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CAS Argues with Dunn

December 18, 2009 permalink

John Dunn's effort to prosecute CAS has produced an exchange of emails between Danesh Rana, acting for the children's aid society of Ottawa, and Mr Dunn. After Mr Rana's declaration of intent to limit Mr Dunn to one mailing per year, Mr Dunn methodically lists the continuing violations of the law engaged in by CAS, addresses eight questions to CAS and insists on going forward with the prosecution as long as CAS remains out of compliance.

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Mr. Dunn,

I am a lawyer with Burke-Robertson LLP and I have been retained by the C.A.S. to deal with the charges you brought under the Corporations Act. I have spoken to Ms. Goebel and she has informed me of your concerns.

For the current matter, here is what the C.A.S. is proposing. In exchange for the charges being ‘stayed’ by the Crown, we will provide Ms. Goebel our mailing list and she will distribute your concerns regarding out of jurisdiction C.A.S. wards. This is conditional upon Ms. Goebel undertaking to not providing you a copy of our membership list. This is exactly what happened last time you brought a complaint under the Corporations Act.

The above proposal is contingent upon you agreeing to a plan for your future concerns. The Society cannot, and will not, permit you to lay charges every time you wish to bring attention to something to the C.A.S. members. It is an abuse of process for you to engage, once again, in a private prosecution to cause the Children’s Aid Society to respond to your demands. For all your future concerns, we are willing to send a letter/document on your behalf to the C.A.S. members on an annual basis through Ms. Goebel’s office, or by other mutually agreed-upon means. Once a year we will circulate a letter from you, to the C.A.S. members, where you can make proposals and address any concerns you may have.

Regards,

Danesh Rana
BURKE-ROBERTSON LLP
70 Gloucester Street
Ottawa, ON
K2P 0A2
Tel: 613.566.2062 (direct)
Fax: 613.235.4430
[ drana at burkerobertson.com ]
http://www.burkerobertson.com

Danesh Rana
Burke Robertson Barristers & Solicitors
Ottawa, Ontario
Counsel for the Children's Aid Society of Ottawa

Danesh Rana

On Tuesday December 15, 2009, the date that I was at Court to swear to the service of summons in front of a Justice of the Peace, I was informed by the Crown, Yvonne Goebel, whom you contacted on behalf of your clients, the Children's Aid Society of Ottawa and Barbara MacKinnon, (your clients) for the purpose of asking if I (John Dunn - Private Prosecutor) would be willing to enter into resolution discussions in relation to this matter.

I informed her that I would be open to receiving a proposal from you, on behalf of your clients, for me to consider when making a determination as to whether or not I will request the Crown to intervene and 'stay' the charges against your clients as proposed by them, or whether I should make a counter proposal as most appropriate in the public interest.

On December 17, 2009, I received, via e-mail from yourself, your clients' joint proposal (enclosed). To ensure clarity of understanding for all parties, and ease of your reply to this response, I have broken it down to the following parts.

Part I - My Understanding Of Your Clients' Joint Proposal:
Part II - Issues For My Consideration:
Part III - Relevant Statutory and Regulatory Instrument Provisions:
Part IV - Questions to Answer:
Part V - Enclosed Proposal

Part I - My Understanding Of Your Clients' Joint Proposal:
I understand from your clients' joint proposal, that they have asked me to consider requesting the Crown to intervene in this matter for the purpose of 'staying' the charges against them in exchange for the Society delivering a current mailing list of their members to the Crown so that I can then forward my letter to the members of the Society to the Crown for the purpose of having her stuff the envelopes, and mail them to the Society's members, without her revealing the list of the Society's members to me at any point in time, in exactly the same manner we resolved this matter the first time your clients were charged under the Corporations Act.

Part II - Issues For My Consideration:
In order for me to properly consider your clients' joint proposal in relation to this matter, I must take into account the following issues when reading the answers you will provide to the questions posed to you within Part IV of this response.

  1. Repeat Offenders:

    This is at least the third time I am actually aware of, that your clients have contravened;

    • subsection 307 (5) of the Corporations Act, an offence creating provision,
    • paragraph 15 (3)(g) of the Child and Family Services Act; and
    • article 22 of the annual Service Contract between your client and the Ministry of Children and Youth Services

    1st Offence:
    On February 15, 2007 your clients wilfully contravened the regulatory instruments previously listed which led to charges being pressed against them, only to have, upon request by your clients, the charge against one of your clients 'stayed', and the second charge against your other client 'dropped' as a gesture of good-faith on my part demonstrating my trust that your clients would not engage in such illegal conduct again in the future.

    2nd Offence:
    On July 04, 2007 your clients again wilfully contravened the regulatory instruments previously listed when your client refused to furnish a list of the Society's members by written letter to Gary Curtis of Winchester, Ontario, dated July 30, 2007.

    3rd Offence:
    On June 25, 2009 your clients again wilfully contravened the regulatory instruments previously listed which led to charges being pressed against them a second time, contrary to the good faith gesture I offered to your clients in an attempt to resolve the matter as requested.

