Mohdhirji.com PETITION TO: UNITED NATIONS HUMAN RIGHTS COUNCIL
UNITED NATIONS GENERAL ASSEMBLY
PETITION TO: UNITED NATIONS HUMAN RIGHTS COUNCIL
UNITED NATIONS GENERAL ASSEMBLY
For the Attention of His Excellency Secretary-General Mr. António Guterres
For the Attention of His Excellency Mr. Zeid Ra'ad Al Hussein
For the Attention of the Honourable members of Human Rights Committee
In the Matter of
Mohd Ali Hirji and Parin Mohd Ali Hirji Lalani, Citizens of Canada
v.
Government of Canada
URGENT ACTION REQUESTED
And Petition for Relief Pursuant to Optional Protocol to the International Covenant on
Civil and Political Rights
Adopted and opened for signature, ratification and accession by General Assembly
Resolution 2200A (XXI) of 16 December 1966
entry into force 23 March 1976, in accordance with ARTICLE 9
______________________________________________________________________________________
I. INFORMATION ON COMPLAINT.
Submitted by:
Mr. Mohd Ali Hirji and Mrs. Parin Mohd Ali Hirji Lalani,
1084 Lillooet Road, North Vancouver,
British Columbia V7J 2H8,
Canada.
TEL:(604) 985-9383
Email: Moh2@ shaw.ca
Email: parin.lalani@ hotmail. Com
Website: http://www.mohdhirji.com
June 22, 2018
1. VICTIMS:
1. As set forth in this Petition, Mr. Mohd Ali Hirji and Mrs. Parin Mohd Ali Hirji Lalani reside in North Vancouver, in the province of British Columbia, Canada. Both Mr. and Mrs. Hirji immigrated to Canada from London England in 1987 with their two daughters and became Canadian Citizens. (Referred herein as the Hirji(s)).
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2. The Government of Canada and its agents acting as Canadian judge(s) (“judicial officers”) and public officials of the Government of Canada have failed to protect Hirjis’ guaranteed rights under the Canadian constitution and Charter of rights and freedom and have arbitrarily deprived Hirjis’ of their liberty and freedom and their constitutional right to a fair trial by an impartial tribunal and equal benefit of law that has been expressly enshrined in International Covenant on Civil and Political Rights[1] (“ICCPR”) and in the Canadian Constitution and Charter of Rights and Freedom[2]
3. For the purposes of Article 3 Hirjis’ have prepared this petition and are submitting this petition to the United Nations as private individuals and as private persons belonging to the Human Family without the benefit of the legal counsel.
4. Hirjis are respectfully submitting this petition for the Attention and consideration of His Excellency Secretary-General Mr. António Guterres, His Excellency Mr. Zeid Ra'ad Al Hussein and the Honourable members of United Nations Human Rights Committee as the issues rose in this petition concerns and affects the well-being of all the members of Human family.
OATH OF OFFICE AND OATH OF ALLEGIANCE
5. The indisputable court documents and transcripts of Chambers Hearing before an extremely knowledgeable, and very well respected Supreme Court of British Columbia judge the Honourable Mr. Justice Silverman confirms and demonstrates the only judge throughout the entire proceedings in a case Indexed at Hirji v. The Owners Strata Corporation Plan VR-44 2015 BCSC 2043[3] carried out his judicial duties honestly and faithfully and impartially based on the evidence submitted by the defense counsel ("Mr. Bleay") and Mr. Hirji in Chambers Hearings before him on October 24, 2008[4] and July 7, 2009[5]. The evidence at the hearings confirms the Honourable Mr. Justice Silverman in this case acted according to the law of the land and upheld the rule of law and honored and fulfilled his Oath of office[6] and Oath of Allegiance[7] out of 14 judges named in this petition as perpetrators that violated their judicial oath of office and acted unlawfully and breached the public trust.
6. The Hirjis respectfully submits to the Honourable Members of the Human Rights committee the significance and the importance of this communication. The indisputable evidence of unlawful violations of Hirjis fundamental rights and criminal acts committed by the member state's judicial officers named herein to defraud the Hirjis out of their legitimate claim for damages and deprive them of justice and make them homeless is transparent.
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[1] International Covenant on Civil and Political Rights Article 2(3), Article 9, Article 14, Article 16 and Article 26.
[2] Canadian Constitution and Charter of Rights and Freedoms ss. 7 and s. 11(d) s. 15, s. 24(1) and s. (52) (1).
[3] Hirji v. The Owners Strata Corporation Plan VR-44 2015 BCSC 2043
[4] See Chambers Hearing transcript dated October 24, 2008 before Mr. Justice Silverman
[5] See Chambers Hearing transcript dated July 7, 2009 before Mr. Justice Silverman
[6] See Judicial Oath of Office
[7] See Judicial pledge to protect the Constitution.
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7. The evidence confirms these fundamental and Human Rights violations committed by the judicial officers of the member state are not accidental but they are willfully committed by the most trusted judicial officers of the highest court of the member state by the abuse of the trusted judicial office for the purpose other than the public good. It confirms a fundamental breach of public trust and that is all the more offensive to the law abiding members of the Canadian public as well as members of the United Nations because it defeats the very course of rule of law and the justice the judicial officers have sworn to uphold.
8. On December 4, 2017 The Supreme Court of Canada in their letter to the Hirjis appears to have conceded that the court has acted has trespasser of the law and No longer has a jurisdiction on subject matter[8]. The indisputable evidence confirms the judicial officers of the Supreme Court of Canada continued to act unlawfully and as trespasser of the law until December 4, 2017 and violated Optional Protocol to the International Covenant on Civil and Political Rights under Article 2(3), Article 6, Article 9, Article 14, Article 16, and Article 26 that is binding on the member state Canada and inflicted enormous damages on the Hirjis as well as on the state's taxpayers for the benefit of the defendants and their insurers and have left the Hirjis without remedies, justice, or redress.
9. The indisputable evidence confirms that had the state’s judicial officers acted lawfully and carried out their judicial duties and honored their oath of office and upheld the rule of law than the defendants and their insurers would have been held accountable and liable under the domestic laws for all of Hirjis damages for acts of bad faith by the Insurers and based on the indisputable evidence the Canadian taxpayers and revenue Canada would have benefited from tax revenues by some $400 to $500 million dollars or more over a period of three years from 2007 to 2010.
10. The indisputable evidence confirms that the judicial officers of the Supreme Court of Canada were requested on more than one occasion to act lawfully and uphold the rule of law and comply with the provisions of the Canadian Constitution and oath of office and the International laws and avoid the consequences of their fraudulent and unlawful acts committed against the Hirjis. The evidence confirms that the judicial officers of the Supreme Court of Canada willfully elected to place themselves above the rule of law and consciously elected to act unlawfully contrary to the Constitution and contrary to their International obligations.
NO ONE IS ABOVE THE LAW
11. U.S. Supreme Court in United States v. Lee, 106 U.S. 196 (1882)[9] states the following;
No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. U.S. Supreme Court affirmed the legal principle in 1978 in Butz v. Economou, 438 U.S. 478 (1978)[10]
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[8] On December 4, 2017 The Supreme Court of Canada sent an email to the Hirjis
[9] United States v. Lee, 106 U.S. 196 (1882)
[10] Butz v. Economou, 438 U.S. 478 (1978)
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12. U.S. Supreme Court in Ableman v. Booth, 62 U.S. 21 How. 506 506 (1858) [11] States the following;
No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued, and an attempt to enforce it beyond these boundaries is nothing less than lawless violence.
13. Hirjis are relying on the Government of Canada to honor the guarantees that is enshrined in the Canadian Constitution and Charter of rights and freedom s. 7, s. 11(d) s. 15 s. 24(1) as well as rely on United Nations General Assembly and the members of the Human rights committee for the remedies and redress in this case caused by the willful violations of Hirjis fundamental and human rights by the member state under the Optional Protocol to the International Covenant on Civil and Political Rights under Article 2(3), Article 6, Article 9, Article 14, Article 16, and Article 26 that is binding on the member state Canada.
14. The indisputable evidence confirms the judicial officers of the Supreme Court of Canada willfully declined/refused to act lawfully and grant a new trial to the Hirjis that the Hirjis' were entitled to by law. The judicial officers of the Supreme Court of Canada knew from the evidence submitted to the court that the Hirjis have proved their burden of proof and their case at the trial and the Hirjis will prove their burden of proof and their case again in a new trial and will prove their loss of income and business losses and the criminal acts committed by the trial judge and Void orders of lower court judges before an honest and impartial trial judge.
15. The Hijis respectfully submits to the United Nations Human Rights Committee that according to the domestic laws of the member state Canada as well as International laws Hirjis’ have proved their burden of proof and their case on the preponderance of evidence and balance of probabilities. The evidence confirms the defendants have failed to negate the Hirjis evidence and their case and therefore according to the domestic as well as International law the Hirjis’ must succeed in their case and are legally entitled to all the damages they have suffered as a result of the failures of the judicial officers to carry out their judicial duties impartially and lawfully and their failures to uphold the rule of law.
16. This communication is about willful violations of Human Rights and criminal acts committed against the Hirjis by the most trusted state’s judicial officers of the court of the member state Canada. The indisputable evidence submitted in this petition speaks for itself and demonstrates in this petition how the judicial officers of the highest court of the member state acted as trespasser of the law and made a mockery of the Canadian Constitution, the rule of law and the justice, and international covenants ratified by the member state.
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[11] Ableman v. Booth, 62 U.S. 21 How. 506 506 (1858)
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17. This communication demonstrates and confirms the state’s judicial officers WILLFULLY [emphasis added] abused their judicial office and have placed themselves above the rule of law and according to the law have declared war against the constitution. see Cooper v. Aaron, 358 U.S. 1, 78 S. Ct. 1401 (1958)[12]
Cooper v. Aaron, 358 U.S. 1, 78 S. Ct. 1401 (1958)
Note: Any judge who does not comply with his oath to the Constitution of the United States wars against that Constitution and engages in acts in violation of the supreme law of the land. The judge is engaged in acts of treason. The U.S. Supreme Court has stated that "no state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it". See also In Re Sawyer, 124 U.S. 200 (188); U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L. Ed. 2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L. Ed 257 (1821).
18. The evidence confirms these claims by the Hirjis’ are based on the hard facts and evidence submitted with this petition including the court records and emails sent to the United Nations Human rights committee during 2017 of the unlawful acts committed by the judicial officers of the state can neither be denied by the judicial officers of the state nor can it be disputed or defended by judicial officers of the state nor can the criminal acts committed by judicial officers of the state can be justified in law.
19. The events in question occurred from April 7, 2015 to December 4, 2017. At all material times, Hirjis’ were subject to the jurisdiction of both the Province of British Columbia and Canada.
20. The violations of the ICCPR complained of in the instant case arise from Canada’s conduct in respect of Mr. and Mrs. Hirji as an individual ‘victims’ for the purposes of Article 1.
21. This communication relates to a matter arising under the ICCPR. The Hirjis’ submits that Canada is in violation of Articles 2(3) 9, 14, 16 and 26 of the ICCPR (see submissions on the merits below in statement of facts).
22. It is submitted this matter is not under examination by another international investigation or settlement procedure.
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[12] Cooper v. Aaron, 358 U.S. 1, 78 S. Ct. 1401 (1958)
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23. This communication is about violations of fundamental human rights guaranteed by the United Nations under ICCPR covenants ratified by the member state Canada. The judicial officers of the Supreme Court of Canada have violated the Canadian constitution and have challenged the United Nations guarantees under ICCPR ratified by Canada.
24. The indisputable evidence in this petition confirms the judicial officers of the Supreme Court of Canada willfully committed fraud against the Hirjis’. The state’s judicial officers abused the trusted judicial office ultra vires (beyond the powers) and fraudulently robbed the Hirjis out of their legitimate claim for damages to protect the interest of the defendants and or their Insurers.
25. The judicial officers of the state issued orders that will unlawfully rob the Hirjis out of their lives possession and their home and make them homeless by abusing the judicial office for the purpose other than the public good particularly when the evidence and court records confirms that the Hirjis’ have fulfilled their legal obligations and have proved their burden of proof and their case and the damages they have suffered due to the negligence of the defendants who failed to negate the Hirjis’ evidence and their case at the trial.
