That ground is supported two decisions of the Ontario Court of Appeal both dated MARCH 5, 1001 the first is found http://canlii.ca/t/1fbrw McLarty v. Ontario (Family Responsibility Office, Director) heard January 12, 2001 before WEILER, LASKIN and CHARRON JJ.A. the second is found http://canlii.ca/t/1fbp2 Adubofuor v. Ontario (Family Responsibility Office, Director), 2001 CanLII 24013 (ON CA) also heard before WEILER, LASKIN and CHARRON JJ.A. also heard January 12, 2001 both unanimous reasons for judgment were released by Laskin J.A.
At paragraph 20 of the first case Laskin J.A. wrote: “Therefore if Mr. McLarty had failed to advise either the Director or the Registrar of his new address by the time that the First Notice was sent, the FRO could not be faulted for serving Mr. McLarty at his old address. Service under the statute would still be valid. However, when the payor disputed service, the Director is obliged to prove service. The Director must file affidavit evidence that the First Notice was sent to the payor by ordinary mail to the payor’s most recent address in the records of the Director and if different, to the payor most recent address in the record of the Registrar of Motor Vehicles, as is required by s, 17.1 of the regulation. In this case, even though Mr. McLarty claimed that he had not been served, the FRO filed no proof of service on the application before Sedgwick J. Because the FRO did not file proof of service, the Director cannot maintain the suspension of Mr. McLarty divers’ licence. Requiring the FRO to prove service when a defaulting payor disputes service is consistent with the case law under the Rule of Civil Procedure requiring a plaintiff to prove service of an originating process when a defendant disputes service. See Ivan’s Film’s Inc. v. Kostelac (1989), 29. C.P.C. (2d) 20 (Master).”
At paragraph 30 – Conclusion: I would allow the appeal in part, by setting aide the motions judge’s order and in its place ordering the Director to direct the Registrar of Motor Vehicles to reinstate Mr. McLarty’s licence.”
At paragraph 13 of the second case Laskin J.A. wrote: The FRO should also have filed am affidavit attesting to Mr. Adubofuor’s most recent address in records of the Director and of the Registrar of Motor Vehicles. However, the evidence before the motions judge shows that the most recent address was the address to which the First Notice was sent. Because Mr. Adubofuror was served with the First Notice in accordance with the Act and the regulation, he cannot avoid the suspension of his driver’s licence by the bare assertion that he did not receive the notice. Cogent evidence would be required to rebut service that complied with the legislative regime.
At paragraph 16 in his conclusion Laskin J.A. wrote: “Accordingly, I would allow the appeal, set aside the order of the motions judge and dismiss Mr. Adubofuor’s motion for reinstatement.”
These two decisions of the Ontario Court of Appeal speaks of the requirement of compliance with the legislative regime, When Mr. Charlton perfected his appeal on or about November 22, served and filed the required document with the Court and ask the Court to reinstate his licence because of the failure of Director of the Family Responsibility Office to comply with the legislative scheme, the Divisional Court was duty bound pursuant to section 29 of Magna Carta to order the reinstatement of his licence and adjourning the remainder of the relief sought by the Notice of Appeal to give counsel for the respondent a chance to address the other issues raised by the Notice.
Magna Carta s. 29 clearly stipulates: “we will sell to no man, we will not deny or defer to any man either Justice or Rights.”
Vinnini, L.J.S.C, Ontario Supreme Court of Justice [High Court of Justice] in an October 17, 1987 judgment in Ronncato et. Al. v. O’Brien et al. 17 C.C.E.L. 290 at 295 addressed to guaranteed Magna Carta protections as follows: While s. 15 of the Charter protects the right of access to the Courts for the enforcement of one’s civil rights, the right itself is guaranteed by Magna Carta, 1297 (U.K.) 25 EDW. I ) c. 29” and then continues: “These then are the rights that exist outside of the Charter and that are preserved by s. 26 and protected by s. 15 of the Charter.”
Very strong words indeed and it is to the Divisional Court credit that when Mr. Charlton Appeal was brought before the Court it acted promptly to restore his licence.
===============================================================
Email that Mr. Charlton bought to my attention indicating that he had served and filed the documents pertaining to his appeal
True copies of Email exchanged between Mr. Brad Charton and Guy Babineau indicating that documents were served on the respondent and filed with the Court. The clock on the email is off by a few hours:
RE: How did it go today
Wednesday, November 23, 2011 7:53 AM
From:
"Brad Charlton"
View contact details
To:
guy_babineau@yahoo.com
Not sure... I can only have my appeal heard in front of Divisional Court if the FRO waives its right to 30 or 60 (the court wasn't sure how long) days that they have to respond to my perfected appeal.
My only other option, I believe, is to file a motion asking the DC to stay enforcement of the FRO powers pending the hearing of my appeal. The Court, as I understand it, could then order my licence to be reinstated pending the hearing of my appeal in April - which is the next time the DC meets in London.
Brad
"I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law."
— Martin Luther King Jr.
________________________________________
Date: Tue, 22 Nov 2011 17:23:37 -0800
From: guy_babineau@yahoo.com
Subject: RE: How did it go today
To: bradcharlton69@hotmail.com
When will you be appearing?
--- On Tue, 11/22/11, Brad Charlton
From: Brad Charlton
Subject: RE: How did it go today
To: guy_babineau@yahoo.com
Received: Tuesday, November 22, 2011, 9:48 PM
I got it sworn, served and filed.
Brad
"I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law."
— Martin Luther King Jr.
