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Public Notice
 
Jerymy.Brownridge@gov.bc.ca; ghinfo@gov.bc.ca; mcu@justice.gc.ca; Jody.Wilson-Raybould@parl.gc.ca; jag.minister@gov.bc.ca; suzanne.anton.MLA@leg.bc.ca; stephen.wallace@gg.ca
 
Monday, November 21, 2016

Notice on one is notice on the other!
 
Notice
 
Included but separate:

Public Notice Mandamus regarding “BC Common Law Courts” and rules of natural justice in all matters involving human rights!

1.  The “indigent status application” is an official acknowledgement by the state of the state’s own human rights violations requiring there be no people with that status;
 
2.  The “Court Services Online” [https://justice.gov.bc.ca/cso/index.do] is another official acknowledgement by the state of the state’s own human rights violations regarding equality, freedom of expression and selling access to justice. Plus those of us that qualify for the indigent status because of the movement disability pensions paid by the state that are far from an adequate standard of living that still have to physically go to the court house just to file papers;
 
3.  As agreed, documents must meet the standard "AS ANY REASONABLE PERSON WOULD UNDERSTAND" and that is all! A "REASONABLE PERSON" does not speak or understand the legal jargon of the inferior jurisdiction;
 
4.  quo warranto – Justify the state using civil law legislation with its legal jargon to violate the states prime responsibility and duty to always be protecting the human rights and fundamental freedoms in breach of trust and duty regarding the inherent jurisdiction people;
 
5.  As agreed, the petitioner has never been stripped of his inherent jurisdiction rights or possessions, or outlawed or exiled, or deprived of his standing in any way, by the previous lawful judgment of his equals or by the law of the land. Nor can the petitioner be in any inferior jurisdiction courts or under the authority of any inferior jurisdiction government or class of subject;
 
6.  Magna Carta 45. Where is the protection when the inferior jurisdiction appoints justices, constables, sheriffs, or bailiffs who do not know or follow the rules of natural justice or the law of the inherent jurisdiction realm regarding human rights protection;
 
7.  quo warranto – where does the Constitution Act of Bijural Canada 1867 provide for the inferior jurisdiction provincial courts or inferior jurisdiction governments to claim, assume or presume authority over general jurisdiction courts or persons by Deliberative Secrecy?
 
8.  As agreed, the petitioner, a common law [inherent jurisdiction] society member has no reason to hear, think about or comply with any inferior jurisdiction governments’ “Statutes, Enactments or Regulations etc.” operating under such Deliberative Secrecy!
 
9.  quo warranto, Mandamus and Deliberative Secrecy, As agreed, the petitioner in the exercise of inherent jurisdiction human rights and fundamental freedoms, including the promotion and protection of human rights has the right, individually and in association with others, to benefit from an effective remedy and to be protected in the event of the violation of those rights. How is it that an inherent jurisdiction human being no longer has direct access to such remedy?
 
10.   quo warranto, Mandamus and Deliberative Secrecy - Access to the Common Law General Jurisdiction Superior Court is now only accessible through inferior jurisdiction governments’ “Statutes, Enactments or Regulations. “Waiver of rule by agreement” (3) On application, as well as if all parties to a proceeding agree, the inferior jurisdiction governments court may order that any provision of these inferior jurisdiction Supreme Court Civil Rules does not apply to the general jurisdiction courts proceeding.”
 
11.   Prior to 1990, there existed in British Columbia a County Court a general jurisdiction court. A court that was claimed by Deliberative Secrecy to be an intermediate court between the inferior jurisdiction Provincial Court and the inferior jurisdiction Supreme Court of British Columbia. Under what authority was the general jurisdiction County Court of B.C. merged with the inferior jurisdiction Supreme Court of British Columbia with its civil rules
 
12.    Under what authority was the general jurisdiction County Court judges stripped of their general jurisdiction duties to become justices of the inferior jurisdiction Supreme Court of British Columbia with its civil rules. The Constitution Act of 1867 provides for provincial superior, district and county courts of general jurisdiction with federally appointed judges to be established by the provinces.
 
13.   Where does the inferior jurisdiction government court’s authority to sell, refuse or delay, right or justice come from regarding people?
 
14.   Although procedures and terminology differ between jurisdictions, there are generally two ways to ask a Court to make a decision in this dispute and the choice is the petitioners not the respondents.
    1. The petitioners’ way is by common law society petition to a general jurisdiction court which can restrict evidence to affidavits only, making unrebutted affidavits’ “judgements in commerce”.
    1. The other method is the inferior jurisdiction governments’ “Statutes, Enactments or Regulations” method using a writ and statement of claim which leads to a trial and which, with few exceptions, affidavit evidence is not allowed. This is usually the default way of engaging a Civil Law Court to resolve a dispute but it cannot deal with people only classes of  subjects.
15.   Natural Justice, - Basic or fundamental judicial rights extended to a person with rights at issue. A principle of natural justice which prohibits a judicial decision which impacts upon individual rights without giving all parties in the dispute a right to be heard. Explains why the inferior jurisdiction governments’ choose to be in breach of duty regarding the promotion and protection of inherent rights.
 
