Author: Ronnie

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From 2009: WHO Guidance On IHR Implementation In National Legislation

Over the last few years, it’s been covered here how the WHO’s International Health Regulations (or IHR), have been implemented domestically via the Quarantine Act and Public Health Acts. It’s also been argued that the Public Health Agency of Canada (or PHAC), is effectively a local outpost of WHO.

To further bolster those claims, here’s a 2009 document from WHO, giving Member States advice on how to implement the 2005 version of those International Health Regulations. Interestingly, there seems to be little to no interest in any sort of democratic consultation.

See both the original posting, and the marked version.

[Page 2]
The International Health Regulations (2005) – Toolkit for implementation in national legislation: The National IHR Focal Point was developed by the Secretariat of the World Health Organization (WHO) in response to requests for guidance on legislative implementation of the requirements concerning the designation or establishment and functioning of the National IHR Focal Point (NFP) under the International Health Regulations (2005) (“IHR (2005)” or “Regulations”). This toolkit complements other related legal guidance on the role and assessment of national legislation for IHR (2005) implementation, including the legislative reference and assessment tool and compilation of examples of legislation. The International Health Regulations (2005): Areas of work for implementation and other guidance developed by the WHO Secretariat assist States Parties with the IHR (2005) implementation process.

[Page 7]
1.2. What is a National IHR Focal Point (NFP)?
The designation or establishment of an NFP and its proper functioning are among the key obligations of each State Party under the IHR (2005). An effectively functioning NFP network is essential to the successful implementation of the Regulations.
The NFP is a national centre, established or designated by each State Party. The NFP must be accessible at all times (7 days a week, 24 hours a day and 365 days a year) for IHR (2005)-related communications with WHO IHR Contact Points. WHO has identified such a Contact Point at each of its six regional offices, available at all times for IHR communications. To date, 193 States Parties have designated an NFP.

[Page 10]
1.3 Why are national legislation, regulations and other instruments relevant for NFP designation or establishment and functioning?
.
The IHR (2005) are legally binding on virtually all (i.e. 194) States worldwide, and impact governmental functions and responsibilities across many ministries, sectors and governmental levels. The Regulations also involve very specific operational functions, such as those of the NFP. While the IHR (2005) mandate that the NFP be designated or established, and that it function properly, how these requirements are to be implemented is up to each State Party in light of its own legislation, governmental structures and policies. The effective implementation of these obligations, however, requires that an adequate legal framework is in place.
.
In some States, giving effect to the IHR (2005) within domestic jurisdiction and national law generally requires that the relevant authorities adopt implementing legislation. However, even where new or revised legislation, regulations or other instruments may not be explicitly required under the State Party’s legal system, they may still be considered by the country in order to facilitate performance of IHR activities in a more efficient, effective or otherwise beneficial manner — including those relating to the NFP.

The World Health Organization provides specific wording templates to use in upcoming legislation. In other words, these guidelines are being provided, and all that’s needed is to fill in the blanks.

[Page 16]
A. Minimum mandatory NFP functions
The following functions printed in bold are derived directly from the IHR (2005) and can be considered mandatory components of terms of reference for NFPs:
1) Remaining accessible at all times for communications with WHO IHR Contact Points (via e-mail, telephone and/or fax): In order to ensure coverage of the post around the clock, it is envisioned that NFPs will be offices rather than individuals, including potentially a designated government position supported by a functional structure. It is critical that the NFP be available at all times, and it will not be possible for a single individual to carry out this function. Functional and reliable telephone, e-mail and fax lines are essential. The NFP should be contactable by direct telephone or fax and via a generic institutional email address, preferably one indicating its affiliation with the IHR.

[Page 16]
2) On behalf of the State Party concerned, sending to WHO IHR Contact Points urgent communications arising from IHR (2005) implementation, in particular under Articles 6-12 of IHR (2005): In summary, Articles 6-12 cover the following communications:
(i) Notification (Article 6): Notifying WHO of all events which may constitute a public health emergency of international concern within a State Party’s territory in accordance with the Annex 2;
(ii) Information-sharing during unexpected or unusual public health events (Article 7): Providing all relevant public health information if there is evidence of an unexpected or unusual public health event within a State Party’s territory which may constitute a public health emergency of international concern;
(iii) Consultation (Article 8): If the State Party so chooses, keeping WHO advised on events occurring within a State Party’s territory which do not require notification, and consulting with WHO on appropriate health measures;

and so on….

The document also uses legislation from countries around the world to give as examples for how to implement. But don’t worry, it’s not a global conspiracy or anything.

And a serious question to ask: did anyone ever vote for this? Was this on any official Federal or Provincial platform? Was there a public referendum to examine if the citizens wanted this?

(1) https://cdn.who.int/media/docs/default-source/documents/emergencies/ihr-toolkit-for-implementation-in-national-legislation3cceba0c-4580-48a4-9d4e-2b17a2146b66.pdf?sfvrsn=60aea14d_1&download=true
(2) IHR Toolkit For Implementation In National Legislation
(3) Wayback Machine Archive

LINKS TO ARTICLES WITH BACKGROUND INFORMATION

WHO Constitution in 1946: Canada signs on to the WHO Constitution, a provision within states that adopting this document is a requirement to being a member. This was nearly 100 years ago that this was adopted.

https://canucklaw.ca/world-health-organization-constitution-have-you-actually-read-it/

Int’l Pandemic Treaty a red herring: Why the high profile “amendments” to the International Health Regulations are largely irrelevant. The short answer is that countries are already bound to their dictates. Yes, this just makes it more of a formality

https://canucklaw.ca/who-constitution-why-the-global-pandemic-treaty-is-largely-irrelevant/

IHR are legally binding: The International Health Regulations aren’t just “recommendations” as many might think. Member-states are legally required to implement these rules, although it’s unclear how disobedience might be punished in practice.

https://canucklaw.ca/who-legally-binding-international-health-regulations-ihr/

2005 Quarantine Act is 3rd Ed WHO-IHR: Bill C-12 was introduced in the House of Commons in late 2004. Supposedly”, this was in response to SARS a few years earlier. While the explanations sounded benevolent, the reality is that it laid the path for a lot of the martial law measures that happened 2020-2023. It was also explicitly admitted during the hearings that the QA was designed in anticipation of new changes to WHO-IHR. (The 3rd Edition IHR eventually came out in 2005)

https://canucklaw.ca/the-2005-quarantine-act-bill-c-12-was-actually-written-by-who/

PHAC created at instigation of WHO: The Public Health Agency of Canada was created out of nothing in June 2004, at the instigation of the WHO. The 133rd Session took place in January 2004, and required member-states to “develop a focal point” to respond to future health crises. That turned out to be PHAC. Several Orders-In-Council later, and it was embedded with other legislation. Once Harper took power in early 2006, he introduced the “PHAC Act, to give the new agency its own powers.

https://canucklaw.ca/public-health-agency-of-canada-created-as-branch-of-who/

Health Canada pop’n control: PHAC isn’t the only problem that we’ve have to deal with. Health Canada (formerly the Department of Health) was created by Bill 37 back in 1919. The supposed reason was public health after WWI. HC has undergone transformations over the years, and a lot of its old functions are now covered by PHAC.

https://canucklaw.ca/health-canada-initially-created-for-population-control-measures/

Provincial Health Acts are QA derivatives: a quick look through shows that they are written almost identically. They were all put in around 2007-2010, following the passage of the 2005 Quarantine Act. Political parties aside, they serve the same masters.

