Complaint Against the Judge

COMPLAINT TO THE CANADIAN JUDICIAL COUNCIL
This complaint is basically as submitted to the Canadian Judicial Council of Canada.  It has been edited for clarity and brevity and when deemed prudent, to protect the identity of certain individuals.

Complaint re the conduct of Madam Justice Wendy Baker, Supreme Court of British Columbia
WITHOUT PREJUDICE
From:
Judith Thorne (Defendant)
Background Info:
Before: The Honourable Madam Justice Baker
Supreme Court of British Columbia
Vancouver

Citation:      British Columbia Teachers’ Federation (Plaintiff) v. Thorne (Defendant)
2011 BCSC 1119
2010 BCSC 953

Court case number: S075936

Dates of actions that led to complaint:
Trial:  April 20-24, 27-30, May 1, June 10-12, 2009
Judgment:  July 5, 2010
Hearing for Costs:  January 6, 2011
Judgment: August 17, 2011
Order After Trial:  December 20, 2011

I have several complaints/concerns about the conduct of the judge in this case.  Please note that I am submitting these complaints without legal assistance.

I have referred to the Ethical Principles for Judges to try to determine which of my complaints actually fall under the jurisdiction of the Canadian Judicial Council.

All direct quotes from the Reasons for Judgment are in bold.  When a point from the Reasons for Judgment are quoted or referred I have referenced them in square brackets [000].   I have attached a list of quotes from the Judgment which are referred to but not quoted.

CONCERN I.

I wish to register my objection to the length of time from the completion of this trial on June 12, 2011 (final submissions submitted July 7, 2009) to a decision being handed down on July 5, 2010 – over one year after trial.  Then, again, after a costs hearing on January 6, 2011, despite a verbal comment from the judge that the decision would not take long, that decision was not handed down until August 17, 2011 – over eight months later.  Given the the resolution of the Canadian Judicial Council in 1985 that judgments should be delivered within six months after hearings except in special circumstances these time frames fall way beyond what could be expected.

It is my understanding from others in the legal profession that this length of time is highly unusual and perhaps even unacceptable.  No explanations were given and no further inquiries for clarification were forthcoming from the judge.  To then be forced to wait a further 8 months for a costs decision which drastically affected my well being and quality of life – physically, psychologically and financially as I could not retire until a decision was made regarding my eligibility for disability -  is, in my opinion, indefensible and shows, at the very least, callous disregard and disrespect for me and my family.  The phrase “Justice delayed is justice denied” was the reaction from at least one lawyer friend.

Furthermore, the length of time between the actual trial and the decision may explain some of the inaccuracies and discrepancies which I will discuss later in this document.

CONCERN II.

I wish to express my concern over a statement made by the judge herself regarding her acquaintance with one of the witnesses for the Plaintiff, JR.  Judge Baker addressed the court near the end of JR’s testimony (approximately half way through the trial) stating that she had met JR before on several occasions as JR was “currently married to the brother of a friend of mine.” (Transcript April 27, 2009, page 6, lines 42 – 25) We were given no comment on what if anything the judge may have known about the circumstances and events leading to this court case.  Any version of the events around our purchase of Curves from JR and/or anyone associated with JR would be hostile and strongly biased against us as evidenced by her testimony.

Background on Ms. R:

The West Vancouver Curves my husband and I purchased in the fall of 2005 was owned by two women, FR and JR (different last names).  Both of these owners lived outside the Lower Mainland and owned 2 other Curves.  The West Vancouver Curves was run by a manager with whom JR seems to have been close.  JR was the owner who was most active in the day to day management of the West Vancouver Curves and would travel to West Vancouver for several days each month.   The actual sale agreement was negotiated by FR and her husband along with their real estate agent.  FR told us that JR did not want to sell. We did not meet JR until sometime in October and then only two, maybe three times.  The manager (who worked for JR) and another staff member had tried to purchase the Curves but were unable to raise the financing.  We faced resentment and a general lack of good will from both JR and the manager. After a trial period of two months, we felt it necessary to dismiss the manager largely because her loyalties did not lie with us.  I doubt JR was happy with this action.