    1. The Constitution Act of 1867 provides for provincial superior courts of general jurisdiction with federally appointed judges to be established by the provinces.
    2. These courts are charged with administering all laws in force in Canada, whether enacted by Parliament, provincial legislatures or municipalities. This essentially unitary aspect of Canadian courts is fundamental to the Canadian judicial system. The provinces constitute, maintain and organize superior, county and district courts of both civil and criminal jurisdiction, and the federal government appoints the judges and pays their salaries.
    3. The remaining provincial courts are courts of inferior jurisdiction whose presiding officers are appointed by the province in which they sit. In addition, section 101 of the Act gives Parliament power to "provide for the Constitution, Maintenance and Organization of a General Court of Appeal for Canada, and for the establishment of any additional Courts for the better Administration of  the Laws of Canada." All of the courts constituted and appointed solely by the federal government owe their existence to this power.  Finally, all courts, except those in Québec, enforce the common LAW. In Québec the source of the civil or noncriminal law is the CIVIL LAW.
    4.  
17.   Courts Established by the Provinces or Territories are operated by enumerated classes of subject and are only applicable to enumerated classes of subject not people;
 
18.   Mandamus, the petitioner has through both a legal and lawfully authorized representation complained about human rights and fundamental freedoms but those complaints never received any kind of response. With no response those complaints never received a prompt review in a public hearing before an independent, impartial and competent judicial or other authority established by law and to obtain from such an authority a decision, in accordance with law, providing redress, including any compensation due, where there has been a violation of that person's rights or freedoms, as well as enforcement of the eventual decision and award, all without undue delay. That is because of both the Lieutenant Governor and Lieutenant Governor in Councils’ breach of duty.
 
19.   As agreed, the Lieutenant Governor of B.C. represents the Queen at the provincial level in Canada and is the legal head of state in British Columbia, which means he or she acts as chief public representative and has the highest ranking position in the provincial government.  http://www2.gov.bc.ca/gov/content/governments/organizational-structure
 
20.   Mandamus, in today’s world the Lieutenant Governor is the legal head of state in British Columbia who is charged with the prime responsibility and duty to promote and protect human rights and fundamental freedoms which lies with the State! http://www.ohchr.org/EN/ProfessionalInterest/Pages/RightAndResponsibility.aspx
 
21.   Mandamus, the Lieutenant Governor of British Columbia is in breach of her duty to promote and protect human rights and fundamental freedoms in violation of the Constitution, charter, International treaties and inherent human rights and fundamental freedoms. This is all done on the advice of the Premier and Executive Council who are also in breach of trust and breach of duty.
 
22.   As agreed, the ‘now corrupt civil democratic parliamentary government system” needs our consent and with the right to self-determination we can refuse that political association and remain in common law. International Covenant on Economic, Social and Cultural Rights PART I Article 1 http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx
 
23.   As agreed, the “General Court of Appeal for Canada” found in s101 of the B.N.A. Act is the highest court in Canada. This court is found in the B.N.A. Act and is a higher court than the inferior jurisdiction Supreme Court of Canada which was created with permission of the B.N.A. Act. Created by what has become the civil law democratic parliamentary government.
 
24.   As agreed, British Columbia joined a common law society that has both Property Rights as well as Civil Rights  - 8.1 Both the common law and the civil law are equally authoritative and recognized sources of the law of property and civil rights in Canada and, unless otherwise provided by law, if in interpreting an enactment it is necessary to refer to a province’s rules, principles or concepts forming part of the law of property and civil rights, reference must be made to the rules, principles and concepts in force in the province at the time the enactment is being applied. http://laws-lois.justice.gc.ca/eng/acts/i-21/page-2.html#docCont
 
 Expressions defined 29  In an enactment:
Ø  "Lieutenant Governor" means the Lieutenant Governor of British Columbia and includes the Administrator of British Columbia;
Ø   "Lieutenant Governor in Council" means the Lieutenant Governor acting by and with the advice of, or by and with the advice and consent of, or in conjunction with, the Executive Council of the PROVINCE OF BRITISH COLUMBIA (0000836136);
[ apparently there is one person who is the Lieutenant Governor that is the common law Lieutenant Governor - the Administrator of British Columbia as well as another Lieutenant Governor that is subservient to corrupt politicians ]
Ø  "person" includes a corporation, partnership or party, and the personal or other legal representatives of a person to whom the context can apply according to law;
[ Application of Charter - Section 32 - Application of Charter - This Charter applies
to the Parliament and government of Canada in respect of all matter within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
The purpose of this section is to make it clear that the Charter only applies to governments, and not to private individuals, businesses or other organizations. ]
[Exclusive Powers of Provincial Legislatures. Subjects of exclusive Provincial Legislation 92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated, that is to say, http://www.justice.gc.ca/eng/rp-pr/csj-sjc/constitution/lawreg-loireg/p1t13.html ]
 
26.   Where does the inferior jurisdiction government get to replace named constitutional people with fictional class of subjects or merge an inherent jurisdiction with an inferior jurisdiction fictional class of subject except with Deliberative Secrecy? Ie the bijural attorney general, lieutenant governor and the lieutenant governor in council, the merged office and person of the minister of justice and the attorney general!
 