1st article: BC, AB, SK, MB, ON
2nd article: QC, NS, NB, PEI, NFLD
https://canucklaw.ca/provincial-health-acts-are-really-just-who-ihr-domestically-implemented/
https://canucklaw.ca/the-other-provincial-health-acts-written-by-who-ihr/

This was slipped into a Budget Bill, Bill C-97, back in 2019. It removes the requirement for parliamentary consultations when invoking Quarantine Act, of Human Pathogens and Toxins Act. Considering the timing, it’s hard to argue this wasn’t pre-planned.

https://canucklaw.ca/oversight-for-human-pathogens-and-toxins

This hasn’t been updated in a long time, but the WHO-IHR statements are essentially guidelines for national and regional politicians to follow

https://canucklaw.ca/canadas-actions-were-dictated-by-whos-legally-binding-ihr

The WHO-IHR are far from the only agreements that attack our freedom. Another is the Sendai Framework, which serves to trip away many of the same rights: mobility, association, earning a livelihood, etc…. These same measures can be present in different forms.

https://canucklaw.ca/2-sides-of-the-same-coin-sendai/

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2 Sides Of The Same Coin: Sendai Framework And International Health Regulations

This topic isn’t revolutionary. However, it’s interesting how different pieces of legislation (supposedly brought for completely different areas of life) can serve much the same purpose. Laws that seemingly have no connection to each other can end up having very similar results.

Let’s look at a few of them.

For emergency and disaster management:
-U.N. Sustainable Development Agenda (Agenda 21) signed in 1992
–Yokohama Strategy for a Safer World signed in 1994
–Hyogo Framework for Action signed, goes from 2005 to 2015
-U.N. Sustainable Development Agenda (Agenda 2030) signed in 2015
–Sendai Framework signed, goes from 2015 to 2030.

For public health management:
–W.H.O. Constitution signed in 1946
-W.H.O. International Sanitary Regulations signed in 1951
-W.H.O. International Health Regulations (First Edition) signed in 1969
-W.H.O. International Health Regulations (Second Edition) signed in 1995
–W.H.O. International Health Regulations (Third Edition) signed in 2005

Now, what can these things have in common? Quite simply, they are pretexts for removing rights and property from people, under the cloak of being an emergency. True, the nature of it will vary, but the results are the same.

1. Parallels Between Sendai Framework And WHO-IHR

While not identical, there are many connections and similarities between enacting emergency management laws, and the public health laws. Using B.C. as an example:

(a) Bill 31 was derived from the Sendai Framework, which itself is part of the United Nations Sustainable Development Agenda. There are many aspects to this ideology

(b) The Provincial Public Health Acts are the result of the 2005 Quarantine Act, which itself is derived from the 3rd Edition of the WHO’s International Health Regulations. Also, the WHO’s Constitution is well worth a read, as it dates back to the 1940s.

While laws are being enacted that greatly impact the lives of Canadians, the reality is that these — and many laws — are derived from international agreements that the public has no say in.

(a) Bill 31 is framed as “disaster reduction measures”, which presumably means natural disasters. As for speculation about “climate lockdowns”, this type of legislation is laying the ground work.

(b) Provincial Health Acts are framed as “preventing communicable diseases”, and we saw plenty of that in the last few years.

And reading through both, it’s clear that both are intended — among other things — to strip away large parts of individual rights, including property rights. These things are presented as necessary for the greater good.

Additionally, both sets of laws allows near dictatorial powers when it comes to issuing orders. A Cabinet Minister could do it for the Emergency & Disaster Management Act. A Minister, or Public Health Officer, can give orders concerning regulations within the Public Health Act

2. B.C. Bill 31, Emergency & Disaster Management Act

This is still going through the Legislature, but parts of it are certainly worth looking at. They’re ripe for abuse in the wrong hands.

Essential matters
75 (1) The minister may, by order, do one or more of the following:
(a) identify supplies, equipment or other items, services, property or facilities, or a class of any of these, as essential;
(b) for things identified under paragraph (a) as essential,
(i) establish or restrain increases in prices or rents for them,
(ii) ration or otherwise provide for their distribution or use,
(iii) provide for their restoration, and
(iv) prohibit or limit seizures of them or evictions from them;
(c) authorize a person to provide a service or give assistance of a type that the person is qualified to provide or give;
(d) require a person to provide a service or give assistance of a type that the person is qualified to provide or give;
(e) provide for, maintain and coordinate the provision and maintenance of necessities.
(2) Subsection (1) (b) (i) and (iv) applies despite any enactment governing tenancies or the recovery of property.
(3) Subsection (1) (c) and (d) applies despite any contract, including a collective agreement.

Land and other property
76 (1) The minister may, by order, do one or more of the following:
(a) appropriate, use or control the use of any personal property;
(b) use or control the use of any land;
(c) authorize the entry without warrant into any structure or onto any land by any person for the purpose of taking emergency measures;
(d) prohibit the entry into any structure or onto any land by any person;
(e) authorize or require the alteration, removal or demolition of any trees, crops, structures or landscapes;
(f) authorize or require the construction, alteration, removal or demolition of works;
(g) require the owner of a structure to
(i) have any damage to the structure assessed, and
(ii) give the results of the assessment to the minister or a person in a class of persons specified by the minister.
(2) The power under subsection (1) (b) to use or control the use of land does not apply to specified land.

General restrictions
78 (1) The minister may, by order, control or prohibit one or more of the following:
(a) travel to or from any area;
(b) the carrying on of a business or a type of business;
(c) an event or a type of event.
(2) The minister may, by order, do one or more of the following:
(a) require a person to stop doing an activity, including an activity that a person is licensed, permitted or otherwise authorized to do under an enactment;
(b) put limits or conditions on doing an activity, including limits or conditions that have the effect of modifying a licence, permit or other authorization issued under an enactment.

Clearly, the Bill is much longer than this. But what do these sections include?

  • Establish price controls of “essential goods”
  • Establish rationing of “essential goods”
  • Require (force) people to provide certain services
  • Appropriate or control someone’s private land
  • Allow warrantless searches
  • Prohibit people from entering their property
  • Prevent travel
  • Prohibit certain types of businesses
  • Prohibit or restrict activities

Sound familiar? It should. These things were implemented throughout British Columbia through 2020 to 2022, but under the pretense of “disease prevention”. All that’s missing are the injection passports and the mask mandates.

3. B.C. Public Health Act (2009), Derivative Of WHO-IHR

People will no doubt remember the years of endless (and seemingly arbitrary) dictates from BCPHO Bonnie Henry, and Health Minister Adrian Dix. But what allowed them to do this?

