligence”; “slowness to act”; “lack of action”; “negligence and
indifference”; “gross or serious carelessness” all amount to bad faith, defeating “immunity” and
attracting “liability”. This fully describes the conduct of the lawyers, LSBC/LIF and the courts herein.
I expect these findings of The Supreme Court of Canada to be applied to The Law Society of British
Columbia; Mr. Harold J. Rusk/Ms. Leanne Wood/Mr. Christopher Bolan, and Ms. Menaka
Giri/Nicholas Mosky. Also to The Attorney General of British Columbia and Mr. Mark Andrews.
Also applied to all but one decisionsdddd of the courts in the above matters, decisions well beyond
“Inexplicable” and “Incomprehensible” on the evidence before them, as briefly summarized herein.
Returning to causes of action, also within Mr. Armstrong's Hunt v. Cary authority, and closer to home,
Tysoe J.A., is quoted with favour by The Supreme Court of Canada from Minnes v. Minnes 1962
B.C.C.A. In part, “So long as the statement of claim, as it stands OR AS IT MAY BE AMENDED,
discloses SOME QUESTION FIT TO BE TRIED by a judge or jury, the mere fact that it is weak or
NOT LIKELY TO SUCCEED is no ground to for striking it out. If the action involves
INVESTIGATIONS OF SERIOUS QUESTIONS OF LAW OR QUESTIONS OF GENERAL
IMPORTANCE, OR IF FACTS ARE TO BE KNOWN BEFORE RIGHTS ARE DECIDED, THE
RULE OUGHT NOT TO BE APPLIED”. (my emphasis) Hold these thoughts too.
With these well established cases and principles of law in mind, let's look at the decisions of Chief
Justice Finch, Madam Justice Nielsen (as she was then), and Master McCallum. Also, the criminal
misconduct of Harold J. Rusk/LSBC/LIF/Ms. Leanne Wood/Mr. Chris Bolan/ and Ms. Menaka
Giri/Mr. Nicholas Mosky, all of whom were party to subverting “The Natural Course of Justice” as
defined in R. v. Wijesinha, when they intentionally defeated the orders and intentions of Madam Justice
Dorgan as she stated on August 10, 2007, although the required proof is only “Bad Faith”.
BCCA – “Inexplicable” and “incomprehensible” conduct as described by The Supreme Court of
Canada in Finney. I will start with the BCCA decision because although written by Mr. Justice Smith,
Chief Justice Finch and Mr. Justice Frankel concurred. So in my view, this is a decision by the
highest justice in British Columbia. My family deserve more than what we got, much more. I think
ALL British Columbians do also, they are funding this travesty of justice, and, how many others?
P. 23 Chief Justice Finch says “Mr. Smith now concedes, correctly, that his third party notice did not
set out a cause of action. His grounds of appeal are not precisely articulated in his factum and his oral
submissions were unfocused. However, as I understand his submissions, he alleges three grounds of
appeal. First he argues that the Master (McCallum) erred in refusing to adjourn the application to
strike his third party notice in order to obtain “evidence” on discovery of Mr. Stevenson to be adduced
on the application and the chambers judge (Nielsen) ought to have allowed his appeal on that ground.
Second, he contends that the chambers judge (Nielsen) erred in failing to consider his “Amended
Statement of Counterclaim”, which he says he intended to be an amendment to his third party notice.
and that it sets out a reasonable cause of action against Mr. Rusk for damages for abuse of process.
(As did my original Third party Notice, see below, Chief Justice Finch ignores the main reasons)
O.K., mia culpa, I MAY have said “Evidence” instead of “Facts”. NOTHING should turn on that in
any “justice system”. I don't believe that I EVER conceded that my original third party notice did not
set out a cause of action. If I said it, I misspoke. I did concede it was “deficient”, the need to amend it.
The rules of court allow you to amend your pleadings once, without requiring leave of the court,
-3and further amendments with leave. McCallum and Nielsen denied me both opportunities. Sorry about
“inarticulate”, “unfocused”. I could only afford grade 12. Underestimate my “focus” at your peril.
