Opening Statement



Thursday, 7 November 2013

Ask Angelo Follow Up: An OECTA Questions Template!

UNDER CONSTRUCTION!!!



Dear guest bloggers!

I am posting your latest submission now, as is, for the next 12 hours, due to its timely importance. However, as I have repeatedly warned, any highlighting or use of colour or alteration of text will not post correctly on my blogsite. You will need to resubmit this, with the problems as quite visibly seen below fixed asap, so we can get on with the requested task before it is too late. Your co-operation is much appreciated, I am sure, by all of us at this site!

See Below!!!!!!!!

Hello Readers!

A group of you has gotten together to submit the template below. It has been suggested OECTA members should sign and send a copy to the Provincial PE now during the course of the Richard Brock investigation, asking these questions and requesting a formal response. Many of the points that have been made in the recent Ask Angelo + Legal Considerations blogs have been included. You might choose to edit or focus on just a few, or make up your own that you would like answered too.

As an OECTA member you have a right to ask, and you are entitled to a response. Without a formal request, the PE is not required to take these issues into account as a part of the current proceedings, and all of our dicussions here could, for all intent purposes, add up to nothing but a lot of hot air. Talking the talk is not enough. It is necessary to take a stand and walk the walk too. Many of you have indeed stood up against the bullying within the union, including our own Mr. Brock. Unless others do so it will all be in vain. Please seriously consider the following. You can comment below this blog!

Yours,

David C

See below:

To: All of the OECTA Provincial Executive members,
I have read the comments by “Law Man” on Angelo Ippolito’s Guest Blog @

I find them deserving of careful and due consideration.  I understand that he is not a member of OECTA. I am sending these points made by him, as a member. I have three simple requests.

1.    Please give all the points made in this email careful consideration as you move towards a decision regarding the Richard Brock discipline case and the circumstances surrounding that case.

2.    Please respond if you agree or disagree with each comment Law Man makes.
3.    Please respond with the reason you disagree for each comment that this applies to.

I find the comments below relevant to any deliberation that may lead to a decision in the Richard Brock investigation. Since a member is currently being affected by the verdict of a disputed Discipline Board we respectfully ask for a response before you reach a decision. This would give me the opportunity to respond with any additional, appropriate, and relevant information that may assist as you deliberate on a decision that will have a very serious effect on the life and career of a long lasting member.
My name and email appear at the end of this letter.

Postings from Law Man:
At your September meeting the PE passed a referral motion to set up a Discipline Board. The report on this motion is supposed to come back to you at your December meeting, This was done in public session of that PE meeting and the motion was sent out.

The Discipline Board members must be APPOINTED by by-law for a minimum of three years. Richard Brock had his hearing at the end of August. This motion was passed less than one month later. Actually it was just a few weeks.

You had to do this because there was no constituted and appointed Discipline Board in August when Richard Brock was fired.

There is no way a Board that has the power to fire someone can be put in place without Articles 1.10, 2.51.15, 2.193, and 2.51 in your Handbook being strictly adhered to. They were not.

The four areas where Robert's says motions are NEVER in order then fall into place. This has to happen so the will of the AGM in our Handbook can't be violated. That will was violated.


(Law Man)
.1. At all times the essential question is what the parties intended by the language they used, viewed objectively, in the circumstances in which the agreement was made.

12-043 Intention of the parties. The task of ascertaining the intention of the parties must be approached objectively. The cardinal presumption is that the parties have intended what they have in fact said, so that their words must be construed as they stand. 

12-046 The expression "construction" as applied to a document includes two things: first, the meaning of the words; and, secondly, their legal effect, or the effect which is to be given to them. Construction becomes a question of law as soon as the true meaning of the words in which an instrument has been expressed.

3.2.1 Parol Evidence Rule
As a general rule, where the language of a written contract is clear and unambiguous, then no extrinsic or “parol evidence” will be admitted.

Where a contract is ambiguous, however, and that ambiguity cannot be resolved contextually within the four corners of the contract, the court may suspend the parol evidence rule and allow extrinsic evidence to be admitted.

