Author: Ronnie

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Looking At The Burke Federal Proposed Class Action (Injection Mandates)

Canadians were subjected to varying forms of lockdown measures from 2020 through 2022. Some restrictions still exist today in places such as health care settings.

As a result, a topic that’s come up numerous times is the idea of Class Actions. This is based on the concept that a single lawsuit — if carefully prepared — will be much more effective than individual claims. Many more people could potentially benefit. And indeed, such cases have sprung up.

With that in mind, it’s worth asking: how are these cases going?

One such suit filed in Federal Court is Chief Gregory Burke v. His Majesty the King, and the Attorney General of Canada. It commenced back in September 2023. To put it mildly, advancing the case doesn’t appear to be much of a priority.

There’s just the Statement of Claim and an amended version on file, both of which look to be horribly deficient. It will have to be further amended.

No Motion to Strike has (yet) been commenced. There’s no Statement of Defence. It doesn’t look like any steps have been taken to certify the case as a Class Action. The most recent action was in December 2024, advising of potential dates for a case conference. Donations are being sought still.

Counsel’s Recent Record On “Vaccine Passport” Cases

This Proposed Class Action is being conducted by Leighton Grey of the firm Grey Wowk Spencer. He has filed several related lawsuits (not Class Actions) in Federal Court in recent years. However, the trend seems to be to discontinue — drop — them, rather than push through.

(a) Canada Post: struck in March 2024
(b) Canadian National Railway: discontinued in June 2023
(c) Purolator, discontinued in April 2023
(d) Westjet, discontinued in April 2023

A search of other Court records — such as Manitoba — reveal other, related cases which were promptly discontinued. One has to wonder how diligently this one will be pursued.

Nothing Pleaded About Chief Gregory Burke, Representative Plaintiff

Most people are familiar with the more “traditional” lawsuits. In those, the details of each Plaintiff must be spelled out in the Statement of Claim, and then, the Defendants respond. They typically know from the onset exactly who is suing them, and for how much.

For (Proposed) Class Actions, the Claim pleads information about 1 or more “Representative Plaintiffs” only. There are “subgroups” or “classes” listed of prospective litigants. They still have to provide enough detail about their own circumstances. Beyond that, there’s a process to attempt to certify the lawsuit as a Class Action. A Judge may (or may not) certify.

Only a single Representative Plaintiff — sometimes called a “Token Plaintiff” — is required, provided he or she is able to qualify for all classes.

Material facts
174 Every pleading shall contain a concise statement of the material facts on which the party relies, but shall not include evidence by which those facts are to be proved.

Particulars
181 (1) A pleading shall contain particulars of every allegation contained therein, including
(a) particulars of any alleged misrepresentation, fraud, breach of trust, willful default or undue influence; and
(b) particulars of any alleged state of mind of a person, including any alleged mental disorder or disability, malice or fraudulent intention.

Problem here: there’s nothing pleaded about Chief Gregory Burke. Federal Court Rules make it clear what’s required in a Statement of Claim. Neither the original nor the amended version provide any information about him.

Since Burke is the only Representative Plaintiff, he must give sufficient detail to at least theoretically support all of such Claims. True, other Plaintiffs may be added, but only if Certification is successful. It’s probably too late to amend the Style of Cause (names of Parties).

  • Section 2(a) of the Charter;
  • Section 6 of the Charter (Mobility)
  • Section 7 of the Charter (Security of the Person)
  • Section 8 of the Charter (Unreasonable Search and Seizure)
  • Section 15 of the Charter (Equality)
  • Tortious interference of economic relations
  • Tortious inducement to breach contractual relations
  • Intentional infliction of mental suffering
  • Malfeasance of public office
  • Negligent representation
  • Human rights violations

These are just some of the torts alleged in the Statement of Claim. Problem is: Grey pleads no information to support any of it. Granted, it may be true, but there’s nothing explained. Many are simply listed, with no facts or particulars to support any of it.

We know Burke’s name, and that’s about it.

Yes, the Statement of Claim can usually be amended. Keep in mind though, the case was filed nearly a year and a half ago. Shouldn’t such information already be included?