  2. Bad Faith Behaviour:
    When I first delivered the a request for a list of the Society's members to the Society in February of 2007, the Society instructed their receptionist over the phone not to accept the package for delivery to members of its board of directors stating that "they do not accept deliveries for people who are not employees of the Society"

    During the approximately fifteen months of resolution discussions which took place at the request of your clients after the 2007 charges were laid, they repeatedly engaged in bad-faith behaviour toward me including the following;

    • threatening me with false allegations of "abuse of process"
    • threatening me with legal action for allegedly engaging in the "unauthorized practice of law" under the Solicitors Act
    • refused to permit me to retain copies of written proposals presented to me during in-person meetings with counsel
    • attempted to prevent me from making any further requests under the Corporations Act
    • When I requested e-mail communications between the Children's Aid Society of Ottawa, and Rick O'Connor, the Society's President of the Board of Directors at his place of employment as the City Solicitor of the City of Ottawa, Rick (Vice President at the time), chose to withhold the communications from me, resulting in an expensive judicial review at the cost of the tax-payers, which is still on-going at this time, simply to hide the communications between the Society and himself in relation to the request for a list of the Society's members

      Privacy Commissioner's Order Re: E-mails - [MO-2408] http://www.ipc.on.ca/images/Findings/MO-2408.pdf

      City's Judicial Review [09-DV-1513] of Privacy Commissioner's Order [MO-2408] http://fostercarenews.blogspot.com/2009/05/ottawa-privacy-reply-pending.html

  3. Legal and Moral Obligations of Private Prosecutors and Citizens of Ontario:
    According to section 77 (b) and (c) of the Provincial Offences Act, the Act under which this matter has proceeded, "every person is a party to an offence who does or omits to do anything for the purpose of aiding any person to commit it; or abets any person in committing it.

    Therefore, as a citizen of Ontario, acting as a private prosecutor, I must consider whether my actions or omissions today, will have the effect of 'aiding' your clients to commit the same offence in the future, or, if my actions or omissions today will have the effect of 'abetting' them in committing the offence again, which is to assist or encourage them by way of countenance, or sanction, or approval.

  4. Specific and General Deterrence:
    One purpose of a prosecution of this nature, is to protect the public from citizens or corporations who do not comply with the laws as passed by elected officials within the Legislative Assembly of Ontario, and upon conviction, to impose via sentencing, both specific and general deterrence upon offenders in the hope of preventing them from committing offences again in the public interest.

Part III - Relevant Statutory and Regulatory Instrument Provisions:
The statutory and regulatory instrument provisions which are relevant to this matter.

Corporations Act, R.S.O. 1990, c. C-38, ss. 307 (1), (2), (4), (5), and (6)

(1) Any person, upon payment of a reasonable charge therefor and upon filing with the corporation or its agent the affidavit referred to in subsection (2), may require a corporation, other than a private company, or its transfer agent to furnish within ten days from the filing of such affidavit a list setting out the names alphabetically arranged of all persons who are shareholders or members of the corporation, the number of shares owned by each such person and the address of each such person as shown on the books of the corporation made up to a date not more than ten days prior to the date of filing the affidavit.

(2) The affidavit referred to in subsection (1) shall be made by the applicant and shall be in the following form in English or French:

Form of Affidavit

Province of Ontario In the matter of
County of (Insert name of corporation)

I, ......................... of the .................. of ..................... in the .................................. of .......................................

make oath and say (or affirm):

(Where the applicant is a corporation, indicate office and authority of deponent.)

1. I hereby apply for a list of the shareholders (or members) of the above-named corporation.

2. I require the list of shareholders (or members) only for purposes connected with the above-named corporation.

3. The list of shareholders (or members) and the information contained therein will be used only for purposes connected with the above-named corporation.

Sworn, etc.

(4) Every person who uses a list of shareholders or members of a corporation obtained under this section,

(a) for the purpose of delivering or sending to all or any of such shareholders or members advertising or other printed matter relating to shares or securities other than the shares or securities of the corporation; or

(b) for any purpose not connected with the corporation,

is guilty of an offence and on conviction is liable to a fine of not more than $1,000.

(5) Every corporation or transfer agent that fails to furnish a list in accordance with subsection (1) when so required is guilty of an offence and on conviction is liable to a fine of not more than $1,000, and every director or officer of such corporation or transfer agent who authorized, permitted or acquiesced in such offence is also guilty of an offence and on conviction is liable to a like fine.

(6) Purposes connected with the corporation include any effort to influence the voting of shareholders or members at any meeting of the corporation, any offer to acquire shares in the corporation or any effort to effect an amalgamation or reorganization and any other purpose approved by the Minister. R.S.O. 1990, c. C.38, s. 307.

Child and Family Services Act, ss. 15 (3)(g)

15. (3) The functions of a children’s aid society are to,

(g) perform any other duties given to it by this or any other Act. R.S.O. 1990, c. C.11, s. 15 (3).