Where the language in a contract is clear and unambiguous, it alone can be looked at to ascertain the intent of the parties. Where, however the words are ambiguous, in the sense that they are susceptible of more than one meaning, evidence of the surrounding circumstances may be admitted, not to vary, add to, or contradict the terms of the contract, but to ENABLE the Court to read and construe the language in relation to the facts.

3.2.2 Doctrine of Contra Proferentum
Under the doctrine of contra proferentum ("against him who uses them") ambiguous words in a contract are to be interpreted in a way that is less advantageous to a drafting party.

As applied to OECTA. There is no ambiguity because by-laws always supersede procedures. Since by-laws are the enabling words under which a procedure can be implemented, absence of adherence to the by-laws make the procedure invalid. Not to do this would have the effect of having processes implemented without legal authority to do so. Articles 1.10, 2.51.15, 2.193, and 2.51 are not only clear but they support each other in their clarity. We can interpret this as quadra-clear. This creates an unambiguous contract with the members. This contract then has procedures that can only be enacted after these articles are fully complied with. In this case we already have written admission that the four articles were not followed and an implied admission that they were not followed due to the Discipline Board referral motion made at the September Provincial Executive meeting. 

Taking into many other problems with OECTA's case: refusal to share the rules under which the accused would be tried with the accused, not letting witnesses testify, attendance by and participation by employees of the association both in meetings and the trial itself, correspondence with Discipline Board members before they were appointed (they still have not been appointed), having a perceived biased person chairing the hearing, plus much more leaves me no choice but to say that OECTA, based on legal grounds, cannot have their position upheld in a court of law unless they can convince the Annual General Meeting to agree that the PE has the power to disobey the very rules the AGM wrote thus making the Handbook nothing but a collection of pages without authority. If they cannot get the AGM to agree to this, then the supreme authority of the AGM stays, the Handbook is validated as the rules of the AGM, and the Provincial Executive is mandated to follow those rules. Staff as always fall under the authority of the Provincial Executive. Staff can never go contrary to the Constitution, by-laws, and policies of the Association. Staff must always follow procedures but only after the enabling motions following the bylaws have been passed. Staff can never implement a procedure without being authorized by a higher authority,

Sincerely,

Law Man


 Mr Thoth,

I would like to add two questions to your list.

1. Is it true that that Richard Brock's was not given a copy of the rules he would be tried under when he requested them?

2. If a teacher was disciplined to the point of a two year suspension and OECTA found out that the rules required to reach that decision were completely disregarded and someone had set up the disciplinary process without any authority to do this, what would be OECTA's position and what actions would OECTA take?

I suggest that you put these two questions in a letter to the PE with all the other questions you have been asked. Request from them a response and then you will see what happens. You seem like a reasonable person and only want the truth like the rest of us. Ask for it.

Here are the other questions asked of you. Unless you are on the PE you will not be able to answer them. Doesn't it trouble you that these questions have been asked for months but the PE does not answer?

Mr. Thoth, if the chairperson was appointed after the February meeting of the Discipline Board, who chaired the meeting in February?

If it was a retired member, who appointed this person?

If it was not a retired member how is the Discipline Board supposed to be arms length?

Why were there three current workers for OECTA at the arms length meeting?

Who called the six retired members to this February meeting without any authority to do it?

Can an argument be made, that a union person would support, that would allow for the dismissal of a member without due process, all the rules being followed, and due authority being followed?
(Law Man)

Anon wrote:

Could the previous legal expert answer the question- do the Charter rights apply to Richard's tribunal since our Handbook is supposed to comply with the Law of the Land?

Response: I have already laid out much of the legal groundwork and expectations. To your queries, ALL laws of the land take precedence over the Handbook. I can see no legal grounds to support the dismissal of Richard Brock. OECTA has very good lawyers. If James Ryan has the good sense of meeting with them privately with only the elected executive, I am sure they will let him know the truth. OECTA has to be very careful that if strategies are developed to protect an individual or individuals, a cover up will ensue and then untruths will have to be developed to stabilize other untruths and so on and so on. Within the Association this may work but in a court of law it will be shown for what it is. Contempt of court is very serious and it will all be public.