26. The indisputable evidence confirms that the judicial officers of the highest court of the state had a choice and were given a choice by the Hirjis on more than one occasion to honor their oath of office and act lawfully and uphold the rule of law. The evidence confirms the judicial officers of the highest court of the state elected to act unlawfully and willfully committed fraud against the Hirjis. These willfully committed Indictable criminal acts against the Hirjis’ by the judicial officers of one the most civilized member state to fraudulently strip down the Hirjis of their lives assets and their home and unlawfully make them homeless particularly when the Hirjis have proved their burden of proof and their case at the trial is no less evil than the crimes committed against the victims by the judges that led to establishment of the United Nation in 1945.
27. Past historical events shows that most of the members of the United Nations at the time of formations of the United Nation concluded that violation of fundamental Human Rights and injustice in any form is the root cause of violations, conflicts, loss of innocent lives and poverty in the societies and it is primarily caused by the ineffective and corrupt judicial system and corrupt judicial officers and the corrupt Government officials of the state or the states.
28. Canada and its citizens are well respected by almost the entire world for its fairness, and its multicultural society living in peace and harmony.
29. This peace and harmony can easily be derailed by lawless acts of some of the judicial officers that have put the entire Canadian Nation to Shame by their willful and criminal acts committed against the state's citizens as demonstrated in this petition for no reasonable or just reason whatsoever.
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30. This communication is about willfully violating basic and fundamental human rights of its citizens by the abuse of the judicial independence and judicial office after 69 years of the establishment of the United Nations to prevent the human rights violations. These unlawful acts are willfully committed by one of the most civilized member state of the United Nations in defiance of ICCPR covenants ratified by Canada on 23 March 1976 in accordance with ARTICLE 9.
31. The indisputable court documents and the trial evidence attached herein confirms that the state judicial officers of Supreme Court of British Columbia, the Court of Appeal of British Columbia and the Supreme Court of Canada violated their judicial oath of office and pledge to uphold the Constitution and uphold the rule of law and have collectively acted unlawfully and have violated Hirjis fundamental rights to a fair trial and equal benefit of the law and have deprived the Hirjis’ of justice.
32. The State’s Judicial officers have systematically violated Hirjis’ guaranteed rights that is expressly enshrined in International Covenant on Civil and Political Rights under Article 2(3), Article 9, Article 14, and Article 26, as well as under ss. 7 and s. 11(d) of the Canadian Charter of Rights and Freedoms; and s. 15, s. 24(1) and s. (52) (1).
Hirji v. The Owners Strata Corporation Plan VR-44 2015 BCSC 2043[8]
33. The evidence confirms Hirjis’ appeared before the Supreme Court of British Columbia trial judge Madam justice Sharma on April 7, 2015 in a 25 day trial in good faith in pursuit of truth and justice and proved their burden of proof and their case after suffering at the hands of their strata council from 1991 to 2015.
34. The indisputable evidence submitted at the trial and in this petition confirms that the Hirjis’ proved their burden of proof and their prima facie case. The evidence confirms the defendants failed to negate the Hirjis’ prima facie case at the trial in a case Indexed at Hirji v. The Owners Strata Corporation Plan VR-44 2015 BCSC 2043[13]
35. The Court records confirms Madam Justice Sharma (“the trial judge”) systematically suppressed all material facts and evidence submitted by the Hirjis’ at the trial and fabricated and made-up the facts in almost entire Reasons for Judgment either on trial judge’s own accord, or on the instructions of the higher official(s) of the “Administration of Justice” to unlawfully dismiss the Hirjis’ case to protect the interest of the defendants and their insurers. These are extremely serious issues that are supported by the indisputable and undeniable facts evidence and court documents submitted with this petition.
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[13] See trial judge’s Reasons for Judgment Hirji v. The Owners Strata Corporation Plan VR-44 2015 BCSC 2043
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LETTER FILED IN THE COURT OF APPEAL OF BRITISH COLUMBIA BY THE HIRJIS’ ON AUGUST 22, 2016
36. On August 22, 2016 the “Administration of Justice” was made fully aware of the facts of the trial judge’s made-up Reasons for Judgment rendered on November 6, 2015 in a Letter filed in the Court of Appeal of British Columbia by the Hirjis’ on August 22, 2016[14] informing the “Administration of Justice” of the trial judge’s made-up Reasons for Judgment that unlawfully denied justice to the Hirjis’ and dismissed their case.
37. The evidence confirms the officials of the“Administration of Justice” failed to take any action or assign a judge in the court of appeal to look at the evidence submitted at the trial and evaluate the "palpable errors of the trial judge" and prevent this Miscarriage of justice unlawfully imposed on Hirjis’ by the trial judge.
38. The court and or the “Administration of Justice” and or the trial judge defrauded the Hirjis’ out of their legitimate claim for damages and issued orders amounting to over $900,000 with the full knowledge that this would unlawfully strip down the Hirjis’ of their lives assets and their home and unlawfully make them homeless, particularly when the Hirjis’ have proved their burden of proof and their case with indisputable evidence at the trial.
39. The trial judge knew that the defendants have failed to negate the Hirjis’ evidence and their case and therefore according to the rule of the law of the land the Hirjis’ must succeed in their case and the Hirjis’ by law are entitled to the damages they have suffered that they have proved before the court on the preponderance of evidence and balance of probabilities. The only way for the trial judge to deny justice to the Hirjis was to act dishonestly and abuse the trusted judicial office and fabricate almost entire reasons for judgment as confirmed by the indisputable facts and evidence submitted with this petition that is transparent and leaves no doubt in the minds of reasonable member of public that the state’s courts have acted unlawfully and have committed fraud upon the court and upon the Hirjis’.
40. The trial judge by willfully violating and ignoring the Rules of Civil Procedure and the Rules of Evidence, the trial judge perpetrated obstruction of justice. The Local Rules of Civil Procedure require that all alleged statements of fact in motions and other filings must be allowed.
41. . Hirjis’ submits to the committee that falsehood under oath is perjury. Judges are always under oath, and a judge is supposed to never say or write anything that isn't true. So, when a judge knowingly acts deceitfully or fabricates the evidence in Reasons for Judgment or issues orders for the purpose of ruling against a party for the judge's criminal reasons, it is a criminal violation of perjury. Each such instance is a separate count.
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[14] See Letter filed in the Court of Appeal of British Columbia by the Hirjis’ on August 22, 2016
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42. The indisputable evidence submitted at the trial confirms that the Supreme Court of British
Columbia trial judge acted in bad faith and acted deceitfully under oath and suppressed all of Hirjis prime evidence and material facts throughout the Reasons for Judgment as describe herein supported by the indisputable evidence and court documents.
43. The evidence confirms the trial judge unlawfully denied justice to Hirjis’ and defrauded the Hirjis’ out of their legitimate claim for damages against the defendants and their insurers by abusing the trusted judicial office and privileges.
44. The indisputable evidence in the reasons for judgment of Madam Justice Sharma confirms the trial judge willfully committed “fraud upon the court” and acted in bad faith and in a manner that is directed to judicial machinery itself, that is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth, that is positive averment or is concealment when one is under duty to disclose, that deceives court.
THE PEOPLE OF THE STATE OF ILLINOIS V. FRED E. STERLING, 357 III.354;192 N.E. 229
45. In The People of the State of Illinois v. Fred E. Sterling, 357 III.354;192 N.E. 229[15] (1934) (“The maxim that fraud vitiates every transaction into which it enters applies to judgments as well as to contracts and other transactions.”); In re Village of Willowbrook, 37 III. App.2d 393 (1962) (“It is axiomatic that fraud vitiates everything.”). Under Federal law, when any officer of the court has committed “fraud upon the Court”, the orders and judgment of that court are void or of no legal force or effect.
46. The trial judge violated Hirjis’ right to a fair trial by an impartial tribunal and equal benefit of law that has been expressly enshrined in ICCPR under Article 2(3), Article 9, Article 14, and Article 26, as well as under ss. 7 and s. 11(d) of the Canadian Charter of Rights and Freedoms; and s. 15, s. 24(1) and s. (52) (1).
47. The indisputable court documents and evidence confirms that Supreme Court of Canada approved the judgment of Madam Justice Sharma that is based on made-up facts in Reasons for Judgment that constitutes "fraud upon the court". The trial judge’s orders as a matter of law are NULL AND VOID and any subsequent orders including the orders of the Supreme Court of Canada based on the fraud is neither enforceable in law nor has any legal force or effect.
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[15] See The People of the State of Illinois v. Fred E. Sterling, 357 III.354;192 N.E. 229
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48. The indisputable evidence confirms that the judges of Court of appeal of British Columbia madam justice Newbury, Mr. justice Ian T. Donald, madam justice Mary E. Saunders, and madam justice Elizabeth A. Bennett and the Supreme Court of Canada judges Honourable Beverley McLachlin, P.C. Chief Justice of Canada, Honourable Justice Russell Brown, Honourable Justice Clément Gascon, Honourable Justice Suzanne Côté, Honourable Justice Malcolm Rowe, Honourable Justice Andromache Karakatsanis, Honourable justice Rosalie Silberman Abella, Honourable Justice Michael J. Moldaver, Honourable Justice Richard Wagner, approved the void orders of the trial judge and failed to carry out their judicial duties and failed to uphold the rule of the law of the land. The judicial officers violated the provisions of the Constitution and aided and abetted the unlawful acts of the trial judge and approved the enforcement of the void orders of the trial judge that would unlawfully strip down the Hirjis of their lives assets and make them homeless.
49. Despite the fact that indisputable evidence of trial judge's unlawful acts and void orders of Court of Appeal of British Columbia judges were put before all nine judges of the Supreme court of Canada to be adjudicated according to the law of the land, the judicial officers of the highest court of Canada approved the void orders of the lower court judges and made the void judgments and orders of the lower courts into law. The Supreme Court of Canada dismissed the Hirjis application for leave to appeal and ordered costs against the Hirjis[16]
MR. HIRJI PUTS ALL SCC JUDICIAL OFFICERS ON NOTICE FOR UNLAWFUL ACTS.
50. The evidence confirms the judges of the Supreme Court of Canada willfully ignored their judicial duties imposed on them by the Constitution and ignored to follow the law when they knew and were fully aware of the evidence of the trial judge’s made-up Reasons for Judgment that were brought to the Attention of the Chief justice of Canada in a letter dated May 1, 2017[17] and again in a letter dated December 4, 2017 for the attention of :
Honourable Beverley McLachlin, P.C. Chief Justice of Canada[18]
Honourable Justice Russell Brown[19]
Honourable Justice Clément Gascon[20]
Honourable Justice Suzanne Côté[21]
Honourable Justice Malcolm Rowe[22]
Honourable Justice Andromache Karakatsanis[23]
Honourable justice Rosalie Silberman Abella[24]
Honourable Justice Michael J. Moldaver[25]
Honourable Justice Richard Wagner[26]
all nine Honourable Justices of the SCC were put on Notice for their unlawful acts willfully committed against the Hirjis’ that resulted in Hirjis’ enormous injuries.
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[16] See [binder 3 page 22] SCC dismissed the Hirjis application and ordered the costs against the Hirjis.
[17] See [binder 3 page23] Hirji’s letter to Chief justice of Canada dated May 1, 2017
[18] See Letter to Honourable Beverley McLachlin, P.C. Chief Justice of Canada dated Dec 4, 2017
[19] See Letter to Honourable Justice Russell Brown dated Dec 4, 2017
[20] See Letter to Honourable Justice Clément Gascon dated Dec 4, 2017
[21] See Letter to Honourable Justice Suzanne Côté dated Dec 4, 2017
[22] See Letter to Honourable Justice Malcolm Rowe dated Dec 4, 2017
[22] See Letter to Honourable Justice Andromache Karakatsanis dated Dec 4, 2017
[24] See Letter to Honourable justice Rosalie Silberman Abella dated Dec 4, 2017
[25] See Letter to Honourable Justice Michael J. Moldaver dated Dec 4, 2017
[26] See Letter to Honourable Justice Richard Wagner dated Dec 4, 2017
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51. The judicial officers of the Supreme Court of Canada willfully became parties to unlawfully defraud the Hirjis’ out of their legitimate claim for damages and make them home less.
52. This law based on Void orders of the Supreme Court of Canada is now followed and applied and will be applied by the lower Court judges and the legal counsels throughout Canada against the innocent litigants particularly the strata owners who appear before the court in good faith in pursuit of truth and justice.