27.   As agreed, Women and men are private individuals not included on the list of Matters coming within any Classes of Subjects under any inferior jurisdiction civil democratic parliamentary government system. Section 31 - Nothing in this Charter extends the legislative powers of any body or authority. http://canada.pch.gc.ca/eng/1468851006026
 
28.   As agreed, the inferior jurisdiction BC Constitution Act is subject to the Dominion of Canada general jurisdiction Constitution Act, 1867 - 2  Despite anything in this Act to the contrary, this Act must be construed as subject to the Constitution Act, 1867 and amending Acts applicable to British Columbia, and to the order of Her late Majesty Queen Victoria in Council for the union of British Columbia with the Dominion of Canada under the authority of that Act.
 
29.   As agreed, the Lieutenant Governor in Council may refer any matter to the Court of Appeal or to the Supreme Court for hearing and consideration, and the Court of Appeal or the Supreme Court must then hear and consider it, but she chooses not to!
That statement totally ignores the common law society in bijural BC in favour of the civil democratic parliamentary government that has no authority over men or women in either society granted to it. A government that has placed everyone in servitude, removed all inherent rights and freedoms and replaced them with civil rights apparently with “Her Honour’s” permission, definitely with her silence and breach of duty.
 
30.   As agreed, all actors have a prime responsibility and duty to protect, promote and implement all human rights and fundamental freedoms and those who choose not to, regardless of who they are will have trespassed on the petitioner’s human rights and will be held accountable!
 

 
the petitioner, human being
 
2016-11-21
 
 
The Court Cannot Deny Your Petitions for 'Want of Form' or 'Insufficient Process'

All it has to be is 'as any reasonable person can understand'.

Be Persistent ! Do not take NO for an answer!

The judges and attorneys know that they are, by law, to be very careful not to exploit your Sui Juris status, but they will exploit you as much as you let them or you don't realize what is happening. We have heard judges say "why, you don't expect me to hold you to any less a standard than this attorney, do you?"; or, "don't you think I should hold you to the same standard as this attorney?"; and many people believe the judges lie, and their confidence is broken to trust themselves that they will know how to proceed. This is another judge LIE, and like the other lies you will be assaulted with, stand up to it. We don't put a lot of credence to caselaw, as they will use caselaw to defend anything they want to do.

But the following caselaw should go into your paperwork, important to use to make clear and certain that the court is knowing and that everyone agrees that the court is knowing when they violate your rights.

"And be it further enacted. That no summons, writ, declaration, return, process, judgment, or other proceedings in civil cases in any of the courts or the United States, shall be abated, arrested, quashed or reversed, for any defect or want of form, but the said courts respectively shall proceed and give judgment according as the right of the cause and matter in law shall appear unto them, without regarding any imperfections, defects or want of form in such writ, declaration, or other pleading, returns process, judgment, or course of proceeding whatsoever, except those only in cases of demurrer, which the party demurring shall specially sit down and express together with his demurrer as the cause thereof. And the said courts respectively shall and may, by virtue of this act, from time to time, amend all and every such imperfections, defects and wants of form, other than those only which the party demurring shall express as aforesaid, and may at any, time, permit either of the parties to amend any defect in the process of pleadings upon such conditions as the said courts respectively shall in their discretion, and by their rules prescribe (a) "Judiciary Act of September 24, 1789, Section 342,FIRST CONGRESS, Sess. 1, ch. 20, 1789

Due Process provides that the "rights of pro se (Sui Juris) litigants are to be construed liberally and held to less stringent standard than formal pleadings drafted by lawyers; if court can reasonably read pleadings to state valid claim on which litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigants unfamiliarity with pleading requirements" (Spencer v Doe, 1998; Green v Branson 1997;Boag V McDougall, 19982; Haines V Kerner, 1972)

"Right to proceed pro se (Sui Juris) is fundamental statutory right that is afforded highest degree of protection" DEVINE V INDIAN RIVER COUNTY SCHOOLBD., 11TH CIR. 1997
General Jurisdiction Courts - British North America Act, 1867, (U.K.) - http://www.justice.gc.ca/eng/rp-pr/csj-sjc/constitution/lawreg-loireg/p1t11.html

Under provincial authority [provincial and federal authority is inferior to the general juristion found in the constitution]
92 [14] The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.

Under the constitution itself
96.  The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.
101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time, provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.