The sale itself became contentious and I have a letter from my lawyer stating his concern that the matter was not being resolved even though the closing date of October 29, 2005 had passed. JR testified in court that there were things in the final sale that she had not agreed to. This is not a reasonable statement and was contradicted by the testimony of our business lawyer. One item was a payment FR agreed to make to Curves and, in fact, had made the payment.  Then they tried to claim it back.  It was the seller’s real estate agent who pointed out that Adjustments, a standard item in the Sale Agreement, had to be calculated.  Simply put, most members of Curves paid their memberships annually or monthly.  We acquired the business October 29, 2005.  So if, for example, someone joined the club on October 1st and paid for a year we would be entitled to 11/12 of that membership.  Likewise if a monthly membership was paid on October 15 we would be owed 16/31 of that payment.  JR did not agree with the figure we came up with but refused to produce her own figures or negotiate the adjustment in any way.  Another issue was the matter of severance which should have been paid to the current employees but she disagreed and refused to pay it so an allowance had to be made which the sellers disagreed with.

The judge refers to JR in item [122], pages 28 & 29 of the Reasons for Judgment of July 5, 2010:

“[122]  (JR), who owned two other Curves fitness centres in addition to the West Vancouver location, had attended the training program.  She testified that each day of training started with a work-out as the franchisees needed to be able to use the exercise machines in the facility and demonstrate their use to others.  The daily work-outs were followed by all-day workshops, and social events in the evenings.”

The judge states JR’s version of the training which was not the same as mine inferring that I lied.  In actuality, we attended the Curves training two years later, the franchise had grown a lot as had the training camps. There were hundreds of people at our training camp. Things such as evening socials had probably become impractical given the numbers.  It is likely both versions of the events are true but the inference is that I lied.  All of this goes against my credibility (which in turn greatly reduces the chance that the Appellate Court will grant an Appeal).

CONCERN III.

It is my opinion that, according to the judge’s own statements regarding my motivation and credibility, the legal standard for fraud is not met.  I believe there are many other reasonable, fair minded and informed people who do not follow the judge’s logic (nor agreed with her interpretation of the law).  I also believe that this conclusion shows a strong bias against me.

The focus of my “fraud” is that I did not disclose “considering becoming involved in a business;” in an Activity Form on August 15, 2005 [310].  The judge states that there is nothing in my background “that casts doubt on (my) credibility.” [306]
She further states that she accepts my assertion that on August 15, 2005 I could not have known if the offer to buy Curves would be accepted. [310]  She then questions why I did not apprise GWL that the offer had been accepted the next day. This question fails to acknowledge the generally accepted business knowledge that a sale is not complete until the completion date.  As previously stated, we did not take possession of the business until October 29, 2005.

There is nothing in the Rules and Regulations for the Salary Indemnity Plan which were current at the time in question requiring me to disclose ownership of a business.

I did initiate a correspondence with GWL on January 12, 2006 which concluded with my letter of February 21, 2006 to BCTF which fully details my involvement with the business.  BCTF reinstated my disability on March 26, 2006.

According to Elizabeth B Lyall (lawyer) in her paper “Fraud in Disability Claims”:  (http://www.fasken.com/files/Publication/c6b1abd0-0f3c-4f18-a1e7-9b8339b42b45/Presentation/PublicationAttachment/90c1ff13-2221-4c62-a81f-b7a25c77dd7a/FRAUD_IN_DISABILITY_CLAIMS.PDF)
page 7 & 8 – “Upon learning of the material non-disclosure, material misrepresentation, or fraud, the insurer must, within a reasonable amount of time of learning of the true facts, take steps to rescind the contract of insurance…  If the insurer fails to rescind the policy when it learns of the true facts, it will be considered to have waived the (alleged) misrepresentation and will, therefore, be stopped from later rescinding the policy.”

If one accepts Ms. Lyall’s statement, any discussion of my Activity Form of August 15, 2005 is irrelevant in light of my letter of February 21, 2006  (see background info) to BCTF fully disclosing my activities since August 2005.  BCTF reinstated my disability claim on March 26, 2006 after having placed me under surveillance for 11 days (I was unaware of this until June 2008 and this surveillance raised no issues that BCTF addressed with me), with full knowledge of my activities and with no further inquiries although invited to do so in my letter.

The judge fails to acknowledge that ownership of a business was not a required disclosure in BCTF’s Rules and Regulations of the Salary Indemnity Plan. She also tries to mitigate the fact that it was both my husband and I who purchased and owned the business [105] and [186].  Her assertion that “Ms. Thorne testified at trial that starting in September 2005 she was already working 8 or 10 hours a week in the business” [154] (also repeated in [186] and [311]) can only refer to the Curves training we attended which is not the equivalent of working 8 or 10 hours in the business.  I cannot recall nor do I believe that I would have made such a statement as we did not acquire the business until October 29, 2005 and even then the sale had become contentious and had not been completed.