The Representative Plaintiff is Chief Gregory Burke. He is a senior who lives in Nova Scotia. He was chosen for a number of reasons, including his resistance to lockdown tyranny, which is being prosecuted there. He is also a Metis hereditary Chief who fits into both of the subclasses described in the class action.

Heck, there’s more information listed on counsel’s website than there is in the Statement of Claim.

Other Nonsense Included In Statement Of Claim

The Claim bizarrely pleads product liability and breach of implied warranty. This doesn’t make any sense. If Burke were fighting lockdown tyranny, he wouldn’t have taken any of the injections. And in paragraph 5, it’s stated that the Plaintiffs hadn’t. This would only apply if someone had taken the shot(s) and been harmed. Beyond that, it would be the manufacturers who’d be potentially liable.

Starting around paragraph 57, there are allegations that the Government had breached its duty of care to the Plaintiffs. It goes on and on about the dangers posed by “experimental vaccines”. But once again, the Plaintiffs plead that none of them took the shots.

Grey pleads the Nuremberg Code among other remedies that have no jurisdiction in a Canadian Civil Court. This is a Galati favourite, and part of the reason his cases are typically struck early on.

As for the Genetic Non-Discrimination Act, the purpose of that legislation had to do with race, ethnicity, and genetic disorders a person might have. It doesn’t apply here, yet lawyers routinely include it.

There are also allegations of interference with economic relations. For this tort to work, the Defendants would have to have done something improper or illegal to a third party that harmed the Plaintiffs. None of that is specified here. The employers would need to be identified, and the circumstances laid out.

The entire Claim reads as if Grey had simply cut and pasted from various other lawsuits, without paying much attention to how logical it all was.

Pleading Names The Subclasses (Groups of Plaintiffs)

Typically, a Class Action will name various “subclasses” of Plaintiffs. These are people who will still be part of the litigation, but whom have been impacted in different ways. Quote:

  1. “Employment Subclass“: members who have experienced job loss or adverse employment effects as a result of the Defendants’ actions. This subclass includes those who have been terminated, denied promotions, experienced decreased working hours or suffered any other professional hardship
  2. “Travel Subclass“: individuals who were prevented or prohibited from travelling due to their vaccination status. Members of this subclass have been adversely affected by the Defendants’ conduct and policies that either implicitly or explicitly restricted the mobility rights of unvaccinated individuals, thus causing significant disruption to both their personal and professional lives.
  3. “Dual Impact Subclass“: is unique in that it encapsulates members who fall within both the aforementioned subclasses.

As stated before, there’s no information pleaded about Burke. He may very well have valid claims both regarding employment and travel, but there’s nothing provided.

Timeline Of Major Events In Case

September 23rd, 2023: Statement of Claim filed.

October 5th, 2023: Government sends notice that it will respond and defend.

November 1st, 2023: Associate Judge Michael D. Crinson and Justice Mandy Aylen are assigned to be case management Judges for the suit.

December 10, 2023: Defendants contact Court, asking that any Statement of Defence be deferred until after Certification Motion has been heard and determined.

June 3, 2024: Statement of Claim (Plaintiff Class) filed with the Court.

December 19th, 2024: Letter from Plaintiff’s lawyer about case management dates.

Note: All of the dates listed can be confirmed by searching the respective cases on the Federal Court website. It keeps a detailed listing of all significant events.

That’s where things currently stand. No Statement of Defence has been filed. There’s no Motion to Strike (yet), though presumably one is coming. And the process for a Certification Motion hasn’t even been started.

“2024-10-07
Current Status: The Statement of Claim was filed on 25 September 2023. A Federal Court action with a similar fact pattern recently faced a Motion to Strike Application to amend the Statement of Claim. We await online production of the Amended Statement of Claim to better assess whether further refinements are required in our action. In the interim a Case Management Conference has been requested. Scheduling of same is pending.”

An October 2024 status update may shed some light on things. The current plan is apparently wait to see what happens in some similar case, and then further amend this suit. So… to just wait and see, and piggyback off of someone else. Shouldn’t clients be talking to that lawyer then?

The case is nearly a year and a half old, and there’s just the Statement of Claim. Could such a case be certified and advanced? Maybe, but it doesn’t seem very urgent.