General powers respecting health hazards and contraventions
31 (1)If the circumstances described in section 30 [when orders respecting health hazards and contraventions may be made] apply, a health officer may order a person to do anything that the health officer reasonably believes is necessary for any of the following purposes:
(a) to determine whether a health hazard exists;
(b) to prevent or stop a health hazard, or mitigate the harm or prevent further harm from a health hazard;
(c) to bring the person into compliance with the Act or a regulation made under it;
(d) to bring the person into compliance with a term or condition of a licence or permit held by that person under this Act.
(2) A health officer may issue an order under subsection (1) to any of the following persons:
(a) a person whose action or omission
(i) is causing or has caused a health hazard, or
(ii) is not in compliance with the Act or a regulation made under it, or a term or condition of the person’s licence or permit;
(b) a person who has custody or control of a thing, or control of a condition, that
(i) is a health hazard or is causing or has caused a health hazard, or
(ii) is not in compliance with the Act or a regulation made under it, or a term or condition of the person’s licence or permit;
(c) the owner or occupier of a place where
(i) a health hazard is located, or
(ii) an activity is occurring that is not in compliance with the Act or a regulation made under it, or a term or condition of the licence or permit of the person doing the activity.

Specific powers respecting health hazards and contraventions
32(1) An order may be made under this section only
(a) if the circumstances described in section 30 [when orders respecting health hazards and contraventions may be made] apply, and
(b) for the purposes set out in section 31 (1) [general powers respecting health hazards and contraventions].

32(2) Without limiting section 31, a health officer may order a person to do one or more of the following:
(a) have a thing examined, disinfected, decontaminated, altered or destroyed, including
(i) by a specified person, or under the supervision or instructions of a specified person,
(ii) moving the thing to a specified place, and
(iii) taking samples of the thing, or permitting samples of the thing to be taken;
(b) in respect of a place,
(i) leave the place,
(ii) not enter the place,
(iii) do specific work, including removing or altering things found in the place, and altering or locking the place to restrict or prevent entry to the place,
(iv) neither deal with a thing in or on the place nor dispose of a thing from the place, or deal with or dispose of the thing only in accordance with a specified procedure, and
(v) if the person has control of the place, assist in evacuating the place or examining persons found in the place, or taking preventive measures in respect of the place or persons found in the place;
(c) stop operating, or not operate, a thing;
(d) keep a thing in a specified place or in accordance with a specified procedure;
(e) prevent persons from accessing a thing;
(f) not dispose of, alter or destroy a thing, or dispose of, alter or destroy a thing only in accordance with a specified procedure;
(g) provide to the health officer or a specified person information, records, samples or other matters relevant to a thing’s possible infection with an infectious agent or contamination with a hazardous agent, including information respecting persons who may have been exposed to an infectious agent or hazardous agent by the thing;
(h) wear a type of clothing or personal protective equipment, or change, remove or alter clothing or personal protective equipment, to protect the health and safety of persons;
(i) use a type of equipment or implement a process, or remove equipment or alter equipment or processes, to protect the health and safety of persons;
(j) provide evidence of complying with the order, including
(i) getting a certificate of compliance from a medical practitioner, nurse practitioner or specified person, and
(ii) providing to a health officer any relevant record;
(k) take a prescribed action.
(3) If a health officer orders a thing to be destroyed, the health officer must give the person having custody or control of the thing reasonable time to request reconsideration and review of the order under sections 43 and 44 unless
(a) the person consents in writing to the destruction of the thing, or
(b) Part 5 [Emergency Powers] applies.

While not identical, the B.C. Public Health Act provides many of the same restrictions that Bill 31 would (if enacted). Primarily, property and personal rights can be suspended in an open ended manner, under the excuse of an emergency.

It’s also worth mentioning the the “Public Officials” involved in issuing orders are exempt from legal liability, and cannot be sued. It’s written right into the legislation.

SENDAI FRAMEWORK, B.C. BILL 31
(1) https://www.leg.bc.ca/parliamentary-business/legislation-debates-proceedings/42nd-parliament/4th-session/bills/bills-with-hansard-debate
(2) https://www.leg.bc.ca/documents-data/debate-transcripts/42nd-parliament/4th-session/20231003am-Hansard-n331#bill31-1R
(3) https://www.preventionweb.net/publication/sendai-framework-disaster-risk-reduction-2015-2030
(4) https://www.preventionweb.net/files/43291_sendaiframeworkfordrren.pdf
(5) https://www.preventionweb.net/files/44983_sendaiframeworkchart.pdf
(6) Sendai Framework 2015 Full Text English
(7) https://en.wikipedia.org/wiki/World_Conference_on_Disaster_Risk_Reduction
(8) https://www.unisdr.org/files/8241_doc6841contenido1.pdf
(9) https://www.unisdr.org/2005/wcdr/intergover/official-doc/L-docs/Hyogo-framework-for-action-english.pdf

WHO TREATIES, INTERNATIONAL HEALTH REGULATIONS
(1) https://canucklaw.ca/wp-content/uploads/WHO-Constitution-Full-Document.pdf
(2) https://www.who.int/about/governance/constitution
(3) https://apps.who.int/gb/bd/
(4) https://apps.who.int/gb/bd/pdf_files/BD_49th-en.pdf#page=6
(5) https://www.treaty-accord.gc.ca/
(6) https://www.treaty-accord.gc.ca/index.aspx
(7) https://www.treaty-accord.gc.ca/details.aspx?lang=eng&id=103984&t=637793587893732877
(8) https://www.treaty-accord.gc.ca/details.aspx?lang=eng&id=103986&t=637862410289812632
(9) https://www.treaty-accord.gc.ca/details.aspx?lang=eng&id=103990&t=637793587893576566
(10) https://www.treaty-accord.gc.ca/details.aspx?lang=eng&id=103994&t=637862410289656362
(11) https://www.treaty-accord.gc.ca/details.aspx?lang=eng&id=103997&t=637793622744842730
(12) https://www.treaty-accord.gc.ca/details.aspx?lang=eng&id=105025&t=637793622744842730
(13) https://canucklaw.ca/provincial-health-acts-are-really-just-who-ihr-domestically-implemented/
(14) https://canucklaw.ca/the-other-provincial-health-acts-written-by-who-ihr/
(15) WHO International Health Regulations, 3rd Edition 2005

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Newest Grift? $600,000 Sought For Injection Injuries For Federal Workers

This recently came to my attention: there’s an effort to recruit some 600 Plaintiffs (Federal employees and employees of Federally regulated industries) for a lawsuit over vaccine injuries. There’s to be a massive filing over the injuries they’ve received over the coerced injections.

This group is apparently called the “Federal and Federally Regulated Employees for Justice”, and claims to be made up of volunteers.

If this sounds familiar, it is. It’s a virtual copy of this mess filed back in May 2022. It listed over 600 Plaintiffs who lost their jobs over injection passports. Here’s the Retainer Agreement that clients were asked to sign.