The Constitution Act of Bijural Canada 1867 provides for provincial superior, district, and county courts of general jurisdiction with federally appointed judges to be established by the provinces.

The Constitution Act of Bijural Canada 1867 does not provide for the inferior jurisdiction provincial courts or inferior jurisdiction governments to claim, assume or presume authority over general jurisdiction courts or persons.

The Constitution Act of 1867 provides for provincial superior courts of general jurisdiction with federally appointed judges to be estalished by the provinces. These courts are charged with administering all laws in force in Canada, whether enacted by Parliament, provincial legislatures or municipalities. This essentially unitary aspect of Canadian courts is fundamental to the Canadian judicial system. The provinces constitute, maintain and organize superior, county and district courts of both civil and criminal jurisdiction, and the federal government appoints the judges (see JUDICIARY) and pays their salaries.

The remaining provincial courts are courts of inferior jurisdiction whose presiding officers are appointed by the province in which they sit. In addition, section 101 of the Act gives Parliament power to "provide for the Constitution, Maintenance and Organization of a General Court of Appeal for Canada, and for the establishment of any additional Courts for the better Administration of the Laws of Canada." All of the courts constituted and appointed solely by the federal government owe their existence to this power. Finally, all courts, except those in Québec, enforce the common LAW. In Québec the source of the civil or noncriminal law is the CIVIL LAW.
Superior Court

Waiver of rule by agreement
(3)On application, as well as if all parties to a proceeding agree, the court may order that any provision of these Supreme Court Civil Rules does not apply to the proceeding.

Petitions and applications
(4)If an enactment, other than these Supreme Court Civil Rules or the Supreme Court Family Rules, authorizes an application to the court or to a judge, the application must be

(a) by petition under Rule 16-1 or requisition under Rule 17-1, or
(b) if the application is for an order other than a final order, by application under Part 8,
whether or not the enactment provides for the mode of application.
[am. B.C. Reg. 119/2010, Sch. A, s. 2.]


Appointment of Judges

96. The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.
 
Access to Superior Courts

according to the Canadian Superior Courts Judges Association (CSCJA) The Rule of Law - http://www.cscja-acjcs.ca/

 
“Our laws embody the basic moral values of our society. They impose limits on the conduct of individuals in order to promote the greater good and to make our communities safe places to live. It is against the law to steal, to injure another person, to drive recklessly or to pollute the environment, to name just a few of the countless ways the law is designed to protect us. We are said to be ruled by law, not by those who enforce the law or wield government power. No one in Canada is above the law. Everyone, no matter how wealthy or how powerful they are, must obey the law or face the consequences.”

Constitutional rights: The Constitution Act, 1982 forms the legal basis for the Canadian bijural state. It incorporates the British North America Act, the statute that created Canada in 1867, and the Charter of Rights and Freedoms, which enshrines the legal, social, and political rights of civil law Canadian citizens and minority groups like the bijural common law society human rights and fundamental freedoms are made clear.
Supreme Court

The Supreme Court has no relevance to a common law society member in bijural Canada.

Access to the Common Law Superior Court     is by “Waiver of rule by agreement” (3) On application, as well as if all     parties to a proceeding agree, the court may order that any provision of     these Supreme Court Civil Rules does not apply to the     proceeding.”

Petition Definition: The formal, written document submitted to a court, and which asks for the court to redress what is described in the petition as being an injustice of some kind, - as in the states civil law courts have not jurisdiction over someone from the common law society.

Petitions set out the facts, identifies the law under which the court is being asked to intervene, and ends with a suggested course of action for the court to consider (eg. payment of damages).

A person starting a claim by way of a petition usually takes the title of petitioner and the other side, a respondent.

Although procedures and terminology differ between jurisdictions, there are generally two ways to ask a Court to make a decision in a dispute.

One way is by petition which may restrict the evidence to affidavits only.

It's also a bit quicker and much less formal than the trial process.

Jurisdictions tend to limit petitions to situations which either rely heavily on documentary evidence, or where the fact pattern is usually straight-forward.

The other method is by writ and statement of claim which leads to a trial and which, with few exceptions, affidavit evidence is not allowed. This is usually the default way of engaging a civl law Court to resolve a dispute.
Petitions - http://www.duhaime.org/LegalDictionary/P/Petition.aspx - last revised 2016-11-21

Petitions set out the facts, identifies the law under which the court is being asked to intervene, and ends with a suggested course of action for the court to consider (eg. payment of damages).

A person starting a claim by way of a petition usually takes the title of petitioner and the other side, a respondent.

Although procedures and terminology differ between jurisdictions, there are generally two ways to ask a Court to make a decision in a dispute.

One way is by petition which may restrict the evidence to affidavits only.

It's also a bit quicker and much less formal than the trial process.

Jurisdictions tend to limit petitions to situations which either rely heavily on documentary evidence, or where the fact pattern is usually straight-forward.