53. This unlawful case law created and approved by the Supreme Court of Canada based on made-up Reasons for Judgment of the trial judge will deny justice to countless litigants all over the world particularly the Strata owners who have been place by the state's legislation “The Strata Property Act” at the mercy of some of the corrupt and irresponsible Strata Council members and some of the court judges who protect the interest of the defendants and their insurers as demonstrated by this case.
54. The evidence confirms In Gill v. Zhang, 2017 BCSC 47[27] the Supreme Court of British Columbia applied this case law that is based on "fraud upon the court" and as matter of law is NULL AND VOID and it is unenforceable in law and have no legal force or effect. The Honourable Mr. Justice Voith applied this case law in his judgment In Gill v. Zhang, 2017 BCSC 47. The Honourable Mr. Justice Voith at paragraph [33] in his judgement states the following:
"Finally, and in a related vein, special cost awards have been made against parties who call into question the professional integrity of opposing counsel or other counsel who are or have been involved in a matter; see Hirji v. Strata Corp. Plan VR 44, 2016 BCCA 392 (CanLII) at paras. 10-11-16.
55. The State party or State party and all its agents named in this petition acted in bad faith and unlawfully defrauded Hirjis’ out of their legitimate claim for damages to protect the interest of the defendants and their insurers by acting unlawfully, fraudulently and by abusing the trusted judicial office for purpose other than the public good and violated the public trust.
56. The member state and or the member state and all judicial officers of the court named in this petition are collectively responsible and liable for all of the damages sustained by the Hirjis’ caused by the unlawful acts by the state’s courts and/or by the State’s court and the judicial officer(s) appointed by the member state and its administrative authorities.
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[27] See Gill v. Zhang, 2017 BCSC 47
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57. The indisputable hard facts submitted in this petition demonstrates how the Supreme Court of Canada approved the criminal acts and the fabricated reasons for judgment of the trial judge aided and abated by the Court of Appeal judges made into law which is then applied by the trial judges and the Court of Appeal judges in other cases to unlawfully deny justice to other innocent litigants who appear before the court in good faith in pursuit of truth and justice.
58. The judicial officers of the Supreme Court of Canada by their own actions and abuse of power have compromised their oath of office, their credibility, their honor, their respect, and the public trust in this case, and has brought the entire “Administration Justice” in disrepute by their unlawful acts. Hirjis' submits to the committee that whenever any court of law renders a decision such as rendered in Hirji v. The Owners Strata Corporation Plan VR-44 2015 BCSC 2043 by the courts that defy the logic and commonsense and insults the intelligence of an average citizen then the public trust is lost in the “Administration of Justice” and in the justice system and sooner or later that can only lead to civil unrest and undesired results in civil societies.
59. This inevitably raises the most important and fundamental questions in the minds of reasonable and law abiding Canadian citizens and the member states of United Nations General Assembly how many other decisions rendered by the current administration of the Supreme court of Canada are based on fabricated reasons for judgment rendered by the trial judges and the judges of Court of Appeal of British Columbia that are approved by the Supreme Court of Canada made into case laws which are then applied by all lower court judges throughout the State in other cases to unlawfully deprive justice to other litigants based on unlawfully created case laws that pollutes the entier judicial system that undermines the public confidence in system of justice and also undermines the interests of the state and its citizens and defeats the efforts and the covenants of the United Nations.
2. STATE PARTY CANADA AND INDIVIDUAL VIOLATORS.
1. Government of Canada.
2. Neena Sharma. Acting as judge of Supreme Court of British Columbia.” 800 Smithe St, Vancouver, BC V6Z 2E1 Tel: (604) 660-2853
3. Mary V. Newbury. Acting as judge of Court of Appeal of British Columbia.”, 400-800 Hornby Street Vancouver, BC V6Z 2C5. Tel: (604) 660-2468.
4. Ian T Donald. Acting as judge of Court of Appeal of British Columbia.”, 400-800 Hornby Street Vancouver, BC V6Z 2C5. Tel: (604) 660-2468.
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5. Mary E. Saunders. Acting as judge of Court of Appeal of British Columbia.”, 400-800 Hornby Street Vancouver, BC V6Z 2C5. Tel: (604) 660-2468.
6. Elizabeth A. Bennett. Acting as judge of Court of Appeal of British Columbia.”, 400-800 Hornby Street Vancouver, BC V6Z 2C5. Tel: (604) 660-2468.
7. Beverley McLachlin, P.C. Acting as Chief Justice of Canada. 301 Wellington Street Ottawa, Ontario K1A 0J1. (1-888-551-1185).
8. Russell Brown. Acting as judge of the Supreme Court of Canada. 301 Wellington Street Ottawa, Ontario K1A 0J1. (1-888-551-1185).
9. Clément Gascon, Acting as judge of the Supreme Court of Canada. 301 Wellington Street Ottawa, Ontario K1A 0J1. (1-888-551-1185).
10. Suzanne Côté. Acting as judge of the Supreme Court of Canada. 301 Wellington Street Ottawa, Ontario K1A 0J1. (1-888-551-1185).
11. Malcolm Rowe. Acting as judge of the Supreme Court of Canada. 301 Wellington Street Ottawa, Ontario K1A 0J1. (1-888-551-1185).
12. Andromache Karakatsanis. Acting as judge of the Supreme Court of Canada. 301 Wellington Street Ottawa, Ontario K1A 0J1. (1-888-551-1185).
13. Rosalie Silberman Abella. Acting as judge of the Supreme Court of Canada. 301 Wellington Street Ottawa, Ontario K1A 0J1. (1-888-551-1185).
14. Michael J. Moldaver. Acting as judge of the Supreme Court of Canada. 301 Wellington Street Ottawa, Ontario K1A 0J1. (1-888-551-1185).
15. Richard Wagner. Acting as judge of the Supreme Court of Canada. 301 Wellington Street Ottawa, Ontario K1A 0J1. (1-888-551-1185).
16. Mr. Roger Bilodeau, Q.C. Registrar of “The Supreme Court of Canada” 301 Wellington Street Ottawa, Ontario K1A 0J1. (1-888-551-1185).
17. Mr. Alex Eged, Defense Counsel. Officer of the Court and Partner in law firm Richard Buell Sutton LLP. 700 - 401 West Georgia Street, Vancouver, BC Canada V6B 5A1. Tel: 604.682.3664.
13
18. Mr. Nicholas Safarik. Defense Counsel. Officer of the Court and Associate in law firm Richard Buell Sutton LLP. 700 - 401 West Georgia Street, Vancouver, BC Canada V6B 5A1. Tel: 604.682.3664.
19. Mr. Ryan Shaw. Defense Counsel. Officer of the Court and Associate in law firm Richard Buell Sutton LLP. 700 - 401 West Georgia Street, Vancouver, BC Canada V6B 5A1. Tel: 604.682.3664.
20. The Owners Strata Corporation Plan VR-44.
II. ARTICLES VIOLATED
1. PART II. ARTICLE 2 (3);
2. PART III. ARTICLE 9;
3. PART III. ARTICLE 14;
4. PART III. ARTICLE 16;
5. PART III. ARTICLE 26;
1. DOCUMENTATION REFERENCES: SEE FOOTNOTES.
III. EXHAUSTION OF DOMESTIC REMEDIES.
60. The State’s judicial officer(s) have failed to comply with the provisions of the International Covenant on Civil and Political Rights and the Constitution of Canada that is the Supreme law of the land. The State’s judicial officer(s) have failed or have refused to carry out their judicial duties and have failed or refused to uphold the Supreme law of the land. The judicial officers have failed/ refused to recognize Hirji’s guaranteed rights as a person in law and have violated ICCPR Article 16 and Hirjis’ guaranteed right to a fair trial by an impartial tribunal and equal benefit of the law that is enshrined in the International Covenant on Civil and Political Rights in Article 2(3), Article 9, Article 14, and Article 26 as well as Canadian Constitution and Charter of Rights and Freedom s.7. s. 11(d), s.15 and s. 24 (1),(2). As a result there exist no domestic remedies because jurisdiction has been usurped. Therefore this appeal to the International Human Rights Recognition of Human Rights is proper. The Member State have become a party to the Optional Protocol and the member state recognize the competence of the Human Rights Committee
61. To peruse a remedy within “Canada” where the State’s Judicial officer(s) allege complete judicial immunity and where the legal counsels are afraid and unwilling to expose bias Judges, or even provide legal advice would be a denial and an omission to Human Rights Recognition which is the cause of this ongoing illegal Miscarriage of justice imposed on the Hirjis’ and the financial burden, anxiety and mental distress, physiological, and emotional torture and abuse being suffered by the Hirjis’.
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62. The indisputable evidence in the court records demonstrates that the law of the State can be in place, the legislation can be in place, the international treaties ratified by the state member can be in place, but when the judicial officers of the highest court of the land who are appointed by the state to protect the citizens liberty and freedom ignores and fails/refuses to uphold the litigants fundamental rights and rule of law and the treaties ratified by the state and willfully decline to uphold the constitution by placing themselves above the rule of the law to protect the illegal acts of lower court judges and the interests of the insurers and became willful violators of the Constitution instead of protectors of the Constitution as demonstrated by indisputable evidence in this case then there cannot be any expectations of due process of law or a fair and impartial trial, or justice, or relief from the Canadian courts by the Canadian citizens.
URGENT REQUESTS TO THE HUMAN RIGHTS COMMITTEE.
63. The continuation of deprivations of the Hirjis’ of their fundamental rights and unlawfully imposed Miscarriage of justice on them by the State’s judicial officers’ constitutes serious threats to the Hirjis’ financial well-being, as well as their health, physical integrity, psychological integrity, and their lives.
64. Hirjis’ are in their early and mid-seventies and both of them suffer from heart conditions and the time is of essence. After the failures of the domestic courts for least 10 years to redress the Hirjis’ grievances and having exhausted all domestic remedies the Hirjis’ are submitting this petition for urgent attention of the Human Rights Committee and are respectfully invoking the United Nations guarantees granted under the ICCPR Article 2, Article 9, Article 14, and Article 26 and any other Articles applicable in this case that the committee may deem just.
65. For the Human Rights Committee, situations of urgency requiring immediate action fall under rule 86 of its rules of procedure. In such cases, the Committee's Special Rapporteur on New Communications may issue a request to the State party for interim measures with a view to averting irreparable harm before your complaint is considered. The Committee views compliance with such a request as inherent in a State party's obligations under the Optional Protocol and any failure to comply as a breach thereof.
66. The Hirjis’ requests the Human Rights Committee to take account of Special circumstances and the urgency and take immediate actions to prevent further irreparable harm that is continued based on the void orders of the Supreme Court of Canada that are unenforceable in law to unlawfully strip down Hirjis’ of their lives possessions and their home while the committee evaluates this petition.
15
67. Accordingly, the Hirjis’ request that the committee transmit an urgent appeal to the Government of Canada by the most rapid means possible on behalf of the Hirjis’ and request the member to remedy and redress this issue of illegal Miscarriage of Justice and the issue of damages suffered by the Hirjis’ that is willfully and illegally imposed by the state's courts and by the State’s Judicial officers on the Hirjis’. The committee requests the member state for an urgent and early resolution in compliance with the International covenants and treaties ratified by Canada and also comply and honor the guarantees that are enshrined in the Canadian Constitution.
68. Hirjis’ are submitting this petition via Courier and this website and are disclosing comprehensive and detailed and indisputable facts and the court records that are self-explanatory and speaks for itself to limit and restore the damage caused to the Hirjis’ name their reputation, their image, their dignity and their respect in their community that is destroyed by the unlawful and dishonest acts of highly trusted judicial officers of the Canadian Courts who are appointed by the Member State to act impartially and uphold the rule of law and protect the liberty and freedom of its citizens.
CONSTITUTIONAL LAW.
69. Judges have given themselves judicial immunity for their judicial functions. Judges have no judicial immunity for criminal acts, aiding, assisting, or conniving with others who perform a criminal act, or for their administrative/ministerial duties. When a judge has a duty to act, he does not have discretion he is then not performing a judicial act, he is performing a ministerial act.
70. Judicial immunity does not exist for judges who engage in criminal activity, for judges who connive with, aid and abet the criminal activity of another judge, or to a judge for damages sustained by a person who has been harmed by the judge's connivance with, aiding and abetting, with their allies.
71. The Court in Yates v. Village of Hoffman Estates, Illinois,[28]209 F.Supp. 757 (N.D. Ill. 1962) held that "not every action by a judge is in exercise of his judicial function. ... it is not a judicial function for a judge to commit an intentional tort even though the tort occurs in the courthouse." When a judge acts as a trespasser of the law, when a judge does not follow the law, the judge loses subject-matter jurisdiction and the judge’s orders are void, of no legal force or effect.