Over almost three years, after multiple refusals to permit my lawful examination of Mr. Stevenson;
after three Certificates of Non Appearance, all filed with the court; after multiple refusals of Mr. Rusk
to attend examinations, or respond to Notices to Admit, or to produce specific extremely relevant
documents, or permit access to original documents, all as is required by law, in complete frustration I
applied to Justice Dorgan to enforce rules of court that should NEVER require expensive applications. I
received orders from Justice Dorgan that Stevenson produce a further list documents by August 31,
2007, and a court order that Stevenson be examined, to be represented by Mr. Nicholas Mosky, on
September 17, 2007, having had the opportunity to review those documents prior to the EFD. This,
Chief Justice Finch, was the natural course of justice, NOT your version. I continue to pay for yours!
Instead, in ongoing breach of court rules, and in complete contempt for Justice Dorgan's Orders and
“clear intentions” (as Justice Nielsen rightly determined (Page 31, Lines 1-3)), Rusk, and/or the
LSBC/LIF apparently “instructed” Ms. Wood (Page 30, lines 1-2.) to advance the hearing date set for
October 1, 2007, to August 29, 2007, for the purposes of defeating court rules and every order and
intention of Justice Dorgan. Therefore, if only for the same absolutely ludicrous reason Justice
Nielsen found Rusk “innocent” because he was “authorized” by his client, Stevenson, we should
know who “instructed” Ms. Wood to make an early application to McCallum. I hope you see why the
only word in my vocabulary for what is happening to my family here in British Columbia, that would
not happen to your families, “honourable” justices, is.... Bullshit! I do not apologize for this language.
Whatever the BCCA says, the conduct of the LSBC/LIF/Rusk/Wood and Giri/Mosky was subversion
of Justice. And, thanks to the BCCA, cost my family some $40,000 in further losses. The loss of
FACTS to be gained from documents and examinations for discovery of both defendants, that would
have seen my pleadings perfected, also lost us a legitimate defendant, Stevenson, who should still be a
defendant in this case, if only for the same reasons the BCCA has rejoined Rusk. When the trial
proceeds against Rusk, has his defence now been made by Justice Nielsen, “it was Stevenson”, not me?
Stevenson had assets, Rusk apparently nothing. At what future cost to my family is that “fact”, Mr.
Chief Justice Finch? The actions of the LSBC/Rusk/Wood and Giri/Mosky and Master
McCallum, prevented a trial set for January of 2008, a jury trial, from proceeding, on all the facts, all
the documents, all the testimony, and with all the defendants, just like it is supposed to be? These are
the inarguable FACTS, subverted by all of the above.
That the BCCA finds this acceptable conduct, particularly in light of R. v. Wijesinha, in my view,
makes justices of the BCCA co-conspirator's in a subversion of justice. As a result of their decision
to allow orders for costs against me to stand, rather than find fault with Rusk/Wood/Bolan and Giri and
Mosky, and McCallum/Nielsen, I am now bankrupt, unable to provide security for costs sought, and
awarded to, the perpetrators and subverters of justice, likely on the basis of the courts erroneous
decisions.
But, back to my original Third Party Notice, that Master McCallum apparently never even bothered to
look at in his hurry to strike my pleadings. Unbelievable! The original Notice, as reviewed by Justice
Nielsen at page 3 of her decision describes in part:
“As a result of the Third Party by counterclaim (Rusk) filing an improper and/or falsified Builders Lien,
the Defendant claims the following losses, damages, costs, interest.
-41.
2.
3.
4.
5.
6.
7.
Income tax implications in order to provide a wrongfully inflated Security for costs. $19,843.42.
Interest on lines of credit in order to provide a wrongfully inflated Security for Costs. $2,606.17
General Damages
Punitive Damages for Abuse of Process
Special Costs, in the alternative, costs
Compound interest, in the alternative
Such further and other relief as this honourable court may seem just
Justice Nielsen, without even commenting on my claimed Abuse of Process, which either an improper
or a falsified lien clearly is, apparently found initially that a cause of action did exist, on the admittedly
incomplete “facts” of my Third Party Notice, facts I expected to be permitted to obtain by lawful
compliance with document production, perhaps even multiple EFD's, and Notices To Admit. This
depending, of course, on the extent of the ongoing and unlawful, non-compliance of Rusk, Stevenson,
Wood/Bolan. In short, I relied on the decision of Justice Dorgan, never expecting the lies told by
Wood, Giri, or both. Confident a master would never overturn the wishes of a Supreme Court Justice,
I appeared without any materials whatsoever. My mistake to expect lawyers to tell the truth.