The other method is by writ and statement of claim which leads to a trial and which, with few exceptions, affidavit evidence is not allowed. This is usually the default way of engaging a Civil Law Court to resolve a dispute.
Applications - http://www.duhaime.org/LegalDictionary/P/Petition.aspx - last revised 2016-11-21

The "reasonable person" therory is applicable here!
Statement of Claim - http://www.duhaime.org/LegalDictionary/P/Petition.aspx - last revised 2016-11-21

Do not use this approach!

The other method is by writ and statement of claim which leads to a trial and which, with few exceptions, affidavit evidence is not allowed. This is usually the default way of engaging a Civil Law Court to resolve a dispute.
Judicial Review - http://www.duhaime.org/LegalDictionary/J/JudicialReview.aspx - last revised 2016-11-21

Related Terms: Patently Unreasonable, Certiorari, Appeal, Standard of Review

When a court decision is appealed, it is known as an appeal.

But there are many administrative agencies or tribunals which make decisions or deliver government services of one sort or another, the decisions of which can also be "appealed." In many cases, the "appeal" from administrative agencies is known as "judicial review" which is essentially a process where a court of law is asked to rule on the appropriateness of the administrative agency or tribunal’s decision.

Judicial review is a fundamental principle of administrative law.

A distinctive feature of judicial review is that the "appeal" is not usually limited to errors in law but may be based on alleged errors on the part of the administrative agency on findings of fact.

Judicial review is a "user friendly" term used by many jurisdictions to encompass the more traditionally-named remedies of mandamus, prohibition, certiorari and habeas corpus.

For example, Ontario's Judicial Review Procedure Act, R.S.O. 1990, c. J.1, §7 (published at canlii.com/on/laws/sta/j-1/20070911/) states that:

"An application for an order in the nature of mandamus, prohibition or certiorari shall be deemed to be an application for judicial review and shall be made, treated and disposed of as if it were an application for judicial review."
Certiorari - http://www.duhaime.org/LegalDictionary/C/Certiorari.aspx - last revised 2016-11-21

Related Terms: Habeas Corpus, Prohibition, Mandamus, Quo Warranto, Judicial Review, Abuse of Discretion

A writ of certiorari is a form of judicial review whereby a court is asked to consider a legal decision of an administrative tribunal, judicial office or organization (eg. government) and to decide if the decision has been regular and complete, if there has been an error of law, if the tribunal had the power to make the decision complained of or whether the tribunal exceeded its powers in issuing the decision complained of.

For example, a certiorari may be used to wipe out a decision of an administrative tribunal which was made in violation of the rules of natural justice, such as a failure to give the person affected by the decision an opportunity to be heard.

Certiorari, if the application is successful, renders the decision at issue of no force or effect and null and void. Lawyers say it is quashed.

The companion remedy is prohibition, which asks that an anticipated or prospective decision, alleged to be ultra vires, be stopped before it issues.

Certiorai is one of the five traditional remedies available in administrative law.
Administrative Law - http://www.duhaime.org/LegalDictionary/A/AdministrativeLaw.aspx - last revised 2016-11-21

Administrative Law Definition:
That body of law which applies for hearings before quasi-judicial or quasi-judicial organizations such as administrative tribunals, or the underlying regulatory agency.
Related Terms:

Administrative Tribunal, http://www.duhaime.org/LegalDictionary/A/AdministrativeTribunal.aspx - Hybrid adjudicating authorities which render judicial decisions. Between routine government policy decision-making bodies and the traditional court forums lies a hybrid that needs consent Now, as stated in the 1990 case, Newfoundland Telephone (above), it is recognized that most administrative tribunals hover somewhere in between and are in any event, subject to the rules of natural justice such as, for example, audi alteram partem and nemo judex, and their decisions are reviewable by a superior court in limited circumstances (for example, if the administrative tribunal decision is patently unreasonable).

Natural Justice, http://www.duhaime.org/LegalDictionary/N/NaturalJustice.aspx - Basic or fundamental judicial rights extended to a person with rights at issue. A principle of natural justice which prohibits a judicial decision which impacts upon individual rights without giving all parties in the dispute a right to be heard.

Deliberative Secrecy, http://www.duhaime.org/LegalDictionary/D/DeliberativeSecrecy.aspx - The intentional concealment of the process of cogitating, consulting or other private methods of arriving at a judicial decision. "The principle of deliberative secrecy prevents disclosure of how and why adjudicative decision-makers make their decisions. This protection is necessary to help preserve the independence of decision-makers, to promote consistency and finality of decisions and to prevent decision-makers from having to spend more time testifying about their decisions than making them.

Quasi-Judicial, http://www.duhaime.org/LegalDictionary/Q/QuasiJudicial.aspx - Administrative tribunals or government officials which, in their decision-making process, are subject to the rules of natural justice.

Synonymous with natural justice.

Administrative law is that body of law which applies for hearings before quasi-judicial bodies, boards, commissions or administrative tribunals supplement the rules of natural justice with their own detailed rules of procedure.