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[28] Yates v. Village of Hoffman Estates, Illinois.
16
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
FRAUD ON THE COURT.
72. “Fraud on the court” consists of conduct: (1) on part of officer of the court, (2) that is directed to judicial machinery itself, (3) that is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth, that is positive averment or is concealment when one is under duty to disclose, that deceives court. (Demjanjuk v. Petrovsky, 10 F.3d338[29], rehearing and suggestion for rehearing denied, certiorari denied Rison v. Demjanjuk, 115 S.Ct. 295, 513 U.S. 914, 130 L.Ed.2d 205 (Ohio) 1993.—Fed Civ Proc 2654.“. . .errors are so prejudicial and fundamental that expenditure of further time and expense would be wasteful, if not futile.” (Salvatore v. State of Florida, 366 So. 2d 745 [Fla. 1978], cert. denied, 444 U.S. 885, 100 S. Ct. 177, 62 L. Ed. 2d 115 [1979]).
Under Federal law, when any officer of the court has committed “fraud upon the courts”, the orders and judgment of that court are void, of no legal force or effect. Cobell v. Norton, 226 F.Supp.2d 1[30](D.D.C. 09/17/2002). In an action for Fraud upon the Courts by judicial officers including the judge, there can be no immunity for the judicial officers. Fraud upon the courts has been specifically identified to include cases “where the judge has not performed his judicial function or has acted in a manner in which the general public would believe to be wrong.
IV. STATEMENT OF FACTS.
73. On April 7, 2015, Hirjis’ appeared as private persons and self-representing litigants before the trial judge Madam Justice Sharma and submitted the Hirji's written Evidence in Chief [31] and the Hirji's written opening statement[32] and provided copies to the defense counsel Mr. Alex Eged (officer of the court) outlining their prima facie case and their evidence.
74. At the trial Hirjis’ established their prima facie case and proved their burden of proof and the defendants Negligence, breach of duty of care, statutory breach, breach of contract, unreasonable
refusal to grant the conduct of repairs to Hirjis’, discrimination against Hirjis’ by successive Strata
council, loss of rental income, collapsed sale of the unit, loss of income and business losses, loss of business opportunities, and deficiently carried out repairs amongst other things.
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[29] See Demjanjuk v. Petrovsky, 10 F.3d 338
[30] See Cobell v. Norton, 226 F.Supp.2d 1
[31] See Hirji's written Evidence in Chief Ref: Notice of Motion to judge or Registrar page [368 to 471]
[32] See Hirji's written opening statement.
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75. The evidence established at the trial confirms that the Hirjis’ on the preponderance of evidence and balance of probability proved their case with cogent evidence and corroborating testimonies of some of the defense witnesses as confirmed by the trial record. The defendants VR-44 and their legal counsels failed to negate the Hirjis’ prima facie evidence submitted at the trial.
76. The Indisputable evidence confirms the trial judge willfully and systematically suppressed all prima facie evidence and material facts that proved the Hirjis’ case and willfully made-up the facts in almost entire Reasons for Judgment as confirmed by the indisputable court evidence and compromised the judicial oath of office and pledge to uphold the rule of law and the Constitution.
77. The evidence established at the trial confirms the trial judge abused the judicial office and the public trust and acted in a manner that is directed to judicial machinery itself that is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth, that is positive averment or is concealment when one is under duty to disclose, that deceives court. The trial judge unlawfully denied justice to the Hirjis’ and defrauded Hirjis’ out of their claim for damages by committing fraud upon the court and upon the Hirjis’and breached the public trust.
VIEWS OF FORMER DEFENSE COUNSEL MR. JAMIE BLEAY AND THE PLAINTIFF MR. HIRJI ON THIS LITIGATION.
78. The trial evidence confirms neither Mr. Hirji nor the defense counsel Mr. Bleay were in favor of perusing this litigation in 2007.
79. Both Mr. Hirji and Mr. Bleay wanted to resolve this litigation as soon as possible as the evidence confirms because it was not in the best interest of either Mr. Hirji or in the best interest of the defendants who had breached their statutory obligations from 1991 to 2007 as confirmed by the indisputable evidence. See Chambers Hearing Transcripts of October 24, 2008[33] and Oral Ruling of the Chambers judge Honourable Mr. Justice Silverman dated October 24, 2008[34]
80. The Hirjis’ were suffering huge damages in their currency arbitrage and hedging business and their inability to sell their unit due to the neglected condition of the unit from 1991 to 2007 at market value and raise the required capital of $500,000 needed to inject in their corporate currency trading account. The defendants were put on notice under Hadley v. Bexandale rule and the “Special Circumstances” of the Hirjis’ losses were communicated to the defendants in writing in May 2007.
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[33] See chambers hearing transcripts of October 24, 2008
[34] See Oral Ruling of the Chambers judge Honourable Mr. Justice Silverman dated October 24, 2008.
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81. Mr. Bleay knew based on the indisputable evidence from the defendants documents that the defendants have failed to carry out their duty of care owed to the Hirjis’ and have breached their statutory obligations from 1991 to 2007. Mr. Bleay knew that the court will hold the defendants liable for negligence and statutory breach and the Hirjis’ damages and wanted to resolve this litigation as soon as possible before any major damage occurs.
82. Mr. Hirji knew that the defendants will be held liable for negligence and the damages under the insured policy limit of $10 million dollars. Based on the evidence the defendants insured policy limit of $10 million dollars will no way near cover the Hirjis’ enormous currency losses from May 2007 on wards and the Hirjis’ wanted to resolve and end this litigation as soon as possible and sell their unit so that they can continue with their currency trading business and financially secure the future of his family his children and his grandchildren.
83. The indisputable evidence submitted at the trial demonstrates and confirms how Hirji would have made millions of dollars with the aid of his currency analyzer software developed over a period of 14 years at a considerable amount of time and money invested in research and development of the program.
84. The evidence submitted before the trial judge demonstrates and confirms why the Hirjis’ were prepared to forgo all the damages they have suffered as a result of the defendant’s negligence, breach of contract, statutory breach and bulk part of rental losses amounting to around $150,000 from 2001 to 2007 and other losses and why the Hirjis’ desperately needed to sell their unit and get the required capital so that they can continue with their currency trading business which had unlimited potentials in a market where there is a daily turnover of over five trillion US dollars.
85. One of the primary issue in this litigation for the trial judge to adjudicated was “would anyone had suffered any damages had the defendants not discriminated against the Hirjis’ and acted reasonably and accepted the Hirjis’ generous offer and had granted the conduct of repairs to the Hirjis’ on strata’s own terms and conditions granted to other owners of the VR-44”?
86. The central and the prime issue and the essence of this litigation put before the trial judge to be adjudicated at the trial was the defendants breach of Strata plan VR-44 bylaws s. 5(2) for unreasonably withholding their consent to grant the conduct of the repairs on the same terms and conditions granted to other owners of VR-44 to the Hirjis’ that would have ended this litigation in September 2007 and no one would have suffered any major damages.
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87. The evidence submitted before the trial judge confirms granting of conduct of repairs to the Hirjis’ would have released the defendants from their statutory breach and allowed the Hirjis’ to get the required repairs done in September 2007 initially with their own funds and then get it reimbursed from the defendants in the same manner as the defendants reimbursed other owner of the VR-44. This would have ended this litigation in 2007 and would have allowed the Hirjis’ to carry out the required repairs and sell their unit and released the required capital of $500,000 to inject in their lucrative currency arbitrage and hedging business.
TRIAL EXHIBIT 17 MR. BLEAY'S LETTER TO THE DEFENDANTS.
88. The evidence submitted before the trial judge confirms that in a letter to the defendants on May 14, 2007 the defense counsel Mr. Bleay in Trial Exhibit 17[35] advised the defendants to retained qualified professionals and get a detail structural report from qualified professionals and carry out the required repairs that have proved to be ineffective since 2001 that are the responsibility of the defendants.
89. The evidence at the trial confirms the defendants ignored the sound advice of their legal counsel and neglected his advice and failed to obtain a detailed structural report in May 2007.The evidence confirms defendants allowed the Hirjis’ unit to dilapidate until May 2009.
TRIAL EXHIBIT 118 REPORT OF STRUCTURAL ENGINEER MR. JERRY LUM.
90. The evidence submitted before the trial judge in trial Exhibit 118 confirms that on July 15, 2007 the Hirjis’ retained a senior structural engineer Mr. Jerry Lum in a well-known and reputable Structural Engineering firm of David Nairne and Associates[36] and commissioned a detailed structural report with their own funds and hand delivered and provided the report to the defense counsel Mr. Bleay on July 18, 2007.
91. The evidence confirms the defendants refused to accept the recommendations of Mr. Lum and allowed the damage to continue to the Hirjis’ unit. The evidence confirms the defendants ignored to act on the advice of their own legal counsel Mr. Bleay in May 2007.
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[35] See [binder 2 page 109-110] Mr. Bleay’s letter dated May 14, 2007 trial exhibit 17 advising the defendants to retained qualified professionals.
[36] See trial Exhibit 118 Report of Structural Engineering firm of David Nairne and Associates.
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92. The evidence confirms that Mr. Bleay probably due to shear frustrations and due to the defendants and or their insurers unreasonable refusal to act on his advice and settle this litigation amicably with the Hirjis’ in 2007 and putting him in an awkward and embarrassing position before the chambers judges in hearings and defend the un defendable statutory breach of the defendants and compromise his oath of office and misled the court when there was no viable defense in law particularly after the chambers judge Mr. Justice Silverman had expressed his views on law and the passage of time and his views on the possible outcome of this litigation based on the Hirjis’ and Mr. Bleay’s submission at the chambers hearing on October 24, 2008.
93. Mr. Bleay knew that continuing and pursuing this litigation would constitute Abuse of the court process and will constitute unlawfully inflicting the damages on the Hirjis’. Mr. Bleay more than likely resigned as defense counsel in 2013. The defendants Insurers appointed Mr. Alex Eged one of the partners in a law firm of RICHARD BULLE AND SUTTON LLP to pursue this litigation and defend the defendants’ statutory breach.
FRAUDULENT ACTS AND OBSTRUCTION OF JUSTICE BY THE DEFENSE COUNSELS.
94. "The Court has broadly defined fraud as any conduct calculated to deceive, whether it be by direct falsehood or by innuendo, by speech or silence, by word of mouth, by look, or by gesture. Fraud includes the suppression of the truth, as well as the presentation of false information. (In re Witt (1991) 145 Ill.2d 380, 583 N.E.2d 526, 531, 164 Ill. Dec. 610).". See also In re Frederick Edward Strufe, Disciplinary case no. 93 SH 100 where the Court stated that "Fraud has been broadly defined as anything calculated to deceive."
EVEN IN WEST VIRGINIA - It is clear and well-established West Virginia law that any attempt by any officer of the court, whether attorney or judge, to deceive is considered fraud, and when the attempt to deceive occurs in a judicial proceeding, it is "fraud upon the court".
95. The defense counsel Mr. Eged and his associates knew as trusted officers of the courts in which they practice that the cases before the courts are in pursuit of justice through truthful evidence. A lawyer who attempts to obstruct justice by willfully counseling evasive evidence not only commits an offence contrary to s. 139 of the Criminal Code but also breaches his solemn duty as an officer of the court.
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96. The evidence confirms Mr. Eged and his associates willfully acted in bad faith and in a fraudulent manner that is directed to judicial machinery itself that is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth, that is positive averment or is concealment when one is under duty to disclose, that deceives court. Mr. Eged and his associates willfully committed the following offences;
a) The evidence at the trial confirms the officer(s) of the court concocted the evidence that they knew to be false and never existed in the VCS records with the intent to mislead the court and obstruct the course of justice in judicial proceedings to primarily defeat the Hirjis’case by fraudulent means and deprive the Hirjis’ of justice and fraudulently claim over $900,000 in legal fees and make the Hirjis' homeless.
b) The evidence at the trial confirms the officers of the courts obstructed the course of justice in judicial proceedings by willfully concealing the material facts that they had a duty to disclose to the court and willfully violated and breached their solemn duty as officers of the court;
c) The evidence at the trial confirms the officers of the courts disregarded their oath of office and their solemn duty to the court and concocted the evidence with the witnesses Ms. Lyn Campbell and Mr. George Alexandru to derail the function of the court;
CODE OF PROFESSIONAL CONDUCT FOR BRITISH COLUMBIA.
d) The evidence confirms the officers of the court refused to abide by the Code of Professional Conduct and rules of its association Law Society of B.C and knowingly made false statements in the judicial proceedings and in their affidavits which they knew to be false with the intent to mislead the court and obstruct the course of justice in violations of Code of Professional Conduct for BC[37] rules 5.1-4, 2.1-1(a), 2.1-2 (a),(c) 2.1-3 (c),(e) as well as the criminal code s. 139.