(1) Burke T-2008-23 Statement Of Claim (September, 2023)
(2) Burke T-2008-23 Intent To Respond (October, 2023)
(3) Burke T-2008-23 Crinson Assigned (November, 2023)
(4) Burke T-2008-23 Crinson Order (December, 2023)
(5) Burke T-2008-23 Amended Statement Of Claim, Plaintiff Class (June, 2024)

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Review Of Westjet Injection Pass Lawsuit, Dropped In April 2023

Countless times in the last few years, we come across announcements about lawsuits being filed to challenge so-called injection passports. There’s initially plenty of hope and optimism that meaningful results will force Governments to change their ways. And a suit filed against Westjet in the Fall of 2022 was one such example.

The suit named:

  • His Majesty The King in Right of Canada
  • Attorney General of Canada
  • Westjet Group Inc.
  • Westjet Airlines Ltd.
  • Westjet Encore
  • Westjet Vacations Inc.
  • Swoop Inc.

These announcements are typically followed up with requests for donations, or solicitations for more clients, and more fees. There’s never really “enough” money.

But all too often, there won’t be any new reporting.

This is usually because they’re quietly dropped. And that’s exactly what happened here.

Shoddy Claims Being Recycled In Federal Court

The Westjet lawsuit should look familiar. It was filed by Leighton Grey of the firm Grey Wowk Spencer. It’s one of many filed in recent years that went absolutely nowhere.

(a) Canada Post: struck in March 2024
(b) Canadian National Railway: discontinued in June 2023
(c) Purolator, discontinued in April 2023

Grey has been in the press many times since 2020, often for filing a high profile lawsuit. That said, rarely does anything ever come of it. These cases are typically struck or discontinued (dropped).

And here, “The Discontinuer” is at is again.

Once Again, No Material Facts Or Particulars Pleaded

Material facts
174 Every pleading shall contain a concise statement of the material facts on which the party relies, but shall not include evidence by which those facts are to be proved.

Particulars
181 (1) A pleading shall contain particulars of every allegation contained therein, including
(a) particulars of any alleged misrepresentation, fraud, breach of trust, willful default or undue influence; and
(b) particulars of any alleged state of mind of a person, including any alleged mental disorder or disability, malice or fraudulent intention.

Regular readers will have heard the terms “pleading facts” and “pleading particulars”. While the numbering systems differ, the Rules are the same across Canada. In short, there must be enough detailed information in a lawsuit that the opposing side is able to understand, and respond.

JURISDICTION PLEAD FACTS PLEAD PARTICULARS
Federal Court Rule 174 Rule 181
British Columbia Rule 3-1(2)(a) Rule 3-7(17)
Manitoba Rule 25.06(1) Rule 25.06(11)
Ontario Rule 25.06(1) Rule 25.06(8)
Nova Scotia Rule 38.02(2) and (3) Rule 38.03(3)

One of the reasons Grey’s claims are typically so short is that he rarely pleads any facts. Despite having over 100 Plaintiffs, the suit is less than 25 pages. Once again, there’s no specific information about any Plaintiff, other than they are/were employees of Westjet. There’s nothing about:

  • Who is a current employee v.s. who left?
  • Who had no shots, 1 shots, 2 shots, or more?
  • Who worked remotely v.s. who worked in person?
  • Who got any sort of severance pay?
  • Who (if anyone) was subject to any bonus or performance contract?
  • Were there different unions, and any overlapping, or different policies?
  • Who raised which specific objection to taking the injections?
  • Who attempted which type of exemption method?
  • Which specific religious objections (for those who invoked it) applied and how?
  • Who went to grieve with their union?
  • What were the results of any internal grievance?

This isn’t to defend the policy at all. However, from a due process perspective, there’s so little information contained that it’s impossible to defend against. Basic information must be pleaded for each Plaintiff. Grey includes none of it.

None of the Charter violations are pleaded properly either. While (initially) the Court is to accept everything as true, there is very specific information that must be alleged to make it possible to advance.

There’s also a lack of particulars. The suit makes all kinds of allegations of malice, bad faith, and malfeasance of public office, but doesn’t spell out any of it.