On the basis of my failure to disclose a sale which had not yet been completed and would not be for another two and a half months, Judge Baker questions my credibility in general and “in particular, on the credibility of her assertions that she continued to be disabled from gainful employment within the terms of the Plan in 2006 and thereafter.” [314] She further states that this is “a false representation which could be characterized as fraud” and that “it follows that the defendant’s claim for defamation must fail.”

The conclusion is that the judge finds me guilty of an action which “could” be characterized as fraud.  That action is not disclosing something which may or may not happen at some future date after the time I was filling out an Activity Form???  And an action which was indeed reported several months later. I find it hard to believe that this is the standard of law for fraud.

CONCERN IV.

The Reasons for Judgment contain many inaccuracies which do not have a direct bearing on the case and seem quite inconsequential but, as the statements are deemed important enough to be included by the judge, the lack of accuracy is very concerning given that I doubt anyone would argue the corrections.  These inaccuracies raise questions as to the judges grasp of the evidence presented during this trial.  Examples (by item number in the Reasons) are as follows:

[15] – began attending (our church) in 1980 – should be 1989

[16] – my daughter was born in the Yukon before our return to British Columbia, not after
- my son did not return home to live in 2008 and still lived away from home at the time of the trial.

[18] – I began substitute teaching in 1989 not 1992

[30] – my husband and I purchased Curves in the fall of 2005 not 2006.  This mistake is repeated in [308]. This fact is crucial to the case and is stated correctly in [96] and [143].

[84] – my sister did not recommend me to Dr. Bazilli and has no connection with her which would lead anyone to that conclusion.

[176] – my manager’s name (the one who testified for me) is stated incorrectly.  Surely this was stated correctly in her testimony.

CONCERN V.

Other inaccuracies in the Reasons are of greater consequence because they are geared to questioning my credibility and/or the credibility of my witnesses which are crucial to the judge’s decision.  Quite frankly, I believe the judge worked to question my credibility to greatly reduce any possibility of an appeal being successful.

Throughout the Reasons, the judge dismisses the credibility and/or questions the professional expertise of three doctors (none of whom are associated with each other), our business lawyer, two personal witnesses (both former teachers) and my former manager.  I think that most reasonable people would find it hard to believe that seven people could be found not to be credible witnesses.

In contrast, the judge views the witnesses for plaintiff much more glowingly.  “Dr. Stewart-Pattison…I was impressed with his testimony.” 320]  “I found Dr. Stewart-Patterson’s testimony compelling.  I prefer his testimony…”  [321]  “I found Ms. Lanzinger to be an impressive witness.” [336].   Ms. Lanzinger could not recall most of the things she was asked about, including whether or not she had spoken to a reporter.

Some of the judge’s own statements contradict other statements of her own within the Reasons.

Following are my most significant objections. The Reasons are quoted from the judgment in bold font then my response in regular font.

[99]  The notation (in my Activity Report of August 15, 2005 for Great-West Life) about needing to consider hiring a housekeeper is perplexing.  Mr. Thorne testified that he and Ms Thorne had always had housekeeping assistance – four hours every two weeks – until they could no longer afford it – he thought that was probably in 2005, but that it could have been 2006.  On January 27, 2006, Ms. Thorne reported to GWL that her housekeeper had recently quit, so I infer from this that Ms. Thorne had a housekeeper in August 2005.

The judge’s inference is not correct.  I find it impressive that my husband was able to recall even an estimate of the time frame above. I don’t think I could have.  I did not recall and had to refer to my old calendars after reading this in the judgment.  I did not have a housekeeper on August 15, 2005. In fact, I tried another cleaning company in November 2005 only once as I recall, then was told about the housekeeper I did hire around late November.  She quit in January 2006 when she was offered full-time employment at another job.  This completely fits the time frame stated by Mike.

(108)  Although Mr. Thorne referred to the previous owners’ telephone expenses as an area where he thought savings could be had, the financial statements reveal the biggest single expense the business had was wages.  I conclude that the Thornes believed that savings could be realized because Ms. Thorne would do some or all of the work that had previously been done by the manager or other paid staff.