Now, this iteration will be a lawsuit for workers who took the shots and were injured in some capacity.

It’s to be conducted by “Mr. Bad Beyond Argument” himself. This is the Toronto lawyer who lost the last Federal case in February 2023, and Action4Canada in August 2022 because they were so incoherently and unintelligibly written.

As with the last suit, this has 2 groups of people:
(a) Employees and former employees of the Federal Government
(b) Employees and former employees of Federally regulated industries

There is a difference between the 2, and that will become obvious later.

The website goes on to explain that $600,000 in total will be sought, and that the amount individual clients pay will be dependent on how many there are to begin with. More clients means less individual costs, which isn’t a bad thing by itself.

Legal Costs: Total retainer fee is about $600,000, which will be divisible by the number of signed Plaintiffs. As an example, 600 + Plaintiffs @ $1,000 each. If the Plaintiff count should be lower, the retainer fee will be pro rated as an example, 300 + Plaintiffs @ $2,000 each. To put this into perspective, this represents about a year’s supply of a latte at Starbuck’s, each day or your annual vehicle insurance. At this time, please do NOT submit your retainer fee. If there is enough interest then a simple one-page retainer agreement will be forwarded and then the retainer agreement and it’s fee can be submitted at that time. We will provide the details at a later time.

Apparently, the group is soliciting donations in addition to collecting retainer fees. At least that’s what it looks like on the webpage.

Now the issues start to mount.

First major problem: members of the Federal Government typically don’t have the right to sue.

From the Federal Public Sector Labour Relations Act, FPSLRA:

Right of employee
208 (1) Subject to subsections (2) to (7), an employee is entitled to present an individual grievance if he or she feels aggrieved (a) by the interpretation or application, in respect of the employee, of
(i) a provision of a statute or regulation, or of a direction or other instrument made or issued by the employer, that deals with terms and conditions of employment, or
(ii) a provision of a collective agreement or an arbitral award; or
(b) as a result of any occurrence or matter affecting his or her terms and conditions of employment.

No Right of Action
Disputes relating to employment
236(1) The right of an employee to seek redress by way of grievance for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute.

Application
236(2) Subsection (1) applies whether or not the employee avails himself or herself of the right to present a grievance in any particular case and whether or not the grievance could be referred to adjudication.

Section 208 of the FPSLRA gives Federal employees — the Core Public Administration — the right to grieve, and that often ends in arbitration. This is similar to how workers in unionized environments, or ones with collective bargaining agreements. Section 236 is the prohibition on seeking remedies in the Courts via lawsuits. This is referred to as a lack of jurisdiction, or an “explicit ouster” from the Court.

While this group is signing up clients to represent who are “vaccine injured”, members of the Federal Government don’t have the right to sue — for the most part. To get around that, they have to demonstrate that they tried grievance methods, and that the process isn’t workable.

See this review for input on how the last Federal case should have been drafted.

Second major problem: Why wasn’t Compensation Program at least consulted?

The issue of being compensated for vaccine injuries carries another complication: there’s already a program in place from Ottawa to help victims.

Certainly, one can debate the merits of such a program. And clearly, it was enacted to convince more people to take the experimental injections. However, since Federal workers don’t automatically have access to the Courts, Plaintiffs may be asked about this. Even the Federally regulated workers can have that come up.

Would litigants be denied their day in Court because this already exists? Maybe not, but anything is possible, especially when none of them have even explored the option. Remember the last point: Federal workers need to convince the Court that suing was their only available recourse.

Third major problem: Galati has ALREADY lost on issue of jurisdiction

This proposed lawsuit retreads grounds that the last case already decided. Paragraphs 10-36 of the Decision outlined why employees of the Federal Government don’t normally have the right to sue.

This won’t (directly) impact workers of Federally regulated industries, but there’s still the problem of their respective employers being an intermediate party.

That was appealed, and the hearing was on November 8th, 2023. The Federal Court of Appeal will most likely dismiss it. This means that this proposed suit will already be a lost cause.

This “vaccine injuries” lawsuit is run by the same people who put together the last challenge, so there’s no way they don’t know about this.

Fourth major problem: Rules of Civil Procedure aren’t followed drafting documents

This dead horse has been beaten enough already. See critiques for

(a) Vaccine Choice Canada
(b) Action4Canada
(c) Federal injection pass case — from this group

These cases are all within the last few years. If recent history is any indication, then this proposed lawsuit will be written just as poorly. It’s embarrassing that lawyers can practice for decades without being able to form coherent sentences. Expect a Motion to Strike, followed by another “bad beyond argument” ruling.

Fifth major problem: more money to be demanded, it’s a guarantee

Once this new lawsuit is thrown out, it’s very likely that more money will be sought in order to pay for the Appeals. This is exactly what happened with this group’s other Federal case.

This email was leaked from angry and disillusioned clients, and eventually made its way here.

Hello everyone,  

Some of you have already heard but for those who haven’t, the Judge has rendered his decision in the Government’s motion to strike our claim. In a somewhat anticipated move, the claim was struck for 2/3 of the plaintiffs and remains open for 1/3 to amend the claim and resubmit. There is a letter attached from Rocco himself that goes into greater detail about the decision. Needless to say, the decision was an absolute pile of rubbish and the Panel has decided to appeal the decision.  

Now, as you will read in Rocco’s attached letter, there are additional fees associated with launching the appeal. The additional fees are minimal in comparison to the initial retainer but an explanation is required.  

As Rocco’s letter will clarify, the retainer fee was to cover all that was required to see this matter through a trial in the Federal Court. Now that an appeal is required, it is required to go through the Federal Court of Appeals and that alone will cost in excess of $100,000. Rocco budgeted the retainer fee on doing everything to see a trial through the Federal Court which did not include appeals.  

We feel it necessary at this juncture to apologize to each and every one of you. We misinterpreted the finer details of what the retainer fee covered due, no doubt, to our limited knowledge about how the civil court process works and a misunderstanding of the information Rocco provided to us. Some of you asked specifically what all would be covered with the retainer fee and were informed it would cover this entire matter all the way through no matter what action was required and for this, we apologize.  

We wish to reinforce with you that this was not done out of an attempt to deceive or act maliciously. We are going to be out the same amount as anyone else who desires to proceed and be a part of the appeal.  

To avoid repeating the same confusion, the panel asked Rocco to outline the cost implications for every step and all the way to the Supreme Court which Rocco now outlined in his letter. We hope this will better serve all of us and it is also our hopes that you will see this effort by the panel as a way to remain fully transparent on what transpired but also on what to expect going forward. We too, do not want to see other surprises but more importantly, we do agree with Rocco that we have a strong position for an appeal. We ultimately hope for our day in Court but sadly, we did not have our day in Court here as our lawsuit was wrongly struck down as evidently explained in Rocco’s letter. 

We are planning to host another info session with Rocco via Zoom within the next few weeks to answer questions you may have and to provide more information regarding how the appeal process will work. We are not going to attempt to solicit any money from anyone prior to this information session. Our intent is to allow you to consider whether each of you as individuals wish to proceed from this point.  

