Rather than attempt to have this particular letter scanned, i have retyped it as an html document, including links to the pertinent documents for your inspection. Consider the links "electronic enclosures". :-)dht
David H. Thomson
December 10, 1998
Re: Your file # 95-188
Dear Ms. Thomas;
Just yesterday, I received a letter from Werner Schmidt, letting me know that he had finally heard from you.
Mr. Schmidt also wrote, "A key paragraph in the council's letter to me was as follows:
"Essencially, Mr. Thomson's complaint concerned the judge's assessment of the evidence at trial and the fact that he did not provide guidance to Mr. Thomson with respect to courtroom procedure. Neither allegation constitutes misconduct on the part of a judge."
It would appear that your council is labouring under a misconception. While the above concerns are also real, I am most concerned with Justice Hunter's repeated contradiction with one particular aspect of the law as he so described to and directed of me.
Justice Hunter explained to me that I had referred to a document in giving a particular rebuttal to an allegation put forward by defense counsel. Justice Hunter explained further, that if I could not produce the document to which I referred, that he must, by law, disregard that portion of my testimony.
In writing his decision, Justice Hunter states in paragraph 7 that, based on Dell Aren's testimony, I had signed a real estate document entitled, "Subject Removal Form", thereby removing the subject of sale, "Subject to the vendor's solicitor's approval by April 1, 1991." Mr. Arens went on to testify that he was unable to produce a copy, as "the only copy was buried in the the Mainline Real Estate Board's archives."
In fact, Mr. Arens committed perjury. In British Columbia, a "Subject Removal Form" is a triplicate document, with further copies to be made for every party to the subject. The defendant, Marc R. B. Whittemore should have had a copy. In fact, counting the copies for Mr. Arens and the Govnt. Agent presiding over the realty firm, who would have made a copy for the real estate board, there should have been a total of six copies, any one of which could have served as an exhibit.
Mr. Whittemore alleged in his defence that he advised me quite properly prior to the completion of the sale of my business, that there was no security for the seventy two thousand dollars that I was to finance, according to the terms of the sale and that I refused to follow his advise.
He then completed the sale and yet he did not document the nature of his advise on paper for me to read and sign acknowledgment of, contravening his professional rules of conduct.
This rule of conduct was provided in the form of the written, professional opinion of one Patrick A. Bell, a lawyer practicing in the township of Summerland. This letter was marked as exhibit "6" to the trial.
The Canadian Bar Association states that:
"Undertakings are to be written or confirmed in writing...""If the lawyer giving the undertaking does not intend to accept the personal responsibility, he should state this quite clearly in the undertaking itself. In the absense of such a statement the person to whom the undertaking is given is entitled to expect that the lawyer giving it will honour it personally."
Mr. Whittemore had no undertaking written with regard to the work he performed for me, much less anything stating what he did not wish to be responsible for.
Mr. Whittemore alleged in his testimony that he was following my "specific instruction". "Specific instructions" are to be written, signed by the client and dated.
In total, here are four documents that the defendant and his witness, Mr. Arens referred to in their considerable testimony, that were not produced for inspection and rather than disregard those portions of their testimony, Justice Hunter chose not only to rely on but also refer to in various portions of his decision.
Justice Hunter, further, chose to accept Mr. Whittemore at his word, as is reflected also in paragraph seven of his decision:
"One of Mr. Thomson's complaints was that Mr. Whittemore had not protected him in a way in which he anticipated by having inserted the clause "subject to the vendor's solicitor's aproval by April 1s, 1991." Mr. Whittemore's evidence was that he was never told of the clause."
Mr. Whittemore had filed an affidavit on January 13, 1995, supporting an order to dismiss the matter, relying on Rule 18-A of the Supreme Court of British Columbia. At paragraph eleven of his affidavit, Whittemore swore that Dell Arens, the realtor had told him of this clause.
If Mr. Whittemore did not commit perjury in his sworn affidavit, then he must have committed perjury during the trial.
Further, it was established at trial that the original real estate sales agreement with the subject in question written on it, was the first document received by Mr. Whittemore for his inspection. Still, Justice Hunter chose to believe him.
Finally, but certainly not in conclusion, Justice Hunter states in his decision that I had "failed to prove to" his "satisfaction" that Whittemore was even guilty of negligence.
As I now understand it, I only had to prove to the satsfaction of the law and it would appear that Whittemore is guilty of much more than mere negligence.
All in all, I believe that there is more than sufficient evidence presented herein to indicate that Justice Hunter had gone beyond the powers and authority of his office in finding in favour of Mr. Whittemore. In doing so, it would appear that he breached my right to "equality before and under the law" as is so stated in our 1982 Constitution (Section 15.2), making this matter a matter of federal jurisdiction as well as well within the confines of your mandate for further investigation.
A certain comraderie appears to be associated with every aspect of this matter, interfering with and denying my rights regarding access to the law, justice and fairness under and before the law and relief according to our laws.
This comraderie does go far beyond the actions and decision of
Justice Hunter. Most certainly, there are innumerable grounds for
you to investigate the actions and judgements of Master Mike
Bishop, as they relate to the various legal actions that ensued
out of this original matter. Much more evidence of "comraderie"
amongst those associated with the Supreme Court Registry, here in
Yours very truly,
David Hunter Thomson
c.c. Werner Schmidt, M.P.