The judge is presuming to read our minds.  My husband, Mike has an MBA and worked as a Director in a large public organization before retiring.  Mike says that he talked about all of the expenses in general and may have given the telephone expenses as one example.  As I recall, one of the major areas in which we thought to cut expenses was Office Supplies – not that it really matters.  We really had no idea how much I would or would not be able to work in the business or even what that entailed.  Our intention was to purchase the business fully staffed.  This club already was being run by a manager and her staff with a monthly visit from one of the owners, JR, supplemented by phone or email contact between visits.  According to the Reasons:  “LS (staff member/assistant manager and witness for BCTF) testified that until December 2005, things at the fitness centre continued much as they had under the former owners, although Ms. Thorne came into the centre to meet members.[169]”

(109)  In their testimony at trial, both Ms. Thorne and her husband denied that Ms. Thorne intended to be actively involved in working in the business, but this testimony is not credible.

The fact is that, except for one period of about 2 weeks, we always had a manager in place. We were also fully staffed (and this confirmed by both Curves managers who testified).  Discussion around whether or not we intended anything is irrelevant in light of the fact that it didn’t happen. Once again, I am judged on what I may or may not have been planning to do in the future.  The fact remains that the intentions didn’t happen and were not proven by the plaintiff.

(112)  Relevant to the matters in issue in this lawsuit are two questions on the Resale Application, and the responses:

Will you be the primary person working in the facility?  Yes (Judith G. Thorne)    

If no, approximately how many hours a week will you be in the facility?
/ (a slash)

(113)  A diagonal line was drawn across the space for the response to the second question.  I infer that the intention was to convey to the franchisor that Ms. Thorne would be working in the facility full-time, and therefore it was unnecessary to indicate how many hours a week she would be in the facility.

I remember discussing the answer to these questions with Mike.  We knew very little about the business when filling out this form.  It had been recommended to us that we let the current manager go but we were not going to do that right away without seeing how things were.  Mike felt the answer meant that I would be the “front” person for the women’s facility.  It was a difficult question to answer without explaining more than necessary, possibly blackening someone’s reputation, and perhaps committing to firing someone we had not yet met. The slash meant that we didn’t know how many hours I might end up working in the facility.  Even if it had been a goal it never became a reality.

[152] It is unclear whether Dr. Bazilli gave the form she had completed to Ms. Thorne to deliver to GWL or sent it to GWL herself, but Ms. Thorne, I conclude, became aware that Dr. Bazilli’s report would alert GWL to Ms. Thorne’s involvement in the Curves business. She sent her own letter to GWL, dated January 12, 2006. In that letter, Ms. Thorne provided information, for the first time, about her involvement with the Curves business.

The timing of the letter was due to the fact that I dismissed the original manager  on January 6, 2006 and felt my role at Curves would be changing as stated in the letter.  If my motivation was as concluded and stated by the judge would I not have sent the letter at the same time as Dr. Bazilli’s – December 12, 2005??? Not 4 weeks later???

I had also told Dr. Ryan about the business back in November and there was every possibility that she could have been asked for a report.  The letter in question was sent for the reasons I stated:  I had dismissed the manager and would be taking a slightly more active role in the business.

[165] (Middle of paragraph) On February 14, FBIG provided GWL with a written report describing Ms. Thorne’s activities as observed by FBIG employees; and an hour of videotape footage filmed by investigators on various dates between February 1 and 12.  After receiving this report and having access to the DVD footage, GWL decided to do further investigation, but did not terminate Ms. Thorne’s benefits.

NOT TRUE!!  GWL had terminated my benefits again as of December 2005 and did not reinstate them until late March 2006 after further investigation which included 11 days of surveillance and full knowledge of my activities and involvement with Curves.
The judge states this herself further along in the “Reasons” Item [181]:  On March 24, 2006, GWL wrote to Ms. Thorne and told her that her long term disability benefits would continue to August 31, 2006.  This letter was written to reinstate my benefits which had been terminated.

This inability to see the correct timeline is very disturbing as it is crucial to the case.  This shows quite a lack of diligence on the part of the judge to try and see the true picture.

[169] LS testified that until December 2005, things at the fitness centre continued much as they had under the former owners, although Ms. Thorne came into the centre to meet members. After (the original manager) was dismissed at the beginning of January 2006, LS did a lot of the day to day work at the fitness  centre. Before January she had worked mostly four hour shifts, but as assistant manager she worked an eight-hour shift, three or four days a week. Ms. Stephens testified the Thornes were looking to hire more staff, because they had increased the hours that the fitness centre was open, and staff had to be on the premises from 6:00 am to 8:00 or 8:30 p.m. Ms. Stephens testified that the staffing complement on duty at any given time was usually one or two employees. Ms. Thorne did not work as a fitness technician, Ms. Stephens testified; but was learning the business and meeting and greeting the customers. Ms. Thorne was also making a lot of changes to billings systems and other practices. A new computer system was installed that could be accessed by Ms. Thorne from her home.