We understand many of you will have questions. We will do our best to answer them or have Rocco address them in the upcoming info session.  

We have also attached a link to the decision on the Federal Court website. 

Sincerely and most humbly,  

The Federal Employee Lawsuit Panel
https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/522970/index.do

Expect more of the same to happen here.

The group also appears to encourage clients to engage in abuse of process by filing multiple, interrelated lawsuits separately, and against different people.

As a point of clarification, you can participate in several similar legal proceedings against another party, as long as each prosecution focuses on a different case. For example, in the case of vaccination mandates, you may file legal proceedings against your employer for liability and compensation for irregularities and employment-related offences. You may also participate in legal proceedings against the federal government for constitutional and Charter violations that have infringed on your freedom and rights.

It’s unclear why such advice would be given. Even assuming good intentions, it’s a blueprint to have a case delayed, and possibly thrown out. The Courts (understandably) don’t want overlapping lawsuits, as it forces Judges to compete with each other in their rulings.

Now, it’s entirely possible that this new case is legitimate and that it will be diligently pursued. However, given how things have been recently, it seems unlikely. People are welcome to pay into this if they want, but need to be aware that this case will never get to Trial.

In fact, it won’t even survive a Motion to Strike.

FROM THE WEBSITE
(A.1) https://fre4justice.ca/
(A.2) https://web.archive.org/web/20231111011348/https://fre4justice.ca/
(A.3) fre4justice Main Page

(B.1) https://fre4justice.ca/#section-1
(B.2) https://web.archive.org/web/20231111011348/https://fre4justice.ca/
(B.3) fre4justice About Us

(C.1) https://fre4justice.ca/#section-2
(C.2) https://web.archive.org/web/20231111011348/https://fre4justice.ca/
(C.3) fre4justice Expression Of Interest

FEDERAL VAXX PASS CHALLENGE (APPEAL)
(1) FCA Adelberg V. HMTK A-67-23 Notice Of Appeal
(2) FCA Adelberg V. HMTK A-67-23 Appeal Book
(3) FCA Adelberg V. HMTK A-67-23 Appellants MFL
(4) FCA Adelberg V. HMTK A-67-23 Respondents MFL

FEDERAL VAXX PASS CHALLENGE
(1) https://policeonguard.ca/wp-content/uploads/2022/06/Filed-SOC.pdf
(2) Federal Court Vaccine Mandate Challenge
(3) Federal Vaccine Passport Challenge Retainer Agreement
(4) Federal Court Vaccine Mandate Challenge Motion To Strike
(5) Federal Court Vaccine Mandate Challenge Affidavit Of Service
(6) Federal Court Vaccine Mandate Challenge Responding Motion Record
(7) Federal Court Of Canada Rules
(8) Federal Court Decision On Motion To Strike (Archive)
(9) https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/522970/index.do
(10) https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1507/2022bcsc1507.html
(11) https://laws-lois.justice.gc.ca/eng/regulations/sor-98-106/page-9.html#h-1013947
(12) https://www.laws-lois.justice.gc.ca/eng/acts/P-33.3/page-13.html#h-406405

PRECEDENTS CREATED
(1) https://www.canlii.org/en/ca/fct/doc/2023/2023fc280/2023fc280.html#par85
(2) https://www.canlii.org/en/ca/fct/doc/2023/2023fc929/2023fc929.html#par17
(3) https://www.canlii.org/en/bc/bcsc/doc/2023/2023bcsc1701/2023bcsc1701.html#par30

MONEY
(1) Letter to Federal Worker Plaintiffs
(2) Federal Workers Action Donation Link For PayPal
(3) Ontario First Responders Action Donation Link For PayPal
(4) School Action Donation Link For PayPal
(5) Police Officer Action Donation Link For PayPal
(6) https://www.web.archive.org/web/20220526170932/https://www.constitutionalrightscentre.ca/
(7) Federal Workers Retainer Agreement
(8) Ontario First Responders Retainer Agreement
(9) Donate To Public Citizens Inquiry
(10) Donations For Supposed B.C. Doctors Action

Posted on

A Beginner’s Guide: How A COMPETENT Lawyer Should Have Have Handled Federal Injection Pass Case

On Wednesday, November 8th, the Federal Court of Appeal heard a case of over 600 Plaintiffs that was struck for being “bad beyond argument“. This was the high profile case of Federal workers, and members of Federally regulated industries who objected to the CV injections being a new job requirement.

There was an additional complication, as the Federal workers were also barred by law from going to Court. The others could, in theory, still use litigation as an option. This effectively “split” the case.

The case is being handled by “Mr. Bad Beyond Argument” himself, Toronto lawyer Rocco Galati.

August 2021: Ottawa announces that “vaccine passport” will be required of all Federal workers, and members of Federally regulated industries in the next few months.

May 2022: Statement of Claim is filed on behalf of over 600 Plaintiffs.

January 2023: There’s a hearing in Federal Court to strike the Claim.

February 2023: Claim struck in its entirety without leave (no permission) to amend regarding the Federal employees. However, it’s struck with leave (permission) to refile for everyone else. The Judge also found that the quality of the writing was “bad beyond argument”.

March 2023: Notice of Appeal was filed.

April 2023: The Appeal Book is filed.

May 2023: The Appellants’ written arguments are filed.

June 2023: The Respondents’ written arguments are filed.

November 2023: The Federal Court of Appeal has hearing to review the case.

The case is on reserve, meaning that the 3 Justices haven’t yet made their findings. This is quite common, though it’s uncertain when it will be released.

Interestingly, the lawsuit wasn’t filed until May 2022, nearly a year after mandates were announced. To put it mildly, it was terribly written, and never stood a chance. That’s been covered in detail here, here, here, and here.

Instead, this is going to be a different focus. Rather than simply pointing out errors and faults with how the case has been handled, serious, constructive feedback will be offered. Here are some ways that the case could have been managed differently, and how it may have survived.

Disclaimer:
This article does not attempt to provide legal advice. Instead, it’s meant as constructive feedback and information with regards to the Adelberg v. HMTK Case. The handing, both at the Federal Court and Federal Court of Appeal was beyond inept and unprofessional. Nonetheless, do not rely on this for your own cases. If you have questions, please seek advice from a competent legal professional

Anyhow, let’s get started.

One of the first things that needs to be pointed out is that employees of the Federal Government — a.k.a. the “Core Public Administration” — don’t automatically have the right to sue. Sections 208 and 236 of the Federal Public Sector Labour Relations Act (FPSLRA) are quite clear about that.

Right of employee
208 (1) Subject to subsections (2) to (7), an employee is entitled to present an individual grievance if he or she feels aggrieved (a) by the interpretation or application, in respect of the employee, of
(i) a provision of a statute or regulation, or of a direction or other instrument made or issued by the employer, that deals with terms and conditions of employment, or
(ii) a provision of a collective agreement or an arbitral award; or
(b) as a result of any occurrence or matter affecting his or her terms and conditions of employment.

No Right of Action
Disputes relating to employment
236(1) The right of an employee to seek redress by way of grievance for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute.

