Leave to appeal amended
~~~~~~~~~~~~~~~~~~~~~~~~~
And further take notice that the Court of Appeal will be moved at the hearing of this application for an order that:
[1] Under Court of Appeal Rule 4, this leave to appeal is amended and seeks these orders.
[2] Seek an Order to reverse Justice Cole’s decision that the Court had no jurisdiction to make a decision. When it warrants it, the Court can disregard British Columbia’s Constitutional Question Act; and therefore, the Court did have the jurisdiction to strike down Bill 42 section’s 198(1)a & 199(1)a. A Justice has no discretion to deviate from Federal law, and must strictly adhere to Charter Section 33’s court rules approach on a notwithstanding provision.
[3] Seek an order that Bill 42 impugned provisions must be registered under Section 33 of the Charter. This is the first question that the Court should be asking when the Province removed all doubt, and went on record that these provisions do infringe on Charter Section 2b.
[4] Seek an order to have certain topics be excluded from the political advertising definition: the budget deficit and the BC Rail tax indemnity. The Appeal Court has been asked by the Province to validate the election advertising definition and permit the censoring of every topic. It’s very complex to support this complex law. The Court cannot even consider censoring every issue, unless specifics have an opportunity to be raised.
[5] Seek an Order that some of the intervener’s arguments should have been considered, as the discretion to ignore the intervener is based on case law whose subject matter does not define the nature of Democracy.
[6] Seek an Order to reverse Justice Cole’s Charter Section 3 finding. By definition, striking down an election law must mean it violates Section 3. Its’ not logical to find that Section 3 of the Charter information component is kosher with Bill 42, yet it violates the Charter and cannot stand?! There is no discretion to slice this both ways.
[7] Seek a cost order that the plaintiff will not owe any funds to pay for the defendant’s costs, based on BC Court Rules pubic interest doctrine, appendix b, party and party costs 3b.
[8] Seek a cost order that on a successful appeal that the plaintiff’s legal costs are to be reimbursed by the Province. This appeal has a strong pubic interest, and is essential to the administration of law.
Friday, October 15, 2010
Wednesday, October 13, 2010
“committed industrial sabotage” by running false news reports in Canwest Publishing Inc. (Canwest) newspapers
"The monitor has unequivocally denied having any influence whatsoever over the editorial content of Canwest newspapers and stated that it does not prepare any news releases on behalf of Canwest."
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Re: In the Matter of the CCAA Proceedings of Canwest Publishing Inc.
"We have reviewed your complaint made on May 13, 2010 that the monitor in the above proceedings, FTI Consulting Canada Inc., had “committed industrial sabotage” by running false news reports in Canwest Publishing Inc. (Canwest) newspapers to the effect that Canada’s banks are the main backers behind the senior secured creditors $950 million stalking horse bid. The results of our review are as follows.
Information provided by the monitor indicates that the five major Canadian banks, the Bank of Nova Scotia, the Canadian Imperial Bank of Commerce, TD Canada Trust, the Bank of Montreal, and the Royal Bank of Canada, are all represented on the steering committee for the senior secured lenders who have advanced the stalking horse bid. Furthermore, the Canadian bank’s share of the total debt of all the members of the steering committee is 63%. In light of the foregoing it cannot be said that the quotes from various newspaper stories you have provided in your May 13, 2010 email are inaccurate or misleading with respect to who is promoting and supporting the senior secured lender’s credit bid.
The monitor has unequivocally denied having any influence whatsoever over the editorial content of Canwest newspapers and stated that it does not prepare any news releases on behalf of Canwest. Our review has not uncovered any evidence that contradicts these statements.
Our review of the information provided by yourself and the facts concerning the alleged issue, as reported by the monitor, have not established any misconduct on the part of the monitor with respect to these proceedings."
Sincerely,
Office of the Superintendent of Bankruptcy Canada
Senior Bankruptcy Analyst
In concluding this matter, we thank you for contacting us and regret that we cannot be of more assistance to you with respect to it.
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Re: In the Matter of the CCAA Proceedings of Canwest Publishing Inc.
"We have reviewed your complaint made on May 13, 2010 that the monitor in the above proceedings, FTI Consulting Canada Inc., had “committed industrial sabotage” by running false news reports in Canwest Publishing Inc. (Canwest) newspapers to the effect that Canada’s banks are the main backers behind the senior secured creditors $950 million stalking horse bid. The results of our review are as follows.
Information provided by the monitor indicates that the five major Canadian banks, the Bank of Nova Scotia, the Canadian Imperial Bank of Commerce, TD Canada Trust, the Bank of Montreal, and the Royal Bank of Canada, are all represented on the steering committee for the senior secured lenders who have advanced the stalking horse bid. Furthermore, the Canadian bank’s share of the total debt of all the members of the steering committee is 63%. In light of the foregoing it cannot be said that the quotes from various newspaper stories you have provided in your May 13, 2010 email are inaccurate or misleading with respect to who is promoting and supporting the senior secured lender’s credit bid.
The monitor has unequivocally denied having any influence whatsoever over the editorial content of Canwest newspapers and stated that it does not prepare any news releases on behalf of Canwest. Our review has not uncovered any evidence that contradicts these statements.
Our review of the information provided by yourself and the facts concerning the alleged issue, as reported by the monitor, have not established any misconduct on the part of the monitor with respect to these proceedings."
Sincerely,
Office of the Superintendent of Bankruptcy Canada
Senior Bankruptcy Analyst
In concluding this matter, we thank you for contacting us and regret that we cannot be of more assistance to you with respect to it.
Wednesday, September 29, 2010
promise that I will withdraw this Appeal, if the defendant provides this, and it makes sense
"Let's get it on."
~~~~~~~~~~~~~~~~~~~~~~~
Hearing Nov22,2010
Court of Appeal File No. 38495
BETWEEN: British Columbia Teachers’ Federation
Appellant/Respondent
(Plaintiff)
AND: British Columbia (Attorney General)
Appellant/Respondent
(Defendant)
NOTICE OF MOTION
TO: Attorney General of British Columbia
TAKE NOTICE THAT AN APPLICATION will be made by to the presiding justice at 850 Burdett Ave, Victoria , British Columbia, at for an order pursuant to: Appeal Court Rules Section 70 Review Request.
[1] The Registrar has concerns about filing this Leave to Appeal, as I was not an original participant in the Case. It is for the Court of Appeal in the end to decide the merits to register a Leave to Appeal.
[2] It is understood that granting this motion, does not translate that the Appeal Court in their ultimate decision, will accept the appeal or recognize the right of standing. But, it does mean the Appeal Court has the opportunity to decide to hear the matter. It is important, I believe, to reassure the Court and share that, I have been contacted by Mr. David Eby, the executive director of the BCCLA, a few weeks before the May 12, 2009 election. He promised to connect me with a lawyer for my Petition concerning the referendum’s use of Bill 42’s political advertising definition, and its illegal purpose to tamper with the referendum and the election results. This gives hope that a professional legal team is ready and able to takeover, once this Leave to Appeal is registered.
[3] It is fully expected that the defendant will file a motion in response to quash the appeal pursuant to S.20 of the Court of Appeal Act, R.S.B,C 1996, c.77, a section which contemplates preliminary objections to proceedings. The Bar set by the British Columbia Appeal Court case law determining standing, is to issue a written decision, when the case involves the pubic interest and/or the practice of law. Both, the Court and the Attorney General, have a vested interest to resolve this appeal issue. It is important to our Democracy and all Canadians, to understand the British Columbia Court system’s access to enforce and protect our democratic civil rights during elections.
[4] The defendant is asked please, in their counter motion to quash, face head on the appeal issue of Canada’s Charter Section 33 and why British Columbia’s Constitutional Question Act is not registered; yet takes precedence over our Charter. The Province obviously decided not to register the Act under Section33. (Maybe it’s not registered, as how can a Province write-off the Nation’s Bill of Rights in one line?)
[5] I promise that I will withdraw this Appeal, if the defendant provides this, and it makes sense. This is reasonable. If the defendant’s motion ignores this simple request, and cannot come up with the legal reasons, to explain why the Constitutional Question Act’s notwithstanding clause can blatantly dismiss Charter Section 33 – the Court must take notice! This is a civil rights, colour of law offense. (Message to the defendant: Any law article or professional opinion will suffice. Note, it is more than saying it’s an Act, as this would be a circular argument, as the defendant makes up Acts. Your action of issuing a writ of mandamus to the Court made this a notwithstanding provision.)
[6] It is respectfully asked that the Court please reread Justice Cole’s paragraph 244-246. “It is difficult to conceive of an issue that is [not political advertising.]” This is political extremism to impose such a broad definition, and extend its reach far into the pre campaign period.
[7] The end result of this appeal is that Democracy is made stronger, and the Court gets its original jurisdiction back. Who will advance this appeal issue then? The appellant will only be representing this notice of motion; as stated already, once this appeal is registered, a team of lawyers will fight for Democracy and the Court in this matter.
[8] As luck would have it, after this leave to appeal was written, this news story appeared in the Times Colonist Oct 7th, 2010 titled: ”Third party advertising rules ‘chilled’ election debate: report.” Quotes: “A spokesman for the attorney general’s office said the government will refrain from discussing Bill 42 until the B.C Court of Appeal has rules on its constitutionality.” “The government is appealing the decision.” Let’s get it on.
[9] Final comments, all the above arguments are placing the cart before the horse. The only decision for this notice of motion is to register this leave to appeal. Only after a leave to appeal is registered can it be dismissed. This appeal has the right to due process.
[11] Thank you for the Court’s time and consideration.
AND TAKE NOTICE THAT in support of the application is exhibit A, the leave to appeal, and an affidavit of sworn on _
Dated:
Signed………………………………………………………….
This application will take no more than 30 minutes.
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Hearing Nov22,2010
Court of Appeal File No. 38495
BETWEEN: British Columbia Teachers’ Federation
Appellant/Respondent
(Plaintiff)
AND: British Columbia (Attorney General)
Appellant/Respondent
(Defendant)
NOTICE OF MOTION
TO: Attorney General of British Columbia
TAKE NOTICE THAT AN APPLICATION will be made by to the presiding justice at 850 Burdett Ave, Victoria , British Columbia, at for an order pursuant to: Appeal Court Rules Section 70 Review Request.
[1] The Registrar has concerns about filing this Leave to Appeal, as I was not an original participant in the Case. It is for the Court of Appeal in the end to decide the merits to register a Leave to Appeal.
[2] It is understood that granting this motion, does not translate that the Appeal Court in their ultimate decision, will accept the appeal or recognize the right of standing. But, it does mean the Appeal Court has the opportunity to decide to hear the matter. It is important, I believe, to reassure the Court and share that, I have been contacted by Mr. David Eby, the executive director of the BCCLA, a few weeks before the May 12, 2009 election. He promised to connect me with a lawyer for my Petition concerning the referendum’s use of Bill 42’s political advertising definition, and its illegal purpose to tamper with the referendum and the election results. This gives hope that a professional legal team is ready and able to takeover, once this Leave to Appeal is registered.
[3] It is fully expected that the defendant will file a motion in response to quash the appeal pursuant to S.20 of the Court of Appeal Act, R.S.B,C 1996, c.77, a section which contemplates preliminary objections to proceedings. The Bar set by the British Columbia Appeal Court case law determining standing, is to issue a written decision, when the case involves the pubic interest and/or the practice of law. Both, the Court and the Attorney General, have a vested interest to resolve this appeal issue. It is important to our Democracy and all Canadians, to understand the British Columbia Court system’s access to enforce and protect our democratic civil rights during elections.
[4] The defendant is asked please, in their counter motion to quash, face head on the appeal issue of Canada’s Charter Section 33 and why British Columbia’s Constitutional Question Act is not registered; yet takes precedence over our Charter. The Province obviously decided not to register the Act under Section33. (Maybe it’s not registered, as how can a Province write-off the Nation’s Bill of Rights in one line?)
[5] I promise that I will withdraw this Appeal, if the defendant provides this, and it makes sense. This is reasonable. If the defendant’s motion ignores this simple request, and cannot come up with the legal reasons, to explain why the Constitutional Question Act’s notwithstanding clause can blatantly dismiss Charter Section 33 – the Court must take notice! This is a civil rights, colour of law offense. (Message to the defendant: Any law article or professional opinion will suffice. Note, it is more than saying it’s an Act, as this would be a circular argument, as the defendant makes up Acts. Your action of issuing a writ of mandamus to the Court made this a notwithstanding provision.)
[6] It is respectfully asked that the Court please reread Justice Cole’s paragraph 244-246. “It is difficult to conceive of an issue that is [not political advertising.]” This is political extremism to impose such a broad definition, and extend its reach far into the pre campaign period.
[7] The end result of this appeal is that Democracy is made stronger, and the Court gets its original jurisdiction back. Who will advance this appeal issue then? The appellant will only be representing this notice of motion; as stated already, once this appeal is registered, a team of lawyers will fight for Democracy and the Court in this matter.
[8] As luck would have it, after this leave to appeal was written, this news story appeared in the Times Colonist Oct 7th, 2010 titled: ”Third party advertising rules ‘chilled’ election debate: report.” Quotes: “A spokesman for the attorney general’s office said the government will refrain from discussing Bill 42 until the B.C Court of Appeal has rules on its constitutionality.” “The government is appealing the decision.” Let’s get it on.
[9] Final comments, all the above arguments are placing the cart before the horse. The only decision for this notice of motion is to register this leave to appeal. Only after a leave to appeal is registered can it be dismissed. This appeal has the right to due process.
[11] Thank you for the Court’s time and consideration.
AND TAKE NOTICE THAT in support of the application is exhibit A, the leave to appeal, and an affidavit of sworn on _
Dated:
Signed………………………………………………………….
This application will take no more than 30 minutes.
The Court should be guided by a very dear jurisprudence to the United States Supreme Court, Marbury v. Madison (1803)
Filed and Province served
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Favorite Paragraph, still laughing: [36.5] Let’s guess what the Attorney General of Canada might say?
Favorite line:Be assured, the Supreme Court of Canada will jealously defend the Court’s marriage to Democracy.
"It’s a slippery slope to allow the Province to restrict the Court’s access to political justice, based on conditions that the Province arbitrarily sets."
Court of Appeal File No. ....................
Supreme Court File No. ....................
Supreme Court Registry ....................
COURT OF APPEAL
BETWEEN: British Columbia Teachers’ Federation, Federation of Post-Secondary Educators of British Columbia, British Columbia Division of the Canadian Union of Public Employees, British Columbia Nurses’ Union and Marcia Toms
Appellant/Respondent
(Plaintiff)
AND: Attorney General of British Columbia, Gloria Laurence and Wendy Weis
Appellant/Respondent
(Defendant)
NOTICE OF APPLICATION FOR LEAVE TO APPEAL
Take notice that (chief) hereby applies for leave to appeal to the Court of Appeal for British Columbia from remedy of Justice Cole of the Supreme Court of British Columbia pronounced the 30th day of April, 2009, at Vancouver, British Columbia. [If the appeal is from a part of the judgment only, please specify the part] Appealing only the-not-with-standing remedy paragraphs 285 & 286.
This appeal is from a trail Judgment. It involves Constitutional / Administration and Civil Procedure issues.
And further take notice that the Court of Appeal will be moved at the hearing of this application for an order that:
[1] Seek an Order to reverse Justice Cole’s decision that the Court had no jurisdiction to make a decision. When it warrants it, the Court can disregard British Columbia’s Constitutional Question Act; and therefore, the Court did have the jurisdiction to strike down Bill 42 section’s 198(1)a & 199(1)a. Seek an Order to sever the Constitutional Question Act question of law into its own appeal proceeding, separate from the main appeal. A Justice has no discretion to deviate from Federal law, and must strictly adhere to Charter Section 33’s court rules approach on a notwithstanding provision.
[2] Seek a cost order that the plaintiff will not owe any funds to pay for the defendant’s costs, based on BC Court Rules pubic interest doctrine, appendix b, party and party costs 3b. Seek a cost order that on a successful appeal that legal costs are to be reimbursed by the Province. This appeal has a strong pubic interest, and is essential to the administration of law.
The grounds of appeal are:
[3] We the People seek the wisdom of the British Columbia Court of Appeal to weigh-in and clarify the Court’s thoughts, on Justice Cole’s closing comments in British Columbia Teachers’ Federation v. British Columbia (Attorney General), 2009 BCSC 440, docket: S085226. Justice Cole has acknowledged this aspect of his electoral fairness remedy is patently unfair. This is a very special case, and involves the inalienable right of Provincial Democracy to be protected by the rule of Federal law. It is of paramount importance to Canadian Jurisprudence to revisit this.
[4] Canada’s Charter Section 33 registration trumps British Columbia’s Constitutional Question Act Section 8.2(b) & 8(3) registration. The Constitutional Question Act is not registered under Section 33 of the Charter; and therefore is of no-force-and-effect to limit the Court in matters defending our democracy during critical moments. Simply said, the Charter’s jurisdiction can be suspended, if and only if, it is registered. The Province decided not to register the notwithstanding legislation; and therefore does not own the property right to demand that the Charter be suspended. There is also the matter that, the Court guarding Section 3 of the Charter, the information component of our guaranteed democratic rights, cannot be restricted by a notwithstanding provision.
[5] The Court also has original jurisdiction. A Country is founded on an oath that Federal law is supreme and supersedes Provincial law in election fraud. Justice Cole's decision to agree that the Court has no jurisdiction is wrong and must not stand.
[6] The appeal issue is a question of law. The decision’s subject matter is not being appealed. Justice Cole is correct about the civil rights infringement of the extreme pre-campaign time period -- and the civil rights infringement of the very broad definition of what constitutes third party political advertising. The appeal concerns only the last two paragraphs of his decision that creates new case law that permits a Justice to make a patently unfair decision concerning our Democracy. To aid the Court of Appeal in their decision, no position is taken on whether the Court should have indeed struck down the candidates/party spending limits, only that the Court has the jurisdiction to do so.
[7] Politicians do not have the authority to enact legislation to restrict the Court’s jurisdiction to judge election laws that politicians make up. It is a slippery slope to allow the Province to quash the Court’s ruling, based on conditions that the Province arbitrarily sets.
[8] The Court should be guided by a very dear jurisprudence to the United States Supreme Court, Marbury v. Madison (1803). The ground breaking case established that the government of the moment is not authorized to alter the Court’s original jurisdiction. The Court may oversee and nullify the actions of a branch of government. The Legislature cannot empower the Court to issue writs of mandamus, which is what happened by Justice Cole claiming that the Court had no jurisdiction based on the Province’s unregistered notwithstanding provision.
[9] Quotes from Justice Cole’s decision: 2009/03/30 Remedy ”[285 ]Because there are spending limits for registered political parties and candidates during the 60-day pre-campaign period (election expenses of $1.1 million for political parties under s. 198(1) (a) and $70,000 for candidates under s. 199(1) (a)) it would be patently unfair to have those restrictions apply when there are none for third parties”. “ [286] The Attorney General takes the position that since there was no notice under the Constitutional Question Act, that I have no jurisdiction to deal with those particular sections of the act. I agree with the Attorney General. I therefore leave it up to the legislature to take the necessary corrective action in respect to this unfairness to the political parties and the candidates during the pre-campaign period.” 2009/03/31 “[3] “As I indicated in the last few paragraphs of my judgment, the solution here is straightforward; there is no complex remedy required.”
If and only if, the defendant waves their right to contest this appeal, will the appellant accept these terms and conditions on the scope of the Court’s examination:
[10] The appellant agrees to limit the scope of the Court’s examination to pertain specifically to the questions relating to the Court’s original jurisdiction; and the Constitutional Question Act and its ability to over ride the S.33 of the Charter, and nullify the Court’s decision making powers. New matters -- new information, motive, liability and other issues -- will not be open to examination, if and only if, the defendant does not contest standing. The Court is tasked here with a fundamental question of law dealing with the Court’s ability to protect Democracy during critical moments. Let all the parties involved take the high road, and do what we can to make this necessary task as easy as possible for the Court.
[11] With reflection, it is believed this is the only course of action for the Attorney General. The Attorney General has a legal responsibility to understand the Constitutional Question Act’s authority to suspend the Court’s jurisdiction. In your research, please note that this fundamental question is not addressed and deserves to be clarified. Please welcome the High Court’s assistance here.