The Claim and Amended Claim include allegations which a Civil Court doesn’t have jurisdiction over, such as relying on the Criminal Code of Canada.

Looking at the: (a) Canada Post; (b) CNR; (c) Purolator; and now (d) Westjet pleadings, it’s clear that it’s the same suit just tweaked a little. Grey merely changes the names in the Style of Cause (the Parties) and refiles elsewhere.

Clients are paying (presumably) good money for recycled garbage.

Westjet Has Collective Bargaining Agreement For Employees

Westjet employees appear to be part of CUPE Local 4070, which is one of many unions. Unsurprisingly, there is a collective bargaining agreement which outlines most of the important things involved.

Article 30 lists the various steps involved, and the people who are involved. Like many unions, Arbitration and not litigation, is considered to be the final one. Article 31 then goes through the process itself.

Grey discontinued the case rather than have the jurisdiction challenged. He has done this with multiple lawsuits now.

Now, Umar Sheikh and Angela Wood showed a way around the grievance requirement in another Federal case. Specifically, they argued that the introduction of the injection pass was a new condition imposed “without meaningful consultation”. Basically, the way mandates were implemented circumvented the grievance process. They successfully stopped a Motion to Strike.

Perhaps Grey could have done the same.

Timeline Of Major Events In Case

October 4th, 2022: Statement of Claim is filed.

November 17th, 2022: Defence files Notice of Intent to Respond.

November 20th, 2022: Case management is ordered.

November 21st, 2022: Amended Statement of Claim is filed.

December 5th, 2022: Plaintiffs (a) Erin Shannon; (b) Tara Mainland; (c) Jennifer Masterman all send in Notices of Discontinuance.

December 8th, 2022: Plaintiff’s lawyer (Grey) submits letter with proposed timetable.

February 28th, 2023: Court orders case management conference on March 13th, 2023.

March 13th, 2023: Conference discusses options of discontinuing overall, or setting timetable to file materials for Motion to Strike.

April 12th, 2023: Lawsuit is discontinued.

Note: All of the dates listed can be confirmed by searching the respective cases on the Federal Court website. It keeps a detailed listing of all significant events.

And that’s how this Westjet case concluded.

The Government (and the Westjet Defendants) threatened to bring Motions to Strike. The likely reasons were the lack of jurisdiction, and the shoddy nature of the pleadings. Rather than fight, the lawyer dropped the case. He never even tried to fight back.

Before even a single Motion could be argued, the entire lawsuit was discontinued. Plaintiffs are presumably out of luck for any retainer fees they’ve paid.

WESTJET DOCUMENTS:
(1) Westjet Statement Of Claim October 2022
(2) Westjet Amended Statement Of Claim November 2022
(3) Westjet Order Timetable December 2022
(4) Westjet Notice Of Discontinuance April 2023

UNION DOCUMENTS:
(1) https://www.cupe4070.ca/collective-agreements
(2) Westjet CUPE 4070 Collective Bargaining Agreement

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Federal Proposed Class Action (Injection Mandates) Survives: Is s.2(d) The Way Forward?

With all of the horrible cases that have been covered, it’s rare (but refreshing) to see one that’s actually well put together. Last week, Federal Court Judge Southcott dismissed (most) of a Motion to Strike, allowing the case to proceed.

A Proposed Class Action for Federal workers was filed in October 2023 by B.C. lawyers Umar Sheikh and Angela Wood. It was on behalf of 3 Representative Plaintiffs who were forced out of their positions. They had been employed by:

  • Department of National Defence (Payne)
  • Correctional Services Canada (Harvey)
  • Federal Economic Development Agency for Southern Ontario (Molaro)

Many of the cases involving injection passports filed in recent years were sloppy, and didn’t properly plead any tort or Charter violations. One of the most infamous was the “bad beyond argument” Adelberg case, and Appeal. Interestingly though, since Adelberg didn’t quite result in all claims being thrown out for good, it served as leverage for this case.

But what Sheikh and Wood did was quite different. They argued just 2 torts, and at least one of them never tried in a serious way in these cases.