On the subject of “abuse of process”, I submit an excerpt from Grainger v. Hill from Fleming on Torts
P.4 “....... (per Tindall C.J.) “It is an action for abusing the process of law, by employing it to extort
property to which the defendants had no right: that is of itself a sufficent cause of action.”
Master McCallum never considered this cause of action from my original Third Party Notice, and
neither did Justice Nielsen despite nine references to “abuse of process” within the proceedings, plus
her summary of that original Third Party Notice in her “Reasons”. Inexplicable” and
“Incomprehensible”, in my view, “Reprehensible” conduct. Pretty clear, everyone in “justice” is
protecting each other, start to finish. Absolutely disgraceful! “Master McCallum is a terrific guy,
Justice Nielsen is one of us now. The LSBC/LIF has no duty to protect the public, the lawyers are all
angels, laws, court rules, and court orders are for mere mortals, hey, why don't we all go for a beer?”
At page 25 of Proceedings, Lines 31 to 44.
THE COURT : (Justice Nielsen) “…..... what Mr. Smith is basically saying, as I understand him, is
he ended up losing money because of a false builder's lien. He had to spend money because of that
false builder's lien. Now if you take the pleadings as true (as she MUST) on an application like this,
and as I say I think perhaps that reveals a claim (sic? “Chain”? my comment) of thought.. you let me
know if you disagree with that.. and a loss as a result of that fraud. What's deficient? I'd like you to be
a little more specific.”
Further at Page 27 of Proceedings, Lines 10-18
THE COURT: Well, I suggested that that could be read as fraud. What do you say to that?
Ms. Wood: “I think that is a very generous reading of this third party notice. Mr. Smith's claim against
Mr. Rusk is based on Mr. Smith being wronged somehow by Mr. Rusk's acting for Mr. Stevenson, with
Mr. Stevenson's authority at all times. I don't think this supports a fraud claim, in terms of the way it is
pleaded......”.
-5A number of issues raised here.
Firstly, Justice Nielsen correctly identified fraud and damages from fraud as a sustainable cause of
action. Twice. How could it not be?
Secondly, Ms. Wood outright lied to Justice Nielsen about who the “authority” was. Ms. Wood had
previously been provided with a transcript for discovery, from July 5, 2005. Stevenson, being
questioned on the basis of his lien amount he claimed, and specifically payments that had been made by
me, was interrupted by RUSK, saying “this is me now, my client is out of it”, referring to an e-mail I
had sent RUSK, advising of some $29,000+ that had been paid directly to Stevenson's suppliers just 3
days after Stevenson's contract termination, and a week before RUSK filed the lien. That letter also
requested that RUSK credit those payments, “before you file your lien”. He did not, and the lien was
filed in an amount four times the lawful amount. Thanks now to Rusk/wood/LSBC/LIF and
Giri/Mosky, McCallum, Justice Masuhara we may never know how much more.
Thirdly, it is an absolutely ludicrous proposition, and would be a terrible precedent, if lawyers were
permitted to commit fraud on the “authority” of their clients. Anybody got case law supporting Ms.
Wood's “suggestion”, completely adopted by Justice Nielsen?
Fourthly, I'm not sure where it is (I write this from Mexico without access to 7 boxes of documents),
but there's a Canon of Ethics covering this that says something to the effect that “a lawyer must not
commit fraud even on the insistence of his client, his only recourse is to withdraw his representation,
without explanation to the court as to the reason. Something like that. If you doubt it.... I'll get it.
Fifthly, but this is where Justice Nielsen really went off the rails of the “natural course of justice”, in
her decision, without any “evidence”, ignoring what she had identified correctly as a claim in fraud if it
was taken as true, as she must, instead she adopted Ms. Wood's lie, that Mr. Rusk was forgiven all
because he was acting under the “authority” of Stevenson. Justice Nielsen forgives Rusk his sins,
blames Stevenson, further penalizes my family in costs and grief, and gets promoted to the BCCA.
From paragraphs (16) and (20) of her Reasons For Judgment. I will cover this Misconduct/Subversion
in more detail separately. “Fraud unravels everything” May v. Platt. Subversion of justice, even more.