MR. HIRJI REQUEST'S THE DEFENSE COUNSELS TO REMEDY MISSTATED FACTS.
e) The evidence confirms On February 1, 2016 Mr. Hirji sent the following email to the defense Counsels[38]Mr. Eged and his associates Mr. Nick Safarik and Mr. Ryan Shaw and gave them an opportunity to correct their misstated facts that violates Code of Professional Conduct and the criminal code s. 139 and informed them and requested them to do the following before the trial judge’s order was sealed:
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[37] See Code of Professional Conduct for BC rule 5.1-4
[38] see [binder 7 pages 93 to 115] Exhibit “P” in Mr. Ryan Shaw’s Affidavit filed on Sept. 13 2016.
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“The learned trial Judges reason for judgment as it stands is based on what appears to be false testimonies of the witnesses and misstated facts by you, therefore as an officer of the court I believe it is your obligations to the court to bring these facts to the attention of the learned trial Judge and advice your clients accordingly as soon as possible and it should be put in the record and in the reason for the judgment which should be amended as soon as possible by the learned trial Judge accordingly to reflect true facts”.
“The professional Conduct Handbook states the following: “Correcting the record. Rule 4.01 (5) provides that a lawyer who has unknowingly done or failed to do something that if done or omitted knowingly would have been in breach of this rule and who discovers it, shall, subject to rule 2.03 (confidentiality), disclose the error or omission and do all that can reasonably be done in the circumstances to rectify it. Put another way, if you have led evidence that you now learn to be false, you must fix it”
f) The evidence confirms the officers of the court willfully refused to correct the fraudulent testimonies of the witnesses and the misleading statements made by the counsels and willfully continued to act in bad faith and continued with their unlawful acts that constitutes fraud upon the court and fraud upon the Hirjis’.
g) The evidence confirms the officers of the courts mislead the court with false testimonies of the defense witnesses that the defense counsels knew to be false and untrue;
h) The evidence confirms and established the fact that the defense counsels and the defense witnesses acted in bad faith and violated criminal Code s. 131 and s. 139 to willfully deprive the Hirjis’ of justice and fraudulently claimed the legal fees of over $900,000 that would make the Hirjis’ homeless.
TRIAL EXHIBIT 2 HIRJI'S LETTER TO VCS DATED AUGUST 21 2001.
97. At the trial the Hirjis’ established their prima facie evidence in Trial Exhibit 2 that was admitted as evidence with the consent of the defense who confirmed that the content thereof had been communicated to the defendants as stated on the document;
1. Exhibit 2 - contains notes made by Ashraf Lalani who attended the said Strata Meeting of August 21, 2001.
2. A copy of these notes made by the Ashraf Lalani was delivered by hand by Mr. Hirji to VCS and was provided to the defendants soon after that meeting before VR-44 commenced the repairs on east and west decks in 2001.
3. Mr. Hirji informed everyone in that council meeting on August 21, 2001 including strata manager Ms. Campbell and Mr. Peter brown who were present in the meeting of August 21, 2001 amongst other things the following:
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a) "I had my wife call for last 15 months for someone to take care of these water leaks and they have been completely ignored; and
b) "as a result of that the center beam is rotted and the deck is about to collapse as one of your member has seen for himself”
c) "The wood is completely rotten underneath and all it needs is a little bit of snow to accumulate on the deck for it to collapse”;
d) "Mr. Hirji drew a diagram of center post and the support beam and pointed out the potential structural problems which are components of the structure known as “Beam B1" in this litigation”;
e) "Mr. Hirji made it very clear in strata council meeting on August 21, 2001 that “all documents related to repairs should only be faxed to avoid any misunderstanding or argument later”.
98. The defense counsel Mr. Eged in his submission attached to Affidavit # 1 of Mohd Ali Hirji and marked as “Exhibit "B"[39] states and confirms the following facts in paragraph 60.
“60. It is also submitted that it is highly unlikely that Mr. Hirji would stand for ongoing water leaks into the Unit if they were in fact occurring. Mr. Hirji has a plain and obvious propensity to complain immediately and vehemently if something does not suit his Wishes. This was made evident in his handling of the August 2001 water ingress incident by his immediate follow up with Van Condo in respect of that complaint, his attendance at the strata council meeting that month, his taking his daughter to take notes at that meeting, his vociferous complaints at that meeting about Van Condo's President Gerry Fanaken, his demanding an apology from Mr. Fanaken, his demand that everything done by Van Condo and all communications with him be done in writing and faxed and his demand for copies of all documents produced by VR44 in respect of finances, repairs, assessments, etc. at that meeting”.
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[39] See [binder 5 page 473] in Affidavit # 1 of Mohd Ali Hirji "Exhibit "B" dated August 19, 2016.
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99. The above submission of the defense counsel in paragraph 60 established the following facts at the trial;
a) The letter of August 21, 2001 Marked as Trial Exhibit 2 was hand delivered to the offices of VCS by Mr. Hirji;
b) The letter was received by the VCS as confirmed by Mr. Eged in his Submissions;
c) The letter confirmed the Hirjis’ complaint relating to water ingress, structural problems, and rotted conditions of the deck that have been neglected by the defendants since 1991 and according to their own engineers should have been replaced by 1994;
d) The letter entered into evidence as Exhibit 2 confirms there is no date stamped on the letter stamped by VCS. The defense witnesses Ms. Lyn Campbell and Mr. George Alexandru testified under oath and misled the court when they knew that their testimony is false and untrue and the policy of date stamping the owners complaints never existed at VCS;
e) There is no Strata plan entered by the VCS front desk Clarke as testified by the defense witnesses Ms. Lyn Campbell and Mr. George Alexandru. The witnesses willfully mislead the court when they knew that their testimony is false and untrue and the policy of date stamping never existed at VCS.
100. At the trial Ms. Lyn Campbell willfully made-up the evidence that did not exist at VCS. The lead counsel Mr. Eged knew that the policy of date stamping never existed at VCS from the defendants’ records. The list of documents prepared by the defendants and signed by the defense counsel Mr. Eged that contains over 4000 documents confirms that none of the documents relating the owners’ complaints are either date stamped or has strata plan entered on them by anyone. This is confirmed by EXHIBIT ‘I" [49 pages] attached to Affidavit# 12 of Mohd Ali Hirji filed on February 18, 2016[40]
FABRICATED EVIDENCE AND TESTIMONY OF DEFENSE WITNESS MS. LYN CAMPBELL THAT NEVER EXISTED AT VCS.
101. On May 4, 2015 at the trial the defense witness Ms. Lyn Campbell made up the following testimony and misled the court [41] led by the defense counsel Mr. Eged. The evidence confirms that the witness and the legal counsel knew that the policy of date stamping the owners complaints did not exist at VCS nor there is a single complaint made by the owners of VR-44 in the defendants list of documents that is date stamped by the front desk Clarke. The evidence confirms the defense witness and the defense counsel willfully violated the Criminal Codes s. 131 and s. 139[42] On page 42 and 43 Ms. Lyn Campbell fabricated the evidence that Ms. Lyn Campbell knew never existed at VCS and testified the following under oath ;
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[40] See [binder 3 pages 107 to 155] Exhibit ‘I" in Notice of motion to a judge or registrar.
[41] See [page 42 and 43] of the trial transcript of Ms. Campbell]
[42] See Criminal Codes s. 131 and s. 139 http://laws-lois.justice.gc.ca/eng/acts/C-46/page-31.html#h-53
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42
Lynlaeh Campbell (for Defendants)
In chief by Mr. Eged
23 Q All right. Now, I want to talk to you a little bit
24 about Vancouver Condominium Services' paper flow --
25 A Okay.
26 Q -- okay? And, in particular, I'd like you to tell
27 Her Ladyship how Vancouver Condominium Services
28 handled paperwork that was brought to the office by
29 an owner of one of the stratas that it was
30 managing.
31 A Okay. It would come in. It was always date
32 stamped and the clerks at the front desk would
33 always ensure that there was a -- the strata plan
34 was on there. Then it would be put in a folder to
35 be given to the property manager, and then that
36 correspondence was added to the agenda for the next
37 council meeting and put on the agenda. So
38 everything was definitely date stamped and recorded
39 coming into the office.
40 Q Okay. I'm going to ask you to turn to Exhibit 6 in
41 that binder in front of you please, Ms. Campbell.
42 Okay. Have a look at that document, ma'am. You
43 can see it says at the bottom, "Urgent" by hand,
44 "Attention: Ms. Campbell"?
45 A Yes.
46 Q Okay. And you've seen this before; correct?
47 A In the binders that you gave me, yes.
43
Lynlaeh Campbell (for Defendants)
In chief by Mr. Eged
1 Q Yes. And do you have any recollection of seeing
2 this on -- on or near the date indicated on the
3 document of October 6th, 2000?
4 A No.
5 Q Does it bear the stamp that you would expect to --
6 this document to bear if that had been delivered?
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102. The evidence confirms this evidence was concocted by the defense counsels and the defense witness Ms. Campbell and Mr. George Alexandru to mislead the court and obstruct the course of justice in a judicial proceedings primarily to defeat the Hirjis’ case fraudulently because it undoubtedly establishes the defendants’ negligence and causation of the damages suffered by the Hirjis’ and establishes the breach of standard of care by the defendants.
AFFIDAVIT # 12 OF M. HIRJI FILED ON FEBRUARY 18, 2016.
103. The trial judge throughout the Reasons for Judgment has referred to Ms. Lyn Campbell and Mr. George Alexandru as credible and reliable witness despite the fact that the trial judge was fully aware of the facts before the order was sealed that the defense witnesses have fabricated the evidence that never existed at VCS. This evidence was brought to the attention of trial judge in the Affidavit # 8 of Mr. Eged[43] as well as Affidavit # 12 of Mr. Hirji[44] before the order was sealed. The evidence confirms the trial judge willfully refused to correct the facts and uphold the rule of law and the Constitution.
104. It is submitted that the defendants and their legal counsels’ fabricated evidence that never existed at VCS that would have offended the decency of any reasonable and impartial judge and the judge would have thrown out the defendants’ defense and would have held the witnesses and the defense counsel accountable for obstructing the course of justice in judicial proceedings. The evidence confirms the trial judge not only allowed this false testimony of the witnesses into evidence but throughout the Reasons for Judgment has referred to these defense witnesses as credible and reliable witnesses.
105. The evidence and unlawful acts of the trial judge confirms that trial judge violated all the rules and merit of decency and fairness expected of a trusted judicial officer of the court. The evidence confirms the trial judge unlawfully deprived the Hirjis’ of their fundamental legal rights and has deprived the Hirjis’ of justice. The evidence confirms the trial judge defrauded the Hirjis’ out of their claim for damages as confirmed by the indisputable trial records.
TRIAL TESTIMONY OF DEFENSE WITNESS MR. GEORGE ALEXANDRU.
106. On May 4, 2015 Mr. George Alexandru the Strata Manager testified[45] and confirmed in his testimony that he reported every complaint to VR-44 and he recommended to the strata council to investigate and mitigate the damage as stated in his testimony on page 17 and 18 below at the trial;
____________________
[43] See [binder 6 page 12 to 16] Mr. Eged Affidavit # 8 filed on November 13, 1015
[44] See [binder 3 page 39] Notice of Motion to judge or Registrar Mr. Hirji’s Affidavit # 12 filed on Feb 18, 2016
[45] See trial transcript of Mr. George Alexandru page 17 and 18.
27
Page 17 of the transcript.
George Alexandru (for Defendants)
Cross-exam by Mr. Hirji, continuing
29 Q Okay. So if I called and said my deck, the balcony
30 living space is leaking, I would have to wait for
31 my turn to come? Is that correct? Is that what
32 you are saying?
33 A It depends on the gravity and severity of your
34 leak, sir. If it would have been a leak water
35 ingress inside the unit, I believe counsel would
36 have investigated that particular instance right
37 away.