The above testimony of Ms. Stephens supports my testimony and evidence.  The last two sentences are purposely phrased to make it seem that I am doing much more that I was, including the false statement that I could access the system from home.  In actuality, Mike oversaw the installation of the new computer system from Curves International done by our highly skilled computer technician.  The staff were well aware of this as they had the computer technician’s number to call if needed.  I hired a junior staff member for extra hours to do the necessary data input on the computer.  The new computer system which was installed WAS NOT accessible from my home.  The manager was responsible for the maintenance and continual updating of the computer system.

This is only one example of instances throughout the Reasons where my activities and work are vastly overstated (by the judge) to make it appear that I am doing more than I was actually doing.

[174] Mr. Thorne’s testimony that Ms. Thorne ceased to be actively involved in running the business after he retired is not consistent with her own reports to various doctors and to GWL about her ongoing involvement in the business. Mr. Thorne’s testimony is also inconsistent with that of SB, an employee who worked at the fitness centre from November 2006 until January 2008 and, I conclude, developed a friendship with Ms. Thorne. These inconsistencies suggest that either Mr. Thorne was not aware of the work Ms. Thorne was doing, or that he was deliberately down-playing Ms. Thorne’s involvement in the business.

My “ongoing involvement” was greatly reduced in terms of the banking and bill payments duties which my husband had assumed from me in April 2006 after his retirement at the end of March 2006.  I continued to have a presence at Curves and kept in touch with the staff.

There exists no evidence and I can think of no one who would testify to the conclusion of the judge that I had a personal friendship with SB. The implication seems to be that SB’s testimony was influenced by a friendship we alleged had.

I would consider the type of relationship I had with my manager(s) to be very similar to the relationship I would have had with a substitute teacher who was replacing me while I was on sick leave.  The fact that I am discussing/giving instructions to a substitute does not mean that I am not eligible for sick leave nor that I am working.  The person receiving the instructions is the one doing the work.

[216] At trial, the plaintiff also referred to Regulation 24 of the Plan. This regulation stipulates that a claimant must refer a matter to the medical review committee and advise the plan administrator of her designated appointee within six months of being advised of the decision which is the subject of the dispute. The letter notifying Ms. Thorne that her disability benefits would end on August 31, 2006 was dated March 24, 2006. Ms. Thorne’s letter asking for a medical review and designating Dr. C as her representative was dated March 6, 2007. However, Ms. McLaughlin testified that the reason the BCTF did not agree to refer Ms. Thorne’s claim to a Medical Review Committee was the belief that Ms. Thorne had provided false information about her activities and abilities, and not Ms. Thorne’s delay in requesting the review.

The judge does not seem to have a clear timeline of the events crucial to this trial.  My counsel clearly dealt with the issue of a timeline in the final arguments held June 10 – 12, 2012.

Dr. Stewart-Patterson’s testimony was central to the judge’s conclusions.  This statement completely disregards the fact that another assessment of me was arranged for me by GWL with Dr. Stewart-Patterson and Chris Nguyen, Kinesiologist, on October 4, 2006 and a subsequent letter sent in December of 2006.  It seems reasonable to think that the 6 month deadline would now be calculated from the latest letter.  As this assessment is a focal point of the Plaintiff’s case and the judge’s decision, this omission would seem to be a rather glaring “mistake”.

The point of this statement is the allegation that I did not notify GWL within 6 months of receiving notice on March 24, 2006 that my benefits were being terminated and was therefore not eligible for a Medical Review as should have been the process according to the Rules and Regulations of the Salary Indemnity Plan (BCTF).

[228] Ms. Thorne and her husband continued to own and operate the Curves fitness centre until late in 2008, when the assets were sold for $140,000. In a report authored by Dr. B for use in this litigation, Dr. B stated as a “Fact” on which she relied, that the Curves business was sold primarily
because Ms. Thorne was unable to contribute in its management due to her fatigue. Dr. R appeared to share this impression. In a report written she wrote on February 27, 2007 she stated:
Recently, Judy and her husband, Mike, have considered selling the franchise because neither of them have the energy that it takes to run a full time business.

 [230] Mr. Thorne testified that he and Ms. Thorne sold the business because it was not profitable. It had been only marginally profitable for the former owners. Membership at the fitness centre began to drop off in May 2006. Some members were apparently unhappy about the departure of (the manager). In 2006, the company had a small operating loss of $4,400. Mr. Thorne testified that the business became increasingly unprofitable in subsequent years. Staff turnover was a big problem; because the business paid relatively low wages, they couldn’t get staff to stay.