Contract Law is just one area that is pertinent to this case. There is much more.

ie: To say that a meeting took place in February and you appointed the participants to that meeting after the fact (without even a motion to appoint them), would be admitting that someone called them to that February meeting without authority, and that would be torn apart in court. OECTA broke its contract with the members.This is a cross examiners dream and that is only one point. There are fourteen such points that I have found thus far and I have just started looking.

Beware of diversionary tactics. This is what always happens when one party has no case. OECTA will bring up issues and they may be factual but they will not have anything to do with the case. In court they will not be allowed but the members and the PE will be subjected to these diversions before they go to court.

(Law Man)

This what a judge said about Mayor Rob Ford a year ago.

Judge: Ford actions "characterized by ignorance of the law and a lack of diligence...amounting to willful blindness."

So this is what a judge will say in a court case brought by Richard Brock.

Judge (projection): OECTA actions "characterized by ignorance of the law, their own rules and a lack of diligence...amounting to willful blindness and disregard for due process resulting in an unauthorized process leading to unjustified dismissal. Damages to complainant Richard Brock shall be $$$$$$ and his dismissal is reversed effective immediately. OECTA shall pay the complainants legal costs and all court costs. OECTA shall send a copy of this decision to all members of that association."

Law Man. David or Angelo what do you think?

To Anon that projected a judges possible words.

As I see it you will be right or close to it. If you check out my previous posts and others who seem to have a good understanding of the law, there seems to be no way out of this for OECTA. I love the Winston Churchill quote from Angelo.

The truth is incontrovertible. Malice may attack it, ignorance may deride it, but in the end, there it is.
Winston Churchill 

Provincial Executive, you know it and "there it Is". No way around it.

Two more legal points. 

Accepting a report and recommendation from a Discipline Board that never existed is a non-starter in a court of law because such action would mean that the Provincial Executive have delegated the duty to appoint to a staffer. Past practice would have no effect here as it would have to have been widely known among the members and the accused that the four areas of the constitution were not being followed. Secondly, dismissing someone by admitting the rules were not followed doesn't work in a court of law because the contract was broken without due notice. Thirdly, and most impoirtant, you cannot give notice to break a contract without the other side agreeing to it.There is no where in the Handbook that makes this possible. The AGM ONLY gives the right and duty to appoint to the PE. There is no ambiguity here. As I have written earlier it is quadra clear. A lawyer will have no problem having this argument dismissed because if it is not dismissed the PE would have to PROVE that they are a higher authority than the AGM. That is impossible.

It is not the role of the PE to make authorship/contributorship decisions or to arbitrate conflicts related to authorized authorship. ... All contributors (unconstituted Discipline Board) who do not meet the criteria for authorship cannot submit recommendations. The criteria (appointment motion for all six participants) for authorship must be met first. Here the right to authorship is dictated and made mandatory by four articles in the constitution and by-laws of OECTA.

David, I am not a member but you or another member should send this to the PE. Angelo, I understand you have already sent letters to the PE. It should be someone else so the PE know that others have figured this out.

Yours,

Law Man
Angelo wrote:

 Are you a labour lawyer? :)
Response: I leave that to speculation which is inadmissible in court.

More Legal Stuff
OECTA's bylaws are one of the most important, if not the most important, document there is relating to the organization. It contains the legal description of what the organization is, how it is organized and how it operates. More importantly, failure to follow the provisions of the bylaws can have devastating legal consequences for an organization and perhaps even for individual board members.

It is imperative that Board members know what the bylaws say and then work to ensure they are followed by the organization. As mentioned, bylaws are a legal document.