Application
236(2) Subsection (1) applies whether or not the employee avails himself or herself of the right to present a grievance in any particular case and whether or not the grievance could be referred to adjudication.

Section 208 of the FPSLRA gives Federal employees the right to grieve, and that often ends in arbitration. This is similar to how workers in unionized environments, or ones with collective bargaining agreements. Section 236 is the prohibition on seeking remedies in the Courts via lawsuits. This is referred to as a lack of jurisdiction, or an “explicit ouster” from the Court.

With this in mind, Federal workers don’t automatically have the right to go to Court. In fact, they will have to demonstrate that the grievance options available to them are grossly inadequate and/or that the process is corrupted. This didn’t happen here. In fact, it doesn’t appear that any effort was made by anyone to go through the process, at least from reading the pleadings.

Approximately 2/3 of the 600+ Plaintiffs (about 400 in total) are/were members of the Federal Government. In order to sue, they’d have to demonstrate that existing options weren’t adequate.

There’s also the inter-related concern about just how poorly written the Claim is.

Anyhow, let’s offer some constructive feedback.

1. Plead Facts About How Grievance Process Is Unworkable Or Corrupt

The Statement of Claim (SoC) is 50 pages long. While this seems like a lot, the first 15 are just the Parties listed, and the other pages included in the template. The next several are the remedies sought. Then a few pages include some background information on the Parties (which is fine).

The “FACTS” start on Paragraph 22, which is about halfway through the SoC. It goes on from there until about Paragraph 30, approximately 1 page in total, explaining the allegations and pleading facts. Nearly everything else that follows is irrelevant to these proceedings.

Feedback: It would help the case immensely to plead facts about how various clients had attempted to resolve the injection mandates at their jobs. Providing details about what steps were taken (at least by some employees) to avoid this would have helped.

This certainly wouldn’t need to be all 600+ Plaintiffs, but pleading facts for about 20 or 30 of them using grievance options would have gone a long way. Or, considering that there aren’t many options available, perhaps lumping Plaintiffs together could work. For example:

-“Group A Plaintiffs” filed grievances with their union reps.
-“Group B Plaintiffs” contacted their HR Departments to seek alternatives.
-“Group C Plaintiffs” wrote to their employers, refusing, and asking for options.
-“Group D Plaintiffs” tried some combination of different methods.

This may be oversimplified, but remember, Sections 208 and 236 of the FPSLRA give Federal workers the right to grieve, but not to sue. To overcome this, they need to show that there were no options available. And to do that, they need to at least show that they tried some remedies.

Seriously, there were over 400 members and former members of the Federal Government here. Didn’t any of them attempt the grievance process? None of them plead anything of the sort.

2. Plead Facts About Clients Attempting Workarounds Or Exemptions

Paragraph 28(c) is the only mention of Plaintiffs seeking exemptions from these requirements. And only a handful of them are named. While nice to see a mention of it, this isn’t nearly enough.

Feedback: More than just a few Plaintiffs should have been named as seeking exemptions. Additionally, the SoC “should” have given more information on what types of exemptions were sought, and the responses.

Similar to the last point, Plaintiffs who sought exemptions could be grouped together to make things more organized.

-“Group A Plaintiffs” sought exemptions for religious reasons.
-“Group B Plaintiffs” sought exemptions for medical reasons.
-“Group C Plaintiffs” sought exemptions based on freedom of conscience beliefs.
-“Group D Plaintiffs” sought exemptions based on lack of current long term test data.
-“Group E Plaintiffs” sought exemptions for a variety of reasons.

Additionally, Plaintiffs could have tried to obtain various accommodations to allow them to continue working (such as remotely). Information on that could have been pleaded as well.

This could also be used to bolster the claim that the Plaintiffs sought alternative remedies, and only sued as a last resort. It would be an important point to make.

And back to Point #1: considering that by default, Federal workers don’t have the right to sue (they can grieve though), it would have been nice to see what, if any, steps were taken afterwards. But the SoC pleads none of this, and consequently, can’t overcome the s.236 FPSLRA prohibition.

Yes, it’s true that facts are presumed to be true at the initial stages, but they still need to be pleaded in the Statement of Claim.

3. Provide Evidence Of Unworkability In Motion To Strike

It’s true that in Motions to Strike (throw out), evidence is not normally allowed. This is because it’s a preliminary challenge, and the opposing side is trying to say that the suit is fatal flawed regardless.

However, there are a few exceptions to this. These are instances where it will lead to the case being thrown out without any possibility to refile. Jurisdiction is one such exception, and the Statute of Limitations is another. Galati appears to be unaware of this, at least according to Paragraph 3 of his Written Submissions.

Feedback: The first line of defence that the Government has is the “explicit ouster” of s.236 of the FPSLRA. Once again, this is the argument that the court lacks jurisdiction to hear (at least part) of the Claims. If this can not be overcome, then the case is dead in the water.

What should have been done here is have several Plaintiffs submit evidence that they tried to exercise their grievance options. True, this will involve collecting Affidavits. True, they can then be questioned, or cross-examined on this. But such evidence would have helped in demonstrating the unworkability of existing options for Federal workers.

Plaintiffs who file Affidavits could certainly attach as exhibits any documents that show they tried other methods. Emails, text messages, letters, transcripts of recordings, etc…. would all have shown that they attempted to resolve this internally. If enough litigants did this, that would be very powerful evidence.

None of the 400+ Government workers had any evidence to submit for the Motion?

Keep in mind, if people are suing for large sums of money, they’d likely have to testify under oath at some point. Therefore, being cross-examined on an Affidavit hardly seems excessive.

Back to Point #1: if facts had been pleaded about this in the SoC, then it would have been a lot easier. Yes, a Motion to Strike would still be likely, but the Plaintiffs would be in a much stronger position.

4. Allegations Need To Be Particularized (Spelled Out) Clearly

There’s a requirement in the Federal Court Rules to “give particulars” when making allegations of, among other things:

(a) Fraud
(b) Misrepresentation
(c) Breach of Trust
(d) Undue influence
(e) Malfeasance of Public Office

What this means is that there’s a duty for the Plaintiffs to spell out with additional clarity what the accusations are. Galati doesn’t do that here, or in any anti-lockdown cases.

Feedback: If litigants are going to be making accusations of this sort, then it needs to be outlined in much more detail. What specific actions were fraudulent or amount to misrepresentation? What specific actions or statements caused that breach of trust? Instead of just making such bare statements, the underlying information needs to be provided.

Remember, everyone is entitled to confront their accusers. This includes Government officials. How can they respond to allegations if there’s not enough information provided?

If there isn’t enough information available to allege such things, then it would probably be better to just leave them out. It doesn’t help the clients to have the case bogged down unnecessarily.