The mute issue of no chance of success:
[12] The appeal concerns Court procedure, and thus, it would be irresponsible to compound the original alleged irregularities, and argue that this question of law has no chance of success. The Canadian Bar Association in their report on Court reform holds that any matter the Court feels enhances public respect and confidence, and gives the Court its moral authority, and preserves the confidence in our institutions, is reviewable by the Court.
[13] If there is any chance that the Appeal Court will overturn Justice Cole’s decision limiting the Court’s original jurisdiction, then the issues over standing and filing time limit are mute. (This is the don’t put form before substance argument.) We the People want and demand and expect that the Court does have jurisdiction and the power to be the defender of our Democracy.
Issue of standing:
[14] With all due respect, the Supreme of Court of Canada will recognize the appellant’s standing. Justice Cole’s remedy constitutes a jurisdictional error and an oppressive remedy. The Appeal Court must place the best interests of British Columbia and Canada, above the defendant’s objections on standing. These are extreme political free speech infringements. The defendant has exploited the weaknesses in our legal system, and approached the privilege of drafting election code, based not on what is right, but what they thought they could get away with. The Court and Democracy are married; together they stand and together they fall. This case is a perfect example of how those that cheat Democracy, would take away the Court’s autonomy. Be assured, the Supreme Court of Canada will jealously defend the Court’s marriage to Democracy.
[15] Something is very wrong when society’s democratic civil rights are retarded by politicians, and the Supreme Court’s remedy is denied jurisdiction by politicians. The Appeal Court has a duty to Canada to share their thoughts on the defendant’s political vision. Quote from the Times Colonist, March 28/09, “Oppal initially tried to impose sweeping restrictions. As early version of Bill 42 called for third party spending limits to apply in the five months before election day.” This is a crisis for Canada when the High Court’s guidance cannot be accessed to combat political extremism.
[16] The defendant’s rhetoric uses the appeal to authority fallacy, to say these laws are the wish of the Legislature. New information. The NDP were taken by surprise, about the referendum regulation banning candidates from combining political advertising with their STV referendum positions. Don’t expect the NDP to broadcast this though.
[17] The Law is that in exceptional circumstances, that yes standing can be recognized. British Columbian Civil Appeal Handbook S.4.7 “Parties who did not participate in or have formal standing in the proceeding below do not have standing to appeal other than in exceptional cases.” Political law is this exception.
[18] British Columbia Civil Appeal Handbook 3.15 “Leave is often granted where the proposed appeal raises matters of interest to the public generally or to a large class of People. Civil Appeal Handbook 3.16 states a Leave may be granted if the issue is important to the practice of law. Civil Appeal Handbook 4.9 “Adding Parties on appeal a justice may add a respondent a party who is not already named and who could be affected by the order request on the appeal. Rule 2(2)a. The jurisdiction to add a party as appellant is presumably found in Sec.30 of the Act, which provides the Court of Appeal may be regulated by analogy to the Supreme Court Rules where there is no specific provision to the Act.” The language of Appeal Rule S.3 uses the words, “A person can appeal.” British Columbia’s Interpretation Act does not define a person, as being the plaintiff or the defendant. It goes against our founding fathers grand design, to deny voters the right to appeal Supreme Court decisions that harm the founders’ gift.
[19] Richard Niebuhr Enterprises Ltd. v.Vancouver (City) Board 2007. BC Court of Appeal This British Columbia case law supports granting standing. Yes it is agreed that, micro participants require economic certain. And therefore, the Appeal Court was correct to dismiss Ms. Street’s efforts to be granted standing. Guiding principle: it is not appropriated for the Court to change the parities to allow an appeal in circumstances were the unsuccessful respondent has not appealed. This is not the case here. The Province lost and was found to have infringed upon everybody’s civil rights, yet society is worse off. Justice Cole’s remedy minimizes the power of the Court. Society demands the Court’s power be restored. The economics of law concept of parto efficiency can by invoked here to grant standing.
[20] Fontaine v. Canada (Attorney Genera) also supports standing. Standing can be granted on the basis of the lack of ability to be part of the original action. Basically, the Court was informed that the Attorney General of Canada was unaware of the dynamics of the remedy required. Two sides to this coin, how can the defendant argue now that British Columbians should have known? The defendant has opened the door to the ignorance argument. The appellant pleads ignorance, as how could he predicate that the Court faced such a puzzle.
[21] In complex charter cases, where there is more than one charter petition for similar material, both petitions have a right to appeal the remedy of the other. The appellant’s petition alleging election referendum fraud was registered on April 9th, 2009. The defendant was served, and did issue a response. The response was issued on May 11th 2009, one day before the election/ referendum by the defendant’s barrister Craig E. Jones.
[22] The Court’s remedy for the referendum would have to redefine the same activity which the Teachers were seeking to redefine. It is a rare occurrence when there can be two charter challenges on the same wording of law. The Governor General in Council is the cause, as it was their decision to copy word for word Bill 42’s very broad definition of political advertising for the referendum’s definition. The only avenue for the Court to handle these two competing remedies is to allow both petitioners standing to appeal. When the limit on political advertising was scrapped, the appellant was still banned from political advertising; this then changed the appellant’s parto efficiency, and his remedy requirements.
[23] The Supreme Court’s decision acknowledging an oppressive remedy, and the lack of inclusion, should open the door to standing. The appellant believes his petition would face the same remedy dilemma Justice Cole faced.
[24] The appellant is one of only twelve registered referendum advertiser. The law demanded that the appellant register; similarly the law demands that the Constitutional Question Act be registered to take away jurisdiction from the Court to protect civil rights. The appellant’s rights to political advertise was completely banned by the Province, compounding the appellant’s democratic charter rights infringement. (The Province hampering society’s ability to communicate should reduce the weight necessary for standing.) The pre-campaign time limit for the referendum was even longer than the election pre-campaign time restriction. Political reform advertisers could not mention any subject or topic that was a position of any candidate.
[25] Further, the failure to grant an injunction obligates some give and take. The injunction should have been granted, due to that there was more than one unique legal element. Canadian jurisprudence, Harper v. Canada (2000) demands absolutely that Judges jealously defend democracy.
[26] The Court's authority to define and change the political landscape, is premised on the right of all to appeal these types of political decisions. Justice Cole’s discretion only to recognize standing, and ignore the intervener’s contribution, must translate that the granting of standing be made easier; because this is a fundamental decision changing the nature of Canada, and can only be legitimate when society’s concerns are respected. Our democracy is faltering, barely more than 50 percent of the electorate voted in the non free speech provincial election -- if one does the math and counts the non registered voters, that’s more than half did not vote! BC politics is in dire straits; and therefore, it would be irresponsible not to help. British Columbians require the Appeal Court to answer this question of law. Who will advance this appeal then?
Appeal filing time limit issue:
[27] Appeal Court Rule S.10(1) A Justice may extend or shorten the time within which an appeal to the Court or application for Leave to Appeal may be brought. Appeal Court Rule S.25 (3) A justice may impose terms and conditions and give directions that the justice considers appropriate. Discretion can be exercised here. There are several persuasive arguments to why the Court should wish to grant an extension. An election and referendum were occurring during this leave to appeal time limit, complicating matters. In this matter, to avoid politicizing the process, it was best to let the waters settle.
[28] Galiano Conservancy Assn. v British Columbia (Ministry of Transportation) 1997 BC Court of Appeal. The fundamental criteria are whether it is in the interests of justice to do so. An appeal cannot be reinstated if prejudice is established. George v. McMahon, 2008 BC Court of Appeal. Paragraph “[20] The test for reinstatement of an appeal standing dismissed as abandoned is significantly more rigorous than the test for removing an appeal from the inactive list. [21] [No] rigid test, the overriding issue is whether it is in the interests of justice to grant an application. Considerations often include the extent of the delay, the explanation for the delay, the existence of any prejudice arising from the delay and the likelihood of success on appeal.”
[29] It would go against the public interest to halt the appeal based on a time technicality. The appeal issue is of a fundamental importance for generations to come. To harm the Court’s ability to function as the defender of our Democracy, must be seen as a national security concern, that the Court must have the opportunity to engage.
[30] One of the appellant’s reasons for the delay was prejudiced by the Province’s statements that they were going to appeal. The appellant took them at their word. Why hasn’t the Province appealed as they promised they would? As luck would have it, after this leave to appeal was written, this
news story appeared in the Times Colonist Oct 7th, 2010 titled: ”Third party advertising rules ‘chilled’ election debate: report.” Quotes: “A spokesman for the attorney general’s office said the government will refrain from discussing Bill 42 until the B.C Court of Appeal has rules on its constitutionality.” “The government is appealing the decision.” This is defending the indefensible. It’s bizarre to argue that society’s political free speech is to be restricted, yet at the same time argue that no reasons have to be given to society, and then ask the Court of Appeal to go against Canadians core democratic beliefs! New information has come to light that explains the hidden motives of the defendant that compels action.
[31] The Province forfeited their right to claim that the appeal filing time limit should be enforced, because of their impugned activity. There is a fundamental unfairness to shut down the normal mechanisms of communication, and then demand on the other hand, that the normal time rule should apply. When the defendant manipulated the hands of time to cheat British Columbians of their guaranteed rights, dooms democracy to say the clock reads such and such, therefore get lost.
What does the Court get out of the transaction?
[32] The Court has a right to practice complex law. The Court has the responsibility to safe guard future arbitrators and their decisions, from the logic dilemma Justice Cole faced. The conundrum: changing A, changes B; therefore can you change A, if one doesn’t have the authority to change B? Justice Cole acknowledges changing B in a patently unfair way. The Court therefore must be equipped with the jurisdiction to change B, so injustice does not become law. There is also the issue that, things are greater then the sum of their parts. An election spending limit charter violation is not necessarily fixable by changing one part. This conundrum should support the right to access the appeal process.
[33] Quote from the Court of Appeal, May 3, 2009, to stay the proceedings on A because it changes B. “[12] The second reason the Attorney General advances focuses on the imbalance in spending restrictions in the 60-day period between third parties which, as consequences of the order have no restriction in that period and political parties and candidates which do have restrictions on the amount they can spend on advertising. He emphasizes the judge recognized this as a harmful unfairness[.]” The action of the Attorney General forwarding the position that the Court cannot even change A, is the final straw for the old Constitutional Questions Act. The Act needs to be redrafted.
[34] It should disappoint the Court of Appeal that the Lower Court’s decision, failed to reference the scope of the crack down against political free speech in the Province. The government should only have a limited capital to restrict democratic rights. Justice Cole’s paragraph 253, writes “I do not consider that part of the definition of election advertising that refers to an advertising message that directly promotes or opposes a political party or candidate to raise problems.” This was a huge problem and disappointment to political reformers. Good luck, improving the system without mentioning the system.
[35] The decision also failed to address the anti trust issue of British Columbia’s main newspapers. The Vancouver Sun, the Province, and the Times Colonist, as well as many small local newspapers -- all owned by one company CanWest. Justice Cole decision paragraph 230, acknowledges the power of the press. “The quite obvious fact that political parities and candidates continue to rely heavily on the traditional media to inform and persuade the pubic underscores this point.” British Columbians, from all walks of life, feel that CanWest uses their newspapers (their private property) to advertise their lopsided political opinion. That’s fine, it was their business, but it is not fine, when our free speech is restricted to make it worse. For example, the newspapers played an integral role in deceiving the electorate on HST. Revenue Canada’s HST initiative, and the promise of substantial incentives for the Provinces, were in the works before the May 09 election. The People are very upset. [New matters arising on appeal. Fresh evidence. Under Rule 31 a party may adduce evidence that was not before the court appealed from with leave of the Court or a Justice.]
[36] Jurisprudence the next time, is now obligated to make it easier to get an injunction, when political free speech is restricted for large blocks of time. (Hopefully there is no next time.) Honourable statesmen do not ban free speech. This is a good lesson for Jurisprudence that politicians mislead. The pre campaign ban of political expression aided and abetted the budget lie and other questionable government business dealings.
[36.5] Let’s guess what the Attorney General of Canada might say? The election law restricts all topics and therefore is it would be very complex to support this complex law. If the Appeal Court were to decide that the all encompassing political advertising law is valid, then this would translate that all topics had a right to be restricted, and that opens the door to new information. By upholding the entire law, certain topics like BC Rail should be excluded from the all encompassing political advertising definition; this is a legal approach the Court must recognize. When political free speech is restricted to cover up government corruption, the corruption must be voiced. Here’s some sale details of the crown corporation BC Rail that were part of the free speech restrictions. The British Columbia 2009 Election Budget lie was not the first time the BC Ministry of Finance has run a muck, and covered up financial information to influence an election. During the Legislature raid in Dec, 2003, the BC Rail disclosure on the tax indemnity tax credits sale was set at 255 million. This figure changed into 366 million two weeks before the sale of B.C. Rail in summer of 2004, and was taken off the public accounts before the May 2005 election, after it was put back on. The BC Rail tax indemnity will approach 900 million dollars. The BC Rail tax indemnity is for asset write downs, that time has shown to be profitable. The Court must insist that the local attorney general stop obstructing justice, and cease and desist hiding the BC Rail tax indemnity from the BC Rail trial. Basi knows the ins and outs of the BC Rail tax indemnity, and kick backs involved. This could be very helpful and profitable to Revenue Canada. The NDP will not raise this issue as there is the refund concern! (Bottom line though, don’t steal from Revenue Canada.)
[37] Email evidence: from van Iersel the Province’s Comptroller General, (before his promotion to Auditor General) about detailing the switch in the BC Rail tax indemnity from 255 million to 366 million two weeks before the final sale in the summer, to Mr. Trumpy, (the person indentify in hansard, as responsible for disclosing the unread BC Rail tax indemnity disclosure to the cabinet.) “Here is the final indemnity note that Paul Taylor and I used to brief Vaughn Palmer yesterday afternoon. Only a few clean changes from what you saw before. We expect Vaughn will do a piece on this. Not sure what it is going to say.” It took Vaughn till the May 09 election to see the light; his stories have allowed the government to point and say look it made the papers. Note, why should Revenue Canada honour tax credits that they don’t get credit for, for example, the Victoria Times Colonist has never printed the BC Rail tax indemnity story.
[38] Email BC Rail indemnity July 22, 04:”I thought that Arn indicated that we would not include the max payable (worse case) in the statements of guaranteed debt and the number included there would be lower. Email evidence. Jan 26/05 draft of the Consolidated Financial Statements. Peter, I would like to confirm with you that the indemnity notification given by BCRC to CN to the tax attributes is not required to disclose in the Statement of Guaranteed Debt. Please advice, thanks.” No surprise, many of these BC Rail emails were destroyed just before the election, contriving the Document Disposal Act.
[39] The BC Ministry of Finance has lied again to British Columbians. Wide spread allegations that the Peoples’ books were cooked. CBC news quote that the deficit is ballooning to 2.8 billion. ”The minister said two days after the Liberals were elected to a third straight term on May 12, he was told the revenue shortfall would be more than 1.1 billion.” “At no time did finance officials suggest to me that that $495-million deficit was not doable.” Is it believable, that two days after the election, then and only then did the BC Liberal party realized this misinformation? If one believes this, then it follows, and is an offense, that the Finance Ministry officials before the election conspired to fool the government. Either way, this is fraud.
[40] Society must now ask, who stood in the way of the RCMP raiding the BC Ministry of Finance to determine who knew what when? The local Attorney General is responsible for policing and prosecuting those officials. Based on new information, it is strongly advised that the Attorney General change their position and no longer support these political free speech restrictions. [The appellant invokes Friesen v. Hammell 1997 BCSC 354. A petition alleging corrupt practice and budget irregularities, the petitioner does not have to have the particulars.]
[41] When the Court is tasked with deciding the true face of Democracy, our interveners should not be dished. We need to be reassured that the next time our interveners are heard. How important is the principle of inclusion, when Justice Cole in paragraph 35-42 says he declined to entertain the intervener’s submissions? Did Justice Cole weigh the intervener's ultra vires argument, when he refused to grant the injunction? Other Nations follow our lead; we all share a sacred responsibility to humanity’s journey to get this right.
[42] The onus in Charter examinations is for the Attorney General to affirm the right to the intrusion. To place Democracy’s fate on a plaintiff’s message to a third party, wronged our Democracy. Democracy is not dependent on the petitioner’s best; it is dependent on the Court’s best.
Right of the Supreme Court of Canada to review this matter:
[43] If the British Columbia Court of Appeal decides to dismiss this appeal -- it is respectfully asked that the Court please provide a written decision. Please appreciate that the Court's position on the right of Canadians to appeal this decision is a defining moment in Canadian history. Democracy is our home. It is requested -- that if the time filing limit or the appellant’s standing are a core difficulty -- that the Court request that both parties have an opportunity to prepare a written brief to why the Court should accept our positions. It is also asked for time to review the defendant’s submission to counter their arguments.
Final comments:
[44] It is an obstruction of justice to withhold information from the Justice Department. How is Democracy served by ignoring a harmful unfairness civil rights election breach? This is a colour of law offense, and a conspiracy against the public. When did the participants understand there was a deficiency in the message to the Feds? The local Attorney General’s goal was not to win this case, but rather to make sure that the Public Interest was served. The Constitutional Questions Act does not excuse the Court, once the Court believes that the election is contaminated; there is a duty to act. What was the point, if one doubts that the Attorney General of Canada was going enter a submission?
[45] The goal here is electoral fairness. A key component of electoral fairness is seeking the wisdom of the Court. This means, the defendant by claiming their wish is electoral fairness, has already implicitly given permission for this appeal to proceed. Thank you for reading over this leave to appeal.
[46] The Court must always error on the side of Democracy.
The trial/hearing of this proceeding ...............................
Dated at .............................., British Columbia, this .................... day of ....................................., 20......
.........................................................................
Appellant/Solicitor for the Appellant
To the respondent(s): ........................................................................................................................................................................................
And to its solicitor:.............................................................................................................................................................................................
This Notice of Leave to Appeal is given by .................................................................................................................................................,
whose address for service is ............................................................................................................................................................................
................................................................................................................................................................................................................................
To the respondent(s):
IF YOU INTEND TO PARTICIPATE in this proceeding, YOU MUST GIVE NOTICE of your intention by filing a form entitled "Notice of Appearance" (Form 2 of the Court of Appeal Rules) in a Court of Appeal registry and serve the notice of appearance on the appellant WITHIN 10 DAYS of receiving this Notice of Application for Leave to Appeal.
IF YOU FAIL TO FILE A NOTICE OF APPEARANCE
(a) you are deemed to take no position on the application, and
(b) the parties are not obliged to serve you with any further documents related to the application.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Favorite Paragraph, still laughing: [36.5] Let’s guess what the Attorney General of Canada might say?
Favorite line:Be assured, the Supreme Court of Canada will jealously defend the Court’s marriage to Democracy.
"It’s a slippery slope to allow the Province to restrict the Court’s access to political justice, based on conditions that the Province arbitrarily sets."
Court of Appeal File No. ....................
Supreme Court File No. ....................
Supreme Court Registry ....................
COURT OF APPEAL
BETWEEN: British Columbia Teachers’ Federation, Federation of Post-Secondary Educators of British Columbia, British Columbia Division of the Canadian Union of Public Employees, British Columbia Nurses’ Union and Marcia Toms
Appellant/Respondent
(Plaintiff)
AND: Attorney General of British Columbia, Gloria Laurence and Wendy Weis
Appellant/Respondent
(Defendant)
NOTICE OF APPLICATION FOR LEAVE TO APPEAL
Take notice that (chief) hereby applies for leave to appeal to the Court of Appeal for British Columbia from remedy of Justice Cole of the Supreme Court of British Columbia pronounced the 30th day of April, 2009, at Vancouver, British Columbia. [If the appeal is from a part of the judgment only, please specify the part] Appealing only the-not-with-standing remedy paragraphs 285 & 286.
This appeal is from a trail Judgment. It involves Constitutional / Administration and Civil Procedure issues.
And further take notice that the Court of Appeal will be moved at the hearing of this application for an order that:
[1] Seek an Order to reverse Justice Cole’s decision that the Court had no jurisdiction to make a decision. When it warrants it, the Court can disregard British Columbia’s Constitutional Question Act; and therefore, the Court did have the jurisdiction to strike down Bill 42 section’s 198(1)a & 199(1)a. Seek an Order to sever the Constitutional Question Act question of law into its own appeal proceeding, separate from the main appeal. A Justice has no discretion to deviate from Federal law, and must strictly adhere to Charter Section 33’s court rules approach on a notwithstanding provision.