OECTA must ensure that the rights of the members are clearly delineated and that the rights are not being ignored or abused by the board. Boards have been known to have members sue them for violating their rights and/or benefits.
OECTA is one of the thousands of organizations whose bylaws adopt Roberts Rules of Order for the organization, you should understand that when you adopt Roberts, you have just added hundreds of pages of parliamentary minutia to your bylaws. In OECTA it is a constitutional requirement. There is nothing in the Handbook that overrides this in the case of bylaws 2.51.15, 2.193, and 2.51.

Adverse Actions. Boards occasionally face situations that call for adverse actions of some sort, including director or member removal. It is imperative that procedures and  the bylaws specify how such adverse actions will be conducted and how they will incorporate any due process required by your state. Then the organization must follow the bylaws specified. If not followed, bylaws create the basis of a legal challenge to actions taken. In OECTA they were not followed.
Remember that the first document an opposing attorney will ask for when attacking an organization’s actions or decisions are the bylaws. OECTA has found itself caught short by taking actions not in compliance with the bylaws.

OECTA's bylaws constitute legal requirements that cannot be waived or abrogated. They are a legal contract you signed and reaffirm every year with all your members. Yet you broke that contract.
(Law Man)

 I wrote: OECTA's bylaws constitute legal requirements that cannot be waived or abrogated. They are a legal contract you signed and reaffirm every year with all your members. Yet you broke that contract.

When James Ryan wrote the letter to COP he stated that it is legal counsel's "belief" that by accepting the report from the February meeting of a non-constituted group that group became constituted.

Well, legally this makes no sense. If the Executive makes this argument in court they will have to admit that an unauthorized person appointed the participants to that February meeting. Once this occurs that meeting would be declared invalid and EVERYTHING they did at that meeting would be have no legal weight. The Executive, can't before or after the fact, delegate their duties under 1.10, 2.51.15, 2.193, and 2.51. It is very simply not allowed. 

Note that in the letter James sent to the COP he does not say that the Provincial Executive agrees with this "belief". In a court of law it could not stand because it would require that OECTA take a position where any staff person can call a meeting in direct opposition to the by-laws and it would sanctioned. That would make the Board of Directors (the PE) subordinate to staff. This, legally, is impossible under OECTA's own rules.

Angelo wrote a response where he explained how a report and legal opinion was ruled out of order by the delegates of the AGM. The AGM sent a message. It was, "follow the rules to procure any report or the report does not exist." The basis for this lies in line of authority. You cannot proceed with an action if that action is in non-compliance with the direct orders of a higher authority. Here the direct orders are found in 1.10, 2.51.15, 2.193, and 2.51. Ignorance is not a valid legal argument. The PE cannot say that they broke the contract because they were not aware of their duties under 1.10, 2.51.15, 2.193, and 2.51.

That being said, justice must always be fair, unbiased, follow due process, and respect ALL contractual agreements. I have now found 34 areas in this case where these legal requirements and others were not met. I have already stated many of them. OECTA's legal counsel has probably found more.

A staff person represented the complainants at the August hearing. If that hearing was audio taped it will also come out. Beware, words can be devastating when they are presented in a court of law. I hope everyone was very careful if that hearing was taped. Staff is especially vulnerable depending on what was said.

What does the letter calling the six participants to the February meeting say about their appointment when we already know, in writing, they were never appointed? Who signed/sent this notification letter? Who authorized the sending of notice to meet in February? What effect does this have on the arms length requirement? There are hundreds of questions like this as you move through the case.

Stay tuned. There is more to come.

Law Man
Dear Anonymous,

My responses follow your questions.
Q. When the PE became aware that 1.10, 2.51.15, 2.193, and 2.51 were not complied with what legal responsibility fell on them to act?

A. Under 2.51 they are legally required to act in accordance with the Handbook. Once they found out, they would have had to take measures to make sure they were all followed, Since they were not everything that came afterwards, would have had to be declared invalid. Not doing this put them in non-compliance with 1.10, 2.51.15, 2.193, and 2.51.
Q. Three members of the PE including the current president were witnesses on Richard Brock's defense who were not given the opportunity to testify at the August hearing. In court they have to tell the truth. What happens when the testify?