5. Plead Facts In Support Of Claims Charter Rights Were Breached

Setting aside the issues around jurisdiction, the Courts are generally the proper forum to raise allegations that Charter protections have been violated. And a number of them are raised here:

(a) Section 2, Fundamental Freedoms
(b) Section 6, Mobility Rights
(c) Section 7, Security of the Person
(d) Section 15, Equality Rights

The problem is: while these are listed, there’s little to no information in support of this. As a result, the Defendants are left to guess. While many people can imply the reasons, it still has to be written out in the pleadings.

Feedback: If someone is going to allege that their rights have been violated, it would be helpful to lay out the details of what has happened. How are groups of people being treated unequally? How are people unsecure in their bodies? What mobility rights have been taken away?

The Plaintiffs have suffered mental anguish? Loss of dignity? Okay, then we need more information (facts) about what has happened.

6. Remove Argument From Statement Of Claim

The Statement of Claim more closely resembles a Factum than it does a Claim. It tries to argue what the scientific consensus is, and what the motivations of people are. It also draws the same conclusions that the Court is being asked to do.

Feedback: Instead of trying to argue in a Claim, it would be more helpful to to simply plead what information is available. What events? What dates? Who said what? Making it unnecessarily convoluted may impress many, but confusing the Judge is not wise.

Moreover, arguing caselaw and evidence in the initial pleadings isn’t appropriate. That comes much later, and is pretty basic knowledge in civil procedure. This is (partly) why the Government lawyers are saying that there are no facts pled. They’re right, it’s almost entirely argument.

7. Remove Content That’s Inappropriate In A Civil Claim

This is a no brainer. Courts are limited to certain types of cases, and are not allowed to preside over issues outside of their jurisdiction. It was also part of the reason the Action4Canada case was struck.

(a) Allegations of criminal conduct
(b) Allegations of crimes against humanity
(c) Allegations of violations of the Nuremberg Code
(d) Allegations of violations of the Helsinki Declaration
(e) Allegations of involvement in eugenics schemes
(f) Seeking declarations about what the “scientific consensus” is

Feedback: Drop all of this, and related content from this — and other lawsuits. All it does is lead to Motions to Strike over jurisdiction. If the case is about workers having to take injections to keep their jobs, then don’t lose focus.

8. Name All Plaintiffs Instead Of “John Doe” And “Jane Doe”

Dozens of Plaintiffs in the Style of Cause (front pages) are simply listed as either “John Doe” or as “Jane Doe”, along with their employer.

Feedback: If the lawsuit were actually intended to go ahead, this would be pointless, as they’d all have to be identified at some point. It just wastes everyone’s time. Supposedly, this was done to prevent harassment and intimidation, but their identities could still be found out.

Considering that Government lawyers — supposedly — tried to find out who were anyway, it’s unclear what the point is. Despite what people think about Trudeau and his people, they still are entitled to know who is making the allegations. Think about it: how can one confront their accusers in Court, without knowing who they are?

9. Don’t Suggest Lower Court Judge Was Biased

The Notice of Appeal implies that Justice Fothergill was biased in how he wrote up the February 2023 Order which saw the SoC struck. This isn’t a good idea. The Judge correctly outlined many serious defects in the pleading.

Feedback: This is a dumb idea. Don’t do it. To even imply such a thing, there’d have to be some strong basis for it, or it could be considered contempt of Court.

Also, the comparison to Action4Canada was quite fitting. While the Federal suit was much shorter, it had essentially the same flaws and defects. There was the additional problem of the “explicit ouster” of s.236 FPSLRA.

Would the case have survived if the above recommendations had been implemented? It’s impossible to say for sure, but it would have been a lot more likely.

Again, this article is not meant to provide legal advice. This site in general does not provide advice. If you have questions in your own case, please seek professional input.

Pretty pathetic that this case has taken in over $1.2 million in fees and donations. How is this number arrived at?

(a) the donations solicited on the Constitutional Rights Centre website
(b) the Retainer Agreement demanded $1,000 from each Plaintiff (or $600,000+)
(c) the email to clients demanding another $1,000 from each (or $600,000+)

A lot of money has been wasted, and all for a lawsuit that never stood a chance. Now, hundreds of Plaintiffs — with valid problems — are going to find that they’re barred by the Statute of Limitations from trying again.

Meanwhile, a “moronic troll” online can break this case apart with little effort. Have to wonder what’s really going on here.

This article will likely lead to Galati suing the site again. Oh well. It’s not like the last one was well written, or even coherent.

FEDERAL VAXX PASS CHALLENGE (APPEAL)
(1) FCA Adelberg V. HMTK A-67-23 Notice Of Appeal
(2) FCA Adelberg V. HMTK A-67-23 Appeal Book
(3) FCA Adelberg V. HMTK A-67-23 Appellants MFL
(4) FCA Adelberg V. HMTK A-67-23 Respondents MFL

FEDERAL VAXX PASS CHALLENGE
(1) https://policeonguard.ca/wp-content/uploads/2022/06/Filed-SOC.pdf
(2) Federal Court Vaccine Mandate Challenge
(3) Federal Vaccine Passport Challenge Retainer Agreement
(4) Federal Court Vaccine Mandate Challenge Motion To Strike
(5) Federal Court Vaccine Mandate Challenge Affidavit Of Service
(6) Federal Court Vaccine Mandate Challenge Responding Motion Record
(7) Federal Court Of Canada Rules
(8) Federal Court Decision On Motion To Strike (Archive)
(9) https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/522970/index.do
(10) https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1507/2022bcsc1507.html
(11) https://laws-lois.justice.gc.ca/eng/regulations/sor-98-106/page-9.html#h-1013947
(12) https://www.laws-lois.justice.gc.ca/eng/acts/P-33.3/page-13.html#h-406405

PRECEDENTS CREATED
(1) https://www.canlii.org/en/ca/fct/doc/2023/2023fc280/2023fc280.html#par85
(2) https://www.canlii.org/en/ca/fct/doc/2023/2023fc929/2023fc929.html#par17
(3) https://www.canlii.org/en/bc/bcsc/doc/2023/2023bcsc1701/2023bcsc1701.html#par30

MONEY
(1) Letter to Federal Worker Plaintiffs
(2) Federal Workers Action Donation Link For PayPal
(3) Ontario First Responders Action Donation Link For PayPal
(4) School Action Donation Link For PayPal
(5) Police Officer Action Donation Link For PayPal
(6) https://www.web.archive.org/web/20220526170932/https://www.constitutionalrightscentre.ca/
(7) Federal Workers Retainer Agreement
(8) Ontario First Responders Retainer Agreement
(9) Donate To Public Citizens Inquiry
(10) Donations For Supposed B.C. Doctors Action

Posted on

Former Windsor City Workers To See If Injection Passport Case Can Proceed

A group of former city workers in Windsor, Ontario, is waiting to see if their lawsuit will be thrown out in the preliminary stages, or whether it will be able to proceed to Trial.

This is another case of people taking legal action as a result of being forced out of their employment in 2021 and 2022 due to so-called “vaccine passports”.

August 2022, former employees City (or Corporation) of Windsor — 20, at the time — brought their Statement of Claim. It alleges that all Plaintiffs were either fired or forced to resign for refusing to take the injections.

Now for the bad news….