[2] Seek a cost order that the plaintiff will not owe any funds to pay for the defendant’s costs, based on BC Court Rules pubic interest doctrine, appendix b, party and party costs 3b. Seek a cost order that on a successful appeal that legal costs are to be reimbursed by the Province. This appeal has a strong pubic interest, and is essential to the administration of law.
The grounds of appeal are:
[3] We the People seek the wisdom of the British Columbia Court of Appeal to weigh-in and clarify the Court’s thoughts, on Justice Cole’s closing comments in British Columbia Teachers’ Federation v. British Columbia (Attorney General), 2009 BCSC 440, docket: S085226. Justice Cole has acknowledged this aspect of his electoral fairness remedy is patently unfair. This is a very special case, and involves the inalienable right of Provincial Democracy to be protected by the rule of Federal law. It is of paramount importance to Canadian Jurisprudence to revisit this.
[4] Canada’s Charter Section 33 registration trumps British Columbia’s Constitutional Question Act Section 8.2(b) & 8(3) registration. The Constitutional Question Act is not registered under Section 33 of the Charter; and therefore is of no-force-and-effect to limit the Court in matters defending our democracy during critical moments. Simply said, the Charter’s jurisdiction can be suspended, if and only if, it is registered. The Province decided not to register the notwithstanding legislation; and therefore does not own the property right to demand that the Charter be suspended. There is also the matter that, the Court guarding Section 3 of the Charter, the information component of our guaranteed democratic rights, cannot be restricted by a notwithstanding provision.
[5] The Court also has original jurisdiction. A Country is founded on an oath that Federal law is supreme and supersedes Provincial law in election fraud. Justice Cole's decision to agree that the Court has no jurisdiction is wrong and must not stand.
[6] The appeal issue is a question of law. The decision’s subject matter is not being appealed. Justice Cole is correct about the civil rights infringement of the extreme pre-campaign time period -- and the civil rights infringement of the very broad definition of what constitutes third party political advertising. The appeal concerns only the last two paragraphs of his decision that creates new case law that permits a Justice to make a patently unfair decision concerning our Democracy. To aid the Court of Appeal in their decision, no position is taken on whether the Court should have indeed struck down the candidates/party spending limits, only that the Court has the jurisdiction to do so.
[7] Politicians do not have the authority to enact legislation to restrict the Court’s jurisdiction to judge election laws that politicians make up. It is a slippery slope to allow the Province to quash the Court’s ruling, based on conditions that the Province arbitrarily sets.
[8] The Court should be guided by a very dear jurisprudence to the United States Supreme Court, Marbury v. Madison (1803). The ground breaking case established that the government of the moment is not authorized to alter the Court’s original jurisdiction. The Court may oversee and nullify the actions of a branch of government. The Legislature cannot empower the Court to issue writs of mandamus, which is what happened by Justice Cole claiming that the Court had no jurisdiction based on the Province’s unregistered notwithstanding provision.
[9] Quotes from Justice Cole’s decision: 2009/03/30 Remedy ”[285 ]Because there are spending limits for registered political parties and candidates during the 60-day pre-campaign period (election expenses of $1.1 million for political parties under s. 198(1) (a) and $70,000 for candidates under s. 199(1) (a)) it would be patently unfair to have those restrictions apply when there are none for third parties”. “ [286] The Attorney General takes the position that since there was no notice under the Constitutional Question Act, that I have no jurisdiction to deal with those particular sections of the act. I agree with the Attorney General. I therefore leave it up to the legislature to take the necessary corrective action in respect to this unfairness to the political parties and the candidates during the pre-campaign period.” 2009/03/31 “[3] “As I indicated in the last few paragraphs of my judgment, the solution here is straightforward; there is no complex remedy required.”
If and only if, the defendant waves their right to contest this appeal, will the appellant accept these terms and conditions on the scope of the Court’s examination:
[10] The appellant agrees to limit the scope of the Court’s examination to pertain specifically to the questions relating to the Court’s original jurisdiction; and the Constitutional Question Act and its ability to over ride the S.33 of the Charter, and nullify the Court’s decision making powers. New matters -- new information, motive, liability and other issues -- will not be open to examination, if and only if, the defendant does not contest standing. The Court is tasked here with a fundamental question of law dealing with the Court’s ability to protect Democracy during critical moments. Let all the parties involved take the high road, and do what we can to make this necessary task as easy as possible for the Court.
[11] With reflection, it is believed this is the only course of action for the Attorney General. The Attorney General has a legal responsibility to understand the Constitutional Question Act’s authority to suspend the Court’s jurisdiction. In your research, please note that this fundamental question is not addressed and deserves to be clarified. Please welcome the High Court’s assistance here.
The mute issue of no chance of success:
[12] The appeal concerns Court procedure, and thus, it would be irresponsible to compound the original alleged irregularities, and argue that this question of law has no chance of success. The Canadian Bar Association in their report on Court reform holds that any matter the Court feels enhances public respect and confidence, and gives the Court its moral authority, and preserves the confidence in our institutions, is reviewable by the Court.
[13] If there is any chance that the Appeal Court will overturn Justice Cole’s decision limiting the Court’s original jurisdiction, then the issues over standing and filing time limit are mute. (This is the don’t put form before substance argument.) We the People want and demand and expect that the Court does have jurisdiction and the power to be the defender of our Democracy.
Issue of standing:
[14] With all due respect, the Supreme of Court of Canada will recognize the appellant’s standing. Justice Cole’s remedy constitutes a jurisdictional error and an oppressive remedy. The Appeal Court must place the best interests of British Columbia and Canada, above the defendant’s objections on standing. These are extreme political free speech infringements. The defendant has exploited the weaknesses in our legal system, and approached the privilege of drafting election code, based not on what is right, but what they thought they could get away with. The Court and Democracy are married; together they stand and together they fall. This case is a perfect example of how those that cheat Democracy, would take away the Court’s autonomy. Be assured, the Supreme Court of Canada will jealously defend the Court’s marriage to Democracy.
[15] Something is very wrong when society’s democratic civil rights are retarded by politicians, and the Supreme Court’s remedy is denied jurisdiction by politicians. The Appeal Court has a duty to Canada to share their thoughts on the defendant’s political vision. Quote from the Times Colonist, March 28/09, “Oppal initially tried to impose sweeping restrictions. As early version of Bill 42 called for third party spending limits to apply in the five months before election day.” This is a crisis for Canada when the High Court’s guidance cannot be accessed to combat political extremism.
[16] The defendant’s rhetoric uses the appeal to authority fallacy, to say these laws are the wish of the Legislature. New information. The NDP were taken by surprise, about the referendum regulation banning candidates from combining political advertising with their STV referendum positions. Don’t expect the NDP to broadcast this though.
[17] The Law is that in exceptional circumstances, that yes standing can be recognized. British Columbian Civil Appeal Handbook S.4.7 “Parties who did not participate in or have formal standing in the proceeding below do not have standing to appeal other than in exceptional cases.” Political law is this exception.
[18] British Columbia Civil Appeal Handbook 3.15 “Leave is often granted where the proposed appeal raises matters of interest to the public generally or to a large class of People. Civil Appeal Handbook 3.16 states a Leave may be granted if the issue is important to the practice of law. Civil Appeal Handbook 4.9 “Adding Parties on appeal a justice may add a respondent a party who is not already named and who could be affected by the order request on the appeal. Rule 2(2)a. The jurisdiction to add a party as appellant is presumably found in Sec.30 of the Act, which provides the Court of Appeal may be regulated by analogy to the Supreme Court Rules where there is no specific provision to the Act.” The language of Appeal Rule S.3 uses the words, “A person can appeal.” British Columbia’s Interpretation Act does not define a person, as being the plaintiff or the defendant. It goes against our founding fathers grand design, to deny voters the right to appeal Supreme Court decisions that harm the founders’ gift.
[19] Richard Niebuhr Enterprises Ltd. v.Vancouver (City) Board 2007. BC Court of Appeal This British Columbia case law supports granting standing. Yes it is agreed that, micro participants require economic certain. And therefore, the Appeal Court was correct to dismiss Ms. Street’s efforts to be granted standing. Guiding principle: it is not appropriated for the Court to change the parities to allow an appeal in circumstances were the unsuccessful respondent has not appealed. This is not the case here. The Province lost and was found to have infringed upon everybody’s civil rights, yet society is worse off. Justice Cole’s remedy minimizes the power of the Court. Society demands the Court’s power be restored. The economics of law concept of parto efficiency can by invoked here to grant standing.
[20] Fontaine v. Canada (Attorney Genera) also supports standing. Standing can be granted on the basis of the lack of ability to be part of the original action. Basically, the Court was informed that the Attorney General of Canada was unaware of the dynamics of the remedy required. Two sides to this coin, how can the defendant argue now that British Columbians should have known? The defendant has opened the door to the ignorance argument. The appellant pleads ignorance, as how could he predicate that the Court faced such a puzzle.
[21] In complex charter cases, where there is more than one charter petition for similar material, both petitions have a right to appeal the remedy of the other. The appellant’s petition alleging election referendum fraud was registered on April 9th, 2009. The defendant was served, and did issue a response. The response was issued on May 11th 2009, one day before the election/ referendum by the defendant’s barrister Craig E. Jones.
[22] The Court’s remedy for the referendum would have to redefine the same activity which the Teachers were seeking to redefine. It is a rare occurrence when there can be two charter challenges on the same wording of law. The Governor General in Council is the cause, as it was their decision to copy word for word Bill 42’s very broad definition of political advertising for the referendum’s definition. The only avenue for the Court to handle these two competing remedies is to allow both petitioners standing to appeal. When the limit on political advertising was scrapped, the appellant was still banned from political advertising; this then changed the appellant’s parto efficiency, and his remedy requirements.
[23] The Supreme Court’s decision acknowledging an oppressive remedy, and the lack of inclusion, should open the door to standing. The appellant believes his petition would face the same remedy dilemma Justice Cole faced.
[24] The appellant is one of only twelve registered referendum advertiser. The law demanded that the appellant register; similarly the law demands that the Constitutional Question Act be registered to take away jurisdiction from the Court to protect civil rights. The appellant’s rights to political advertise was completely banned by the Province, compounding the appellant’s democratic charter rights infringement. (The Province hampering society’s ability to communicate should reduce the weight necessary for standing.) The pre-campaign time limit for the referendum was even longer than the election pre-campaign time restriction. Political reform advertisers could not mention any subject or topic that was a position of any candidate.
[25] Further, the failure to grant an injunction obligates some give and take. The injunction should have been granted, due to that there was more than one unique legal element. Canadian jurisprudence, Harper v. Canada (2000) demands absolutely that Judges jealously defend democracy.
[26] The Court's authority to define and change the political landscape, is premised on the right of all to appeal these types of political decisions. Justice Cole’s discretion only to recognize standing, and ignore the intervener’s contribution, must translate that the granting of standing be made easier; because this is a fundamental decision changing the nature of Canada, and can only be legitimate when society’s concerns are respected. Our democracy is faltering, barely more than 50 percent of the electorate voted in the non free speech provincial election -- if one does the math and counts the non registered voters, that’s more than half did not vote! BC politics is in dire straits; and therefore, it would be irresponsible not to help. British Columbians require the Appeal Court to answer this question of law. Who will advance this appeal then?
Appeal filing time limit issue:
[27] Appeal Court Rule S.10(1) A Justice may extend or shorten the time within which an appeal to the Court or application for Leave to Appeal may be brought. Appeal Court Rule S.25 (3) A justice may impose terms and conditions and give directions that the justice considers appropriate. Discretion can be exercised here. There are several persuasive arguments to why the Court should wish to grant an extension. An election and referendum were occurring during this leave to appeal time limit, complicating matters. In this matter, to avoid politicizing the process, it was best to let the waters settle.
[28] Galiano Conservancy Assn. v British Columbia (Ministry of Transportation) 1997 BC Court of Appeal. The fundamental criteria are whether it is in the interests of justice to do so. An appeal cannot be reinstated if prejudice is established. George v. McMahon, 2008 BC Court of Appeal. Paragraph “[20] The test for reinstatement of an appeal standing dismissed as abandoned is significantly more rigorous than the test for removing an appeal from the inactive list. [21] [No] rigid test, the overriding issue is whether it is in the interests of justice to grant an application. Considerations often include the extent of the delay, the explanation for the delay, the existence of any prejudice arising from the delay and the likelihood of success on appeal.”
[29] It would go against the public interest to halt the appeal based on a time technicality. The appeal issue is of a fundamental importance for generations to come. To harm the Court’s ability to function as the defender of our Democracy, must be seen as a national security concern, that the Court must have the opportunity to engage.
[30] One of the appellant’s reasons for the delay was prejudiced by the Province’s statements that they were going to appeal. The appellant took them at their word. Why hasn’t the Province appealed as they promised they would? As luck would have it, after this leave to appeal was written, this
news story appeared in the Times Colonist Oct 7th, 2010 titled: ”Third party advertising rules ‘chilled’ election debate: report.” Quotes: “A spokesman for the attorney general’s office said the government will refrain from discussing Bill 42 until the B.C Court of Appeal has rules on its constitutionality.” “The government is appealing the decision.” This is defending the indefensible. It’s bizarre to argue that society’s political free speech is to be restricted, yet at the same time argue that no reasons have to be given to society, and then ask the Court of Appeal to go against Canadians core democratic beliefs! New information has come to light that explains the hidden motives of the defendant that compels action.
[31] The Province forfeited their right to claim that the appeal filing time limit should be enforced, because of their impugned activity. There is a fundamental unfairness to shut down the normal mechanisms of communication, and then demand on the other hand, that the normal time rule should apply. When the defendant manipulated the hands of time to cheat British Columbians of their guaranteed rights, dooms democracy to say the clock reads such and such, therefore get lost.
What does the Court get out of the transaction?
[32] The Court has a right to practice complex law. The Court has the responsibility to safe guard future arbitrators and their decisions, from the logic dilemma Justice Cole faced. The conundrum: changing A, changes B; therefore can you change A, if one doesn’t have the authority to change B? Justice Cole acknowledges changing B in a patently unfair way. The Court therefore must be equipped with the jurisdiction to change B, so injustice does not become law. There is also the issue that, things are greater then the sum of their parts. An election spending limit charter violation is not necessarily fixable by changing one part. This conundrum should support the right to access the appeal process.
[33] Quote from the Court of Appeal, May 3, 2009, to stay the proceedings on A because it changes B. “[12] The second reason the Attorney General advances focuses on the imbalance in spending restrictions in the 60-day period between third parties which, as consequences of the order have no restriction in that period and political parties and candidates which do have restrictions on the amount they can spend on advertising. He emphasizes the judge recognized this as a harmful unfairness[.]” The action of the Attorney General forwarding the position that the Court cannot even change A, is the final straw for the old Constitutional Questions Act. The Act needs to be redrafted.
[34] It should disappoint the Court of Appeal that the Lower Court’s decision, failed to reference the scope of the crack down against political free speech in the Province. The government should only have a limited capital to restrict democratic rights. Justice Cole’s paragraph 253, writes “I do not consider that part of the definition of election advertising that refers to an advertising message that directly promotes or opposes a political party or candidate to raise problems.” This was a huge problem and disappointment to political reformers. Good luck, improving the system without mentioning the system.
[35] The decision also failed to address the anti trust issue of British Columbia’s main newspapers. The Vancouver Sun, the Province, and the Times Colonist, as well as many small local newspapers -- all owned by one company CanWest. Justice Cole decision paragraph 230, acknowledges the power of the press. “The quite obvious fact that political parities and candidates continue to rely heavily on the traditional media to inform and persuade the pubic underscores this point.” British Columbians, from all walks of life, feel that CanWest uses their newspapers (their private property) to advertise their lopsided political opinion. That’s fine, it was their business, but it is not fine, when our free speech is restricted to make it worse. For example, the newspapers played an integral role in deceiving the electorate on HST. Revenue Canada’s HST initiative, and the promise of substantial incentives for the Provinces, were in the works before the May 09 election. The People are very upset. [New matters arising on appeal. Fresh evidence. Under Rule 31 a party may adduce evidence that was not before the court appealed from with leave of the Court or a Justice.]
[36] Jurisprudence the next time, is now obligated to make it easier to get an injunction, when political free speech is restricted for large blocks of time. (Hopefully there is no next time.) Honourable statesmen do not ban free speech. This is a good lesson for Jurisprudence that politicians mislead. The pre campaign ban of political expression aided and abetted the budget lie and other questionable government business dealings.
[36.5] Let’s guess what the Attorney General of Canada might say? The election law restricts all topics and therefore is it would be very complex to support this complex law. If the Appeal Court were to decide that the all encompassing political advertising law is valid, then this would translate that all topics had a right to be restricted, and that opens the door to new information. By upholding the entire law, certain topics like BC Rail should be excluded from the all encompassing political advertising definition; this is a legal approach the Court must recognize. When political free speech is restricted to cover up government corruption, the corruption must be voiced. Here’s some sale details of the crown corporation BC Rail that were part of the free speech restrictions. The British Columbia 2009 Election Budget lie was not the first time the BC Ministry of Finance has run a muck, and covered up financial information to influence an election. During the Legislature raid in Dec, 2003, the BC Rail disclosure on the tax indemnity tax credits sale was set at 255 million. This figure changed into 366 million two weeks before the sale of B.C. Rail in summer of 2004, and was taken off the public accounts before the May 2005 election, after it was put back on. The BC Rail tax indemnity will approach 900 million dollars. The BC Rail tax indemnity is for asset write downs, that time has shown to be profitable. The Court must insist that the local attorney general stop obstructing justice, and cease and desist hiding the BC Rail tax indemnity from the BC Rail trial. Basi knows the ins and outs of the BC Rail tax indemnity, and kick backs involved. This could be very helpful and profitable to Revenue Canada. The NDP will not raise this issue as there is the refund concern! (Bottom line though, don’t steal from Revenue Canada.)
[37] Email evidence: from van Iersel the Province’s Comptroller General, (before his promotion to Auditor General) about detailing the switch in the BC Rail tax indemnity from 255 million to 366 million two weeks before the final sale in the summer, to Mr. Trumpy, (the person indentify in hansard, as responsible for disclosing the unread BC Rail tax indemnity disclosure to the cabinet.) “Here is the final indemnity note that Paul Taylor and I used to brief Vaughn Palmer yesterday afternoon. Only a few clean changes from what you saw before. We expect Vaughn will do a piece on this. Not sure what it is going to say.” It took Vaughn till the May 09 election to see the light; his stories have allowed the government to point and say look it made the papers. Note, why should Revenue Canada honour tax credits that they don’t get credit for, for example, the Victoria Times Colonist has never printed the BC Rail tax indemnity story.
[38] Email BC Rail indemnity July 22, 04:”I thought that Arn indicated that we would not include the max payable (worse case) in the statements of guaranteed debt and the number included there would be lower. Email evidence. Jan 26/05 draft of the Consolidated Financial Statements. Peter, I would like to confirm with you that the indemnity notification given by BCRC to CN to the tax attributes is not required to disclose in the Statement of Guaranteed Debt. Please advice, thanks.” No surprise, many of these BC Rail emails were destroyed just before the election, contriving the Document Disposal Act.
[39] The BC Ministry of Finance has lied again to British Columbians. Wide spread allegations that the Peoples’ books were cooked. CBC news quote that the deficit is ballooning to 2.8 billion. ”The minister said two days after the Liberals were elected to a third straight term on May 12, he was told the revenue shortfall would be more than 1.1 billion.” “At no time did finance officials suggest to me that that $495-million deficit was not doable.” Is it believable, that two days after the election, then and only then did the BC Liberal party realized this misinformation? If one believes this, then it follows, and is an offense, that the Finance Ministry officials before the election conspired to fool the government. Either way, this is fraud.
[40] Society must now ask, who stood in the way of the RCMP raiding the BC Ministry of Finance to determine who knew what when? The local Attorney General is responsible for policing and prosecuting those officials. Based on new information, it is strongly advised that the Attorney General change their position and no longer support these political free speech restrictions. [The appellant invokes Friesen v. Hammell 1997 BCSC 354. A petition alleging corrupt practice and budget irregularities, the petitioner does not have to have the particulars.]