In the points [228] and [230] Judge Baker seems to be pointing to two different reasons why we sold the business and therefore, again, questioning our credibility.  I contend that the two reasons are directly related to each other as because I could not contribute more to the management our payroll expenses were that much higher in having to employ a manager.  Not having our stories exactly identical points more to the fact that we are telling the truth.  If we were lying, our stories would match more closely.  As it is, both reasons apply and relate to each other.  Had the business been manageable and profitable with all the staff in place, we would not have sold it.

(237)  Dr. R included as assertion that Ms. Thorne had always been “totally honest” about her level of activity and “totally honest” about her exhaustion.  These statements are not, of course, admissible opinion evidence.  Dr. R is not an expert about honesty.  I mention these comments by Dr. R as an example of her advocacy for her patient, and the absence of the objectivity hoped for from an expert witness.

This is just one example of how Judge Baker, one by one, discredits almost every one of the witnesses called for me – personal, medical, legal, and other professionals.  If a psychiatrist cannot speak to honesty, I would like to know who the judge thinks would be a good witness in this regard.

You can’t tell me that the many doctors and other medical experts called by GWL are not advocates for GWL and therefore, BCTF.  The bill for one two hour appointment (and there are many appointments) was $3500.  I was appalled when I was finally permitted to read these doctors reports at the negative, disparaging and dismissive tone taken against me by these medical professionals whom I had naively trusted to be objective.  Oddly, some of the comments used against me are things I would never have said if it were my intent to commit fraud. More importantly, every one of these professionals hired by GWL found me eligible for disability, including Dr. Stewart-Patterson (in his initial report) before he reconsidered his opinion at the request of GWL.

[243] Dr. R attributed Ms. Thorne’s fatigue to her depression and anxiety but her opinions and testimony do not assist in understanding why Ms. Thorne’s reports of fatigue varied little, even when her depression and anxiety lessened or was in remission.

My primary medical concern is chronic fatigue or cancer related fatigue – not depression. Even GWL doctors disagreed as to my specific diagnosis including, and perhaps particularly, Dr. Stewart-Patterson, (the doctor whose opinion Judge Baker prefers) who did not find depression to be my primary diagnosis but anxiety.  Two specific examples where it is stated that I am not depressed (or at least not depressed enough to required medication) are found in [67] and [80] on the attached references to the Judgment.  This is an example where Judge Baker chooses to use the information against me.

[248] Dr. B wrote several reports on behalf of Ms. Thorne, to GWL and others, and she testified at trial.  Dr. B had seen Ms. Thorne 23 times before testifying at trial. She said that when she saw Ms. Thorne in her clinic, Ms. Thorne always looked well groomed and presentable but looked sad and had a flat affect. She said that she had never seen Ms. Thorne smile during a medical appointment. She said that Ms. Thorne’s reporting was “matter of fact” and that Ms. Thorne’s whole persona was of a person lacking in energy; that she remained seated, slumped in her seat and was quiet. Dr. B’s testimony in this regard was surprising and unique. It did not accord with Ms. Thorne’s demeanour at trial; her behavior while under surveillance in February, October and December 2006; or even the testimony of Mr. and Ms. Thorne that Ms. Thorne tried to mask her fatigue when others were present. When testifying at trial, Ms. Thorne actually appeared a great deal more energetic than Dr.B.

Obviously, Judge Baker was negatively affected by my demeanor at trial – too well groomed? too composed? not grasping my head? too what????  Before the trial, a fashion-wise friend of mine helped me preselect outfits for the courtroom.  My sister came from out of town for the second week of trial and completely took over household chores, cooking, etc. for me. My sister and others who supported through the trial can attest to the enormous toll this had on me.   I had incredible support to get through the two weeks of trial.  To have that work against me is stunning. If I had seemed underdressed or overly distressed at trial, I am quite aware I might have been accused of “theatrics.”  It’s a “no win” situation.

While I would try not to appear too fatigued while around others, why would I do that with my doctors?  I find her last statement about Dr. B surprisingly unprofessional and simply offensive.  Dr. B is a highly respected doctor in her community who has a full practice and is unable to take on more patients – even my daughter or husband – which speaks for itself.