The City of Windsor is bringing a Motion to throw out the lawsuit on a number of grounds. Foremost, Windsor claims that all of the Plaintiffs are unionized, or subject to some sort of collective bargaining agreement, which mandates alternative dispute measures. This is the grievance process, which often ends in arbitration.

The Motion also states that all of the major issues here have been litigated and decided before, and thus, there’s nothing new to look at.

February 2023, their Motion Record — collection of documents was sent.

March 2023, the Responding Motion Record was filed.

May 2023, an Amended Statement of Claim was filed. It both added new Plaintiffs, and expanded on the information laid out in the original Claim. However, that may be an issue considering the Claim was changed after the Motion was filed.

The Motion won’t be heard until July of 2024, which is several months away. In the meantime, there are still other procedural steps to be done, and other documents to be filed.

This is hardly the first such case to be filed. Unfortunately, there has been little success so far in convincing the Courts that the unions are not acting in good faith, or that the collective bargaining process is corrupted. We’ll have to see what becomes of this case.

Expect a follow-up as things develop.

ABOUT THE GROUP
(1) https://www.em-power.ca/
(2) https://twitter.com/em_POWER_on
(3) Empower – Press Release

COURT DOCUMENTS
(1) Empower – Statement Of Claim
(2) Empower – Amended Statement Of Claim
(3) Empower – Moving Party Motion Record
(4) Empower – Respondents Motion Record

Posted on

Litigants Accused Of Filing Defamation Appeal As “Leverage” Against $1.1 Million Cost Order

The long anticipated Appeal of Kulvinder Gill and Ashvinder Lamba is scheduled to be heard on December 12th, 2023. This comes nearly 2 years after a Judge threw out their defamation case as frivolous. For some background, see here and here.

A brief timeline of events:

December 2020, Kulvinder Gill and Ashvinder Lamba filed a $12.75 million defamation lawsuit against 23 individuals and media outlets, largely over a series of spats on Twitter. This was in the Toronto Branch of Ontario Superior Court.

September 2021, over the course of 3 days, several anti-SLAPP Motions were argued. The primary basis for these Motions was Section 137.1 of the Courts of Justice Act, which is designed to screen out litigation designed for “libel chill” or “gag proceedings”.

February 2022, Justice Stewart dismissed the claims against all proceedings, on the grounds that the lawsuit was exactly the type of case that anti-SLAPP laws were designed to weed out.

March 2022, the Decision was appealed to the Ontario Court of Appeals.

May 2022, despite filing the Notice of Appeal and Evidence Certificate (a list of evidence to be used), Gill and Lamba find themselves without counsel. It appears from the badly redacted filings that they are rather upset about the mess that they’re now in. If only someone had advised them that filing frivolous defamation claims in Ontario — which has strong anti-SLAPP laws — was a very dangerous and risky idea. Clearly, they got poor advice. (See Record)

July 2022, both Gill and Lamba retained new counsel, who tried to ward off the coming costs awards. In total, they were looking at over $1 million in costs. While this sounds excessive, they sued 23 Parties, which works out to an average of about $55,000 each.

October 2022, although the case had been appealed, the issue of costs hadn’t been resolved. It finally was at the end of October, with Gill and Lamba (but mostly just Gill) owing over $1.1 million in Court fees. It must be pointed out that s.137.1(7) of the Courts of Justice Act sets “full indemnity”, or 100% of costs, as the baseline. True, Judges don’t have to award it, but that’s considered the starting point.

Gill (and Lamba) accused of bringing Appeal in bad faith

Now we get to November 2023.

One of the Respondents/Defendants, The Pointer Group Inc., has caused an interesting complication. In a Motion seeking costs up front, it’s accusing the Appellants of filing the Appeal in bad faith, in order to circumvent the cost award. There was a hearing before Justice Roberts on Wednesday November 1st.

From paragraph 28 of the Factum asking for costs:

Given the potentially extensive costs awards payable by Dr. Gill for the Action, her abandonment of her appeal as against 11 of the 22 respondents, her failure to identify any error made by Justice Stewart in granting The Pointer’s SLAPP Motion, the delay in pursuing this appeal and The Pointer’s limited resources, it is apparent that Dr. Gill has brought this appeal for the purpose of obtaining leverage in negotiations with The Pointer to avoid paying some or all of the costs awarded to The Pointer.

To summarize: The Pointer Group is alleging Gill and Lamba brought the Appeal as a tactical maneuver in order to avoid paying the full costs that are owed. It’s stated that approximately half of the Defendants have already settled in return for abandoning the Appeal against them.

Put bluntly, this is claiming contempt of Court on their part, by attempting to do an end run around the October 2022 costs ruling.

The Pointer says that the Appeal doesn’t address them in any meaningful way, and thus, there’s no basis for the Appellate Court to overturn those findings.

It’s interesting that this is the only party that’s sought security for costs to date. Besides, it’s strange to wait until so close to the main hearing date.

Updates will be posted closer to the December date. The Appeal will likely be dismissed, as anti-SLAPP laws were correctly applied here. The legislation is designed to prevent people from being able to bankrupt others on the basis of trivial matters. Additionally, the Appeal costs will likely be “full indemnity” as well This means Gill and Lamba could easily end up owing another $100,000 to $200,000, or more.

Gill has a separate anti-SLAPP Motion to be heard next October. It’s with Amir Attaran and the University of Ottawa. Gill demanded $7 million because he called her an “idiot” online. That could easily cost another $25,000 to $50,000 that she doesn’t have.

Side note: the Court of Appeals has been contacted for more documents, and they will be uploaded when they arrive. Both The Pointer and Gill’s new counsel haven’t responded for comment.

MOTION FOR SECURITY OF COSTS
(1) Gill V. Maciver Amended Notice of Motion – 26 Sept 2023
(2) Gill v Maciver – San Grewal’s appeal for support M54554.MPF.PointerGroup – October 2023.PDF
(3) https://drive.google.com/file/d/1PbEewt3dAKqAT5Udp6BIIqrM9Y_AhPHv/view

KULVINDER GILL/ASHVINDER LAMBA CASE:
(1) Gill/Lamba Defamation Lawsuit December 2020
(2) https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html#sec137.1_smooth
(3) Gill/Lamba Factum Of Medical Post Tristan Bronca
(4) Gill/Lamba Case Dismissed As A SLAPP
(5) https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1279/2022onsc1279.html#par17
(6) Gill/Lamba Notice of Appeal and Appellants’ Certificate
(7) Gill/Lamba Appeal – Notice of Intention to Dismiss Appeal for Delay, May 12, 2022
(8) Motion To Recuse – Badly Redacted -2022-06-17 – Notice
(9) Motion To Recuse – Badly Redacted -2022 – Motion Record
(10) Gill/Lamba July 15 Letter To Obtain New Counsel
(11) Gill/Lamba Case Conference Brief July 29, 2022
(12) Gill/Lamba Endorsement New Counsel Cost Submissions August 3, 2022
(13) Gill/Lamba Case $1.1 Million In Costs Ordered October 31, 2022