[41] When the Court is tasked with deciding the true face of Democracy, our interveners should not be dished. We need to be reassured that the next time our interveners are heard. How important is the principle of inclusion, when Justice Cole in paragraph 35-42 says he declined to entertain the intervener’s submissions? Did Justice Cole weigh the intervener's ultra vires argument, when he refused to grant the injunction? Other Nations follow our lead; we all share a sacred responsibility to humanity’s journey to get this right.
[42] The onus in Charter examinations is for the Attorney General to affirm the right to the intrusion. To place Democracy’s fate on a plaintiff’s message to a third party, wronged our Democracy. Democracy is not dependent on the petitioner’s best; it is dependent on the Court’s best.
Right of the Supreme Court of Canada to review this matter:
[43] If the British Columbia Court of Appeal decides to dismiss this appeal -- it is respectfully asked that the Court please provide a written decision. Please appreciate that the Court's position on the right of Canadians to appeal this decision is a defining moment in Canadian history. Democracy is our home. It is requested -- that if the time filing limit or the appellant’s standing are a core difficulty -- that the Court request that both parties have an opportunity to prepare a written brief to why the Court should accept our positions. It is also asked for time to review the defendant’s submission to counter their arguments.
Final comments:
[44] It is an obstruction of justice to withhold information from the Justice Department. How is Democracy served by ignoring a harmful unfairness civil rights election breach? This is a colour of law offense, and a conspiracy against the public. When did the participants understand there was a deficiency in the message to the Feds? The local Attorney General’s goal was not to win this case, but rather to make sure that the Public Interest was served. The Constitutional Questions Act does not excuse the Court, once the Court believes that the election is contaminated; there is a duty to act. What was the point, if one doubts that the Attorney General of Canada was going enter a submission?
[45] The goal here is electoral fairness. A key component of electoral fairness is seeking the wisdom of the Court. This means, the defendant by claiming their wish is electoral fairness, has already implicitly given permission for this appeal to proceed. Thank you for reading over this leave to appeal.
[46] The Court must always error on the side of Democracy.
The trial/hearing of this proceeding ...............................
Dated at .............................., British Columbia, this .................... day of ....................................., 20......
.........................................................................
Appellant/Solicitor for the Appellant
To the respondent(s): ........................................................................................................................................................................................
And to its solicitor:.............................................................................................................................................................................................
This Notice of Leave to Appeal is given by .................................................................................................................................................,
whose address for service is ............................................................................................................................................................................
................................................................................................................................................................................................................................
To the respondent(s):
IF YOU INTEND TO PARTICIPATE in this proceeding, YOU MUST GIVE NOTICE of your intention by filing a form entitled "Notice of Appearance" (Form 2 of the Court of Appeal Rules) in a Court of Appeal registry and serve the notice of appearance on the appellant WITHIN 10 DAYS of receiving this Notice of Application for Leave to Appeal.
IF YOU FAIL TO FILE A NOTICE OF APPEARANCE
(a) you are deemed to take no position on the application, and
(b) the parties are not obliged to serve you with any further documents related to the application.
Saturday, September 11, 2010
Democracy, a work in progress
"Other Nations follow our lead, we share the responsibility to humanity’s journey to get this right."
Requisition Request
~~~~~~~~~~~~~~~~~~~~~
[1] We the People seek the wisdom of the Appeal Court of British Columbia to weigh-in and clarify the Court’s thoughts, concerning Justice Cole’s closing comments in British Columbia Teachers’ Federation v. British Columbia (Attorney General), 2009 BCSC 440, docket: S085226. Justice Cole has acknowledged this aspect of his decision is patently unfair. This is a very special case, and involves the inalienable right of Provincial Democracy to be protected by rule of Federal Law. It is of paramount importance to Canadian Jurisprudence to revisit this.
[2] Requisition Order sought. Require the Court to instruct the Victoria Court Registrar to file my Leave of Appeal documents. The Registrar has refused, saying that since I was not a participant in the Supreme Court file, that I have no standing. It is for the High Court, not the Registrar, to decide the merits of my right to file a Leave to Appeal notification. Please note, that the Registrar did not refuse my application based on the Court of Appeal Rule 54; my documents were in order. Supreme Court Rule 64(9) grants the right make a requisition request. Supreme Court Rule 64(11) grants that a Judge may order a proceeding be registered with the registry. Not restricted by the generality of Rule 64(11).
[3] It is understood that granting this Requisition does not translate that the Appeal Court accepts this appeal. But it does mean the Appeal Court gets the opportunity to decide to hear this matter. I believe it is important to reassure the Court and share that I have been contacted by Mr. David Eby, the executive director of the BCCLA, in the past, and he promised to connect me with a lawyer for my Charter challenge concerning the Single Transferable Vote Referendum’s complete ban on political advertising. Gives me hope that a professional legal team will takeover and handle this Leave to Appeal once it is filed.
[4] The appeal issue is very specific. I am not appealing the main subject matter of the decision, as of course I agree with Justice Cole about the illegality, of the extreme precampaign free speech time limit restriction period -- and the illegality of BC Liberal’s extreme, all encompassing definition of what constitutes political advertising. I am only appealing the last two paragraphs of his decision that establishes the jurisprudence to permit a Justice to make a patently unfair decision concerning our democracy
[5] I strongly disagree with the position that provincial politicians have the authority to enact legislation, which limits and restricts the Court’s jurisdiction, to jealously defend the democratic dreams of the Nation of Canada. It’s a slippery slope to allow the Province to restrict the Court’s access to political justice, based on conditions the Province arbitrarily sets.
[6] Justice Cole’s closing comments: 2009/03/30 Remedy [285]Because there are spending limits for registered political parties and candidates during the 60-day precampaign period (election expenses of $1.1 million for political parties under s. 198(1) (a) and $70,000 for candidates under s. 199(1) (a)) it would be patently unfair to have those restrictions apply when there are none for third parties. [286] The Attorney General takes the position that since there was no notice under the Constitutional Question Act, that I have no jurisdiction to deal with those particular sections of the act. I agree with the Attorney General. I therefore leave it up to the legislature to take the necessary corrective action in respect to this unfairness to the political parties and the candidates during the precampaign period. 2009/03/31 [3] “As I indicated in the last few paragraphs of my judgement, the solution here is straightforward; there is no complex remedy required.”
[7] Appeal summary: And further take notice that the Court of Appeal will be moved at the hearing of this application for an order that: "no further" notice was required under British Columbia's Constitutional Questions Act for the Court to strike down section, 198(1)a 199(1)a. Seek an order that the Court did in fact have jurisdiction to deal with those particular sections of Bill 42.
[8] The grounds of the appeal are: Canadian Charter Section 33 registration, trumps Constitutional Questions Act Section 8.2(b) & 8(3) registration. The British Columbia Constitutional Questions Act is not registered under Section 33 of the Charter; and is therefore, is of no-force-and-effect to limit the Court in matters defending our democracy during critical moments. Democracy demands that Federal Law be supreme and supersede Provincial law in election fraud. Justice Cole's decision to agree that the Court has no jurisdiction is wrong and must not stand.
Appeal time limit issue:
[9] Appeal Court Rule S.10(1) A Justice may extend or shorten the time within which an appeal to the Court or application for Leave to Appeal may be brought. The Appeal Court thus has the discretion to make a judgment call to vary the 30 day file time limit statute. There are several persuasive arguments why the High Court should wish to grant an extension. An election and referendum were occurring during part of the Leave to Appeal time limits, complicating matters. This appeal is of public interest, and therefore it would go against the public interest to halt the appeal based on a time technicality. Political law must not limited by time statues, as political law is a distinct field of law separate from both criminal law and civil law. Civil Appeal Handbook 3.15 Leave is often granted where the proposed appeal raises matters of interest to the public generally or to a large class of People. Civil Appeal Handbook 3.16 states a Leave may be granted if the issue is important to the practice of law. A Lower Court's decision limiting the Court’s power as the defender of our Democracy, is a national security concern, that High Court should have the opportunity to engage.
[10] When the State cheats in the election process to help win an election, time limits should not cover up such corruption. The defendant shut down the political free speech communication transmission notification mechanisms in the Province for an illegal period of time; which therefore, must translate that the defendant has forfeited their right to claim the appeal notification time limit.
[11] Further, the failure of Court to grant an injunction order to stop the Province’s censorship on political free speech; obligates the Court to some give and take. Canadian jurisprudence, Harper v. Canada, demands absolutely that Judges jealously defend democracy, which means in this case granting my right to file regardless of the time elapsed and standing.7
Issue of standing:
[12] The Law is that in exceptional circumstances, that yes a none participant in a Supreme Court action can appeal. See Richard Niebubr Enterprises Ltd. v.Vancouver (City) Board 2007 and Fontaine v. Canada (Atterney General). Therefore, the issue of not being part of the original Supreme Court action, does not stop my right to appeal. The Civil Appeal Handbook S.4.7 states that Parties who did not participate in or have formal standing in the proceeding below do not have standing to appeal other than in exceptional cases. Political law is this exception. The language of Appeal Rule S.3 uses the word, “A person can appeal.” The Interpretation Act does not define a person, as being the plaintiff or the defendant; thus the Appeal Court does have discretion here. It goes against our founding fathers grand design to deny voters the right to appeal Lower Court decisions that harm our Democracy. When the Lower Court opens Pandora’s box, the Higher must be given the opportunity to close it.
[13] The Attorney General is on record as saying that the appeal issue, was not an issue for the plaintiff, that therefore it should not be seized. The Court's authority to interfere and define the political landscape, is premised on the right on none participants to appeal these types of political decisions. Our democracy is faltering, barely more than 50 percent of the electorate voted in this non free speech provincial election -- if one does the math and counts the non registered voters, that more than fifty percent did not vote; therefore BC politics is in an dire situation; and therefore, it would be irresponsible to not help, but ere in lye’s the problem, if I cannot appeal, how can the Court make things right? The Court desperately needs this appeal to save our barely functioning democracy. The Court must assert Canada’s dominance over rouge provincial politicians.
What does the Court get out of the transaction:
[14] Conundrum. Responsibility to safe guard future arbitrators and their decisions from the logic dilemma Justice Cole faced. The argument: can you change A, if you do not have right to change B, but changing A changes B? Justice Cole acknowledges changing B in a patently unfair way. Therefore the Court’s position is untenable; as in fact B was tinkered with. The Court therefore must be equipped with the jurisdiction to change B in the correct way, as again tinkering A, tinkers B. This logic also supports the right of none participants in the original action about A, should have access to the appeal process, as the Court altered B, which it should not have, if the Court bows away from defending the right of voters to appeal B..
[15]. Opportunity to equip future Courts with an analytical tool to stifle election fraud. Justice Cole’s report failed to ask and answer the big question, to whether or not, these election rules were manipulated to intentional provide an illegal advantage in the election process. Being cynical is vital, when politicians can make up the rules to elect themselves, and base election rules not on what is right, but what they can get away with. Judicial review of election wrong doing must include a written component that directly questions and determines the motives behind an election law; as this approach would create worry in the minds of unethical politicians that would violate the Charter to steal an election. The Court is vanguard of Democracy. Failure to question the motives behind these extreme free speech Charter violations diminishes Canada.
[16] Failure to grant an injunction aided and abetted the budget lie. Jurisprudence is now obligated to make it easier to get an injunction the next time, when free speech is restricted for large blocks of time. (Hopefully there is no next time.) This is a good lesson for Jurisprudence that politicians lie. Honourable statesmen do not ban free speech! Wide spread allegations that the BC Liberal Party cooked the books. CBC news quote reporting the financial affairs of the Province and the deficit ballooned to 2.8 billion. ”The minister said two days after the Liberals were elected to a third straight term on May 12, he was told the revenue shortfall would be more than 1.1 billion.” “At no time did finance officials suggest to me that that $495-million deficit was not doable.” Is it believable? Is it true that two days after the election, then and only then did the BC Liberal party realized this fraud? What happened in that one day after the election to change things? The backroom official, that devil, went to bed knowing he was going to inform the government about the change in the budget numbers, the next day -- makes this a Coup! The Attorney General is in a catch 22, as the Attorney General is the one responsible for policing and prosecuting those officials. Duty of the Attorney General to inform Justice Cole about this situation, when advocating to retard the Public’s free speech. [New matters arising on appeal. Fresh evidence. Under Rule 31 a party may adduce evidence that was not before the court appealed from with leave of the Court or a Justice.]
[17] It should concern the High Court that the Lower Court decision, failed to mention the scope of the crack down against political free speech in the Province. Jurisprudence must advocate that in free speech charter challenges that the full extent that free speech is being suppressed be part of the analysis. The government has a limited capital to restrict free speech -- and as the Province choose to completely ban political advertising for the referendum – this in Canadian Jurisprudence should reduce their ability to restrict free speech elsewhere. This case is an excellent learning tool to do this. Interestingly, the complete ban on political advertising for the referendum, created a feed back loop, that Bill 42 without say it, banned election advertising from mentioning the referendum. (Analogy, imagine judging an assault case where two punches are thrown, it would negligent to judge the smaller of the punches, while ignoring and second, more extreme punch.)
[18] I bring to the attention of the Court that I was involved in the STV referendum. I am an advocate for political reform. And as a registered referendum advertiser, my right to political advertise was banned! And, the precampaign time limit for the STV referendum was even longer than Bill 42 precampaign election time restrictions. Political reform advertisers could not mention any subject or topic that is a position of any candidate as that would constitute political advertising. So I do disagree with Justice Cole’s paragraph 253, when he writes “I do not consider that part of the definition of election advertising that refers to an advertising message that directly promotes or opposes a political party or candidate to raise problems.” This phrase was huge disappoint to political reformers.
[19] The onus in Charter examinations, is that the Attorney General must affirm the right to the intrusion. It is not for the individual to prove. Therefore, there is worry when the intervener, one of the public’s super heroes is ignored when the Court is tasked with deciding what democracy’s true face is. Other Nations follow our lead, therefore we all have the responsibility to humanity’s journey to get this right. We need to be reassured that the next time our interveners are heard. Did Justice Cole consider all the intervener's arguments when he refused to grant the injunction, yes or no?
Right of the Supreme Court of Canada to review this matter:
[20] If the Court decides to deny this my right to file with Registrar – or the Appeal Court denies my right to appeal -- it is respectfully asked the Court please provide the reasons in writing. Please appreciate that Court's position on the right of voters to appeal this decision is a defining moment in Canadian democracy. It is requested, that if the time limit or my standing to become a plaintiff in this matter, is a concern, that the Court request that both me and defendant have an opportunity to prepare a written brief to why the Court should accept our positions. I also ask for time to review the defendant’s submission to counter their arguments.
Final comments:
[21] Do you actually really think the Attorney General of Canada was going become included in this and make an appearance? How important is the principle of inclusion, when Justice Cole in paragraph 35-42 says he declined to entertain the intervener’s submissions? How can the State simultaneously demand that the Court has no leeway to adjust the notification rules, when politicians shut up our rights to communicate and make notices? It should trouble the Court, if the British Columbia Attorney General opposes the Court’s authority to revisit this decision, as these individuals working for the Office of the Attorney General represent all of us. Thank you for reading over this legal brief – and thank you for granting the right to file my Leave to Appeal with the Court Registrar.
[22] The Court must always error on the side of Democracy.
Requisition Request
~~~~~~~~~~~~~~~~~~~~~
[1] We the People seek the wisdom of the Appeal Court of British Columbia to weigh-in and clarify the Court’s thoughts, concerning Justice Cole’s closing comments in British Columbia Teachers’ Federation v. British Columbia (Attorney General), 2009 BCSC 440, docket: S085226. Justice Cole has acknowledged this aspect of his decision is patently unfair. This is a very special case, and involves the inalienable right of Provincial Democracy to be protected by rule of Federal Law. It is of paramount importance to Canadian Jurisprudence to revisit this.
[2] Requisition Order sought. Require the Court to instruct the Victoria Court Registrar to file my Leave of Appeal documents. The Registrar has refused, saying that since I was not a participant in the Supreme Court file, that I have no standing. It is for the High Court, not the Registrar, to decide the merits of my right to file a Leave to Appeal notification. Please note, that the Registrar did not refuse my application based on the Court of Appeal Rule 54; my documents were in order. Supreme Court Rule 64(9) grants the right make a requisition request. Supreme Court Rule 64(11) grants that a Judge may order a proceeding be registered with the registry. Not restricted by the generality of Rule 64(11).
[3] It is understood that granting this Requisition does not translate that the Appeal Court accepts this appeal. But it does mean the Appeal Court gets the opportunity to decide to hear this matter. I believe it is important to reassure the Court and share that I have been contacted by Mr. David Eby, the executive director of the BCCLA, in the past, and he promised to connect me with a lawyer for my Charter challenge concerning the Single Transferable Vote Referendum’s complete ban on political advertising. Gives me hope that a professional legal team will takeover and handle this Leave to Appeal once it is filed.
[4] The appeal issue is very specific. I am not appealing the main subject matter of the decision, as of course I agree with Justice Cole about the illegality, of the extreme precampaign free speech time limit restriction period -- and the illegality of BC Liberal’s extreme, all encompassing definition of what constitutes political advertising. I am only appealing the last two paragraphs of his decision that establishes the jurisprudence to permit a Justice to make a patently unfair decision concerning our democracy
[5] I strongly disagree with the position that provincial politicians have the authority to enact legislation, which limits and restricts the Court’s jurisdiction, to jealously defend the democratic dreams of the Nation of Canada. It’s a slippery slope to allow the Province to restrict the Court’s access to political justice, based on conditions the Province arbitrarily sets.
[6] Justice Cole’s closing comments: 2009/03/30 Remedy [285]Because there are spending limits for registered political parties and candidates during the 60-day precampaign period (election expenses of $1.1 million for political parties under s. 198(1) (a) and $70,000 for candidates under s. 199(1) (a)) it would be patently unfair to have those restrictions apply when there are none for third parties. [286] The Attorney General takes the position that since there was no notice under the Constitutional Question Act, that I have no jurisdiction to deal with those particular sections of the act. I agree with the Attorney General. I therefore leave it up to the legislature to take the necessary corrective action in respect to this unfairness to the political parties and the candidates during the precampaign period. 2009/03/31 [3] “As I indicated in the last few paragraphs of my judgement, the solution here is straightforward; there is no complex remedy required.”
[7] Appeal summary: And further take notice that the Court of Appeal will be moved at the hearing of this application for an order that: "no further" notice was required under British Columbia's Constitutional Questions Act for the Court to strike down section, 198(1)a 199(1)a. Seek an order that the Court did in fact have jurisdiction to deal with those particular sections of Bill 42.
[8] The grounds of the appeal are: Canadian Charter Section 33 registration, trumps Constitutional Questions Act Section 8.2(b) & 8(3) registration. The British Columbia Constitutional Questions Act is not registered under Section 33 of the Charter; and is therefore, is of no-force-and-effect to limit the Court in matters defending our democracy during critical moments. Democracy demands that Federal Law be supreme and supersede Provincial law in election fraud. Justice Cole's decision to agree that the Court has no jurisdiction is wrong and must not stand.
Appeal time limit issue:
[9] Appeal Court Rule S.10(1) A Justice may extend or shorten the time within which an appeal to the Court or application for Leave to Appeal may be brought. The Appeal Court thus has the discretion to make a judgment call to vary the 30 day file time limit statute. There are several persuasive arguments why the High Court should wish to grant an extension. An election and referendum were occurring during part of the Leave to Appeal time limits, complicating matters. This appeal is of public interest, and therefore it would go against the public interest to halt the appeal based on a time technicality. Political law must not limited by time statues, as political law is a distinct field of law separate from both criminal law and civil law. Civil Appeal Handbook 3.15 Leave is often granted where the proposed appeal raises matters of interest to the public generally or to a large class of People. Civil Appeal Handbook 3.16 states a Leave may be granted if the issue is important to the practice of law. A Lower Court's decision limiting the Court’s power as the defender of our Democracy, is a national security concern, that High Court should have the opportunity to engage.
[10] When the State cheats in the election process to help win an election, time limits should not cover up such corruption. The defendant shut down the political free speech communication transmission notification mechanisms in the Province for an illegal period of time; which therefore, must translate that the defendant has forfeited their right to claim the appeal notification time limit.