A. Since they were witnesses for the defense it can't be helpful to the OECTA case.
Q. If it is found that appointments were made by a staff person in non-compliance to the by-laws for any meeting what consequences could that staff person face?
A,  As board of directors, the PE would need to determine this. Since their own authority and the authority of the AGM would be on the line, they would need to take this very seriously. It also would open up a personal law suit against such a staff member.

Q. Is OECTA liable for insubordinate actions by a staff person?
A. Yes because the PE are legally required to know the bylaws and follow them. Ignorance is ignorant and it works against the Association. A good lawyer would never put an argument of ignorance especially when there are nine people on the elected PE plus the General Secretary and the Deputy General Secretary who are all required to know the rules.

Q. If the Provincial Executive say that past practice is being followed and that Discipline Board was not appointed by motion for a long time, will this stand up in court? It is my understanding that past practice must be well known and in this case it was not. It is also my understanding that an illegal practice cannot be used to discipline and remove someone from office no matter what. Am I correct?
A. You are correct. Past practice has no legal weight in this case for the two reasons you mention. In addition not following the law for a time does not mean you can still decide not follow the law. You may speed in your car for many years and never get caught but when you do you can't say that you have been doing this for years and never had a problem so now it is OK. It just does not hold legal weight especially when not following the rules results in a such a serious verdict. A court of law will not give this any credence at all.

Q. If the by-laws are a contract with the members, whose duty is it to make sure that contract is followed?
A. It is the legal duty of the PE.

I hope this helps.Law Man
Anonymous wrote: 

For one point, I disagree with you about past practice. If there was a long standing practice where the PE and the members knew the bylaws were not being followed, then the non-appointment of the discipline board would be accepted in a court of law.

Response: You are 100% legally incorrect. First of all it was not well known by the members. I am not sure about the PE. But imagine the PE knowingly not following the bylaws. That would make the OECTA case even weaker than it already it is.

However those are not the most pertinent points.

First the bylaws are a contract with all the members. Therefore it was and is a contract with Richard Brock. In a normal contract it could only be changed by mutual consent. The GS would have to had informed Richard Brock that the bylaws were not being followed and Mr. Brock would have had to agree to this, if this was a normal contract but it isn't. See article 2.1. in this case ONLY the AGM can make changes to the contractual requirements found in the bylaws, So, legally everyone is bound by the clear and unambiguous words in 1.10, 2.51.15, 2.193, and 2.51. Past practice cannot be relied on as justification for breaking the law.

A secret past practice would be used against OECTA with great effect if it went to court. That would amount to breaking the law with knowledge and intent. The award to Richard Brock just increased dramatically and every Provincial Executive would probably lose their next election if this came out.

Law Man


The PE is required to know the scope of the corporation's mandate, as defined by its corporate documents, and that the corporation is required to restrict its activities to that mandate. Directors are not allowed to act in noncompliance with these documents.

The PE is required to know in what specific ways liability may arise for claims of injurious conduct. They are required to know that negligent mismanagement can result in legal actions arising out of non-compliance with bylaws.

Has a review been prepared, either internally or though seeking external legal advice, identifying regulatory and internal requirements that the corporation is required to meet?

Questions the PE should ask themselves.

Do the organization's current activities reflect its corporate objectives as set out in its incorporating documents and duly passed bylaws?

Does the corporation carry out its obligations under the corporate bylaws?

Does the board have a process for authorizing procedures entered into by the corporation?

Is the corporation fulfilling all of its statutory obligations, such as filing mandatory reports and ensuring that reports that are received have followed the obligatory authorization?

If the corporation is non profit, is it taking precautions to ensure the proper investment of funds and not putting the corporation at financial risk?

Is it complying with applicable laws regulating its activities?

When I am unable to attend a board meeting, do I read the minutes of the meeting and voice any concerns I may have?

Do I voice my opposition to matters that I disagree with and make sure that my objections are recorded in the minutes of the meeting?
Have I read and understood the corporation's constitution or letters patent and bylaws and follow the mandate?