I only digress to Justice Nielsen at this time, to refute the statement of Chief Justice Finch at P(23)
that: “Mr. Smith now concedes, correctly, that his third party notice did not set out a cause of action”, I
believe it did. So did Justice Nielsen, correctly, but against Stevenson, wrongly, but that should have
been a complete non-issue..... if only for the deceit of Rusk, Wood/LSBC/LIF, Giri, and Mosky.
Furthermore, in completely dismissing my claims in fraud and damages from that fraud, and abuse of
process alleged in my original third party notice, neither McCallum, Justice Nielsen, nor the BCCA
commented on the connection between “an improper and/or falsified lien” and “Punitive damages for
abuse of process”, as described in Grainger v. Hill. And most certainly, Master McCallum did not.
While on the subject of “abuse of process”, I submit an excerpt from Grainger v. Hill From Fleming on
Torts, 6th ed. (1983), at page 589:
P.4 “....... (per Tindall C.J.) “It is an action for abusing the process of law, by employing it to extort
property to which the defendants had no right: that is of itself a sufficient cause of action.” What
seems absolutely definitive, Master McCallum never considered this cause of action from my original
-6Third Party Notice, and neither did Justice Nielsen despite nine references to “abuse of process”
within the proceedings, and her summary of that original Third Party Notice in her “Reasons”.
Inexplicable” and “Incomprehensible”. Pretty clear, everyone in “Just Us” is protecting each other,
start to finish. Absolutely disgraceful, and the BCCA sustains costs against my family on these “facts”!
Although, putting the contemptuous timing of Rusk/Wood/LSBC/LIF, Giri/Mosky application aside,
I am sure the BCCA justices are well aware of the options that were available to McCallum and
Nielsen, the curiosity is why they never even considered them. But let's look at Ms. Wood's case law,
provided to me amongst 71 pages of case law, two minutes before the hearing before McCallum.
Wayneroy Holdings Ltd. v. British Columbia 2002 BCSC 15
This plaintiff had filed its fourth Amended Statement Of Claim, so multiple amendments are
apparently not unheard of, common I expect, particularly after document production and EFD's. The
interesting part, is at Para.13 listing “Factors to be considered in the “plain and obvious” rule include,
but are not limited to: (1) whether there is a case to be tried regardless of the complexity or novelty; (2)
whether the outcome of the trial is beyond a reasonable doubt; (3)Whether serious questions of law or
questions of general importance are raised or if facts should be known before rights are decided; (4)
Whether the pleadings can be amended; and (5) whether there is an abuse of process.” (my emphasis)
As another relevant aside, the above listing was read in before Justice Nielsen at page 7 line 38 to page
9 line 7. So, amendment of pleadings, and the many options available to her rather than just striking
my pleading, was squarely before Justice Nielsen. “Pleadings”, and “pleading amendments”, being
mentioned 34 times in 90 minutes of submissions. Additionally, my filed application to amend my
pleadings was before her, set down by Notice of Motion and Affidavit #9, for the same time and date,
but not heard. Why? Copies of these documents, filed in Victoria Registry on September 24, 2007
were delivered, by me, by hand, on the suggestion of the Nanaimo Registry, the day before the hearing,
just in case the three boxes of court files were not transferred to Nanaimo by my Praecipe as hoped.
It seems to me that the above “Rule”, “Factors to be considered”....is to be applied by masters and
justices to what has been described as a “draconian” decision to strike pleadings at an early stage of the
litigation as was done by the courts herein. All of the “factors” identified above apply to this case, yet
were completely ignored by the lower courts. LESSON: Rules do not apply to lawyers and judges.
Critical issues herein, “(3) Whether serious questions of law or questions of general importance are
raised or if “facts” should be known before rights are decided” and “whether pleadings can be
amended.”
I think most British Columbians would agree, whether or not lawyers are knowingly filing false liens,
committing fraud, blackmail and extortion to enforce those liens, are VERY serious “questions of law
and general importance”. Are suppression of evidence, oppression, and contempt of court orders very
“serious questions of law and general importance”? Orders of magnitude more importantly, are the
Law Society of British Columbia and their staff, along with other lawyers, subverting the natural
course of justice, in contempt of specific court orders, using a venue funded by every taxpayer in the
province? Is the complete failure of the LSBC statute mandated duty under The Legal Profession
Act “To protect the public”, of “general importance”? According to the B.C. Courts. “NO”!