[11] Further, the failure of Court to grant an injunction order to stop the Province’s censorship on political free speech; obligates the Court to some give and take. Canadian jurisprudence, Harper v. Canada, demands absolutely that Judges jealously defend democracy, which means in this case granting my right to file regardless of the time elapsed and standing.7
Issue of standing:
[12] The Law is that in exceptional circumstances, that yes a none participant in a Supreme Court action can appeal. See Richard Niebubr Enterprises Ltd. v.Vancouver (City) Board 2007 and Fontaine v. Canada (Atterney General). Therefore, the issue of not being part of the original Supreme Court action, does not stop my right to appeal. The Civil Appeal Handbook S.4.7 states that Parties who did not participate in or have formal standing in the proceeding below do not have standing to appeal other than in exceptional cases. Political law is this exception. The language of Appeal Rule S.3 uses the word, “A person can appeal.” The Interpretation Act does not define a person, as being the plaintiff or the defendant; thus the Appeal Court does have discretion here. It goes against our founding fathers grand design to deny voters the right to appeal Lower Court decisions that harm our Democracy. When the Lower Court opens Pandora’s box, the Higher must be given the opportunity to close it.
[13] The Attorney General is on record as saying that the appeal issue, was not an issue for the plaintiff, that therefore it should not be seized. The Court's authority to interfere and define the political landscape, is premised on the right on none participants to appeal these types of political decisions. Our democracy is faltering, barely more than 50 percent of the electorate voted in this non free speech provincial election -- if one does the math and counts the non registered voters, that more than fifty percent did not vote; therefore BC politics is in an dire situation; and therefore, it would be irresponsible to not help, but ere in lye’s the problem, if I cannot appeal, how can the Court make things right? The Court desperately needs this appeal to save our barely functioning democracy. The Court must assert Canada’s dominance over rouge provincial politicians.
What does the Court get out of the transaction:
[14] Conundrum. Responsibility to safe guard future arbitrators and their decisions from the logic dilemma Justice Cole faced. The argument: can you change A, if you do not have right to change B, but changing A changes B? Justice Cole acknowledges changing B in a patently unfair way. Therefore the Court’s position is untenable; as in fact B was tinkered with. The Court therefore must be equipped with the jurisdiction to change B in the correct way, as again tinkering A, tinkers B. This logic also supports the right of none participants in the original action about A, should have access to the appeal process, as the Court altered B, which it should not have, if the Court bows away from defending the right of voters to appeal B..
[15]. Opportunity to equip future Courts with an analytical tool to stifle election fraud. Justice Cole’s report failed to ask and answer the big question, to whether or not, these election rules were manipulated to intentional provide an illegal advantage in the election process. Being cynical is vital, when politicians can make up the rules to elect themselves, and base election rules not on what is right, but what they can get away with. Judicial review of election wrong doing must include a written component that directly questions and determines the motives behind an election law; as this approach would create worry in the minds of unethical politicians that would violate the Charter to steal an election. The Court is vanguard of Democracy. Failure to question the motives behind these extreme free speech Charter violations diminishes Canada.
[16] Failure to grant an injunction aided and abetted the budget lie. Jurisprudence is now obligated to make it easier to get an injunction the next time, when free speech is restricted for large blocks of time. (Hopefully there is no next time.) This is a good lesson for Jurisprudence that politicians lie. Honourable statesmen do not ban free speech! Wide spread allegations that the BC Liberal Party cooked the books. CBC news quote reporting the financial affairs of the Province and the deficit ballooned to 2.8 billion. ”The minister said two days after the Liberals were elected to a third straight term on May 12, he was told the revenue shortfall would be more than 1.1 billion.” “At no time did finance officials suggest to me that that $495-million deficit was not doable.” Is it believable? Is it true that two days after the election, then and only then did the BC Liberal party realized this fraud? What happened in that one day after the election to change things? The backroom official, that devil, went to bed knowing he was going to inform the government about the change in the budget numbers, the next day -- makes this a Coup! The Attorney General is in a catch 22, as the Attorney General is the one responsible for policing and prosecuting those officials. Duty of the Attorney General to inform Justice Cole about this situation, when advocating to retard the Public’s free speech. [New matters arising on appeal. Fresh evidence. Under Rule 31 a party may adduce evidence that was not before the court appealed from with leave of the Court or a Justice.]
[17] It should concern the High Court that the Lower Court decision, failed to mention the scope of the crack down against political free speech in the Province. Jurisprudence must advocate that in free speech charter challenges that the full extent that free speech is being suppressed be part of the analysis. The government has a limited capital to restrict free speech -- and as the Province choose to completely ban political advertising for the referendum – this in Canadian Jurisprudence should reduce their ability to restrict free speech elsewhere. This case is an excellent learning tool to do this. Interestingly, the complete ban on political advertising for the referendum, created a feed back loop, that Bill 42 without say it, banned election advertising from mentioning the referendum. (Analogy, imagine judging an assault case where two punches are thrown, it would negligent to judge the smaller of the punches, while ignoring and second, more extreme punch.)
[18] I bring to the attention of the Court that I was involved in the STV referendum. I am an advocate for political reform. And as a registered referendum advertiser, my right to political advertise was banned! And, the precampaign time limit for the STV referendum was even longer than Bill 42 precampaign election time restrictions. Political reform advertisers could not mention any subject or topic that is a position of any candidate as that would constitute political advertising. So I do disagree with Justice Cole’s paragraph 253, when he writes “I do not consider that part of the definition of election advertising that refers to an advertising message that directly promotes or opposes a political party or candidate to raise problems.” This phrase was huge disappoint to political reformers.
[19] The onus in Charter examinations, is that the Attorney General must affirm the right to the intrusion. It is not for the individual to prove. Therefore, there is worry when the intervener, one of the public’s super heroes is ignored when the Court is tasked with deciding what democracy’s true face is. Other Nations follow our lead, therefore we all have the responsibility to humanity’s journey to get this right. We need to be reassured that the next time our interveners are heard. Did Justice Cole consider all the intervener's arguments when he refused to grant the injunction, yes or no?
Right of the Supreme Court of Canada to review this matter:
[20] If the Court decides to deny this my right to file with Registrar – or the Appeal Court denies my right to appeal -- it is respectfully asked the Court please provide the reasons in writing. Please appreciate that Court's position on the right of voters to appeal this decision is a defining moment in Canadian democracy. It is requested, that if the time limit or my standing to become a plaintiff in this matter, is a concern, that the Court request that both me and defendant have an opportunity to prepare a written brief to why the Court should accept our positions. I also ask for time to review the defendant’s submission to counter their arguments.
Final comments:
[21] Do you actually really think the Attorney General of Canada was going become included in this and make an appearance? How important is the principle of inclusion, when Justice Cole in paragraph 35-42 says he declined to entertain the intervener’s submissions? How can the State simultaneously demand that the Court has no leeway to adjust the notification rules, when politicians shut up our rights to communicate and make notices? It should trouble the Court, if the British Columbia Attorney General opposes the Court’s authority to revisit this decision, as these individuals working for the Office of the Attorney General represent all of us. Thank you for reading over this legal brief – and thank you for granting the right to file my Leave to Appeal with the Court Registrar.
[22] The Court must always error on the side of Democracy.
Saturday, August 21, 2010
M4 Money Supply economics supports the right of China to control the sale of the Yuan
How China's Safe filled up with trillions of our deposit currency credits
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
It is impressive that China has worked hard and constructed an armada of international bank accounts.
How it works. Yuan is controlled, not allowed to sell it for international currency, only China's Central Bank can sell Yuan for international currency. China by placing a fraction of its workforce of a quarter of mankind to export, has created a demand by China's exporting companies to acquire Yuan to pay wages etc. China's Central Bank -- Safe State administration of foreign reserves stock piles the international currency it sells for Yuan. http://www.safe.gov.cn/model_safe_en/index.jsp
Western media misunderstanding currency trade dynamics, and that the Yuan is under valued. [Traditional economic wisdom that a cheaper currency creates more exports is not what China is doing, yet Western Media presents it that way. ] http://www.bloomberg.com/news/2010-06-19/geithner-welcomes-china-s-yuan-move-calls-for-vigorous-implementation-.html It is in fact overvalued. China controls inflation by overinflated the Yuan given to Chinese exporters. Cheaper for the Central Bank to buy foreign currency of China's exporters needing Yuan with over valued Yuan. [Very important to China to control inflation by limiting any depreciation, and not increase cost to buy foreign currency.] [Not all roses in China, as concern that wages have been repressed. [Massive working poor. More wages increase, the more Yuan exporters need.]
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
It is impressive that China has worked hard and constructed an armada of international bank accounts.
How it works. Yuan is controlled, not allowed to sell it for international currency, only China's Central Bank can sell Yuan for international currency. China by placing a fraction of its workforce of a quarter of mankind to export, has created a demand by China's exporting companies to acquire Yuan to pay wages etc. China's Central Bank -- Safe State administration of foreign reserves stock piles the international currency it sells for Yuan. http://www.safe.gov.cn/model_safe_en/index.jsp
Western media misunderstanding currency trade dynamics, and that the Yuan is under valued. [Traditional economic wisdom that a cheaper currency creates more exports is not what China is doing, yet Western Media presents it that way. ] http://www.bloomberg.com/news/2010-06-19/geithner-welcomes-china-s-yuan-move-calls-for-vigorous-implementation-.html It is in fact overvalued. China controls inflation by overinflated the Yuan given to Chinese exporters. Cheaper for the Central Bank to buy foreign currency of China's exporters needing Yuan with over valued Yuan. [Very important to China to control inflation by limiting any depreciation, and not increase cost to buy foreign currency.] [Not all roses in China, as concern that wages have been repressed. [Massive working poor. More wages increase, the more Yuan exporters need.]
Wednesday, May 12, 2010
Advance in the hydrogen economy would be to trade
How much does hydrogen sell for?
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Hydrogen production provides an opportunity to access locations off the grid, to harvest raw energy for North America's clean energy economy. Huge untapped areas. Remote windfarms, hydrogen production synergies. Rows of windmills can produce compressed air, driving one central turbine, to create electricity, to create hydrogen. Less technical and reduces costs, ie. wind powered compressed air machines can be made of basic material.
Hydrogen shipped to the electricity grid, and turned back into electricity. Though transportation is the best use of hydrogen fuel; nevertheless, it is very important to create industrially electric generators, fueled by hydrogen, to create and stabilize a floor price for hydrogen. Power plants that turn hydrogen into electricity, should get a premium for selling it.
Hydrogen small producers demand that selling hydrogen be easy. Aka, having a market eager to buy hydrogen makes it easy.
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Hydrogen production provides an opportunity to access locations off the grid, to harvest raw energy for North America's clean energy economy. Huge untapped areas. Remote windfarms, hydrogen production synergies. Rows of windmills can produce compressed air, driving one central turbine, to create electricity, to create hydrogen. Less technical and reduces costs, ie. wind powered compressed air machines can be made of basic material.
Hydrogen shipped to the electricity grid, and turned back into electricity. Though transportation is the best use of hydrogen fuel; nevertheless, it is very important to create industrially electric generators, fueled by hydrogen, to create and stabilize a floor price for hydrogen. Power plants that turn hydrogen into electricity, should get a premium for selling it.
Hydrogen small producers demand that selling hydrogen be easy. Aka, having a market eager to buy hydrogen makes it easy.
Royal Bank down graded: corruption at RBC Capital Markets
RBC Capital Markets make a penny, but in the big picture lose Royal Bank shareholders a dolllar
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"FTI Consulting Canada Inc., the Court-appointed monitor in the Companies’ Creditors Arrangement Act (Canada)(the “CCAA”) proceedings (the “Monitor”), in consultation with the RBC Capital Markets, in its capacity as financial advisor to the LP Entities (the “Financial Advisor”) and the LP Entities’ Chief Restructuring Advisor, determined that the bid by members of AHC (“AHC Bid”) constituted a Superior Cash Offer, as defined in the Sale and Investor Solicitation Process (the “SISP”). The Monitor accordingly recommended to the special committee of Canwest’s board of directors (the “Special Committee”) that the AHC Bid be accepted and a definitive agreement be negotiated and settled to carry out the transactions contemplated by the AHC Bid. The Special Committee accepted the Monitor’s recommendation in accordance with the SISP and Canwest is advancing it for Court approval on May 17, 2010."
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"FTI Consulting Canada Inc., the Court-appointed monitor in the Companies’ Creditors Arrangement Act (Canada)(the “CCAA”) proceedings (the “Monitor”), in consultation with the RBC Capital Markets, in its capacity as financial advisor to the LP Entities (the “Financial Advisor”) and the LP Entities’ Chief Restructuring Advisor, determined that the bid by members of AHC (“AHC Bid”) constituted a Superior Cash Offer, as defined in the Sale and Investor Solicitation Process (the “SISP”). The Monitor accordingly recommended to the special committee of Canwest’s board of directors (the “Special Committee”) that the AHC Bid be accepted and a definitive agreement be negotiated and settled to carry out the transactions contemplated by the AHC Bid. The Special Committee accepted the Monitor’s recommendation in accordance with the SISP and Canwest is advancing it for Court approval on May 17, 2010."
Down grading Canada's Banks: SEC CANADA upset with Scotia Bank and Royal Bank
Canada's Banks are unable to invest and protect Canada
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Canada's Banks are failing to protect Canada's newspapers and offer Canadian financing. Canadian Federal Reserve upset also with Scotia Bank and Royal Bank. Bank of Canada objects to Canwest newspaper disclosure monopoly sold to JPMorgan.
http://www.theglobeandmail.com/globe-investor/markets/streetwise/meet-canwests-new-owners/article1564919/
Quote, "The houses of Morgan are willing to buy what Canada’s banks are selling, as CanWest’s newspaper division gets a new lease of life courtesy of two iconic Wall Street banks.
J.P. Morgan and Morgan Stanley stepped up Monday with a new $700-million loan that will help unsecured creditors in CanWest buy the newspaper chain for $1.1-billion, according to court filings on Tuesday. J.P. Morgan is driving this deal, shouldering 70 per cent of the loans.
There is also $250-million of new equity and what’s known as mezzanine debt - loans that can be converted into equity - committed to this takeover.
As the U.S. banks take the stage, Canadian lenders are heading for the exits. Senior lenders, led by Bank of Nova Scotia, have controlled CanWest since the company filed for creditor protection in January. These secured lenders, owed $925-million, are thrilled to be paid 100 cents on the dollar, and are not participating in the recapitalization of the chain.
Somewhere, tycoon J.P. Morgan is smiling."
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SEC Canada examines Scotia Banks reasons for limiting Canwest's credit line from 300 million to 75 million, with 90 million owing with a 11 percent interest rate. Scotia Bank arranged the newspaper sale and non Canadian financing, is treason.
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Canada's Banks are failing to protect Canada's newspapers and offer Canadian financing. Canadian Federal Reserve upset also with Scotia Bank and Royal Bank. Bank of Canada objects to Canwest newspaper disclosure monopoly sold to JPMorgan.
http://www.theglobeandmail.com/globe-investor/markets/streetwise/meet-canwests-new-owners/article1564919/
Quote, "The houses of Morgan are willing to buy what Canada’s banks are selling, as CanWest’s newspaper division gets a new lease of life courtesy of two iconic Wall Street banks.
J.P. Morgan and Morgan Stanley stepped up Monday with a new $700-million loan that will help unsecured creditors in CanWest buy the newspaper chain for $1.1-billion, according to court filings on Tuesday. J.P. Morgan is driving this deal, shouldering 70 per cent of the loans.
There is also $250-million of new equity and what’s known as mezzanine debt - loans that can be converted into equity - committed to this takeover.
As the U.S. banks take the stage, Canadian lenders are heading for the exits. Senior lenders, led by Bank of Nova Scotia, have controlled CanWest since the company filed for creditor protection in January. These secured lenders, owed $925-million, are thrilled to be paid 100 cents on the dollar, and are not participating in the recapitalization of the chain.
Somewhere, tycoon J.P. Morgan is smiling."
~~~~~~~~~~~~~~~~~~~~~~~~
SEC Canada examines Scotia Banks reasons for limiting Canwest's credit line from 300 million to 75 million, with 90 million owing with a 11 percent interest rate. Scotia Bank arranged the newspaper sale and non Canadian financing, is treason.
Monday, May 10, 2010
Grease Greece Bonds
Alternative for Greece to engage a limited bankruptcy, and limit the negative effect on the Euro
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Grease Bond definition: a bond that has defaulted, and the issuer promises to return back over time only the principle.
Possible avenue for Greece to handle its debt, is to convert Greek Government bonds into Grease bonds --- turning issued government debt into a smaller annuity, refunding only the principle, in a series of payments.
Immediate loss to investors in Greece bonds, but at least the grease bonds are worth fifty or more cents on the dollar. [Principle to be eventually be returned, should always be honoured in a government chapter 11. Thee policy of always returning at least the principle lent over time, protects against a debt spiral sinking the entire credit market in chaos. ]
Because Grease bonds do pay something -- the principle back over time, the bonds do have value, therefore can be traded. Bonus for latter grease bond holders is that when the principle is repaid, the nation can extend the time series and amount paid, to honour inflation and some of the forgone interest costs.
European Union guarantees grease bonds, would help. Euro value increases with an effective grease bond policy for defaulting nations, as default reduces Euro obligations. Short run creates economic crisis (already an economic crisis though, as Greece government budget no workable), long run grease bonds stabilize, and provide hope to balance a government's budget. Note, European Union can fund the grease principle payments partly, reduces pressure of Greece's books. Rudimentary economics, a government must have balanced books over time.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Grease Bond definition: a bond that has defaulted, and the issuer promises to return back over time only the principle.
Possible avenue for Greece to handle its debt, is to convert Greek Government bonds into Grease bonds --- turning issued government debt into a smaller annuity, refunding only the principle, in a series of payments.
Immediate loss to investors in Greece bonds, but at least the grease bonds are worth fifty or more cents on the dollar. [Principle to be eventually be returned, should always be honoured in a government chapter 11. Thee policy of always returning at least the principle lent over time, protects against a debt spiral sinking the entire credit market in chaos. ]
Because Grease bonds do pay something -- the principle back over time, the bonds do have value, therefore can be traded. Bonus for latter grease bond holders is that when the principle is repaid, the nation can extend the time series and amount paid, to honour inflation and some of the forgone interest costs.
European Union guarantees grease bonds, would help. Euro value increases with an effective grease bond policy for defaulting nations, as default reduces Euro obligations. Short run creates economic crisis (already an economic crisis though, as Greece government budget no workable), long run grease bonds stabilize, and provide hope to balance a government's budget. Note, European Union can fund the grease principle payments partly, reduces pressure of Greece's books. Rudimentary economics, a government must have balanced books over time.