Do I understand all of the corporation's legal obligations?

Do I understand the special legal liabilities that both I and the corporation face when bylaws are not followed?

Liability for lack of corporate authority
Directors acting outside the scope of their authority as defined by the letters patent, supplementary letters patent, bylaws, or other governing documents of the corporation are personally responsible for any decisions or actions they take. This liability may arise owing to lack of compliance with internal bylaws, constitutions, statutes, contracts, torts or the common law. Effectively, the directors are considered to have taken the decision(s) or action(s) as individuals rather than as a corporate body, so the 'corporate shield' does not apply. It is seen as a personal decision if a director does not comply with bylaws they are required to know and act in accordance with.


Law man
Law Man said...

If you defame someone, one possible way to resolve the problem is to publish a retraction.
Directors who breach any of their duties to the corporation, may be liable if the corporation suffers a loss that can be directly attributed to their actions or omissions. To protect themselves from such liability, directors should always consider whether the decision(s) or action(s) being taken are in accordance with bylaws and in the best interests of the corporation. They must discharge their duties of skill and diligence, as well their duty of loyalty, including acting honestly and in good faith, not improperly delegating their responsibilities, and avoiding conflicts of interest.

Most of the legislation imposing liability on directors does not actually define who is a 'director.' Individuals who are acting in the capacity of directors - de facto directors - but who may not have actually been elected as such may nonetheless be exposed to directors' liability. This could include those serving as de facto directors, ex-officio directors, those dubbed 'honorary' directors and those sitting on an executive committee or otherwise acting as part of a group managing the corporation's affairs, no matter what it is called. If these individuals act like directors, they can attract the liability of directors.
When there is an obligation to constitute authority, this requirement must be met before any authority can be assumed or transferred. In OECTA a Discipline Board cannot have even the authority to meet without first receiving the proper enabling motion from the Board of Directors. Without such duly procured authority, no group would have any legal standing to do anything within the association. Everything that occurred in the absence of authorized recognition of authority with the proper motions required by by-laws, would be inadmissible in any subsequent function of the association and out of order. They would not be admitted for consideration in a court of law because any reports or recommendations from the February meeting were reached without the Board of Directors releasing the required authority to the participants. A court would see this as non-compliance with a written contract with the accused.

Law Man
If the OECTA lawyers have figured out everything you have posted and informed the Provincial Executive we have a very serious problem.

Response:
The PE have a very serious problem that will only be solved by protecting the AGM and by-laws they wrote, In other words, to protect themselves they must hold accountable those who acted without authority and reverse the Richard Brock decision. There is no escaping this. They know it, but they must be terrified because the truth will show that they were wrong and their own authority was disregarded by an inferior authority. Once they come to the inevitable truth then they would have to deal with insubordination. That is why this is taking so long. In court, all will come out and then they would have to deal with it anyway but then they would also have to deal with a political revolution at the AGM.

It is much smarter from a legal point of view to fess up and deal with it now. A public court case will be devastating for the Board of Directors of the Association and senior management.
From the Canada Corporation Act part II

The powers of the board of directors to manage the corporation.
The by-laws must indicate that the board of directors has the power to manage the corporation.

(The PE is the Board of Directors. Note the word "must". The General Secretary does not and cannot have power over the Board. Law Man)
The by-laws may specifically exclude and retain certain powers for exercise by the membership at a general meeting.

(In OECTA it is specified that ONLY the AGM can change bylaws. The PE must ONLY follow the bylaws and they MUST do it all the time because of this specification.)
Something went, legally, very wrong in OECTA and the PE is afraid to confront it for understandable but non-defensible reasons. In court there will be no sympathy for what they did as well as no defense.

Law Man
End of comments from Law Man

With deepest respect, I request a response from the full provincial executive. Like you I am only interested in truth, due process, rule of law, constituted authority and clarity that will lead to justice. By responding after discussing the comments of Law Man, movement towards unity and trust will be well served. I trust that I am seeking the same things you are.
Sincerely.

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