  • Section 2(d) of the Charter: Freedom of Association
  • Malfeasance of Public Office

The Malfeasance of Public Office tort was struck regarding the 3 Plaintiffs here. The reason being that all 3 apparently had some right to grieve under the Federal Public Sector Labour Relations Act. But the Judge did allow for the possibility of new Plaintiffs — it is a Class Action — whom might qualify.

As for the Section 2(d) allegations: they are allowed to proceed.

Sections 208/236 FPSLRA Typically Bar Workers From Court

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.

The main obstacle to Government workers suing is the Federal Public Sector Labour Relations Act, or FPSLRA. Section 208 gives everyone the right to grieve, while Section 236 prohibits Actions (or lawsuits). This is similar to unionized private employers, and there are plenty of rulings striking such cases.

But what happened here is rather clever. By using union arguments about meaningful consultation, the Judge was persuaded that there was no valid grievance process, or at least that it was arguable.

Section 2(d) Of Canadian Charter: Freedom Of Association

44.The Plaintiffs’ and Class Members plead that s. 2d of the Charter provides for Freedom of association which guarantees the right of employees to meaningfully associate in the pursuit of collective workplace goals, which includes a right to collective bargaining. As such Laws or state actions that prevent or deny meaningful discussion and consultation about working conditions between employees and their employer may substantially interfere with the activity of collective bargaining, as may laws that unilaterally nullify significant negotiated terms in existing collective agreements.

45. The Plaintiffs and Class Members all had freely negotiated, valid, and binding contractual employment agreements with the Treasury Board.

46. None of the Plaintiffs or Class Member contractual employment agreements called for disclosure of Covid-19 vaccination status nor mandatory Covid-19 vaccination.

47. The Plaintiffs’ and Class Members plead that the Policy was a new term and condition placed upon their employment by the Treasury Board absent collective bargaining, memoranda of agreement, consideration, or consent.

48. The Plaintiffs’ and Class Members plead that the imposition by Treasury Board of a new term and condition of employment absent collective bargaining, memoranda of agreement, consideration, or consent violates their protected right under s. 2d of the Charter.

49. The Plaintiffs’ and Class Members plead that the action of the Treasury Board in imposing a new term and condition of employment absent collective bargaining, memoranda of agreement, consideration, or consent is not saved by s.1 of the Charter as the Treasury Board did not possesses the requisite justification based upon the objectives espoused by the Policy.

(This is from paragraphs 44 to 49 in the Statement of Claim.)

To understand why the Motion to Strike failed, consider what is actually being argued. No one contests that the terms of employment were changed. Instead, the challenge is brought over lack of consideration and meaningful consultation. It’s not entirely that injection mandates were introduced into Government employment. It’s that there was no proper protocol in implementing it.

Section 2(d) had been mentioned — in passing — in other injection pass cases. But Sheikh and Wood may be the first to actually have used it successfully.

If all of this sounds like a union argument, it is. Sheikh is former counsel for the British Columbia Nurses’ Union (BCNU), and for a time, was the C.E.O. This case was written from the perspective of someone who expects employers to deal in good faith with workers.

Of course, this is nowhere near the end. The case still needs certification, and even then, there are many steps before Trial. That said, at least the case is still alive.

What Tipped The Scales For The Plaintiffs?

[35] In my view, the authority that carries the day for the Plaintiffs in the context of this motion is the decision of the Supreme Court of Canada [SCC] in Morin. That case considered whether a labour arbitrator’s exclusive jurisdiction granted by provincial statute applied to an argument that a collective agreement was negotiated in a discriminatory manner, so as to include a discriminatory term, and thereby contravened the Québec Charter of Human Rights and Freedoms…. The SCC found that the dispute did not concern how the relevant term in the collective agreement would be interpreted and applied but rather whether the process leading to the adoption of the alleged discriminatory clause violated the Québec Charter such that the term was unenforceable (at paras 23-24).

And that parallels what happened here. It wasn’t necessarily bringing in injection mandates themselves, but the way which it was implemented.

On some level, it’s an absurd argument, but it got past a Motion to Strike.

Brief Timeline Of Major Events In Case

October 6th, 2023: Statement of Claim is filed on behalf of 3 Representative Plaintiffs.

November 9th, 2023: Government responds with their Notice of Intent.