The two basic principles of administrative law are audi alteram partem and nemo judex in parte sua.

Through jurisprudence, common law or case law, these principles have each been expanded and refined beyond their original simplistic design to form distinct bodies of law forming together what the legal system refers to as administrative law.

When the tenets of administrative law have not been adhered to by administrative tribunals or quasi-judicial agencies, there are generally five remedies available depending on the alleged or anticipated wrongful decision or omission:

habeas corpus, http://www.duhaime.org/LegalDictionary/H/HabeasCorpus.aspx - Latin: a court petition which orders that a person being detained be produced before a judge for a hearing to decide whether the detention is lawful.

certiorari, http://www.duhaime.org/LegalDictionary/C/Certiorari.aspx - A formal request to a court challenging a legal decision of an administrative tribunal, judicial office or organization (eg. government) alleging that the decision has been irregular or incomplete or if there has been an error of law. For example, a certiorari may be used to wipe out a decision of an administrative tribunal which was made in violation of the rules of natural justice, such as a failure to give the person affected by the decision an opportunity to be heard.

prohibition, http://www.duhaime.org/LegalDictionary/P/Prohibition.aspx - A legal restriction against the use of something or against certain conduct. As certiorari seeks to have a decision overturned for want of jurisdiction (ultra vires),  prohibition seeks to prevent a prospective decision; to stop a lower court or tribunal "from doing something in excess of its jurisdiction".

mandamus, see tab on the left

quo warranto. http://www.duhaime.org/LegalDictionary/Q/QuoWarranto.aspx - Latin: legal procedure taken to stop a person or organization from doing something for which it may not have the legal authority, by demanding to know by what right they exercise the controversial authority.
Mandamus - http://www.duhaime.org/LegalDictionary/M/Mandamus.aspx - last revised 2016-11-21
A writ which commands an individual, organization (eg. government), administrative tribunal or court to perform a certain action, usually to correct a prior illegal action or a failure to act in the first place.
Related Terms: Certiorari, Habeas Corpus, Prohibition, Quo Warranto, Abuse of Discretion

A writ which commands an individual, organization (eg. government), administrative tribunal, quasi-judicial body or court to perform a certain action, to make a decision, to which the agency is required, or for which the agency has discretion, pursuant to statute.

In State ex rel. Costco, Justice Odenwald of the Missouri Court of Appeals wrote:

"We acknowledge the limited circumstances under which a writ of mandamus may issue. A writ of mandamus is a hard and fast unreasoning writ, and is reserved for extraordinary emergencies. The function of the writ of mandamus is to enforce, not to establish, a claim of right; the office of the writ is to execute, not to adjudicate. To warrant control by mandamus, there must be an existing, clear, unconditional legal right in relator, and a corresponding present, imperative, unconditional duty upon respondent, and a default upon respondent therein."

In Bayer, Justice of the Court of Appeals of Texas wrote:

"A writ of mandamus issues to correct a clear abuse of discretion when no adequate remedy at law exists."

In Aunton, Justice Allan wrote:

"An order of mandamus compels the performance of a statutory duty owed to the applicant.... (T)there must be a public duty to act and that duty must be owed to that particular applicant; there must have been an express demand made to the delegate that he or she act; and he or she must have refused to do so."

In Trinity Western University v British Columbia College of Teachers ([2001] 1 SCR 772; also at canlii.org/en/ca/scc/doc/2001/2001scc31/2001scc31.html), a college sought accreditation of a degree program from the respondent, the certifying agency. The BCCT balked at TWU's requirement that all faculty, staff and students agree in writing to:

"Refrain from practices that are biblically condemned.  These include but are not limited to drunkenness, swearing or use of profane language, harassment, all  forms of dishonesty including cheating and stealing, abortion, involvement in the occult, and sexual sins including premarital sex, adultery, homosexual behaviour, and viewing of pornography.  Furthermore married members of the community agree to maintain the sanctity of marriage and to take every positive step possible to avoid divorce."
When BCCT refused to accredit TWU on that basis, the latter applied for a mandamus order.

The BC Supreme Court agreed with TWU:

"(BCCT) stated as its reason for denying the application of TWU that it believed that the proposed program follows discriminatory practices which are contrary to the public interest and public policy.  For the reasons I have given, Council was without jurisdiction to make its decision on this ground. I am therefore remitting the matter back to the BCCT and directing that it approve TWU's ... program for accreditation...."
The Supreme Court of Canada also agreed with TWU, issued the mandamus, stating that "the BCCT (denied accreditation) on the basis of irrelevant considerations.  It therefore acted unfairly."