38 Q But that's your understanding?
39 A That's what I know the protocol was.
40 Q Okay. And to the best of your knowledge, would
41 strata instruct you to inspect somebody if there
42 was a complaint? To investigate it?
43 A That is correct.
44 Q Okay. Now, Mr. Alexandru, you were aware of the
45 problems in Unit 1084 from 2003 to 2005, and
46 then 2007 to 2008; is that correct?
47 A I was aware. Yes, you can say I was aware. Yes.
Page 18 of the transcript.
George Alexandru (for Defendants)
Cross-exam by Mr. Hirji, continuing
1 Q Did you take any precaution, or did you take any
2 [indiscernible - accent] to send somebody along to [indiscernible]= Actions
3 investigate what the problem was?
4 A As a strata manager, I'm not allowed to dispatch
5 unless council is backing me up.
6 Q Okay. Did you advise the council at any time, you
7 know, that, look, this guy's complaining all the
8 time. Why don't we send somebody along?
35 A Every time I have a complaint I submit in my
36 complaint in front of the council and I advise them
37 that certain actions be taken to mitigate the
38 damages.
28
39 Q Okay. So basically if I understand you correctly,
40 you did advise the strata council when you
41 presented the letters and everything that we should
42 investigate that?
43 A Well, it's up to them. I -- as I said, my
44 recommendation was on the table. Yes, please,
45 investigate. Yes.
TRIAL EXHIBIT 12 HIRJI'S LETTER TO VCS DATED OCTOBER 27, 2004
107. The above testimony and evidence of Mr. Alexandru confirms he reported all of Hirjis’ complaints to the Council. The testimony confirms that beside the Hirjis’ complaint made in a letter dated October 27, 2004 relating to the water ingress entered into evidence as trial Exhibit 12 there were other letters relating to water ingress that were in the possessions of the defendants besides Trial Exhibit 12 that were presented to the council by the strata manager Mr. Alexandru.
108. Mr. Alexandru’s testimony confirms that he was aware of the problems in the Hirjis’ unit during 2003 -2005 and during 2007-2008 and presented all the complaint letters to the defendants and advised them to investigate and mitigate the damage during 2003-2005.
109. The evidence confirms the defendants neglected their duty of care and the protocol and breached the standard of care and failed to address the Hirjis’ complaints in any of the strata meetings or entered them into any strata minutes or responded to the Hirjis’ complaints and allowed the damage to continue to occur on the west deck from 2002 to 2006.
110. The trial evidence in the defense counsel Mr. Eged’s closing submissions confirms the defense counsel willfully misled the court with the concocted evidence and obstructed the course of justice.
111. The defense counsel submitted the evidence to the court which he knew to be false. The trial exhibits confirms that the policy of date stamping not just the Hirjis’ complaints but all VR-44 owners complaints never existed at VCS as testified by the defense witnesses Ms. Lyn Campbell that is false and contrary to the above testimony of Mr. Alexandru.
DEFENSE COUNSEL'S CONTINUED FRAUDULENT ACTS AND OBSTRUCTION OF JUSTICE.
112. The trial evidence confirms the defense counsel Mr. Eged at paragraph 58 and 59 continued to obstruct the course of justice and acted in a manner that is directed to judicial machinery itself that is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth, that is positive averment or is concealment when one is under duty to disclose, that deceives court.
29
113. Trial exhibit 12 was one of the prime evidence that established the defendants’ negligence and breach of duty of care. The above testimony of Mr. Alexandrue confirms that he presented all complaint letters to the council and recommended them to investigate the complaint. The defense counsel continues to mislead the court with the concocted evidence which he knew never existed at VCS. The defense counsel in paragraph 58 and 59 submits the following to the court;
“58. The October 27, 2004 letter Mr. Hirji says he delivered by hand to Van Condo does contain a complaint about water leaks”.
“59 It is submitted that based on the evidence of George Alexandru it is highly unlikely that this letter was ever delivered to the strata manager. Mr. Alexandru testified that Van Condo's policy is that any correspondence delivered by hand by an owner from one the complexes managed by it is given an acknowledgment stamp and placed in his inbox.He did not recall ever seeing this letter. He testified that he did not recall speaking to Mr. Hirji a number of times about water ingress at this time as stated in the letter and further that he would not speak to an owner about water ingress even one time without doing anything about it. Mr. Alexandru did not recall any dealings with the Hirji's during the period 2003 – 2005”.
114. The Defense counsel’s misleading statements confirms the concocted evidence by the defense counsel with the defense witnesses that Van Condo’s policy is that any correspondence delivered by hand by an owner from one the complexes managed by it is given an acknowledgment stamp and placed in his inbox never existed.
THE DEFENSE COUNSEL'S AFFIDAVIT # 8 REVEALS THE TRUE FACTS.
115. The defense counsel Mr. Eged in his affidavit # 8 sworn and filed on November 23, 2015 practically confesses and confirms to the trial judge the obstruction of justice committed by him and the defense witnesses.
116. The affidavit # 8 of Mr. Eged filed on November 23, 2015 establishes and confirms the facts that Mr. Eged and his associates Mr. Safarik and Mr. Shaw have willfully obstructed the course of justice in judicial proceedings and have misled the court with false evidence that they knew did not exist at VCS.
117. The trial evidence confirms that the officers of the court misled the court with evidence and the testimonies of some of the defense witnesses that the officers of the court knew to be false and never existed at VCS.
118. The evidence confirms some council members misled the court with their false testimonies which the council members knew to be false and untrue.
30
119. Before the trial judge’s order was signed on February 29, 2016 Mr. Hirji in his affidavit # 12 filed on February 19, 2016 brought some of the key facts in Mr. Eged’s affidavit # 8 as well as some of the material facts made-up omitted and misstated by the trial judge in Reasons for Judgment to the attention of the trial judge. The evidence confirms the trial judge ignored/refused to act lawfully and honor the oath of judicial office and uphold the rule of law and the Constitution.
120. Mr. Eged in his affidavit # 8 confirms in his own words that demonstrates how the defense counsels and the witnesses obstructed the course of justice and misled the court with false and made-up evidence that never existed at VCS and obtained a judgement against the Hirjis aided and abated by the trial judge as confirmed by the court records and the indisputable evidence.
121. The defendants obtained a judgment against the Hirjis’ by willfully committing “fraud upon the court” and upon the Hirjis’ by obstructing the course of justice in judicial proceedings and willfully defrauded the Hirjis’ out of their claims for damages and demanded over $900,000 in legal fees. The evidence confirms the trial judge issued an order and ordered the Hirjis’ to pay the defendants legal fees that is based on the fraud committed by the trial judge who suppressed all the material facts in the reasons for judgment and obliged the defense counsels.
122. The evidence confirms the trial judge refused to correct the facts in Reasons for Judgment to prevent the fraud on the court and the Hirjis’ and this miscarriage of justice before the order was sealed. The trial Judge was fully aware of the following facts in Mr. Eged’s affidavit # 8 where Mr. Eged confirms the following facts in his affidavit that speaks for itself;
“34. First and foremost, in my view the only potentially viable claims for damages were as follows:
(a) non-pecuniary damages;
(b) special damages;
(c) loss of rent; and
(d) costs relating to restoring the unit.
“35. With respect to non-pecuniary damages, I assessed the Hirjis’ claim at zero, as the Hirjis’ had pleaded the presence of mould was what caused their "loss of well-being" and there was no expert evidence of mould infestation. Further, the Hirjis’ had produced no medical evidence to substantiate their claims that the mould had adverse effects on their health. That being said, I understood that there were cases in which home owners had been awarded general damages on account of mental stress and loss of enjoyment of life in the context of improperly constructed homes, so I considered a contingency of $30,000 for this head of damages.”
“36 The Hirjis’ claimed for a number of miscellaneous special damages, including: moving costs, an appraisal, and damage to furniture, electronic equipment and drapes. The majority of these claims were either excessive or unfounded, but if successful, I assessed this claim at $10,000.”
31
“37. I had considered an amount of $5,000 for the Hirjis’ claim for loss of rental income, that being $100 per month, for eight months a year from February 2005 to July 2010. In my view, this figure represented a reasonable reduction for not having access to a deck on a bedroom rented for $800 per month, during which time the evidence was that the Hirjis’ took no steps to mitigate their loss.”
“38. The last head of damages was the Hirjis’ claim in respect of the cost of restoring the Hirjis’ unit to what the Hirjis’ described as its "pre-leak" status. In the course of the litigation, the Hirjis’ produced a report dated May 24, 2010 from an engineer, Jerry Lum, who estimated the cost of those repairs would be $41, 198.00. The Hirjis’ relied on this report at the JSC on December 19, 2013 as providing an accurate estimate of those costs.”
“39. Notwithstanding the misgivings I had with respect to the above evidence from Mr. Lum, I considered a contingency of $15,000 for this head of damages.”
“40. Taking the foregoing into account, I had $60,000 as the figure in my mind when considering the possible extent of damages claimed by the Hirjis’. In my view, none of the Hirjis’ other claims for damages were of any merit.”
“47. As a result, it was my view at the time that VR44's First Formal Offer was presented, the Hirjis’ would have been set to receive a total of more than $210,000 had they accepted the offer. This figure is more than four times what I had assessed as the Hirjis’ best day in court in terms of an award of damages if the matter were to proceed through trial.”
CHAMBERS HEARING ON JULY 7, 2009 BEFORE HONOURABLE MR. JUSTICE SILVERMAN.
123. At the trial Hirjis’ established their prima facie evidence of agreement pursuant to JRS May 12, 2009 report[46] before Mr. Justice Silverman on July 7, 2009. Following evidence is taken from the Chambers Hearing Transcript of July 7, 2009[47] that confirms the agreement. Mr. Bleay confirms the following at the hearing on Page 10 of that hearing transcript:
23 MR. BLEAY: Well, just in terms of ordering the repairs
24 that VR-44 Corporation has said they're
25 prepared to carry out pursuant to that May 12th
26 report.
____________________
[46] See JRS May 12, 2009 report Trial exhibit 55.
[47] See Chambers hearing transcript of July 7, 2009 page 6, 9 and 10.
32
124. On page 6 Mr. Justice Silverman explained the terms of the agreement to Mr. Hirji at the hearing:
22 THE COURT:
28 Now, let's be very clear. What this document is
29 saying is that they will do all the repairs that
30 is in the report that they think is the one that
31 sets out what obligations they are required to
32 fulfill in terms of repair.
33 MOHD ALI HIRJI: Yes
125. Mr. Justice Silverman at the hearing on page 9 confirms the following:
15. THE COURT: All right. So the stuff that they –
16. you're satisfied that the stuff that they're now
17. offering to fix in this outline of October 2 has
18. moved beyond what -- okay.
19. MOHD ALI HIRJI: They have --
20. THE COURT: So I take it that I've -- I've got you
21. where I think you should be. You're going to
22. permit this -- without any loss of your rights to
23. continue to pursue the claims that are in
24. dispute --
25. MOHD ALI HIRJI: Absolutely.
26. THE COURT: -- you're going to let these repairs go
27. ahead and get fixed --
28. MOHD ALI HIRJI: Absolutely.
29. THE COURT: -- and you're going to talk with Mr. Bleay
30. or representatives of the corporation about what
31. alternative accommodations you and your wife
32. should get to.
33. MOHD ALI HIRJI: Yes, My Lord.
34. THE COURT: Okay. Now, I think that's where we need to
35. end today. Does that make sense to you?
36. MOHD ALI HIRJI: That makes --
37. THE COURT: All right.
38. MOHD ALI HIRJI: perfectly.
126. The trial evidence establishes the Agreement reached by all parties before Mr. Justice Silverman on July 7, 2009. The agreement confirms the repairs identified in JRS May 12th report were the responsibilities of the defendants. The defendants on the advice of their legal counsel Mr. Bleay approved all the repairs in JRS May 12th 2009 report.
33
127. The evidence confirms the defendants obtained the quote from Rudy Sedlak for $73,296 pursuant to the recommendations in JRS May 12, 2009 report that was approved by VR-44 on the advice of their legal counsel Mr. Bleay. Mr. Bleay confirmed at the hearing that the defendants VR-44 was prepared to carry out the repairs pursuant to that May 12th report.