Further in s. (3)... if in fact, permissible “facts”, as opposed to the BCCA's semantics,
-7non-permissible “evidence”, were supposed to be revealed by document production, examinations of
both defendants Stevenson and Rusk and by their responses to Rule compliant Notices to Admit,
among other areas as confirmed by Rule 7 of The Supreme Court rules, “Procedures for Ascertaining
Facts “, and, before my rights were decided, then my rights were most definitely subverted. And, they
were, egregiously. Is this a Charter of Rights issue? Also critical considerations, (4) Whether the
pleadings can be amended; and (5) whether there is an abuse of process. Is that not ALL of sufficient
“general importance” to the public? Short of child molestation, rape and murder, most definitely “yes”!
Good spot to re-introduce the “The Lawless Society of British Columbia”, who, hypocrites that they
are, have adopted “Smith v. Rusk 2009 BCCA 96” as part of their Builders Liens Checklist. (Appeal
Book #1, pages c and d, para. 2.5) and I quote:
“........Be wary of accepting instructions to file a lien where there is no entitlement, where the
lien is clearly out of time, or where the amount claimed is clearly exaggerated. Professional
Conduct Handbook Chapter 1, Rule 1 and Chapter 8, Rule 1: See also Smith v. Rusk, 2009
BCCA 96) Note the liability and offence provisions in Builders Lien Act, ss. 19 and case law on
the tort of abuse of process.”, Chief Justice Finch, even the fraudsters at the LSBC got it right.
To that I would add, read S.2 of The Builders Lien Act. In a few sentences it defines what can be
included in a lawful claim of builders lien. Also, read the entire Continuing Legal Education Guide
to Builders Liens, (Lawyers guide) as I have, in particular Chapter 12, “Solicitor's Liability”.
Justice Nielsen, in particular, should read this too, because, completely contrary to her finding, there
are transcripts from Examinations For Discovery, that were provided to the Law Society, wherein Mr.
Rusk stated, with regard to who was responsible for the construction of the lien, and Mr. Rusk
proclaimed, “This is me now, my client is out of it”. Appeal Book #2, Page 40(98).
Furthermore, Mr. Rusk himself, Ms. Wood and Mr. Bolan, the first two of three lawyers representing
Mr. Rusk, so far, if you don't count Menaka Giri and Nicholas Mosky (And I do), were well aware of,
and had a copy of this transcript, when they falsely submitted the fiction to the court that Rusk was
acting on the authority of Stevenson, when it was clearly, in actual “fact”, the other way around.
Ontario Industrial Loan v. Lindsey et al [1883] On O.J. No. 263, 4 O.R. 473 OHC P.32
P. 32 “In regard to Mr. Caston (lawyer) it is clear on the evidence that he advised the step that was
taken, and prepared the paper and procured its registration. P.34 “....The rule being that an agent is
personally liable to third parties for doing something he ought not to have done.... And to torts the
principle of agency does not apply: each wrongdoer is a principal. This has been expressed by saying
that the law does not recognize the relation of principal and agent as existing amongst wrongdoers.”
Two issues for the court. Firstly, should my authority on “Agency” above not be sustainable, in any
event, Justice Nielsen should not be dismissing claims under Rule 19(24) in reliance on “materials”, or
evidence, developed over three years at the time, facts and evidence she can know little, if anything,
about. Well documented facts which contradict her findings..... but, too late? Therein lies the mischief
of decisions made on less than all the “facts” particularly unsupported erroneous “facts”. I believe that
is the purpose of trials, after document production, examinations, Notices to Admit, particulars?
P(24) Chief Justice Finch says, “Mr. Smith's preoccupation with the circumstances surrounding the
master's striking out his third party notice before he could examine Mr. Stevensotn for discovery is
-8misguided. Rule 19(27) provides that no evidence is admissible on an application under Rule
19(24)(a). (it is under (b) and (c). In such an application, the facts alleged in the impugned pleading
are assumed to be true and the inquiry is whether, if proven, they establish a cause of action in law.”