[305] Ms. Thorne has testified that she has fatigue. Friends and family testified that they saw a change in Ms. Thorne after her diagnosis of and treatment for breast cancer and that she appeared less energetic and active than before. The issue in this case is whether Ms. Thorne’s fatigue is sufficiently debilitating to disable her from gainful employment within the meaning of the Plan.

This may be a legal point but my understanding is that the issue is fraud – whether or not I have been fraudulent in my representation of my condition, abilities, etc.  Given the symptoms I reported, I am eligible for disability according to every doctor who has assessed me, including Dr. Stewart-Patterson in his initial assessment.

[315] The evidence establishes that Ms. Thorne was strongly motivated to avoid returning to teaching in particular, and any other kind of work, if she was not forced by economic circumstances to do so. It is doubtful that Ms. Thorne found teaching satisfying or enjoyable even before her cancer diagnosis. She had taught for five or six years before the birth of her first child and then stayed at home with her children and did not return to teaching for about 10 years. She testified that her classes were popular, but not that she enjoyed the work. She said that when she returned to teaching after her breast cancer treatment, she disliked the disciplinary aspects of her job.

This whole statement reveals a strong bias against me on two fronts.  First,  as someone who was a stay at home mother for 10 years.  To imply that I have not been “forced by economic circumstances to (return to work)” is ludicrous.  We mortgaged our home and  purchased Curves to attempt to generate an income so that I would no longer need to be on disability. We made an effort to adjust to our circumstances.  We were unable to make a profit and were forced to sell it at a loss.  We have been financially devastated by these events as is detailed in the Reasons for Judgment of August 17, 2011.

Secondly, the comment about my disliking disciplinary aspects is one that came out of a doctor’s report.  I suspect it was one of those no win interview questions such as “what do you like least about your job?”  On the flip side, would anyone want their child to be taught by someone who enjoys disciplining??

[317] Ms. Thorne did not seek out a rehabilitation program, or agree to participate in one when it was proposed to her by the BCTF. She did not follow up on the recommendation made by Dr. Bhopal and supported by Dr. Boileau, that she return to work on a graduated basis. She thought she might have discussed how she could return to work with Dr. R but had no clear recollection of having done so.  She did not attempt even part-time work after she learned her disability payments had been terminated.

The underlined statement above is illogical because the allegation is/was that I was working full-time at Curves??   And my assertion is/was that I was not able to do more than I was doing at Curves.  I was supposed to look for part-time work in addition to Curves???

Once again, we see a bias against me and perhaps against chronic fatigue itself.  I am well aware that even some in the medical profession do not believe in the validity of this diagnosis.

CONCERN V.

The judge states that she watched all of the surveillance DVDs again in preparing the Reasons – a fact which I believe is unusual. [264]  This despite the statement the judge made in court to the effect that she would only consider video shown in court.

More disturbing are the observations she makes against me in support of her opinion that I am NOT eligible for disability.  One must assume that if these observations are grounds which prove that I do not suffer from chronic fatigue then a legal precedence is set.  I would be curious to know what standards and references regarding Chronic Fatigue and the management of the symptoms of Chronic Fatigue Judge Baker was using. The judge’s interpretation of these videos is obviously biased against me.  It seems she goes to great length to proves the Plaintiff’s case for them.

Dr. Stewart-Patterson, the expert witness for the Plaintiff, and the only doctor whose opinion Judge Baker accepts, was not able to point out anything on the video surveillance which contradicted anything I told him (relevant testimony attached-1).

The judge’s observation of “two extended lunches Ms. Thorne had with friends” is misleading.[286]  One lunch was a last minute invitation to join my elderly mother when she took her older, seriously disabled and legally blind sister who was living in assisted living to lunch with another elderly friend.  This is the only time in the video surveillance when the video does not show who I am with.  The only reason you see my mother is because she got up from her chair to assist her sister/my aunt with her food.  The other “lunch” is actually a 9:00 a.m. coffee date – an activity most people consider a relaxing activity not taxing in any way.  She again refers to this as a “lunch” in [287] and [294].

Judge Baker observes that I am wearing a backless shoe in some of the video “that would provide little support for someone who has ‘motor-clumsiness’ or gets dizzy or light-headed.”  [289]  These are a flat, leather loafer which I had slipped on to go for coffee with a friend and out to dinner with my husband.  According to Dr. Stewart-Patterson’s testimony, I do not have biomechanical issues .  If you were to observe me when walking the dogs I am wearing very sensible athletic shoes.