TRIAL JUDGE CONFIRMS THE AGREEMENT IN REASONS FOR JUDGEMENT AT PARA. 135
128. At paragraph 135 in Reasons for Judgment trial judge acknowledged and confirmed the terms of the agreement and states the following;
[135] The defendant approved the engineering firm to proceed with the recommendations in the May Report that it decided, based on legal advice, were its responsibility. The defendant received a quote for that work from Rudy Sedlak for $73,296, which was approved. The plaintiffs were given the ability to choose accommodation, to be paid for by the defendant, to allow them to leave the unit while it was being repaired. Originally, the defendant agreed to pay for one month’s accommodation.
THE DEFENSE COUNSEL'S FALSE AND MISLEADING SUBMISSIONS TO THE COURT.
129. The Defense counsel Mr. Eged in his closing submissions attached to Hirjis’ Affidavit #1 filed on August 19, 2016 and marked as Exhibit to “B”[48] that misleads the court.
130. The defense counsel Mr. Eged made the following false statements in his closing submissions at the trial that he knew to be false. The Hirji requested Mr. Eged and his associates to correct their misstated facts and the false evidence of the defense witnesses Ms. Lyn Campbell and Mr. George Alexandru. The evidence confirms the defense counsels refused to correct the facts that misled the court that constitutes fraud upon the court and violations of Criminal code s. 139.
a) the defense Counsel at Para. 194 submits to the court and states: “It is submitted that the existence of any contract between VR44 and the Hirjis’ is a recent fabrication by Mr. Hirji”.
b) the defense Counsel at Para 200 submits to the court and states: “Both Mr. Bleay and Ms. Campbell categorically deny making such promises or agreements or entering into such contract with the Hirji on behalf of VR-44”
____________________
[48] See [Binder 5 page 473] in Affidavit # 1 of Mohd Ali Hirji dated August 19, 2016 Exhibit “B”
34
c) the defense Counsel at Para 193 submits to the court and states: “It is submitted that the Hirjis’ have not met the burden of proof of showing there was any contract between them and VR44”.
d) the defense Counsel at Para 199 submits to the court and states: a contract entered into by Mr. Bleay committing VR44 to do all the repairs mentioned in the May 2009 Report;
e) the defense Counsel at Para 199 e) submits to the court and states: “a contract entered into by Mr. Bleay committing VR44 to pay all of the plaintiffs' moving expenses to and from a furnished apartment;
f) the defense Counsel at Para 199 f) submits to the court and states: “alternate accommodation expenses until all work was completed on the Unit”;
g) The evidence in defense counsel’s submissions at paragraph 120 confirms that the defense counsel made false statements to the court that cannot be supported by the evidence or the defense counsels own false and contradictory statements in paragraph 120. The defense counsel confirms the following:
“The plaintiffs were provided with alternate accommodations of their choice for three months during the repairs on the advice of their legal counsel”.
131. The Defense counsel at paragraph 195 in his closing submissions misstated the facts that cannot be supported by the evidence at the trial the defense counsel states the following to the court:
“Mr. Hirji acknowledged that the first time he pleaded any contractual terms were the three pages at paragraphs 77 - 79 of the Eighth Further Amended Notice of Civil Claim filed August 25, 2014”
THE PLAINTIFFS' SECOND AMENDED NOTICE OF CIVIL CLAIM FILED ON FEB 6, 2012
132. The trial evidence confirms the Hirjis’ then legal counsel Mr. Kevin Morrison alleged a claim for breach of contract and/or for negligence of the defendants and filed the Plaintiffs' Second Amended Notice of Civil Claim filed on February 6, 2012[49] and stated the following in the Hirjis’ pleading:
1. The Hirjis’ claim against the Defendants VR 44 and VCS for damages for breach of contract and/or for negligence for the Defendant VR 44’s actions in dealing with the results of leaks in the building envelope of Unit 1084 belonging to the Hirjis’ in contract and/or negligence, and particulars of the Hirjis’ claims include:
____________________
[49] See Second Amended Notice of Civil Claim filed on February 6, 2012
35
a) failure to promptly and adequately inspect and repair the Hirjis’ unit when it knew or ought to have known that the leaks beginning in 1998 caused harm to the Hirjis’, to their financial wellbeing, to their physical health and emotional wellbeing and to their loss of quiet enjoyment of their home;
b) disregard for the Hirjis’ physical and emotional health
c) loss of trading and investment income.
MR. HIRJI AGAIN REQUESTED THE DEFENSE COUNSELS TO CORRECT THE MISSTATED FACTS.
133. On February 3, 2016 Mr. Hirji again sent the following email to the defense Counsel Mr. Eged[50] and his associates Mr. Nick Safarik and Mr. Ryan Shaw and informed them and requested them to do the following:
a) “The system of justice relies on the honesty and integrity of counsel who practice within it. To that end, every lawyer is made an officer of the courts in which he will practice. Cases before such courts are in pursuit of justice through truthful evidence”.
b) “The learned trial Judges reason for judgment as it stands is based on what appears to be false testimonies of the witnesses and misstated facts by you, therefore as an officer of the court I believe it is your obligations to the court to bring these facts to the attention of the learned trial Judge and advice your clients accordingly as soon as possible and it should be put in the record and in the reason for the judgment which should be amended as soon as possible by the learned trial Judge accordingly to reflect true facts”.
c) “The professional Conduct Handbook states the following: “Correcting the record. Rule 4.01 (5) provides that a lawyer who has unknowingly done or failed to do something that if done or omitted knowingly would have been in breach of this rule and who discovers it, shall, subject to rule 2.03 (confidentiality), disclose the error or omission and do all that can reasonably be done in the circumstances to rectify it. Put another way, if you have led evidence that you now learn to be false, you must fix it”.
HIRJI'S REQUEST TO TRIAL JUDGE FOR A FULL DAY'S HEARING TO DISMISS THE DEFENDANTS DEFENSE WITH PREJUDICE.
134. On January 28, 2016 the Hirji made the following request for an application[51] to Honourable Madam Justice Sharma for a full day hearing to be heard before February 11, 2016 before the erroneous order rendered on November 6, 2015 is entered and sealed:
____________________
[50] See [Binder 7 page 105-115] Affidavit of Mr. Ryan Shaw filed on Sept 13, 2016 Exhibit “Q”.
[51] See [Binder 7 page 91-92] Affidavit of Mr. Ryan Shaw filed on Sept 13, 2016 Exhibit “O”
36
NATURE OF APPLICATION:
“1. The Hirjis’ request that the Defense counsel Mr. Alex Eged appear at the hearing and be cross examined under oath on the issues raised in his affidavit”.
“2. The Defense counsel carry out his duty as an officer of the court and inform the learned trial Judge of two witnesses who willfully misled the judge under oath and committed a serious offence perjury under s. 139 of criminal code”.
“3. Mr. Eged provided consolidated list of documents which has his signature confirms that Mr. Eged as well as witnesses were aware that not all documents received by the VCS were date stamped. 1.014 59 of 100, 1.015 pages 79 of 236 there are literary hundreds of letters which are not date stamped. I will send list directly to Mr. Eged”.
“4. Based on indisputable evidence of perjured testimony of the witnesses on material facts which affected the outcome of this case the Hirjis’ will seek the defendants defense be dismissed with prejudice”.
135. The evidence confirms the trial judge unreasonably declined the Hirjis’ request for a full day hearing and willfully violated the Hirjis’ guaranteed right under the Canadian Charter of rights and freedom s. 7 s.11(s) to a fair hearing by an independent and impartial judge and the Hirjis’ right to equal benefit of the law.
136. The trial judge declined to hear the facts because based on the evidence the trial judge knew that the defendants had failed to negate the Hirjis’ evidence and the trial judge has willfully suppressed all the material evidence and facts that proves the Hirjis’ case and has denied justice to the Hirjis’ and the trial judge did not want any further evidence on the record.
TRIAL JUDGE'S UNREASONABLE REFUSAL TO GRANT THE HEARING TO HIRJIS’.
137. On January 29, 2016 the Hirji received the following Response from SC Scheduling-Vancouver [52]
“Madam Justice Sharma has reviewed your request and advises that the only issue she may consider with regards to this case is the costs issue which is currently scheduled for February 11, 2016. Madam Justice Sharma has given her decision. If you are not in agreement with the decisions made your recourse is to appeal”.
____________________
[52] See [Binder 7 page 91] response received from SC Scheduling-Vancouver on January 28, 2016 the Hirji
37
HIRJIS REQUEST TO TRIAL JUDGE TO RE-ASSESS THE MADE-UP AND OMITTED FACTS IN REASONS FOR JUDGMENT
138. On February 5, 2016 Mr. Hirji requested Madam justice Sharma via SC Scheduling to reassess the made-up and misstated and omitted material facts and informed the trial judge that the Hirjis at the hearing will be seeking the defendants defense be dismissed with prejudice[53] The evidence confirms neither the trial judge nor the Honourable Chief Justice Mr. Hinkson took any reasonable steps to prevent this fraud on the court committed by the trial judge on the Hirjis’.
"I will be asking at the hearing that the defendant's defense be dismissed with prejudice and substantial aggravated cost.
"The Counsels have been informed of their what appears to undisputable fabricated evidence to defeat our legitimate claims for damages by deceitful means".
139. On February 22, 2016 Mr. Hirji again sent an email and requested Madam justice Sharma via SC Scheduling[54] that Hirjis will be seeking the defendants defense be dismissed with prejudice. Mr. Hirji informed Madam Justice Sharma in that email the following;
"The Judgement in this case is not perfected. The trial judge was misled by the defense
witnesses with fabricated evidence on primary issues. Plaintiffs Requests the Honourable Madam Justice Sharma for a full day hearing so that plaintiffs can present the evidence how the evidence was fabricated by the defendants to obtain this judgement against us. At the hearing The plaintiffs will be seeking that the defendants defense be dismissed with prejudice with costs".
140. The Hirjis submits to the human rights committee that above evidence confirms gross violations of Hirjis fundamental rights to a fair trial by an impartial judge and a equal benefit of the law. The evidence demonstrates the abuse of judicial Independence and judicial office to commit the lawless acts against the Hirjis who appeared in good faith before the trial judge in pursuit of truth and justice and proved their burden of proof and their case.
141. The trial judge knew and was aware of the facts submitted in the defense Counsel’s affidavit that the defendants have offered to settle this case for the sum of $210,000 before the order was sealed. The trial judge also knew that on January 24, 2014, the Hirjis’ then legal counsel Mr. Kevin Morrison advised the Hirjis’ that the offer should be limited under the Insured policy limit and if the insurers fails to act reasonably and acts in bad faith to settle under the policy limits then the defendants and their insurers would be liable for all of the damages Hirjis’ have suffered. Mr. Kevin Morrison presented VR-44 with a formal following offer to settle in the amount of $9,750,000[55]
WITHOUT PREJUDICE
File No. 2303
Jan.24,2014
Richards Buell Sutton LLP
700- 4-01 West Georgia Street
Vancouver, BC VSB 581
Attention: Alex Eged
Dear Sirs/Madams:
Re: Hirji & Hirji v. The Owners Strata Corporation Plan VR 44. And re: Offer to Settle
Please consider this an offer to settle pursuant to Rule 9-1 of the Supreme Court Civil Rules.
____________________
[53] See [binder 7 page 116] Affidavit of Mr. Ryan Shaw filed on Sept 13, 2016 Exhibit “R”
[54] See [binder 7 page 121] Affidavit of Mr. Ryan Shaw filed on Sept 13, 2016 Exhibit “V”
[55] See[Binder 6 page 154] Affidavit # 8 of Mr. Eged filed on November 23 2015 Exhibit “O”
38
The Hirjis’ hereby offer to settle this action for the sum of $9,750.000.00 payable by the Defendant to the Hirjis’.
All previous offers to settle made by the Hirjis’ are hereby revoked.
The Hirjis’ reserve the right to bring this offer to the attention of the court for consideration in relation to costs after the court has pronounced judgment on all other issues in this proceeding.