No, if I was “misguided”, Justice Dorgan was misguided also, but she was not. Her orders and
intentions were not appealed, the “natural course of justice”, they were subverted. Chief Justice
Finch your statement at P.24 is “Incomprehensible” and “Inexplicable”. As I understand it, “Facts”
are something that must be proved in “evidence”, therefore if I gained either “evidence” or “facts”,
firstly from document production, then EFD, as ordered, it would support “facts” for perfecting my
Third Party Notice. In this matter, I think Justice Dorgan is much smarter than you, but in any case it
was not for Master McCallum to look behind her order and intentions, nor Justice Nielsen, nor the
BCCA unless her order and intentions were appealed by Rusk. Furthermore, explain your semantics
regarding “evidence v. facts” if only because, The Supreme Court Rule subverted by Rusk et al, is not
titled Procedures for Obtaining Evidence, it is titled:
Procedures for Ascertaining Facts
Rule 7 Document Production
P10 - Party may demand documents required under this rule and as ordered by Madam Justice
Dorgan on August 10, 2007. (Outright refusal by Rusk/Stevenson, non-responsive from Leanne Wood,
Christopher Bolan. Nicholas Mosky/Menaka Giri maintained specific documents did not exist, that
must have existed at the time, if they were not intentionally destroyed.
P11 (a-f) - Party may demand additional documents. Same result, refused
P12 (a-c) - Response to demand for documents. Same result.
P15 - Inspection of documents. Outright refusal by Mr. Rusk despite requests, then threats.
RULE 7-2 – Examinations
P(1) Examinations of parties and; Multiple refusals to attend. Three Certificates of nonappearance, filed with the court.
RULE 7-7 – Admissions – Rusk/Stevenson Notices to Admit replies completely ignored substance.
P(3) (a) and (b) – Considerations of the court.
P. (26) Chief Justice Finch: “Thus the master (McCallum) did not err in refusing an adjournment, not
because Mr. Smith could not have obtained useful “evidence” from Mr. Stevenson, as the chambers
judge (Nielsen) found, but because the absence of Mr. Stevenson's “evidence” was immaterial. It
follows that Mr. Smith's allegations of impropriety by Mr. Rusk's counsel in setting the hearing in
advance of the examination of Mr. Stevenson are unfounded.” (my highlighting, quotation marks) What
is “unfounded” is the decision of the Chief Justice, yet another “incomprehensible” and
-9“Inexplicable” decision. Chief Justice, for what other purpose is a defendant allowed to examine a
plaintiff, any time after just 30 days elapse from filing his Statement of Defence, if not to identify
“facts” that support a possible counterclaim, especially with both a “principal” and his “agent” as
possible defendants by counterclaim? Do you not think who did what might be relevant to pleadings?
Chief Justice Finch, If only based on Wayneroy and Supreme Court Rule Rule 7 above, your opinion
that the document production and the examination ordered by Madam Justice Dorgan would not have
provided useful “facts”, facts that would have seen my pleadings perfected far beyond those which you
have already found acceptable to maintain a cause of action, is not sustainable. Rusk/LSBC/LIF/Wood,
and Giri and Mosky, in contempt of court orders and intentions, is an extremely serious subversion of
justice, now condoned by you. Additionally, what you suggest defies common sense and suggests that
there is no possibility of obtaining “facts” in accordance with Rule 7. So why don't we just strike that
rule?
Rule compliant document production, examinations, and Notices to Admit, would also have seen
amended pleadings filed prior to Mr. Rusk making his application to strike my cause of action, exactly
as intended by Madam Justice Dorgan. Had that happened, the natural course of justice, even Rusk
would have had to admit the futility of even trying to strike my cause of action. The appearances
before McCallum, Nielsen, and the BCCA avoided, as they were doomed to fail from the beginning.
Instead, because of the deceit of Harold Rusk, Leanne Wood and the LSBC/LIF, Menaka Giri, and
Nicholas Mosky, their outright contempt of court orders, I have huge costs lost to me and costs
awarded against my family, allowed to stand by YOUR court. Now the courts have a problem.
Misconduct, and subversion of justice. My family, the only innocent party in this entire matter is
unjustly further impoverished, the guilty parties unjustly enriched. Absent their treachery, this matter
would have gone to trial in January 2008, as scheduled, with both Rusk and Stevenson in attendance, so
don't you dare tell me that the timing of their application was unimportant, it was critical to them in
defeating the natural course of justice. This is inarguable.