The judge also makes an observation that “when using a shopping cart, (I) continued to carry (my) purse on (my) shoulder rather than taking the opportunity to place it in the cart.” [291]  It is common safety wisdom amongst women that one should never place a purse in a shopping cart where it can easily be stolen.  There is no evidence that my purse is heavy.

She observes that “after having been out all afternoon” I go to a restaurant stating the “it appears from the short time spent at the restaurant that the purpose of the trip may have been to pick up take-out food.” [291]  This was a very casual sushi restaurant where we ate a quick meal so I wouldn’t have to cook.  The concept of me not having to cook is stated by the judge previously in [41] where she states “if she does not cook, the couple go out, or he brings home take-out food.”  I should have stayed home and prepared a meal???

In the surveillance of December 2006 the judge observes “she was filmed shopping in busy stores in late December 2006 with no sign of physical or mental paralysis.  She appeared to be in no particular hurry to finish her shopping and return home.” [294]  I am quite familiar with these video tapes having had to review them for discoveries and trial.  I see little if any evidence of “busy stores”.  In one store, I am the only customer at the cash desk and in the grocery stores I am sometimes the only one in the aisle.  The “no particular hurry” could also be interpreted as my inability to focus and concentrate.  I suppose if I had hurried I would have been seen to be moving quickly, etc. and it would have been counted against me.

CONCERN VI.

The judge makes the statement that “The condition that is alleged to have disabled Ms. Thorne from gainful employment in 2005, 2006, and thereafter is not cancer, but fatigue.” [303]  

This assertion shows an appalling and unacceptable lack of knowledge of the issues surrounding my medical condition.  After the Cure by Emily K. Abel and Saskia K. Subramanian is an entire book on this subject.  A quick Google search of “cancer and long term fatigue” yielded over 18 million references.

One concise overview can be found at:  http://my.clevelandclinic.org/disorders/cancer/hic_cancer-related_fatigue.aspx (copy attached-3).  An article, “Radiation can also cause ‘chemo brain,’ study suggests” by Thandi Fletcher, Postmedia News,  published in The Vancouver Sun December 13, 2011 as an example of the many articles found in newspapers and magazines.

CONCERN VII.

Judge Baker really does not deal with or comment on the testimony of Patti McLaughlin, the instructing person from BCTF (there exists no evidence that anyone else at BCTF was instrumental in the pursuit of the charges against me).

Ms. McLaughlin’s testimony is unsettling in her description of the relationship she had with Katherine Federoff the Team Manager from Great-West Life especially in the fact that they would speak on the phone at home in the evening about work related cases[Transcript April 22, 2009, page 32, lines 36-44 (attached-5)] and presumably about my case.   This is in addition to regular and frequent contact during the day.

I was denied the right to face my accuser.  BCTF went to great lengths and was allowed to not only conceal the identity of the informant but to refuse to divulge what they said.  It is therefore impossible to prove or disprove their claim that they were not using any information from this informant.  I would suggest that they would not have had any other source of information about my income other than from the informant since they were unable to prove any wrongdoing on my part even when given copious (extensive and detailed) financial records.

Ms. McLaughlin talks about this confidential informant without whom this court proceeding would likely never have taken place. [Transcript April 22, 2009, pages 51 – 53 (attached-6)]  This describes how there were two different versions of the tips, the protection of the confidential informant, and how this informant told Ms. McLaughlin “many things”.  In other words, BCTF is saying that they believe they have someone who knows the truth even if they can’t prove it???

CONCERN VIII.

Judge Baker’s assessment of whether or not my privacy was breached is simply confusing to me [341] – [353].  Regardless of legal complexities, the bottom line is that I am appalled at the lack of protection provided me or anyone else by the Privacy Act.  While I understand immunity during court proceedings, I do not understand how it applies to proceedings that occur before it is known if that case will proceed to court.  I do not understand laws that allows anyone to file a defamatory suit against someone, gain media attention, then withdraw the original statement of claim and file an amended version???? And they have immunity from prosecution because it is/became part of a court proceeding??  What is to stop anyone with the financial means from doing this??? The damage is done and there seems to be no sanctions which would deter these actions.  It makes the Privacy Act of no use to anyone particularly if it is not enforced.  In fact, one could defend their malicious actions as being allowed within the provisions of the Privacy Act.

In conclusion, I (and many family and friends) do not feel that I was given a fair and impartial trial .  I do not feel that this judge had a full grasp of the evidence, including the sequence of events nor do I feel that the judge had sufficient knowledge of the rights of a person on disability nor of the medical conditions pertinent to this case.

I look forward to hearing your assessment of this matter,

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