Saturday, May 1, 2010
BASEL III Amateur hour -- Conception of what a reserve is, is flawed
- restricts potentials and economic opportunity, when lending limited- restricts small nations and creates a dependence of foreign lending to supply domestic credit markets (even in an even flow, periods of one way flow, creates concessions, that indebt small nations' banks [Association of Federal Reserves long term balancing act to restrict this effect.]- prohibits lending, loans are future deposits that create reserves, need new loans to build reserves, therefore Basel III places the cart before the horse- reserves in stocks and bonds fluxucate, therefore reserve percentage artificialhttp://federalreservesassociation.blogspot.comAdvice to nations around the planet, and their Banks is to reject BASEL III~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~http://www.torontosun.com/money/2010/04/08/13514061.htmlThe bank of clearance aggregate cannot express itself in M1. BASEL III intended purpose, is to try and make banks have a percentage of assets in M1, yet the size of the reserve and total bank assets is based on M3.Monetary science details: how a nation's amount of paper currency, is small in size, compared to the capital lending market's size, and how that w. And as such, designing a banking regulator system, that banks have paper reserve percentage's is flawed. BASEL III will actually damage the World Financial Markets, as restricts the world economy, as the world economy is based on M3 bank of clearance lending credits.http://www.mi2g.com/cgi/mi2g/frameset.php?pageid=http%3A//www.mi2g.com/cgi/mi2g/press/250110.phpQuote, "Under proposals from the Basel Committee -– which have been dubbed 'Basel III' –- banks will have to maintain a so-called core capital ratio of at least 6%.[Note, not enough Euros out there to do this, so must be M4 created, or borrowed from the European Bank of Clearance, Basel's flaw in a nut shell.]For many banks, capitalisation under Basel II is deemed very weak. Transition rules would give them time to fix the situation, but not a reprieve from the need to raise more equity. Overall, this could be particularly negative for the European banks. The European banking sector as a whole will have an aggregate extra funding requirement of more than one trillion euros, nearly one and a half trillion dollars, to comply with Basel III according to a number of projections from major financial institutions.[That turnover is only there, as another bank is waiting for that turn over back. Banks needing to retaining turn over -- shorts the next bank in line, waiting for those funds to be relent, so they can balance their loan program. ]The American banks' requirements are a lot less. Under changes to the Basel capital directive designed to improve the capital strength of big banks that have collectively lost hundreds of billions in the past few years, small to medium size brokers may also have to put aside a larger proportion of their turnover as a risk-capital buffer.European and American banks currently utilise either Basel I or Basel II. Those regulatory frameworks represent a colossal, decades-long effort at honing and perfection, with minimum capital requirements carefully calculated from detailed mathematical models and formulae. How helpful are those rules when recent history shows that the answers provided were completely wrong. Five days before the bankruptcy of Lehman Brothers in September 2008, it boasted a Basel-type “Tier 1” capital ratio of 11%, almost three times the regulatory minimum. When the share price collapsed, counter-party confidence ebbed away much faster than the capital adequacy ratio would suggest. When there is a 21st century stock market run on a publicly traded bank, capital adequacy ratios become marginalised.[Lehman bankruptcy is not about BASEL, it was about management's greed, and the use of a large the bank to cheat on a massive scale. Speculation, and fraud are not a good mix. Goldman Sachs next example of bank racketering, and exploiting small nations regulator systems.]The Lehman Brothers bankruptcy, followed by the government led rescue of several high flyer banks, poses an obvious conundrum for the Basel-based bank supervisors: if they have already tried and failed to make capital rules foolproof via Basel I and Basel II, why should they do better this time with Basel III? Surely, they must not just worry about hurdles being too low, if the entire track has a tendency to get flooded from time to time. If the Basel Committee overreacts to the financial crisis and devises rules that are too strict, they may endanger the global recovery. Further, how can national supervisors deal with the basket-case banks, for which no reasonable buffer will be adequate? "The Committee's "Basel III" proposal covers the following key points:1. Tier 1 Capital BaseRaises the quality, consistency and transparency of the capital base. Some of the existing Tier 1 capital will be disqualified under the new rules. The new rules are intended to ensure that the banking system is in a better position to absorb losses on both a going concern and a gone concern basis. In addition to raising the quality of the Tier 1 capital base, the Committee is also harmonising the other elements of the capital structure.2. Minimum Liquidity StandardIntroduces a global minimum liquidity standard for internationally active banks that includes a 30-day liquidity coverage ratio requirement underpinned by a longer-term structural liquidity ratio. The framework also includes a common set of monitoring metrics to assist supervisors in identifying and analysing liquidity risk trends at both the bank and system wide level. Those standards and monitoring metrics complement the Committee's Principles for sound liquidity risk management and supervision issued in September 2008. Banks are required to hold significantly more government bonds on their books. The new liquidity coverage ratio aims to ensure adequate liquidity in the event of another market dislocation. It is meant to require a bank to maintain an adequate level of unencumbered, high quality assets that can be converted into cash to meet its liquidity needs for a 30 day time horizon under an acute liquidity stress scenario.3. Leverage RatioIntroduces a leverage ratio as a supplementary measure to the Basel II risk-based framework with a view to migrating to a Pillar 1 treatment based on appropriate review and calibration. The leverage ratio will help contain the build-up of excessive leverage in the banking system, and introduce additional safeguards against model risk and measurement error. To ensure comparability, the details of the leverage ratio will be harmonised internationally, fully adjusting for any remaining differences in accounting.4. Counterparty Credit Risk - Derivatives, Repos and SecuritiesStrengthens the risk coverage of the capital framework. In addition to the trading book and securitisation reforms announced in July 2009, the Committee is proposing to strengthen the capital requirements for counterparty credit risk exposures arising from derivatives, repos and securities financing activities. The strengthened counterparty capital requirements will also increase incentives to move Over-The-Counter (OTC) derivative exposures to central counterparties and exchanges. The Basel Committee will also promote further convergence in the measurement, management and supervision of operational risk.[Economic fallacy, that a nation must manage its books like households do. Fallacy of thinking the macro, is the micro. Question. If the Bank of Canada's currency printed in circulation in 50 billion, obviously the reserves are bigger than this, so what are the reserves in. Stock market capitalizations?]5. Countercyclical Capital BuffersIntroduces a series of measures to promote the build-up of capital buffers in good times that can be drawn upon in periods of stress. A countercyclical capital framework will contribute to a more stable banking system, which will help dampen, instead of amplify, economic and financial shocks. In addition, the Basel Committee is promoting more forward-looking provisioning based on expected losses, which captures actual losses more transparently and is also less pro-cyclical than the current "incurred loss" provisioning model."http://www.filepie.us/?title=Basel_II
Saturday, April 10, 2010
Canwest 8% noteholders debt, exchanged for shareholder equity percentage decreases, with increasing bids for blocks of Canwest stock
Canwest 8% noteholders debt, exchanged for shareholder equity percentage decreases, with increasing bids for blocks of Canwest stockThe expropriation math for Canwest shares, and the 2.3 percentage implied equity formula, is in error. Debt equity, should receive less shares, as bids increase the worth of blocks of Canwest shares
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The implied equity value math is in error -- if the offer for what Shaw has offered on doubles, 20 percent Canwest -- the amount paid for the 2.3% of the new Canwest, is twice as much, is oppressive to Canwest's current shareholders.
The 8% noteholders bonds (vender financing bonds) are buying 75% of Canwest; therefore the share buy-in math, equals that, when blocks of Canwest are bid up, Canwest shareholders orginal 2.3 percentage offer of ownership in the new company, increases in percent. Stock market theory 101: Double bonus for shareholders in bond share CCAA exchanges, and increasing bids for the value of those shares.
http://www.canwestglobal.com/media/viewNews.asp?NewsroomID=1192
Quote, "As noted above, holders of Canwest’s existing 177.6 million shares will receive cash payments in exchange for their shares equivalent in the aggregate to 2.3% of the implied equity value of Restructured Canwest, or approximately $11 million in aggregate."
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The implied equity value math is in error -- if the offer for what Shaw has offered on doubles, 20 percent Canwest -- the amount paid for the 2.3% of the new Canwest, is twice as much, is oppressive to Canwest's current shareholders.
The 8% noteholders bonds (vender financing bonds) are buying 75% of Canwest; therefore the share buy-in math, equals that, when blocks of Canwest are bid up, Canwest shareholders orginal 2.3 percentage offer of ownership in the new company, increases in percent. Stock market theory 101: Double bonus for shareholders in bond share CCAA exchanges, and increasing bids for the value of those shares.
http://www.canwestglobal.com/media/viewNews.asp?NewsroomID=1192
Quote, "As noted above, holders of Canwest’s existing 177.6 million shares will receive cash payments in exchange for their shares equivalent in the aggregate to 2.3% of the implied equity value of Restructured Canwest, or approximately $11 million in aggregate."
Tuesday, March 23, 2010
President's leadership in health care reform, receives a standing ovation around the Planet
Precondition for a modern money supply & and yes the economy is the better, helpling all Americans receive health care & and yes this does reduce the deficit
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http://ca.news.yahoo.com/s/capress/100323/world/us_health_care_overhaul
"We have now just enshrined the core principle that everybody should have some basic security when it comes to their health" "The House passed the 10-year, $938 billion bill Sunday night after a rancorous debate. Not one Republican voted for the bill. Some Democrats also voted against it." 93 billion a year bill.
This is a dream come true for the Nation. Republican and Democratic Presidents dreamed this dream. Proud of Obama.
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http://ca.news.yahoo.com/s/capress/100323/world/us_health_care_overhaul
"We have now just enshrined the core principle that everybody should have some basic security when it comes to their health" "The House passed the 10-year, $938 billion bill Sunday night after a rancorous debate. Not one Republican voted for the bill. Some Democrats also voted against it." 93 billion a year bill.
This is a dream come true for the Nation. Republican and Democratic Presidents dreamed this dream. Proud of Obama.
Thursday, March 18, 2010
Friday, March 12, 2010
Purchase price of Atlantis changed from 1183 million to 1487million?
GAAP refiling clarification.
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304 old loans of Atlantis +1183 = 1487 Sure Goldman loaned 767 million and repaid the 303.9 sounds like a billion investment. Would this not equate that the 2.5 billion qutoed Atlantis Canwest purchase price, is also more?
But, Atlanits a Goldman Sachs takeover, then Goldman costs are that of buying Atlantis. Note Goldman sale price presented to the Canadian Government to buy the total included the debt cost added to total, which it then divided up the price, so no payment for the 303.9 old loans of Atlantis/ and the non arms length loan of 700million, was none, added debt to the balance sheet without loaning anything.
p.8 2009 Financial Statements As agreed with Goldman Sachs, the purchase price allocated to CW Media was $1,487 million, including transaction costs of $55 million and assumed debt of $303.9 million which was immediately repaid. The acquisition was financed through our investment of $262 million for a 35% equity interest, Goldman Sachs’ contribution of $481 million in exchange for its puttable interest and debt financing of $767 million, net of financing costs of $23 million. CW Media holds interests in 18 specialty television channels in Canada. The shares of the entities that hold the CW Media specialty television channels which are regulated by the CRTC were put into trust under an independent trustee pending CRTC approval, which was subsequently received in January 2008.
Canwest and Goldman Sachs' Atlanits purchase detailsp.20 Quote, "As agreed between the Company and Goldman Sachs, the purchase price allocated to the broadcast business was $1,183 million, including transaction costs of $55 million. The Alliance Atlantis long term debt of $304 million was assumed by the Company and immediately repaid. The acquisition was financed through the Company’s investment of $262 million for its 35% equity interest, Goldman Sachs’ contribution of $481 million in exchange for its puttable interest and debt financing of $767 million, net of debt issuance costs of $23 million. CW Media, a wholly owned subsidiary of CW Investments, operates the acquired broadcast business which primarily consists of 18 specialty television channels in Canada. "
We have, subject to regulatory approval, committed to combine our Canadian broadcast operations with the CW Media operations (together, the “Combined Operations”) in 2011. In 2011, our economic interestin the Combined Operations will be determined based on a formula that is based on the segmentedoperating profit of the Combined Operations. p9
Restructuring agreement, as stated to Canwest shareholders in the 2009 Financial Statements
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Financial Restructuring and Creditor Protection
Canwest Global and Canwest Media
Our operating results and cash flows for the year ended August 31, 2009 reflect the impact of the
significant and sudden declines in advertising revenue for our Canadian television, Australian television,
out-of-home and publishing operations reflecting the weakened economic environment. The significantly
reduced advertising revenue has reduced cash flows from operations and impaired our liquidity. As at
August 31, 2009 our current liabilities significantly exceeded our current assets. In March 2009, our
subsidiary, Canwest Media did not make an interest payment which was due under the 8% Notes and is
in default under the terms of the indenture governing the 8% Notes (the “Indenture”). In addition, our
subsidiary, Canwest Limited Partnership, is in default under the terms of its senior secured credit facilities,
its senior subordinated credit facility and the indenture governing the 9.25% Notes because it breached
financial covenants under its senior secured credit facility and failed to make payments of interest and
principal on its senior credit facility and its related hedging derivative instruments, it failed to make interest
payments on its senior subordinated unsecured credit facility and its senior subordinated unsecured notes
and it failed to satisfy the demand for immediate repayment of its obligations related to the hedging
derivative instruments.
We have implemented operational restructuring plans to reduce costs and have closed or sold
underperforming operations. Subsequent to year end, we used the proceeds from the sale of our
Australian television and out-of-home operations to reduce debt and improve our operating liquidity.
On October 5, 2009, Canwest Global entered into an agreement with the members of the Ad Hoc
Committee pursuant to which it intends to pursue a recapitalization transaction. The proposed
recapitalization transaction is supported by members of the Ad Hoc Committee representing approximately
70% of the 8% Notes and is the result of arm’s length discussions with the Ad Hoc Committee. The
support of the proposed recapitalization by the Ad Hoc Committee is subject to the satisfaction of a
number of conditions set out in the Recapitalization Agreement, and the Recapitalization Agreement may
11
be terminated in certain events. Certain deadlines contemplated by the Recapitalization Agreement have
been extended by the parties to the Recapitalization Agreement.
Under the proposed recapitalization and as set out in the Recapitalization Agreement, creditors of the
Canwest Applicants whose claims are compromised under the plan of arrangement, including the holders
of the 8% Notes, will receive an equity interest in restructured Canwest Global. Existing shareholders of
the Company will receive a 2.3% equity interest in restructured Canwest Global. It will be necessary for the
Company to obtain new equity financing in the amount of at least $65 million. The percentage of the equity
of a restructured Canwest Global to be received by affected creditors will be dependent on the percentage
of equity sold to new investors.
As contemplated by the Recapitalization Agreement, on October 6, 2009, the Canwest Applicants
voluntarily applied for and obtained an order from the Court providing creditor protection under the CCAA.
The Initial Order provides for a general stay of proceedings for an initial period of 30 days, which was
subsequently extended to January 22, 2010 and is subject to further extension by the Court. The Initial
Order may be further amended by the Court throughout the CCAA proceedings based on motions from the
Canwest Applicants, their creditors and other interested parties. On October 6, 2009, the Canwest
Applicants, through their Court-appointed monitor, also made a concurrent petition for recognition and
ancillary relief under Chapter 15 of the U.S. Bankruptcy Code.
The stay of proceedings generally precludes parties from taking any action against the Canwest
Applicants for breach of contractual or other obligations. The purpose of the stay is to provide the Canwest
Applicants with the opportunity to stabilize operations and business relationships with customers, vendors,
employees and creditors and to allow the Company to implement an orderly consensual recapitalization
transaction while continuing its day-to-day operations.
Under the terms of the Initial Order, FTI Consulting Canada Inc. was appointed as the monitor (the
“Monitor”) under the CCAA proceedings. The Monitor will report to the Court from time to time on the
Canwest Applicants’ financial and operational position and any other matters that may be relevant to the
CCAA proceedings. In addition, the Monitor may advise the Canwest Applicants on their development of a
restructuring plan and, to the extent required, assist the Canwest Applicants with a restructuring.
During the CCAA proceedings, the Canwest Applicants continue to operate with the assistance of the
Monitor and under the supervision of the Court. Pursuant to the Initial Order, and subject to the conditions
set out therein and the requirements set out in the CCAA, the Canwest Applicants are permitted to pay
outstanding and future employee wages, salaries and employee benefits and other employee obligations;
pay outstanding amounts for goods and services from suppliers considered critical to the ongoing
operations of the Canwest Applicants; and pay future expenses and capital expenditures reasonably
necessary to carry on the operations of the Canwest Applicants.
The Initial Order also allows the Canwest Applicants, subject to the provisions of the CCAA, to disclaim
any arrangement or agreement, including real property leases. Any reference herein to any such
agreements or arrangements and to termination rights or a quantification of Canwest’s obligations under
any such agreements or arrangements is qualified by any overriding disclaimer or other rights the Canwest
Applicants may have as a result of or in connection with the CCAA proceedings. Claims may be allowed
related to damages of counterparties arising as a result of such disclaimers.
The Canwest Applicants are undertaking a financial and corporate restructuring and intend to propose a
plan of arrangement as contemplated by the Recapitalization Agreement which must be approved by the
requisite majority of affected creditors and sanctioned by the Court. There can be no assurance that the
Recapitalization Plan will be supported by the affected creditors and sanctioned by the Court, or that the
Recapitalization Plan will be implemented successfully.
Was 109 million minus from 2009 net income for this? Already writedown on a future aquisiation purchase
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
p14 2009 Annual Report
Accretion of long-term liabilities. For the year ended August 31, 2009, we have recorded an accretion expense of $109 million compared to $68 million in fiscal 2008 related to the discounting of certain long-term liabilities which are accreted
to their estimated value over the term of these liabilities. The charge is primarily related to the Goldman Sachs puttableinterest in CW Investments Co. which is classified as a financial liability with an estimated accretion rate of 19%. We estimate
the fair value of the puttable interest liability based on management’s forecasts. Included in accretion expense for the
year ended August 31, 2009, is a credit of $6 million from the adjustment to the future estimated cash flows.
p17 2009 Annual Report
Accretion of long-term liabilities. For the three months ended August 31, 2009, we have recorded an accretion expense
of $43 million compared to a recovery of $7 million in the same period in fiscal 2008 related to the discounting of certain
long-term liabilities which are accreted to their estimated value over the term of these liabilities. The charge is primarily
related to the Goldman Sachs puttable interest in CW Investments Co. which is classified as a financial liability with an estimated
accretion rate of 19%. We estimate the fair value of the puttable interest liability based on management’s forecasts.
p21
Long-term debt payments
CW Media has required repayments of $15 million in annual principal payments on its long-term debt. As at August 31, 2009, Canwest Media had accrued interest which was overdue of $66 million, $34 million of that was paid in October2009 utilizing the proceeds from the sale of Ten Holdings. As at August 31, 2009, Canwest Limited Partnership had accrued interest which was overdue of $39 million, $14 million of that was paid in September 2009 utilizing the restricted cash that Canwest Limited Partnership had deposited for this purpose.
p22 Ten not a cash cow
~~~~~~~~~~~~~~~~~~~~~~~~
Distributions
Ten Holdings historically made distributions twice annually. In January 2009, Ten Holdings distributed $15 million, $9 million
to us and $6 million to other shareholders. Ten Holdings did not make any further distributions in fiscal 2009. We sold our
interest in Ten Holdings in October 2009.
p23
As at August 31, 2009, CW Media had not drawn an amount upon the $50 million revolving term loan and had fully drawn the amount allowed under the term loan. CW Media Holdings Inc. also has US$338 million senior unsecured notes which bear interest at 13.5% and are due on August 15, 2015. No principal or interest payments are due under the senior notes until August 15, 2011 at which time semi-annual payments of interest only will commence. CW Media made a voluntary interest payment on August 15, 2009 for $25 million (US$23 million) representing accrued interest for the period from February 16, 2009 to August 15, 2009. The notes are guaranteed by CW Media Holdings and its wholly owned subsidiaries.
If an “Insolvency Event” (defined to include the commencement of proceedings under the CCAA) occurs in respect of
Canwest Media and is continuing, Goldman Sachs is entitled to sell all of their shares in CW Investments Co. to a bona fide
arm’s length third party at a price and on other terms and conditions negotiated by Goldman Sachs in its discretion provided
that such third party acquires all of the shares of CW Investments Co. held by the Company at the same price and on the
same terms and conditions. If Goldman Sachs causes such a sale prior to the combination of Canwest Media’s Canadian television
operations with CW Media’s television operations, the entitlement of Goldman Sachs and the Company to the net proceeds
of such sale would be established by a formula set out in the CW Investments Co. Shareholders Agreement.
With loan and other unused credit lines, why the missed interest payments?
Very good question.
In May 2009, Canwest Media issued $105 million (US$94 million) of notes and received cash of $100 million (US$89 million).
The notes bear interest at 12%.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~
304 old loans of Atlantis +1183 = 1487 Sure Goldman loaned 767 million and repaid the 303.9 sounds like a billion investment. Would this not equate that the 2.5 billion qutoed Atlantis Canwest purchase price, is also more?
But, Atlanits a Goldman Sachs takeover, then Goldman costs are that of buying Atlantis. Note Goldman sale price presented to the Canadian Government to buy the total included the debt cost added to total, which it then divided up the price, so no payment for the 303.9 old loans of Atlantis/ and the non arms length loan of 700million, was none, added debt to the balance sheet without loaning anything.
p.8 2009 Financial Statements As agreed with Goldman Sachs, the purchase price allocated to CW Media was $1,487 million, including transaction costs of $55 million and assumed debt of $303.9 million which was immediately repaid. The acquisition was financed through our investment of $262 million for a 35% equity interest, Goldman Sachs’ contribution of $481 million in exchange for its puttable interest and debt financing of $767 million, net of financing costs of $23 million. CW Media holds interests in 18 specialty television channels in Canada. The shares of the entities that hold the CW Media specialty television channels which are regulated by the CRTC were put into trust under an independent trustee pending CRTC approval, which was subsequently received in January 2008.