Chief Justice Finch, compare R. v. Wijesinha and Finney v. Barreau with the conduct of The
LSBC/LIF via their agents Leanne Wood/Christopher Bolan, Wood's client Mr. Harold Rusk (who was
likely the one that she testified “instructed” her, if not the LSBC/LIF themselves, to change the date of
“Rusk's” Application to BEFORE the examination of his former client and co-defendant. This timing
rather than AFTER Stevenson's examination as, prior to my success before Justice Dorgan, agreed with
Ms. Wood. Who instructed who? This needs to be decided at trial, a trial by JURY with all the lawful
defendants in attendance.... the courts have defaulted on their sworn duty of impartiality, stand aside.
Clearly, Justice Dorgan's orders and intentions, and the pending examination of Stevenson brought
panic into the enemy camp. Also consider that the evidence absolutely confirms, that either Ms.
Menaka Giri lied to Ms. Wood, or Ms. Wood lied to the court, or they both lied. That “fact” is not
arguable. There are no other possibilities from the transcripts. Why are you defending and rewarding
the perpetrators, and further penalizing their victims? I believe it is the mistaken belief that the way to
“maintain the integrity of the justice system and the public trust” is by burying absolutely reprehensible
conduct of lawyers and justices under the table, impoverishing innocent parties that have what should
be, an easily sustainable cause of action. To “maintain integrity”, first you must have to have it. I do.
Without much hope of success, I expect the office of the Attorney General, the Supreme Court of
Canada, The Canadian Judicial Counsel and/or The British Columbia Judicial counsel to answer these
questions and bring some justice to this matter. Pursuing “the natural course of justice” for eight years,
-10pursuing the orders and intentions of Justice Dorgan, pursuing compliance with the rules of court, has
cost my family around $250,000, so far. Due to the deceit of lawyers, the LSBC/LIF, and the extreme
bias/misconduct of justices, costs have been awarded against my family, in favour of Rusk, the
fraudster, blackmailer and extortionist, who clearly holds court rules and even court orders, in contempt.
I have a few more cases now, with more later, that are relevant herein. Bellan v. Curtis at Page 37 of
my Case Law and authorities. Except for “particulars” the principles mirror the preceding cases herein.
Particulars were at all times the right of Rusk, Wood, and Bolan and the LSBC/LIF to demand of me if
they didn't understand the case to be met. Master McCallum and Justice Nielsen had the authority to
order I provide particulars, if they chose to. Fact is, Rusk, Wood, LSBC/LIF already had the particulars
via my complaint filed with the LSBC in 2005. The last thing they wanted, were particulars on the
court record, and thus the early application to subvert the well reasoned orders and intentions of
Madam Justice Dorgan.
In addition according to Skogstad v. The Law Society of British Columbia, the society has the right,
endorsed by the S.C.C. in Finney v, Barreau which said in part. “Proper regulation by the Law
Society of the competence and integrity of lawyers requires access to confidential, and occasionally
privileged information, such as client instructions.”
Herein, and contrary to Finney, the Law Society has completely defaulted on its duty to protect the
public most recently determining, without authority, that this matter is to be dealt with by the courts.
c.
Conclusion
P. (37) Chief Justice Finch - The test to be met by an applicant for an order to strike out an opponent's
pleading is a very stringent one, Madam Justice McLachlin described in McNaughton v. Baker at 25:
(Not according to Master McCallum and Justice Nielsen who both erred in striking my pleading, who
both awarded costs against my family, some as special costs, solely for daring to advance a case against
a lawyer, Harold J. Rusk, an “officer of the court and a minister of justice”, who really should be in jail.
Then the BCCA upheld their right to further abuse me and my family, and penalize us in costs when
special costs should have been awarded in our favour, including the costs of the BCCA hearing. This is
just more of the same, McCallam defending Rusk, Nielsen defending McCallum, Rusk, Wood, Bolan,
Giri, and Mosky, Chief Justice Finch defending them all. Misconduct and subversion of Justice on a
grand scale.