Article 22 annual Service Contract between your client and the Ministry of Children and Youth Services

22. The Service Provider agrees that the Service Provider and its employees and representatives, if any, shall at all times comply with any and all applicable federal, provincial and municipal laws, ordinances, statutes, rules, regulations and orders in respect of the performance of this contract.

Part IV - Questions to Answer:
As previously stated, I must take into account the issues presented under this letter when reading the answers you will provide to the following questions before I can determine whether to accept the proposal as offered or to present a counter proposal.

Questions:

  1. Do your clients believe subsection 15 (3)(g) of the Child and Family Services Act applies to them?
  2. Do your clients believe subsection 15 (3)(g) of the Child and Family Services Act requires them to perform any other duties given to them by the Child and Family Services Act, and by the Corporations Act?
  3. I have filed two requests for a list of the Society's members. One request in February 2007, and a second request in June of 2009. This demonstrates that I have only made two requests for a list of the Society's members in total, and that the requests were actually spaced over two years and four months apart from each other, and, in addition, they were made for two entirely different purposes, both 'connected with the corporation' (the Society). Acknowledging the fact that the Society has proposed a frequency of one request per year as being acceptable to them, and considering my second request was made in over two times that amount of time, does the Society believe I have requested a list of their members too many times?
  4. Your clients allege that the charges are being laid against them every time I want to bring attention to something to the CAS members. This is untrue. I have only ever pressed charges against your clients when they contravened an offence creating provision of the Corporations Act. In addition, the charges were screened and accepted by a justice of the peace. Do your clients deny that they failed to furnish a list of their members prior to me pressing charges against them?
  5. Your clients assert that the Society "cannot, and will not, permit" me to "lay charges". Do your clients honestly believe they are entitled to require a person to obtain their permission before laying charges against them?
  6. Why is your client refusing to furnish a list of its members to people who properly request such under the Corporations Act?.
  7. Does the Society ever plan to furnish a list of its members when properly asked under section 307 (1) of the Corporations Act.
  8. Your clients incorrectly allege that it is an abuse of process for me to engage, once again, in a private prosecution to cause the Children’s Aid Society to respond to my demands. The private prosecution is not a 'tool' that is being used to cause the Society to respond to my demands. The private prosecution, if successful, will merely end up in convictions against one or both offenders for having committed the offences they were charged with committing. The conviction will not end up in an order of mandamus or anything of that nature. It is your clients who are attempting to avoid the charges by offering a proposal which attempts to limit my charter rights to be treated equality before and under the law, and to equal protection and benefit of the law as a Canadian citizen. I want to know why your clients believe they can prevent me from using the law as it was intended to be used?

Conclusion:
Once your clients have demonstrated a concerted effort to act in good faith by answering these questions for me to consider, only then will I be in a position to either accept their proposal as drafted, or to make a counter proposal for your client's consideration. This matter is to be spoken to for the first time on January 07, 2010 (correction made here on the date), so I would suggest that you reply as quickly as possible. If I do not hear a response back by Wednesday, December 23, 2009 at 12:00pm, I will understand from the lack of response at that time, that your clients are not willing to proceed any further with resolution discussions, and that they intend to defend the charges in court.

Part V - Enclosed Proposal:

Mr. Dunn,

I am a lawyer with Burke-Robertson LLP and I have been retained by the C.A.S. to deal with the charges you brought under the Corporations Act. I have spoken to Ms. Goebel and she has informed me of your concerns.

For the current matter, here is what the C.A.S. is proposing. In exchange for the charges being ‘stayed’ by the Crown, we will provide Ms. Goebel our mailing list and she will distribute your concerns regarding out of jurisdiction C.A.S. wards. This is conditional upon Ms. Goebel undertaking to not providing you a copy of our membership list. This is exactly what happened last time you brought a complaint under the Corporations Act.

The above proposal is contingent upon you agreeing to a plan for your future concerns. The Society cannot, and will not, permit you to lay charges every time you wish to bring attention to something to the C.A.S. members. It is an abuse of process for you to engage, once again, in a private prosecution to cause the Children’s Aid Society to respond to your demands. For all your future concerns, we are willing to send a letter/document on your behalf to the C.A.S. members on an annual basis through Ms. Goebel’s office, or by other mutually agreed-upon means. Once a year we will circulate a letter from you, to the C.A.S. members, where you can make proposals and address any concerns you may have.

Regards,

Danesh Rana

BURKE-ROBERTSON LLP
70 Gloucester Street
Ottawa, ON
K2P 0A2
Tel: 613.566.2062 (direct)
Fax: 613.235.4430
drana@burkerobertson.com
http://www.burkerobertson.com

Sincerely
John Dunn
Executive Director
The Foster Care Council of Canada
613-220-1039
http://www.afterfostercare.ca

Source: Foster Care News

Addendum: John Dunn has sent a Notice of Intent (pdf) to Robert C Morrow.

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