Canwest and Goldman Sachs' Atlanits purchase detailsp.20 Quote, "As agreed between the Company and Goldman Sachs, the purchase price allocated to the broadcast business was $1,183 million, including transaction costs of $55 million. The Alliance Atlantis long term debt of $304 million was assumed by the Company and immediately repaid. The acquisition was financed through the Company’s investment of $262 million for its 35% equity interest, Goldman Sachs’ contribution of $481 million in exchange for its puttable interest and debt financing of $767 million, net of debt issuance costs of $23 million. CW Media, a wholly owned subsidiary of CW Investments, operates the acquired broadcast business which primarily consists of 18 specialty television channels in Canada. "
We have, subject to regulatory approval, committed to combine our Canadian broadcast operations with the CW Media operations (together, the “Combined Operations”) in 2011. In 2011, our economic interestin the Combined Operations will be determined based on a formula that is based on the segmentedoperating profit of the Combined Operations. p9
Restructuring agreement, as stated to Canwest shareholders in the 2009 Financial Statements
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Financial Restructuring and Creditor Protection
Canwest Global and Canwest Media
Our operating results and cash flows for the year ended August 31, 2009 reflect the impact of the
significant and sudden declines in advertising revenue for our Canadian television, Australian television,
out-of-home and publishing operations reflecting the weakened economic environment. The significantly
reduced advertising revenue has reduced cash flows from operations and impaired our liquidity. As at
August 31, 2009 our current liabilities significantly exceeded our current assets. In March 2009, our
subsidiary, Canwest Media did not make an interest payment which was due under the 8% Notes and is
in default under the terms of the indenture governing the 8% Notes (the “Indenture”). In addition, our
subsidiary, Canwest Limited Partnership, is in default under the terms of its senior secured credit facilities,
its senior subordinated credit facility and the indenture governing the 9.25% Notes because it breached
financial covenants under its senior secured credit facility and failed to make payments of interest and
principal on its senior credit facility and its related hedging derivative instruments, it failed to make interest
payments on its senior subordinated unsecured credit facility and its senior subordinated unsecured notes
and it failed to satisfy the demand for immediate repayment of its obligations related to the hedging
derivative instruments.
We have implemented operational restructuring plans to reduce costs and have closed or sold
underperforming operations. Subsequent to year end, we used the proceeds from the sale of our
Australian television and out-of-home operations to reduce debt and improve our operating liquidity.
On October 5, 2009, Canwest Global entered into an agreement with the members of the Ad Hoc
Committee pursuant to which it intends to pursue a recapitalization transaction. The proposed
recapitalization transaction is supported by members of the Ad Hoc Committee representing approximately
70% of the 8% Notes and is the result of arm’s length discussions with the Ad Hoc Committee. The
support of the proposed recapitalization by the Ad Hoc Committee is subject to the satisfaction of a
number of conditions set out in the Recapitalization Agreement, and the Recapitalization Agreement may
11
be terminated in certain events. Certain deadlines contemplated by the Recapitalization Agreement have
been extended by the parties to the Recapitalization Agreement.
Under the proposed recapitalization and as set out in the Recapitalization Agreement, creditors of the
Canwest Applicants whose claims are compromised under the plan of arrangement, including the holders
of the 8% Notes, will receive an equity interest in restructured Canwest Global. Existing shareholders of
the Company will receive a 2.3% equity interest in restructured Canwest Global. It will be necessary for the
Company to obtain new equity financing in the amount of at least $65 million. The percentage of the equity
of a restructured Canwest Global to be received by affected creditors will be dependent on the percentage
of equity sold to new investors.
As contemplated by the Recapitalization Agreement, on October 6, 2009, the Canwest Applicants
voluntarily applied for and obtained an order from the Court providing creditor protection under the CCAA.
The Initial Order provides for a general stay of proceedings for an initial period of 30 days, which was
subsequently extended to January 22, 2010 and is subject to further extension by the Court. The Initial
Order may be further amended by the Court throughout the CCAA proceedings based on motions from the
Canwest Applicants, their creditors and other interested parties. On October 6, 2009, the Canwest
Applicants, through their Court-appointed monitor, also made a concurrent petition for recognition and
ancillary relief under Chapter 15 of the U.S. Bankruptcy Code.
The stay of proceedings generally precludes parties from taking any action against the Canwest
Applicants for breach of contractual or other obligations. The purpose of the stay is to provide the Canwest
Applicants with the opportunity to stabilize operations and business relationships with customers, vendors,
employees and creditors and to allow the Company to implement an orderly consensual recapitalization
transaction while continuing its day-to-day operations.
Under the terms of the Initial Order, FTI Consulting Canada Inc. was appointed as the monitor (the
“Monitor”) under the CCAA proceedings. The Monitor will report to the Court from time to time on the
Canwest Applicants’ financial and operational position and any other matters that may be relevant to the
CCAA proceedings. In addition, the Monitor may advise the Canwest Applicants on their development of a
restructuring plan and, to the extent required, assist the Canwest Applicants with a restructuring.
During the CCAA proceedings, the Canwest Applicants continue to operate with the assistance of the
Monitor and under the supervision of the Court. Pursuant to the Initial Order, and subject to the conditions
set out therein and the requirements set out in the CCAA, the Canwest Applicants are permitted to pay
outstanding and future employee wages, salaries and employee benefits and other employee obligations;
pay outstanding amounts for goods and services from suppliers considered critical to the ongoing
operations of the Canwest Applicants; and pay future expenses and capital expenditures reasonably
necessary to carry on the operations of the Canwest Applicants.
The Initial Order also allows the Canwest Applicants, subject to the provisions of the CCAA, to disclaim
any arrangement or agreement, including real property leases. Any reference herein to any such
agreements or arrangements and to termination rights or a quantification of Canwest’s obligations under
any such agreements or arrangements is qualified by any overriding disclaimer or other rights the Canwest
Applicants may have as a result of or in connection with the CCAA proceedings. Claims may be allowed
related to damages of counterparties arising as a result of such disclaimers.
The Canwest Applicants are undertaking a financial and corporate restructuring and intend to propose a
plan of arrangement as contemplated by the Recapitalization Agreement which must be approved by the
requisite majority of affected creditors and sanctioned by the Court. There can be no assurance that the
Recapitalization Plan will be supported by the affected creditors and sanctioned by the Court, or that the
Recapitalization Plan will be implemented successfully.
Was 109 million minus from 2009 net income for this? Already writedown on a future aquisiation purchase
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
p14 2009 Annual Report
Accretion of long-term liabilities. For the year ended August 31, 2009, we have recorded an accretion expense of $109 million compared to $68 million in fiscal 2008 related to the discounting of certain long-term liabilities which are accreted
to their estimated value over the term of these liabilities. The charge is primarily related to the Goldman Sachs puttableinterest in CW Investments Co. which is classified as a financial liability with an estimated accretion rate of 19%. We estimate
the fair value of the puttable interest liability based on management’s forecasts. Included in accretion expense for the
year ended August 31, 2009, is a credit of $6 million from the adjustment to the future estimated cash flows.
p17 2009 Annual Report
Accretion of long-term liabilities. For the three months ended August 31, 2009, we have recorded an accretion expense
of $43 million compared to a recovery of $7 million in the same period in fiscal 2008 related to the discounting of certain
long-term liabilities which are accreted to their estimated value over the term of these liabilities. The charge is primarily
related to the Goldman Sachs puttable interest in CW Investments Co. which is classified as a financial liability with an estimated
accretion rate of 19%. We estimate the fair value of the puttable interest liability based on management’s forecasts.
p21
Long-term debt payments
CW Media has required repayments of $15 million in annual principal payments on its long-term debt. As at August 31, 2009, Canwest Media had accrued interest which was overdue of $66 million, $34 million of that was paid in October2009 utilizing the proceeds from the sale of Ten Holdings. As at August 31, 2009, Canwest Limited Partnership had accrued interest which was overdue of $39 million, $14 million of that was paid in September 2009 utilizing the restricted cash that Canwest Limited Partnership had deposited for this purpose.
p22 Ten not a cash cow
~~~~~~~~~~~~~~~~~~~~~~~~
Distributions
Ten Holdings historically made distributions twice annually. In January 2009, Ten Holdings distributed $15 million, $9 million
to us and $6 million to other shareholders. Ten Holdings did not make any further distributions in fiscal 2009. We sold our
interest in Ten Holdings in October 2009.
p23
As at August 31, 2009, CW Media had not drawn an amount upon the $50 million revolving term loan and had fully drawn the amount allowed under the term loan. CW Media Holdings Inc. also has US$338 million senior unsecured notes which bear interest at 13.5% and are due on August 15, 2015. No principal or interest payments are due under the senior notes until August 15, 2011 at which time semi-annual payments of interest only will commence. CW Media made a voluntary interest payment on August 15, 2009 for $25 million (US$23 million) representing accrued interest for the period from February 16, 2009 to August 15, 2009. The notes are guaranteed by CW Media Holdings and its wholly owned subsidiaries.
If an “Insolvency Event” (defined to include the commencement of proceedings under the CCAA) occurs in respect of
Canwest Media and is continuing, Goldman Sachs is entitled to sell all of their shares in CW Investments Co. to a bona fide
arm’s length third party at a price and on other terms and conditions negotiated by Goldman Sachs in its discretion provided
that such third party acquires all of the shares of CW Investments Co. held by the Company at the same price and on the
same terms and conditions. If Goldman Sachs causes such a sale prior to the combination of Canwest Media’s Canadian television
operations with CW Media’s television operations, the entitlement of Goldman Sachs and the Company to the net proceeds
of such sale would be established by a formula set out in the CW Investments Co. Shareholders Agreement.
With loan and other unused credit lines, why the missed interest payments?
Very good question.
In May 2009, Canwest Media issued $105 million (US$94 million) of notes and received cash of $100 million (US$89 million).
The notes bear interest at 12%.
[8] On May 29, 2009 the Limited Partnership failed, for the first time, to make certain interest and principal reduction payments and related interest and cross currency swap payments totaling approximately $10 million in respect of its senior secured credit facilities. On the same day, the Limited Partnership announced that, as of May 31, 2009, it would be in breach of certain financial covenants set out in the credit agreement dated as of July 10, 2007 between its predecessor, Canwest Media Works Limited Partnership, The Bank of Nova Scotia as administrative agent, a syndicate of secured lenders (“the LP Secured Lenders”), and the predecessors of CCI, CPI and CBI as guarantors. The Limited Partnership also failed to make principal, interest and fee payments due pursuant to this credit agreement on June 21, June 22, July 21, July 22 and August 21, 2009.[9] The May 29, 2009, defaults under the senior secured credit facilities triggered defaults in respect of related foreign currency and interest rate swaps. The swap counterparties (the “Hedging Secured Creditors”) demanded payment of $68.9 million. These unpaid amounts rank pari passu with amounts owing under the LP Secured Lenders’ credit facilities.
Employee issue
http://www.mediaunion.ca/blog/
http://www.mediaunion.ca/wordpress/wp-content/uploads/2010/02/millsaffidavit.pdf
ONTARIO
SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
IN THE MATTER OF THE COMPANIES' CREDITORS ARRANGEMENT ACT, R.S.C.
1985, c. C-36, AS AMENDED
AND IN THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT OF
CANWEST PUBLISHING INC.lPUBLICATIONS CANWEST INC., CANWE8T
BOOKS INC. AND CANWEST (CANADA)
AFFIDA VIT OF RUSSELL MILLS
(Sworn January 28,2010)
consequence of the CCAA filing, I no longer receive payment of my SERA
benefits. This loss has had a significant impact on my income and I cannot replace
it. Furthermore, the loss of my SERA payments has severely impacted my
retirement, which I had planned for based on the receipt of the SERA payments. I
understand from the pre-filing report of the Monitor, that in total seven (7) retirees
and two (2) current employees have seen their entitlements under the SERA
unilaterally terminated.
More misinformation, The big Canadian banks that, in effect, are [NOT] currently running the company because of the debts owed them, have made an offer of $925-$950 million for “substantially all” the newspapers, websites, printing plants, etc. [Scotia bank only owed 75 million, yet Scotia bank reported in the news as one of the top lender to Canwest.]
http://www.mediaunion.ca/wordpress/wp-content/uploads/2010/02/millsaffidavit.pdf
ONTARIO
SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
IN THE MATTER OF THE COMPANIES' CREDITORS ARRANGEMENT ACT, R.S.C.
1985, c. C-36, AS AMENDED
AND IN THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT OF
CANWEST PUBLISHING INC.lPUBLICATIONS CANWEST INC., CANWE8T
BOOKS INC. AND CANWEST (CANADA)
AFFIDA VIT OF RUSSELL MILLS
(Sworn January 28,2010)
consequence of the CCAA filing, I no longer receive payment of my SERA
benefits. This loss has had a significant impact on my income and I cannot replace
it. Furthermore, the loss of my SERA payments has severely impacted my
retirement, which I had planned for based on the receipt of the SERA payments. I
understand from the pre-filing report of the Monitor, that in total seven (7) retirees
and two (2) current employees have seen their entitlements under the SERA
unilaterally terminated.
More misinformation, The big Canadian banks that, in effect, are [NOT] currently running the company because of the debts owed them, have made an offer of $925-$950 million for “substantially all” the newspapers, websites, printing plants, etc. [Scotia bank only owed 75 million, yet Scotia bank reported in the news as one of the top lender to Canwest.]
2010-03-05 LPEntities implementing a transaction with LPSecuredLenders that does not contemplate any recoveries for unsecured creditors
To not pay unsecured creditors, as part of the shareholder expropiration plan by Canwest controllers is fraud
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Expropriating canwest shares, saying employees not getting paid. Employees no getting paid, is misinformation. Canwest employee obligations are not an issue. The Ten proceeds of more than half billion in cash, that were taken before the CCRR section 36 declaration, some should belong to these employees, any unsecure creditors.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
[15] In brief, the moving parties submit that representative counsel should be appointed where vulne parties submit that all of these principles have been met in this case.
[16] The LP Entities oppose the relief requested on the grounds that it is premature. The amounts outstanding to the representative group are prefiling unsecured obligations. Unless a superior offer is received in the SISP that is currently underway, the LP Entities will implement a support transaction with the LP Secured Lenders that does not contemplate any recoveries for unsecured creditors. As such, there is no current need to carry out a claims process.
http://www.canlii.org/eliisa/highlight.do?text=canwest&language=en&searchTitle=Ontario+-+Superior+Court+of+Justice&path=/en/on/onsc/doc/2010/2010onsc1328/2010onsc1328.html
CITATION: Canwest Publishing Inc., 2010 ONSC 1328
COURT FILE NO.: CV-10-8533-00CL
DATE: 20100305
ONTARIO
SUPERIOR COURT OF JUSTICE (COMMERCIAL LIST)
IN THE MATTER OF THE COMPANIES' CREDITORS ARRANGEMENT ACT, R.S.C. 1985, C-36, AS AMENDED
AND IN THE MATTER OF A PROPOSED PLAN OF COMPROMISE ORARRANGEMENT OF CANWEST PUBLISHING INC./PUBLICATIONS CANWEST INC., CANWEST BOOKS INC. AND CANWEST (CANADA) INC.
COUNSEL: Lyndon Barnes and Alex Cobb for the Canwest LP Entities
Maria Konyukhova for the Monitor, FTI Consulting Canada Inc.
Hilary Clarke for the Bank of Nova Scotia, Administrative Agent for the Senior Secured Lenders’ Syndicate
Janice Payne and Thomas McRae for the Canwest Salaried Employees and Retirees (CSER) Group
M. A. Church for the Communications, Energy and Paperworkers’ Union
Anthony F. Dale for CAW-Canada
Deborah McPhail for the Financial Services Commission of Ontario
Pepall J.
REASONS FOR DECISION
Relief Requested
[1] Order that Nelligan O’Brien Payne LLP and Shibley Righton LLP be appointed in these proceedings to represent the Salaried Employees and Retirees for all matters relating to claims against the LP Entities and any issues affecting them in the proceedings. Amongst other things, it is proposed that all reasonable legal, actuarial and financial expert and advisory fees be paid by the LP Entities.
[Possible financing also to pay for canwest shareholders representatives. ]
[2] On February 22, 2010, I granted an order on consent of the LP Entities authorizing the Communications, Energy and Paperworker’s Union of Canada (“CEP”) to continue to represent its current members and to represent former members of bargaining units represented by the union including pensioners, retirees, deferred vested participants and surviving spouses and dependants employed or formerly employed by the LP Entities. That order only extended to unionized members or former members. The within motion focused on non-unionized former employees and retirees although Ms. Payne for the moving parties indicated that the moving parties would be content to include other non-unionized employees as well. There is no overlap between the order granted to CEP and the order requested by the Salaried Employees and Retirees.
Facts
[3] On January 8, 2010 the LP Entities obtained an order pursuant to the Companies’ Creditors Arrangement Act (“CCAA”) staying all proceedings and claims against the LP Entities. The order permits but does not require the LP Entities to make payments to employee and retirement benefit plans.
[Canwest not losing money though.]
[4] There are approximately 66 employees, 45 of whom were non-unionized, whose employment with the LP Entities terminated prior to the Initial Order but who were still owed termination and severance payments. As of the date of the Initial Order, the LP Entities ceased making those payments to those former employees. As many of these former employees were owed termination payments as part of a salary continuance scheme whereby they would continue to accrue pensionable service during a notice period, after the Initial Order, those former employees stopped accruing pensionable service. The Representatives seek an order authorizing them to act for the 45 individuals and for the aforementioned law firms to be appointed as representative counsel.
[5] Additionally, seven retirees and two current employees are (or would be) eligible for a pension benefit from Southam Executive Retirement Arrangements (“SERA”). SERA is a non-registered pension plan used to provide supplemental pension benefits to former executives of the LP Entities and their predecessors. These benefits are in excess of those earned under the Canwest Southam Publications Inc. Retirement Plan which benefits are capped as a result of certain provisions of the Income Tax Act. As of the date of the Initial Order, the SERA payments ceased also. This impacts beneficiaries and spouses who are eligible for a joint survivorship option. The aggregate benefit obligation related to SERA is approximately $14.4 million. The Representatives also seek to act for these seven retirees and for the aforementioned law firms to be appointed as representative counsel.
[6] Since January 8, 2010, the LP Entities have being pursuing the sale and investor solicitation process (“SISP”) contemplated by the Initial Order. Throughout the course of the CCAA proceedings, the LP Entities have continued to pay:
(a) salaries, commissions, bonuses and outstanding employee expenses;
(b) current services and special payments in respect of the active registered pension plan; and
(c) post-employment and post-retirement benefits to former employees who were represented by a union when they were employed by the LP Entities.
[7] The LP Entities intend to continue to pay these employee related obligations throughout the course of the CCAA proceedings. Pursuant to the Support Agreement with the LP Secured Lenders, AcquireCo. will assume all of the employee related obligations including existing pension plans (other than supplemental pension plans such as SERA), existing post-retirement and post-employment benefit plans and unpaid severance obligations stayed during the CCAA proceeding. This assumption by AcquireCo. is subject to the LP Secured Lenders’ right, acting commercially reasonably and after consultation with the operational management of the LP Entities, to exclude certain specified liabilities.
[8] All four proposed Representatives have claims against the LP Entities that are representative of the claims that would be advanced by former employees, namely pension benefits and compensation for involuntary terminations. In addition to the claims against the LP Entities, the proposed Representatives may have claims against the directors of the LP Entities that are currently impacted by the CCAA proceedings.
[9] No issue is taken with the proposed Representatives nor with the experience and competence of the proposed law firms, namely Nelligan O’Brien Payne LLP and Shibley Righton LLP, both of whom have jointly acted as court appointed representatives for continuing employees in the Nortel Networks Limited case.
[10] Funding by the LP Entities in respect of the representation requested would violate the Support Agreement dated January 8, 2010 between the LP Entities and the LP Administrative Agent. Specifically, section 5.1(j) of the Support Agreement states:
“The LP Entities shall not pay any of the legal, financial or other advisors to any other Person, except as expressly contemplated by the Initial Order or with the consent in writing from the Administrative Agent acting in consultation with the Steering Committee.”
[11] The LP Administrative Agent does not consent to the funding request at this time.
[12] On October 6, 2009, the CMI Entities applied for protection pursuant to the provisions of the CCAA. In that restructuring, the CMI Entities themselves moved to appoint and fund a law firm as representative counsel for former employees and retirees. That order was granted.
[13] Counsel were urged by me to ascertain whether there was any possibility of resolving this issue. Some time was spent attempting to do so, however, I was subsequently advised that those efforts were unsuccessful.
Issues
[14] The issues on this motion are as follows:
(1) Should the Representatives be appointed?