===============================================
Copy of my December 16, 2011 letter addressed to Ontario Chief Justice Warren Winkler deploring the conduct of Heather Punchal, counsel for the Director of the Family Responsibility Office as an officer of the Court and requesting that her refer the matter to the Law Society of Upper Canada
GUY BABINEAU
712-255 Main Street
Toronto, Ontario
M4C 4X2
December 16, 2011
Ontario Chief Justice Warren Winkler
130 Queen Street West
Toronto, Ontario
M5H 2N5
HAND DELIVERED: December 16, 2011
Re: The Director Family Responsibility Office Motion to the Ontario Superior Court of Justice – Divisional Court returnable on Tuesday December 20, December, 20l 2011 at 10:00 or as soon after that time as the motion can be heard at 90 Dundas St., London, Ontario in the style of cause Bradley James Charlton and Director, Family Responsibility Office.__________________________________________________________________
This letter to be hand delivered later today is delivered ex parte without the knowledge of either party as amicus curie. The attached Motion of Heather Puchala, Counsel for Family Responsibility Office, 1201 Wilson Ave., Bldg B, Downsview, Ontario, M3M 1J8, T: 416-240-2486; F: 416-240-2402: Email Heather.Purchala@ontario.ca dated December 7, 2011 and Affidavit of David Hatwick of the city of Toronto is an employed by the Director Family Responsibility Office (FRRO) as an enforcement officer under s. 3 of Family Responsibility and Support Arrears Enforcement Act was sworn on December 8, 2011, before Heather Puchala, Lawyer and Commissioner for taking Oaths and Affidavit. These documents were emailed to me by Mr. Charlton and I have reasons to believe that they are true copies excluding the missing exhibits to the affidavit.
In Paragraph 9 David Hartwick states: A Confirmation of appeal of Bradley Charlton was copied from the court file 1898/11. It confirmed that a motion will be proceed on November 25, 2011 for a hearing on the reinstatement of the driver’s license of Bradley Charlton. It referees the presiding judge to the Appeal book and Copendium, the Exhibits book and the Factum of Bradley James Charlton. It does not appear that any hearing occurred November 25, 2011.
Attached is copy of email exchanges between Mr. Charlton and myself between November 22 and 23 and because of the error on the email timing on my computer I have reasons to believe and verily believe that all those email were sent and received on the 22nd of November 2011. I have known Mr. Charlton for some five years and visited him on a number of occasions and if he states that he has served those documents, he did.
Ontario Chief Justice Warren Winkler
130 Queen Street West
Toronto, Ontario
M5H 2N5
If on the face of those documents it is demonstrated that Family Responsibility Office did not abide by the decision of the Ontario Court of Appeal regarding the suspension of his licence, then the Divisional Court was duty bound to reinstate it pending the disposition of this appeal scheduled for sometime in April 2012. As Chief Justice of Ontario you should direct the Chief Justice of Ontario Court of Justice who will direct a Judge hear the motion on behalf of the Divisional Court to refer the conduct of lawyer Heather Puhala to the Law Society of Upper Canada because he has violated his duty as an officer of the Court.
This letter will be sent to the Madame Chief Justice Heather Smith and copy to the member of the Canadian Judicial Council and be part of my blog Access to Justice http://accesstojustice70.blogspot.com the exclusions of the documents. This letter including the letter to Madame Justice Heather Smith will be email to both Ms. Heather Purchala and Mr. Brad Charlton excluding the court documents filed butt including the email exchange between Mr. Charlton and I.
Respectfully yours
Guy Babineau
Encl
===============================================
I Have also attached copy of my December 16, 2011 addressed to Madame Chief Justice Heather Smith of the Ontario Superior Court of Justice and Divisional Court:
GUY BABINEAU
712-255 Main Street
Toronto, Ontario
M4C 4X2
December 16, 2011
Madame Chief Justice Heather Smith
Ontario Superior Court of Justice
Divisional Court
130 Queen Street West
Toronto, Ontario
M5H 2N5
HAND DELIVERED: December 16, 2011
URGENT
Re: The Director Family Responsibility Office Motion to the Ontario Superior Court of Justice – Divisional Court returnable on Tuesday December 20, December, 20l 2011 at 10:00 or as soon after that time as the motion can be heard at 90 Dundas St., London, Ontario in the style of cause Bradley James Charlton and Director, Family Responsibility Office.__________________________________________________________________
Please find attached copy of my letter of today addressed to Ontario Chief Justice Warren Winkler which is self explanatory. It is hope that the Judge that you will appoint to hear the above matter on December 20, 2011 will see fit to dismiss the above referred matter as frivolous, vexation and as a abuse of due process and refer conduct of this lawyer to the Law Society of upper Canada for bringing the administration of justice into disrepute.
Copy of this letter will be sent to the Mr. Ontario Chief Justice Warren Winkler and to members of the Canadian Judicial Council and be part of my blog Access to Justice http://accesstojustice70.blogspot.com with the exclusions of the court documents. This letter including the letter to Mr. Justice Warren Winkler will be email to both Ms. Heather Purchala excluding the court documents filed butt including the email exchange between Mr. Charlton and I.
Respectfully yours
Guy Babineau
===============================================
In closing I would like to add that after the documents were filed, Mr. Charlton informed me on a number of occasions that those responsible for reading the document that he had served were telling him that they had not done so.
Will Justice be served on Tuesday, December 20, 2011 and appropriate steps taken to ensure that Ms. Heather Puchala and the Director of The Family Responsibility Office are properly put in their place.
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