Kevin Morrison Law Corporation
Kevin Morrison KMM/lg
cc. to Phillip Sunderland
A. NEGLIGENCE OF THE DEFENDANTS.
THE DEFENDANT OWED A DUTY OF CARE TO THE HIRJIS’
142. At the trial Hirjis’ established their evidence that VR-44 owed a duty of care to Hirjis’. VR-44 admitted that they owed a duty of care to Hirjis’ and was not an issue at the trial. The Strata Property Section 72(1) of the SPA and Strata Plan VR-44 bylaws imposes a duty on VR-44 and provides:
(a) 72 (1) Subject to subsection (2), the strata corporation MUST repair and maintain common property and common assets. (Strata Property Act s. 72)[56]
(b) Strata plan VR-44 bylaws s. 5 (1), (2) imposes a duty on the strata corporation that the strata corporation MUST not unreasonably withhold its approval under subsection (1). (Strata Plan VR-44 Bylaws s. 5. (1),(2))[57]
(c) Strata Plan VR-44 Bylaws s. 8 (II), (A) impose the duties on VR-44 to repair and maintain the structure of a building. (Strata Plan VR-44 Bylaws s. 8 (II), (A))[58]
(d) The City of Vancouver, amongst others, established legal requirements for remediation of building envelope failures evidenced by leaks, rot, mould, unintended water ingress and penetration of rainwater. Those legal requirements for remediation of building envelope failures within the City of Vancouver are prescribed in the Vancouver Building By-law, #8057 as amended (the “VBBL”)[59]
____________________
[56] See [Binder 1 Page 150] Application for leave to Appeal Trial Exhibit 126 Strata Property Act s. 72.
[57] See [Binder 1 Page 155] Application for leave to Appeal Trial Exhibit 126 Strata Plan Vr-44 bylaws s. 5(2)
[58] See [Binder 1 Page 156] Application for leave to Appeal Trial Exhibit 126 Strata Plan Vr-44 bylaws s. 8
[59] Vancouver Building By-law , #8057 as amended (the “VBBL”) .
39
(e) The Province of British Columbia also established legal requirements for, among other things, remediation of building envelope failures evidenced by leaks, rot, mould, unintended water ingress and penetration of rainwater. The Province of British Columbia’s legal requirements for remediation of building envelope failures are prescribed in the Homeowner Protection Act, S.B.C. 1998, c. 31[60] (the “HPA”) and the Building Envelope Renovation Regulation, B.C. Reg. 240/2000 as amended (B.C. Reg. 240/2000)
143. The trial evidence confirms the Respondents refused and neglected to remediate the defective building envelope and the damage to the interior to Suite 1084 in compliance with the VBBL and B.C. Reg. 240/2000.
TRIAL EXHIBIT 153 DEFENDANTS ENGINEERS CSA RECOMMENDATION IN 1991
144. At the trial Hirjis’ established their prima facie evidence in Trial Exhibit 153 that the defendant's own engineers CSA recommended in 1991[61] that all three decks needed to be replaced in 2-3 years.
The "Table of Deficiencies" states as follows with respect to the Strata Unit 1084; Defect or Deficiency;
EAST DECK:
a) deck boards showing signs of rot
b) some ponding under deck
c) scuppers okay
d) railing - lower fascia cracked
Areas Affected: rear deck
WEST DECK:
a) Deck Type: over living space
b) Priority (A, B or C - A is highest): B
c) Aging Failure: Yes
d) Projected Life: -1-3 years
Recommended Action:
stain deck, replace in 2 years monitor membrane for leaks.
____________________
[60] Homeowner Protection Act, S.B.C. 1998, c. 31 http://www.bcla
http://www.bclaws.ca/civix/document/id/complete/statreg/240_2000
[61] [binder 2 page 105-107] Trial Exhibit 153 defendants’ engineers CSA recommended replacing all 3 decks in 2-3 years
40
145. At the trial Hirjis’ established in the evidence their burden of proof and the defendant’s negligence and breach of statutory duty and duty of care imposed on the defendants by the Strata property Act s. 72. Trial Exhibit 153 confirms that the defendants neglected their duty of care owed to the Hirjis’ from 1991 to 2008. The evidence confirms the defendants failed to negate the Hirjis’ evidence.
TRIAL EXHIBIT 144 COLLAPSED STATE OF EAST DECK.
146. At the trial Hirjis’ established in the evidence their burden of proof that demonstrates the defendants failed to follow the advice of their own engineers and the recommendations of their engineers CSA in 1991 to replace the decks in 2-3 years due to ageing failures. The evidence confirms the defendants neglacted their duty of care and failed to carry out a single remediation on east deck from 1991 to 2008 and allowed the damage and rot on the deck to continue to occur until the east deck collapsed in June 2008. See Trial Exhibit 144[62]
147. The trial judge suppressed the findings of facts by falsehood in paragraph 149, 142 j and made-up the facts which the trial judge knew to be false from the evidence that the condition of the east deck was caused by building envelope failure. The trial evidence confirms that the defendants failed to take any actions from 1991 to 2008 on east deck until the east deck collapsed in June 2008 by this time the deck was 36 years old without a single remediation carried out on the deck by the defendants.
148. The evidence confirms trial judge acted in a manner that is directed to judicial machinery itself, that is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth, that is positive averment or is concealment when one is under duty to disclose, that deceives court.
149. The evidence confirms the trial judge falsified the evidence/facts in reasons for judgment at para 149 and 142(j) to willfully deny justice to the Hirjis and unlawfully make them homeless. The trial judge can neither substantiate the falsified findings of facts in the reasons for judgment to the United Nations General Assembly or to the Human Rights Committee with the evidence submitted at the trial nor can the trial judge justify her unlawful violations of Hirjis fundamental rights under ICCPR to defraud the Hirjis out of their claim for damages against the defendants and their insurers.
[149] With regard to the water leaks, I find that the defendant’s actions and its instructions to VCS were reasonable. This was not a case of a strata corporation dragging its feet or ignoring complaints or advice from qualified professionals about repairing building envelope failure.
[142] j. It is improbable that the condition of the east deck was caused by any building envelope failure. Instead, it was the structure of the deck itself (not being vented) that more likely than not caused the rot. Its condition was exacerbated by someone removing the boards and stepping through the membrane.
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[62] Trial Exhibit 144 the east deck collapsed in June 2008
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The evidence confirms the trial judge systematically suppresses the evidence at Para. 149 and 142(j) and violated Hirjis fundamental rights to a fair trial and equal benefit of the law that are enshrined under ICCPR Article 2(3) Article 6, Article 9, Article 14, Article 16, and Article 26 that are binding on Canada.
TRIAL EXHIBIT 8 FAX FROM MS. LYN CAMPBELL TO MR. HIRJI.
150. The evidence established at the trial confirms that after the Hirjis’ repeated complaints over the telephone to Ms. Campbell the Strata manager for VR-44 that both decks are leaking, and it needs to be attended urgently as this is causing the damage to center post, and the beam underneath, and the structure of the building.
151. Evidence confirms because of these complaints from the Hirjis’ from 1998 to 2001 to strata managers, finally in July 2001 Ms. Campbell instructed Mr. John Boatman doing business as JCB Management Ltd to provide the quotes to remediate both Hirjis’ decks in unit 1084. Following quote was faxed to Mr. Hirji on August 14, 2001, by Ms. Campbell marked as Trial Exhibit 8[63] that confirms the replacement of the center post.
152. At the trial Hirji established in evidence Trial Exhibit 8 that confirms that on August 14, 2001, Ms. Campbell faxed the following quote to Mr. Hirji that outlines the scope of work quoted on August 12, 2001 by the contractor “JCB management” to remediate the problems of water ingress on both decks that were the responsibility of the defendants and were advised by their own engineers in 1991 to replace all three decks by 1994 due to ageing failures.
Upper Rear Deck.
- Install new roof membrane and flashing.
- Repair associated flashings.
- Install new railing. - Install new deck boards.
- RE-route deck drains and connect to existing parameter drainage.
Lower Rear wall/Door
-Provide new frame for patio door. (Door only)
-Provide new hardware kit.
-Replace all trim on patio door and glazing assembly.
-Provide new three-ply support post.
-Replace stucco above the door.
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[63] See [binder 3 pages 156 to 160] in Notice of motion to a judge or the registrar Trial Exhibit 8.(marked as Exhibit J in the affidavit)
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-Replace cedar lap sliding.
-Repair drywall and repaint valance
-Replace handrail on lower deck and cut back vegetation.
Basement.
-Replace window.
-Replace 40% of wall paneling.
-Replace and repair ceiling tile.
Upper Front Deck
-Provide new roof membrane and associated flashings. Repair associated stucco.
-Replace railings.
-Replace deck boards.
Install paving stones (2’x2’) under the lower deck to provide drainage. Approx. 6’x16’ area. The above scope for the sum of $14749.00 plus GST
153. The trial judge in Reasons for Judgment suppressed the real facts and made-up the facts in paragraph 142, and 98. The trial judge acted in a manner that is directed to judicial machinery itself, that is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth, that is positive averment or is concealment when one is under duty to disclose, that deceives court.
154. The evidence confirms the trial judge falsified the evidence/facts in reasons for judgment at para 142(b) and 98 to willfully deny justice to the Hirjis and unlawfully make them homeless. The trial judge can neither substantiate the falsified findings of facts in the reasons for judgment to the United Nations General Assembly or to the Human Rights Committee with the evidence submitted at the trial nor can the trial judge justify her unlawful violations of Hirjis fundamental rights under ICCPR to defraud the Hirjis out of their claim for damages against the defendants and their insurers.
[142]b. Mr. Hirji did not make a verbal complaint to Ms. Campbell about the east deck or centre post in November 2001, or at any other time.
[98] Mr. Hirji claims this was not the first mention of “structural” complaints. He says that the same time that he made a complaint about the west deck in July 2001, he also complained about the condition of a centre post or beam in his unit. As noted above, I conclude that Mr. Hirji never made the verbal complaint to Ms. Campbell that he claims.
The evidence confirms the trial judge systematically suppresses the evidence at Para. 142(b), and 98 and violated Hirjis fundamental rights to a fair trial and equal benefit of the law that are enshrined under ICCPR Article 2(3) Article 6, Article 9, Article 14, Article 16, and Article 26 that are binding on Canada.
155. The trial judge knew the law and knew that all the above mentioned and quoted repairs by JCB relates to the common property and falls under the Strata Property Act s.72 and under Strata Plan VR-44 Bylaws s. 8 and under The Province of British Columbia established legal requirements for remediation of building envelope failures evidenced by leaks, rot, mould, unintended water ingress and penetration of rainwater are the responsibility of the defendants.
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156. The evidence which came available to the plaintiffs in Mr. John Boatman Second amended response to the civil claim filed on Feb 21, 2012[64] at paragraph 4.1 that confirms the defendants refused to approve the required repairs on 30 years old east deck which was rotted due to water leaks that should have been replaced by the defendants in 1994. Mr. Boatman states the following at paragraph 4.1;
“says it provided the Strata with a comprehensive outline of repair and remedial work in respect of the Hirjis’ residence, dated August 12, 2001, but the Strata refused to authorize the proposed work and instead authorized only some of it”.
157. The evidence confirms that defendants only approved the partial repairs on east deck that should have been replaced in 1994 as recommended by the defendants’ engineers CSA in 1991. This explains why JCB left the repairs on east deck in uncompleted state in 2001.
158. The evidence confirms the defendants failed to carry out their duty of care to repair and maintain the common property in good repair order. The trial judge confirms the defendants only approved the partial repairs and breached their duty of care owed to Hirjis’ despite the facts that the funds of $142,000 were placed in term deposit and were available in 2001 to the defendants.
STRATA MINUTES AUGUST 15, 2000 CONFIRMS THE AVAILABLE FUNDS.
159. Strata minutes of Aug 15, 2000[65] page 2 para 4 confirm the strata had $142, 000 in term deposit in 2001 and the funds were available in 2001.
Term Deposit: The agent advised that the term deposit held at RBC which matured on July 20, 2000 was renewed for an additional year.
160. The trial judge in Reasons for Judgment at paragraph 69 confirms the defendants breached their duty of care and refused to approve the required repairs on east deck that are the responsibility of the defendants that should have been carried out by the defendants in 1994 the trial judge confirms the defendants breached their duty of care and states the following;
[69] The quotation was $14,749 plus GST. That quotation was not an authorization for work to be done, but rather an estimate of what work was recommended and its cost. The defendant determined that some of the quotation items were not its responsibility to repair, but it approved all others. The repairs done to the plaintiffs’ unit cost $12,233. The plaintiffs admitted that the repairs relating to that complaint were completed by the end of November 2001.
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[64] Mr. John Boatman Second amended response to the civil claim filed on Feb 21, 2012[60]
also See [Binder 5 page 394 Para. 82] in notice of motion to a judge or the registrar.
[65] See [Binder 5 page 382 Para. 46] in notice of motion to a judge or the registrar Strata minutes of Aug 15, 2000.
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