(2) Should Nelligan O’Brien Payne LLP and Shibley Righton LLP be appointed as representative counsel?
(3) If so, should the request for funding be granted?
Positions of Parties
[15] In brief, the moving parties submit that representative counsel should be appointed where vulne parties submit that all of these principles have been met in this case.
[16] The LP Entities oppose the relief requested on the grounds that it is premature. The amounts outstanding to the representative group are prefiling unsecured obligations. Unless a superior offer is received in the SISP that is currently underway, the LP Entities will implement a support transaction with the LP Secured Lenders that does not contemplate any recoveries for unsecured creditors. As such, there is no current need to carry out a claims process. rable creditors have little means to pursue a claim in a complex CCAA proceeding; there is a social benefit to be derived from assisting vulnerable creditors; and a benefit would be provided to the overall CCAA process by introducing efficiency for all parties involved. The movingAlthough a superior offer may materialize in the SISP, the outcome of the SISP is currently unknown.
[17] Furthermore, the LP Entities oppose the funding request. The fees will deplete the resources of the Estate without any possible corresponding benefit and the Support Agreement with the LP Secured Lenders does not authorize any such payment.
[18] The LP Senior Lenders support the position of the LP Entities.
[19] In its third report, the Monitor noted that pursuant to the Support Agreement, the LP Entities are not permitted to pay any of the legal, financial or other advisors absent consent in writing from the LP Administrative Agent which has not been forthcoming. Accordingly, funding of the fees requested would be in contravention of the Support Agreement with the LP Secured Lenders. For those reasons, the Monitor supported the LP Entities refusal to fund.
Discussion
[20] No one challenged the court’s jurisdiction to make a representation order and such orders have been granted in large CCAA proceedings. Examples include Nortel Networks Corp., Fraser Papers Inc., and Canwest Global Communications Corp. (with respect to the television side of the enterprise). Indeed, a human resources manager at the Ottawa Citizen advised one of the Representatives, Mr. Saumure, that as part of the CCAA process, it was normal practice for the court to appoint a law firm to represent former employees as a group.
[21] Factors that have been considered by courts in granting these orders include:
- the vulnerability and resources of the group sought to be represented;
- any benefit to the companies under CCAA protection;
- any social benefit to be derived from representation of the group;
- the facilitation of the administration of the proceedings and efficiency;
- the avoidance of a multiplicity of legal retainers;
- the balance of convenience and whether it is fair and just including to the creditors of the Estate;
- whether representative counsel has already been appointed for those who have similar interests to the group seeking representation and who is also prepared to act for the group seeking the order; and
- the position of other stakeholders and the Monitor.
[22] The evidence before me consists of affidavits from three of the four proposed Representatives and a partner with the Nelligan O’Brien Payne LLP law firm, the Monitor’s Third Report, and a compendium containing an affidavit of an investment manager for noteholders filed on an earlier occasion in these CCAA proceedings. This evidence addresses most of the aforementioned factors.
[23] The primary objection to the relief requested is prematurity. This is reflected in correspondence sent by counsel for the LP Entities to counsel for the Senior Lenders’ Administrative Agent. Those opposing the relief requested submit that the moving parties can keep an eye on the Monitor’s website and depend on notice to be given by the Monitor in the event that unsecured creditors have any entitlement. Counsel for the LP Entities submitted that counsel for the proposed representatives should reapply to court at the appropriate time and that I should dismiss the motion without prejudice to the moving parties to bring it back on.
[24] In my view, this watch and wait suggestion is unhelpful to the needs of the Salaried Employees and Retirees and to the interests of the Applicants. I accept that the individuals in issue may be unsecured creditors whose recovery expectation may prove to be non-existent and that ultimately there may be no claims process for them. I also accept that some of them were in the executive ranks of the LP Entities and continue to benefit from payment of some pension benefits. That said, these are all individuals who find themselves in uncertain times facing legal proceedings of significant complexity. The evidence is also to the effect that members of the group have little means to pursue representation and are unable to afford proper legal representation at this time. The Monitor already has very extensive responsibilities as reflected in paragraph 30 and following of the Initial Order and the CCAA itself and it is unrealistic to expect that it can be fully responsive to the needs and demands of all of these many individuals and do so in an efficient and timely manner. Desirably in my view, Canadian courts have not typically appointed an Unsecured Creditors Committee to address the needs of unsecured creditors in large restructurings. It would be of considerable benefit to both the Applicants and the Salaried Employees and Retirees to have Representatives and representative counsel who could interact with the Applicants and represent the interests of the Salaried Employees and Retirees. In that regard, I accept their evidence that they are a vulnerable group and there is no other counsel available to represent their interests. Furthermore, a multiplicity of legal retainers is to be discouraged. In my view, it is a false economy to watch and wait. Indeed the time taken by counsel preparing for and arguing this motion is just one such example. The appointment of the Representatives and representative counsel would facilitate the administration of the proceedings and information flow and provide for efficiency.
[25] The second basis for objection is that the LP Entities are not permitted to pay any of the legal, financial or other advisors to any other person except as expressly contemplated by the Initial Order or with consent in writing from the LP Administrative Agent acting in consultation with the Steering Committee. Funding by the LP Entities would be in contravention of the Support Agreement entered into by the LP Entities and the LP Senior Secured Lenders. It was for this reason that the Monitor stated in its Report that it supported the LP Entities’ refusal to fund.
[26] I accept the evidence before me on the inability of the Salaried Employees and Retirees to afford legal counsel at this time. There are in these circumstances three possible sources of funding: the LP Entities; the Monitor pursuant to paragraph 31 (i) of the Initial Order although quere whether this is in keeping with the intention underlying that provision; or the LP Senior Secured Lenders. It seems to me that having exercised the degree of control that they have, it is certainly arguable that relying on inherent jurisdiction, the court has the power to compel the Senior Secured Lenders to fund or alternatively compel the LP Administrative Agent to consent to funding. By executing agreements such as the Support Agreement, parties cannot oust the jurisdiction of the court.
[27] In my view, a source of funding other than the Salaried Employees and Retirees themselves should be identified now. In the CMI Entities’ CCAA proceeding, funding was made available for Representative Counsel although I acknowledge that the circumstances here are somewhat different. Staged payments commencing with the sum of $25,000 may be more appropriate. Funding would be prospective in nature and would not extend to investigation of or claims against directors.
[28] Counsel are to communicate with one another to ascertain how best to structure the funding and report to me if necessary at a 9:30 appointment on March 22, 2010. If everything is resolved, only the Monitor need report at that time and may do so by e-mail. If not resolved, I propose to make the structuring order on March 22, 2010 on a nunc pro tunc basis. Ottawa counsel may participate by telephone but should alert the Commercial List Office of their proposed mode of participation.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Expropriating canwest shares, saying employees not getting paid. Employees no getting paid, is misinformation. Canwest employee obligations are not an issue. The Ten proceeds of more than half billion in cash, that were taken before the CCRR section 36 declaration, some should belong to these employees, any unsecure creditors.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
[15] In brief, the moving parties submit that representative counsel should be appointed where vulne parties submit that all of these principles have been met in this case.
[16] The LP Entities oppose the relief requested on the grounds that it is premature. The amounts outstanding to the representative group are prefiling unsecured obligations. Unless a superior offer is received in the SISP that is currently underway, the LP Entities will implement a support transaction with the LP Secured Lenders that does not contemplate any recoveries for unsecured creditors. As such, there is no current need to carry out a claims process.
http://www.canlii.org/eliisa/highlight.do?text=canwest&language=en&searchTitle=Ontario+-+Superior+Court+of+Justice&path=/en/on/onsc/doc/2010/2010onsc1328/2010onsc1328.html
CITATION: Canwest Publishing Inc., 2010 ONSC 1328
COURT FILE NO.: CV-10-8533-00CL
DATE: 20100305
ONTARIO
SUPERIOR COURT OF JUSTICE (COMMERCIAL LIST)
IN THE MATTER OF THE COMPANIES' CREDITORS ARRANGEMENT ACT, R.S.C. 1985, C-36, AS AMENDED
AND IN THE MATTER OF A PROPOSED PLAN OF COMPROMISE ORARRANGEMENT OF CANWEST PUBLISHING INC./PUBLICATIONS CANWEST INC., CANWEST BOOKS INC. AND CANWEST (CANADA) INC.
COUNSEL: Lyndon Barnes and Alex Cobb for the Canwest LP Entities
Maria Konyukhova for the Monitor, FTI Consulting Canada Inc.
Hilary Clarke for the Bank of Nova Scotia, Administrative Agent for the Senior Secured Lenders’ Syndicate
Janice Payne and Thomas McRae for the Canwest Salaried Employees and Retirees (CSER) Group
M. A. Church for the Communications, Energy and Paperworkers’ Union
Anthony F. Dale for CAW-Canada
Deborah McPhail for the Financial Services Commission of Ontario
Pepall J.
REASONS FOR DECISION
Relief Requested
[1] Order that Nelligan O’Brien Payne LLP and Shibley Righton LLP be appointed in these proceedings to represent the Salaried Employees and Retirees for all matters relating to claims against the LP Entities and any issues affecting them in the proceedings. Amongst other things, it is proposed that all reasonable legal, actuarial and financial expert and advisory fees be paid by the LP Entities.
[Possible financing also to pay for canwest shareholders representatives. ]
[2] On February 22, 2010, I granted an order on consent of the LP Entities authorizing the Communications, Energy and Paperworker’s Union of Canada (“CEP”) to continue to represent its current members and to represent former members of bargaining units represented by the union including pensioners, retirees, deferred vested participants and surviving spouses and dependants employed or formerly employed by the LP Entities. That order only extended to unionized members or former members. The within motion focused on non-unionized former employees and retirees although Ms. Payne for the moving parties indicated that the moving parties would be content to include other non-unionized employees as well. There is no overlap between the order granted to CEP and the order requested by the Salaried Employees and Retirees.
Facts
[3] On January 8, 2010 the LP Entities obtained an order pursuant to the Companies’ Creditors Arrangement Act (“CCAA”) staying all proceedings and claims against the LP Entities. The order permits but does not require the LP Entities to make payments to employee and retirement benefit plans.
[Canwest not losing money though.]
[4] There are approximately 66 employees, 45 of whom were non-unionized, whose employment with the LP Entities terminated prior to the Initial Order but who were still owed termination and severance payments. As of the date of the Initial Order, the LP Entities ceased making those payments to those former employees. As many of these former employees were owed termination payments as part of a salary continuance scheme whereby they would continue to accrue pensionable service during a notice period, after the Initial Order, those former employees stopped accruing pensionable service. The Representatives seek an order authorizing them to act for the 45 individuals and for the aforementioned law firms to be appointed as representative counsel.
[5] Additionally, seven retirees and two current employees are (or would be) eligible for a pension benefit from Southam Executive Retirement Arrangements (“SERA”). SERA is a non-registered pension plan used to provide supplemental pension benefits to former executives of the LP Entities and their predecessors. These benefits are in excess of those earned under the Canwest Southam Publications Inc. Retirement Plan which benefits are capped as a result of certain provisions of the Income Tax Act. As of the date of the Initial Order, the SERA payments ceased also. This impacts beneficiaries and spouses who are eligible for a joint survivorship option. The aggregate benefit obligation related to SERA is approximately $14.4 million. The Representatives also seek to act for these seven retirees and for the aforementioned law firms to be appointed as representative counsel.
[6] Since January 8, 2010, the LP Entities have being pursuing the sale and investor solicitation process (“SISP”) contemplated by the Initial Order. Throughout the course of the CCAA proceedings, the LP Entities have continued to pay:
(a) salaries, commissions, bonuses and outstanding employee expenses;
(b) current services and special payments in respect of the active registered pension plan; and
(c) post-employment and post-retirement benefits to former employees who were represented by a union when they were employed by the LP Entities.
[7] The LP Entities intend to continue to pay these employee related obligations throughout the course of the CCAA proceedings. Pursuant to the Support Agreement with the LP Secured Lenders, AcquireCo. will assume all of the employee related obligations including existing pension plans (other than supplemental pension plans such as SERA), existing post-retirement and post-employment benefit plans and unpaid severance obligations stayed during the CCAA proceeding. This assumption by AcquireCo. is subject to the LP Secured Lenders’ right, acting commercially reasonably and after consultation with the operational management of the LP Entities, to exclude certain specified liabilities.
[8] All four proposed Representatives have claims against the LP Entities that are representative of the claims that would be advanced by former employees, namely pension benefits and compensation for involuntary terminations. In addition to the claims against the LP Entities, the proposed Representatives may have claims against the directors of the LP Entities that are currently impacted by the CCAA proceedings.
[9] No issue is taken with the proposed Representatives nor with the experience and competence of the proposed law firms, namely Nelligan O’Brien Payne LLP and Shibley Righton LLP, both of whom have jointly acted as court appointed representatives for continuing employees in the Nortel Networks Limited case.
[10] Funding by the LP Entities in respect of the representation requested would violate the Support Agreement dated January 8, 2010 between the LP Entities and the LP Administrative Agent. Specifically, section 5.1(j) of the Support Agreement states:
“The LP Entities shall not pay any of the legal, financial or other advisors to any other Person, except as expressly contemplated by the Initial Order or with the consent in writing from the Administrative Agent acting in consultation with the Steering Committee.”
[11] The LP Administrative Agent does not consent to the funding request at this time.
[12] On October 6, 2009, the CMI Entities applied for protection pursuant to the provisions of the CCAA. In that restructuring, the CMI Entities themselves moved to appoint and fund a law firm as representative counsel for former employees and retirees. That order was granted.
[13] Counsel were urged by me to ascertain whether there was any possibility of resolving this issue. Some time was spent attempting to do so, however, I was subsequently advised that those efforts were unsuccessful.
Issues
[14] The issues on this motion are as follows:
(1) Should the Representatives be appointed?
(2) Should Nelligan O’Brien Payne LLP and Shibley Righton LLP be appointed as representative counsel?
(3) If so, should the request for funding be granted?
Positions of Parties
[15] In brief, the moving parties submit that representative counsel should be appointed where vulne parties submit that all of these principles have been met in this case.
[16] The LP Entities oppose the relief requested on the grounds that it is premature. The amounts outstanding to the representative group are prefiling unsecured obligations. Unless a superior offer is received in the SISP that is currently underway, the LP Entities will implement a support transaction with the LP Secured Lenders that does not contemplate any recoveries for unsecured creditors. As such, there is no current need to carry out a claims process. rable creditors have little means to pursue a claim in a complex CCAA proceeding; there is a social benefit to be derived from assisting vulnerable creditors; and a benefit would be provided to the overall CCAA process by introducing efficiency for all parties involved. The movingAlthough a superior offer may materialize in the SISP, the outcome of the SISP is currently unknown.
[17] Furthermore, the LP Entities oppose the funding request. The fees will deplete the resources of the Estate without any possible corresponding benefit and the Support Agreement with the LP Secured Lenders does not authorize any such payment.
[18] The LP Senior Lenders support the position of the LP Entities.
[19] In its third report, the Monitor noted that pursuant to the Support Agreement, the LP Entities are not permitted to pay any of the legal, financial or other advisors absent consent in writing from the LP Administrative Agent which has not been forthcoming. Accordingly, funding of the fees requested would be in contravention of the Support Agreement with the LP Secured Lenders. For those reasons, the Monitor supported the LP Entities refusal to fund.
Discussion
[20] No one challenged the court’s jurisdiction to make a representation order and such orders have been granted in large CCAA proceedings. Examples include Nortel Networks Corp., Fraser Papers Inc., and Canwest Global Communications Corp. (with respect to the television side of the enterprise). Indeed, a human resources manager at the Ottawa Citizen advised one of the Representatives, Mr. Saumure, that as part of the CCAA process, it was normal practice for the court to appoint a law firm to represent former employees as a group.
[21] Factors that have been considered by courts in granting these orders include:
- the vulnerability and resources of the group sought to be represented;
- any benefit to the companies under CCAA protection;
- any social benefit to be derived from representation of the group;
- the facilitation of the administration of the proceedings and efficiency;
- the avoidance of a multiplicity of legal retainers;
- the balance of convenience and whether it is fair and just including to the creditors of the Estate;
- whether representative counsel has already been appointed for those who have similar interests to the group seeking representation and who is also prepared to act for the group seeking the order; and
- the position of other stakeholders and the Monitor.
[22] The evidence before me consists of affidavits from three of the four proposed Representatives and a partner with the Nelligan O’Brien Payne LLP law firm, the Monitor’s Third Report, and a compendium containing an affidavit of an investment manager for noteholders filed on an earlier occasion in these CCAA proceedings. This evidence addresses most of the aforementioned factors.
[23] The primary objection to the relief requested is prematurity. This is reflected in correspondence sent by counsel for the LP Entities to counsel for the Senior Lenders’ Administrative Agent. Those opposing the relief requested submit that the moving parties can keep an eye on the Monitor’s website and depend on notice to be given by the Monitor in the event that unsecured creditors have any entitlement. Counsel for the LP Entities submitted that counsel for the proposed representatives should reapply to court at the appropriate time and that I should dismiss the motion without prejudice to the moving parties to bring it back on.
[24] In my view, this watch and wait suggestion is unhelpful to the needs of the Salaried Employees and Retirees and to the interests of the Applicants. I accept that the individuals in issue may be unsecured creditors whose recovery expectation may prove to be non-existent and that ultimately there may be no claims process for them. I also accept that some of them were in the executive ranks of the LP Entities and continue to benefit from payment of some pension benefits. That said, these are all individuals who find themselves in uncertain times facing legal proceedings of significant complexity. The evidence is also to the effect that members of the group have little means to pursue representation and are unable to afford proper legal representation at this time. The Monitor already has very extensive responsibilities as reflected in paragraph 30 and following of the Initial Order and the CCAA itself and it is unrealistic to expect that it can be fully responsive to the needs and demands of all of these many individuals and do so in an efficient and timely manner. Desirably in my view, Canadian courts have not typically appointed an Unsecured Creditors Committee to address the needs of unsecured creditors in large restructurings. It would be of considerable benefit to both the Applicants and the Salaried Employees and Retirees to have Representatives and representative counsel who could interact with the Applicants and represent the interests of the Salaried Employees and Retirees. In that regard, I accept their evidence that they are a vulnerable group and there is no other counsel available to represent their interests. Furthermore, a multiplicity of legal retainers is to be discouraged. In my view, it is a false economy to watch and wait. Indeed the time taken by counsel preparing for and arguing this motion is just one such example. The appointment of the Representatives and representative counsel would facilitate the administration of the proceedings and information flow and provide for efficiency.
[25] The second basis for objection is that the LP Entities are not permitted to pay any of the legal, financial or other advisors to any other person except as expressly contemplated by the Initial Order or with consent in writing from the LP Administrative Agent acting in consultation with the Steering Committee. Funding by the LP Entities would be in contravention of the Support Agreement entered into by the LP Entities and the LP Senior Secured Lenders. It was for this reason that the Monitor stated in its Report that it supported the LP Entities’ refusal to fund.
[26] I accept the evidence before me on the inability of the Salaried Employees and Retirees to afford legal counsel at this time. There are in these circumstances three possible sources of funding: the LP Entities; the Monitor pursuant to paragraph 31 (i) of the Initial Order although quere whether this is in keeping with the intention underlying that provision; or the LP Senior Secured Lenders. It seems to me that having exercised the degree of control that they have, it is certainly arguable that relying on inherent jurisdiction, the court has the power to compel the Senior Secured Lenders to fund or alternatively compel the LP Administrative Agent to consent to funding. By executing agreements such as the Support Agreement, parties cannot oust the jurisdiction of the court.
[27] In my view, a source of funding other than the Salaried Employees and Retirees themselves should be identified now. In the CMI Entities’ CCAA proceeding, funding was made available for Representative Counsel although I acknowledge that the circumstances here are somewhat different. Staged payments commencing with the sum of $25,000 may be more appropriate. Funding would be prospective in nature and would not extend to investigation of or claims against directors.
[28] Counsel are to communicate with one another to ascertain how best to structure the funding and report to me if necessary at a 9:30 appointment on March 22, 2010. If everything is resolved, only the Monitor need report at that time and may do so by e-mail. If not resolved, I propose to make the structuring order on March 22, 2010 on a nunc pro tunc basis. Ottawa counsel may participate by telephone but should alert the Commercial List Office of their proposed mode of participation.
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