So what were McCallum, Nielsen, and then the BCCA particularly, thinking at P.24? Madam Justice
Dorgan understood this completely when she ordered exactly what the rules of court prescribe,
document production followed by an examination, which can be followed by further document
production if necessary, and a further examination, and Notices to Admit. A defendant must answer all
questions put to him, even those subject to privilege according to the Supreme Court of Canada, who
at p.64 of R. v. Wijesinha, “Communications made in order to facilitate the commission of a crime
will not be confidential either, regardless of whether the lawyer was acting in good faith.” This is
contrary to the finding of Justice Nielsen. Any party to be examined must answer questions that only
may relate to the matter. Even in potential criminal matters, as herein, although he may take the
protection of the Canada Evidence Act, he must still answer the questions in the civil matter, although
as I understand it those answers cannot be then used against him in a criminal trial
-11-
A review of the Proceedings before Madam Justice Nielsen and her Reasons will follow shortly, then a
review of Proceedings before Master McCallum and his Reasons. This will be followed by the Law
Society of British Columbia/Leanne Wood/Christopher Bolan, Menaka Giri/Nicholas Mosky.
Followed again by Justice Masuhara and the decision of Justice Dorgan to preclude The Law Society of
British Columbia/LIF from being joined to this matter. Then, Registrar Bouck who denied recovery of
costs on Stevenson's Notice of Discontinuance, FIVE years ago, supported on my appeal to Justice
Dorgan! And, lastly, for now, damages due to the failure of my own lawyer William Southward, who
chose loyalty to a fellow lawyer, rather than to provide his undivided loyalty to his client, completely
contrary to his Canons of Legal Ethics. Mr. Southward is represented, by Mr. Timothy Hinkson and,
guess who? The LSBC/LIF, what a surprise! Apparently to some lawyers and the LSBC, a Code of
Ethics and Rules of Court, are meaningless.
Cute joke, except it may be true: “The only thing wrong with lawyers is that 98% of them give the rest
a bad name”. “Maintaining (?) public trust in the integrity of the system”? Give me a break!
These “reviews” should shed much more light on matters of culpability for abuse of process, malicious
prosecution, contempt, conspiracy, oppression, misconduct and subversion of the natural course of
justice. These reviews will hopefully prompt a full investigation by the Canadian Judicial
Counsel/British Columbia Judicial counsel, and the Office of The Attorney General. For my part, I
intend to ask The Supreme Court of Canada to hear all the seriously flawed British Columbia court's
decisions, and finally bring some justice for the victims of this matter, just as soon as I can afford it.
Lots of extremely serious allegations here that will be widely distributed to the media, a clear case of
libel and slander........ if, it wasn't all true.
Summary:
- Mr. Harold J. Rusk and Mr. Gerry Stevenson are in fact, fraudsters, blackmailers, and extortionists.
- H. Rusk/LSBC/LIF/L. Wood/C. Bolan, M. Giri and N. Mosky subverted justice.
- My original Third Party Notice disclosed a triable cause of action, fraud/abuse of process.
- All three courts failed to identify any actual “Radical Defect” in that Third Party Notice.
- The courts had many options before choosing to strike my claim, as described in Wayneroy.
- Extreme bias, led to misconduct, which led to subversion of justice by lawyers and the courts.
.
Most Sincerely,
Robert Grant Smith
svpantera@yahoo.com
-12-
Copied to: (Initially)
BCCA Registry – for distribution to the named BCCA Justices
BCSC Trial Co-ordinator for Justice Dorgan, Justice Masuhara, Master McCallum, Registrar Bouck.
Canadian Judicial Counsel
British Columbia Judicial Counsel
Supreme Court of Canada
Attorney General for British Columbia
Leonard Krog – Attorney General critic
Mark Andrews – Special Prosecutor
Saanich Police Department - Financial Crimes
Crown Counsel
Law Society of British Columbia – Attn: The president/Graeme Kierstead/Ms Lynne Knights
David McCartney
Victoria times Colonist
CBC News W-5
Peter Warren
Ombudsperson for British Columbia
Harold Rusk
Leanne Wood
Menaka Giri
Nicholas Mosky
Christopher Bolan
Michael Armstrong
James MacInnes
Douglas Thompson
Leslie Slater
William Southward
Timothy Hinkson
Please confirm receipt in writing to the above e-mail address, absent which I will proceed without
further notice.