For an extensive analysis of mandamus, including the several postulated conditions for its application, in fashion that only a judge holding the firm belief that a detailed and long judgment, proposing a multi-step approach, is the way to improve the law and advance it, see Apotex Inc.
Abuse of Discretion - http://www.duhaime.org/LegalDictionary/A/AbuseofDiscretion.aspx - last revised 2016-11-21

Abuse of Discretion Definition:
A decision of a judicial body based on an erroneous finding of fact or conclusion of law, or an improper application of law to fact.
Related Terms: Mandamus, Certiorari, Abuse

There are a plethora of judicial attempts to define an abuse of discretion. For the most part, the phrase is a term of art in American law; a threshold at which a tribunal's decision is exposed to mandamus, certiorari or such other review by an appellate or superior-level court.

In US v One Star, Justice Selya used these words:

"An abuse of discretion occurs when a material factor deserving significant weight is ignored, when an improper factor is relied upon, or when all proper and no improper factors are assessed, but the court makes a serious mistake in weighing them....

"[A]n error of law is always tantamount to an abuse of discretion."

In Sharpe, Justice King's attempt at definition-making:

"An abuse of discretion can flow from a failure or refusal, either express or implicit, actually to exercise discretion, deciding instead as if by general rule, or even arbitrarily, as if neither by rule nor discretion."

This, from Justice Forrester of the United States Court of Appeals in 2007 (US v Merrill):

"An abuse of discretion arises when the district court's decision rests upon a clearly erroneous finding of fact, an errant conclusion of law, or an improper application of law to fact."

In Re Brewer Leasing, Justice Alcala upped the ante by requiring a clear abuse of discretion:

"Mandamus relief is available only to correct a clear abuse of discretion when there is no adequate remedy by appeal.

"Clear abuse of discretion occurs when a trial court reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law."

In Khan, Justice Pooler of the United States Court of Appeals had before him an application to reconsider the decision of an immigration tribunal. On the issue of an abuse of discretion, he wrote:

"An abuse of discretion may be found in those circumstances where the Board's decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner."

In Marshall, Justice Kirby of the Court of Appeals of Tennessee preferred these words:

"An abuse of discretion occurs when the decision of the lower court has no basis in law or fact and is therefore arbitrary, illogical, or unconscionable."
Summary Trial - http://www.duhaime.org/LegalDictionary/S/SummaryTrial.aspx - last revised 2016-11-21

Summary Trial Definition:
The trial of an action by way of affidavit evidence only or by use of truncated process.
Related Terms: Summary Judgment

The hearing and disposing of litigation by way of affidavit evidence only or by use of truncated or expedited judicial process.

In Calliou Estate v. Calliou Estate, Justice Moen of the Court of Queen's Bench of Alberta used these words:

"A summary trial is a trial, not an application for summary judgment. In the latter, the applicant must establish that there is no genuine issue to be tried. In a summary trial the matters to be considered are, among other things, the amount involved, the complexity of the matter, the cost of taking the case forward to a conventional trial, and whether there is a real possibility that the defendant can bolster its evidence by discovery or by evidence given at trial.

"In a summary trial the judge may look at conflicting evidence and may draw inferences from the evidence. As long as the Court can make a decision based on the evidence before it, judgment on a summary trial may be given irrespective of the amounts involved, the complexity of the issues, and the existence of conflicting evidence. The applicant must prove its case on a balance of probabilities:"
Summary Judgment - http://www.duhaime.org/LegalDictionary/P/Petition.aspx - last revised 2016-11-21

Definition:
A court order dismissing a claim summarily, upon application, and based on the allegation that there is no claim or defence with a reasonable prospect of success.
Related Terms: Summary Trial

A court order (judgment) dismissing a claim summarily, without a full hearing on the evidence, upon application, and based on the allegation that there is no claim or defence with a reasonable prospect of success.

This is an extraordinary procedure and will be dismissed unless it is clear, based on admissions within the pleadings, or clear incontrovertible evidence in an otherwise simple case.

Either party may apply to the Court suggesting that the other's claim is without foundation and swearing, on an affidavit, that they can think of no fact that might form a basis of the claim or a defence to the claim, as the case might be, except for the amount.

The Court has wide powers when deciding upon such applications.

In Erickson v Brown, Justice Vande Wall of the Supreme Court of North Dakota used these words which aptly describe the procedure:

"Summary judgment is a procedural device for promptly resolving a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. The party moving for summary judgment must show there are no genuine issues of material fact and the case is appropriate for judgment as a matter of law.

In Tupperware Canada v 1196815 Ont. Ltd., the plaintiffs felt they had a solid summary judgment case as they had in hand a promissory note.

The defendants told the court it wasn't all that simple; they alleged set-off against the promissory note and issues arising from the Tupperware franchise agreement.

That latter argument was enough to have Tupperware's application for summary judgment dismissed. It was a "triable issue" said the judge adding:

"These issues cannot be determined on a summary judgment motion.  The motion is therefore dismissed."

This form of litigation attack is made by way of affidavit and is often merely a tactic by a wealthy litigant to harass the other, as it must be met, or to insert into the Court file material prejudicial to the other litigant and not necessarily lost on the eventual trial judge, who may wish to peruse the Court file before the hearing.

It differs from a summary trial, the latter being a trial on the merits of the case but the evidence being limited to affidavits as opposed to under oath, oral evidence.
Motion - http://www.duhaime.org/LegalDictionary/M/Motion.aspx - last revised 2016-11-21

Motion Definition:
A proposal made to a Court or at a meeting and intended to be considered and decided upon.
Related Terms: Carry, Motion to Strike

In Court, a motion is directed at a Court which sits as a quorum of one representing the whole Court.

For example, a motion may be made to the Supreme Court of British Columbia but it would be heard and disposed of by only one member of the Court, who is taken to be speaking for the whole Court in rendering his or her decision.

A notice of motion has to be given to the other side. Most jurisdictions have particular forms for these notices of motions. In British Columbia, for example, the current (2008) form of a motion starts with these words:

"TAKE NOTICE that an application will be made by John Doe  to the presiding judge or master at the courthouse at Victoria, British Columbia at a date and time to be set for an order that www.duhaime.org be granted the highest award and honor befitting its contributions to the advancement of law in the world. The applicant will rely on the Inflated Sense of Self-Worth Act. At the hearing of the application, the applicant will rely on the affidavit of Jane Doe. The applicant estimates that the application will take 90 minutes. If you wish to receive notice of the time and date of the hearing or to respond to the application, you must...."

In parliamentary law and procedure, a motion is a proposal or a proposition raised at a meeting and submitted for consideration, debate and vote, a majority vote on the motion converting the motion from a mere proposal to a resolution, the decision of the whole meeting.

Large organizations often require that a member given notice of his or her motion in advance of the meeting.

Motions typically require at another person’s endorsement which, in parliamentary practice, is known as the seconder. By seconding the motion, the seconder is not taken as agreeing with it but merely supporting the submission of the proposal to the meeting for debate and vote.

From Robert’s Rules of Order, 10th Edition:

“A second merely implies that the seconder agrees that the motion should come before the meeting and not that he necessarily favors the motion. A member may second the motion because he would like to see the assembly go on record as rejecting the proposal… “

Most organization provide, in their by-laws or rules of order, that a motion must be seconded. Failing such a provision, according to Horsley’s Meetings – Procedure, Law and Practice, page 38:

“When a motion has been moved, it is customary for another person to second it. Some rules and standing orders stipulate this. However, a seconder is not essential under the recognized rules of debate nor required by common law.”

According to Robert’s Rules of Order, a further third step is required before a seconded motion goes to the group for debate, consideration and vote:

“The chair states the question on the motion…. Neither the making nor the seconding of a motion places it before the assembly; only the chair can do that by the third step (stating the question). When the chair has stated the question, the motion is pending, that it, ‘on the floor’. It is then open to debate.”

The wording of a motion is important. From Horsley’s op. cit., page 41:

“A motion should be in a positive, affirmative form. It should not be in a negative form unless this achieves some specific advantage and value for the body; e.g. to ensure that a disallowance of a request or rejection of a recommendation is recorded unmistakably in the minutes. Thus, in principle, a motion should not be worded in such a negative way that a “yes” vote registers support for a “no” proposal…. A motion should be framed and phrased in a way to enable persons to vote in favor of or against the proposal and thus facilitate the ability of the meeting to make a decision.”
Motion to Strike - http://www.duhaime.org/LegalDictionary/M/MotiontoStrike.aspx - last revised 2016-11-21

Motion to Strike Definition:
A motion put to the Court to strike a pleading or evidence of a witness.
Related Terms: Motion, Pleadings

A formal request to a trial judge by a party to disallow testimony which has already been given by a witness, to strike it as inadmissible evidence in the case.

A frequent example is evidence of alleged prior criminal conduct or conviction, or hearsay.

Where the motion to strike is accepted in a jury trial, the judge will instruct the jury to disregard what was said and objected to.

In regards to evidence, a motion to strike is also used to attack the entirety or certain parts of a proposed affidavit.

Is also used in civil litigation to refer to the application made to a court to strike a pleading such as a statement of claim or even a factum.

In the United States, the Federal Rules of Civil Procedure, at Rule 12(a):

"Motion To Strike: The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."
Counterclaim - http://www.duhaime.org/LegalDictionary/C/Counterclaim.aspx - last revised 2016-11-21

Definition:
A defendant's claim against a plaintiff.
A counter document filed by a defendant who, in addition to seeking to defend against a statement of claim, wishes to make his own separate and independent claim against the plaintiff for some cause of action related enough with the statement of claim, or flowing from the facts contained therein, such that it ought to be, and is conveniently joined and heard at the same time as the trial on the statement of claim.

It is not just a set-off and is not a defence, although in practice it can act as a factual and tactical buttress against the claim.

Counterclaim challenging Jurisdiction if you find yourself in a Administrative Law court!


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