May 31st, 2024: Government sends notice that it intends to bring Motion to have the case struck (thrown out) in its entirety.

June 6th, 2024: Prothonotary Ring gives directions that there be case management.

June 10th, 2024: Chief Justice Crampton directs (a) Justice Southcott and (b) Prothonotary Ring to be assigned manage the proceeding.

July 1st, 2024: Prothonotary Ring issues schedule for documents to be served for Motion to Strike.

August 19th, 2024: Government brings its Motion to Strike.

October 1st, 2024: Plaintiffs file responding arguments as to why case shouldn’t be struck.

December 13th, 2024: Motion to Strike is argued before Justice Southcott.

January 1st, 2025: Justice Southcott partially grants the Motion to Strike. The tort of Malfeasance of Public Office is struck, but with Leave if eligible Plaintiffs are identified. The Section 2(d) claims are allowed to proceed.

Section 2(d) Superior To Common 2(a)/7/15 Challenges

Typically, the “freedom lawyers” have cited the standard s.2(a), s.7, and s.15 when it comes to challenging injection requirements. And predictably, they always fail. They never plead the necessary facts, and hence, these claims are routinely tossed.

Facts Required For Section 2a (Religion) To Be Considered

(1) that he or she sincerely believes in a practice or belief that has a nexus with religion, and
(2) that the impugned state conduct interferes, in a manner that is non‑trivial or not insubstantial, with his or her ability to act in accordance with that practice or belief

https://www.canlii.org/en/ca/fct/doc/2017/2017fc1092/2017fc1092.html#22

Facts Required For Section 7 (Security) To Be Considered

(1) plaintiff must plead facts to establish a deprivation of their right to life, right to liberty or right to security of the person.
(2)The claim must then set out facts to show that any deprivation of these rights was effected in a manner contrary to the principles of fundamental justice.

https://www.canlii.org/en/on/onsc/doc/2022/2022onsc2732/2022onsc2732.html#par69

Facts Required For Section 15 (Equality) To Be Considered

(1) on its face or in its impact, the state action creates a distinction based on a prohibited ground (either enumerated or analogous); and
(2) the state action imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage

ENUMERATED GROUND ANALOGOUS GROUND
Explicitly In Charter Recognized By Courts
Race Sexual Orientation
National/Ethnic Origin Marital Status
Colour Off-Reserve Band Member
Religion Citizenship
Sex –
Age –
Mental/Physical Disability –

https://www.canlii.org/en/on/onsc/doc/2022/2022onsc2732/2022onsc2732.html#par80

  • Section 2(a) – freedom of religion – may allow for individual exemptions, depending on what is actually in the specific injections. It doesn’t, in any way, permit religion to be generally used to circumvent mandates.
  • Section 7 – security of the person – fails since the Courts have repeatedly said there’s no “right” to have a certain profession. Nobody was actually forced to take these shots, although there were certainly consequences.
  • Section 15 – equality – does not apply at all, since “vaccination status” isn’t in the Charter (enumerated), and hasn’t ever been recognized (analogous).

Other injection passport challenges have included: Section 8 (search and seizure); Section 9 (arbitrary detention); and Section 12 (cruel and unusual punishment). In fairness though, they have been extremely half hearted attempts.

Yes, one could plausibly conclude that the Charter is worthless, since it doesn’t protect people outside of narrow grounds. And they’re right.

However, plenty of lawyers still take large amounts of money from clients knowing that these portions offer no protection whatsoever.

The Section 2(d) method described above may be about the only way around a largely useless and defective Charter. By challenging not the mandates themselves, but how they were implemented, there’s at least one pathway. Without having meaningful consultations about retroactive changes to their contracts, people are denied their right to freely associate in the context of employment.

The Federal Government may very well try to appeal this decision. After all, it’s taxpayer money anyway. But for now, Section 2(d) challenges seem to be realistic method, at least for litigants who don’t normally have the right to sue.

Sheikh and Wood have a similar case on reserve in B.C., based on the same arguments. We’ll have to see how this ruling impacts that one.

(1) Payne Statement Of Claim October 2023
(2) Payne Notice Of Intent To Defend November 2023
(3) Payne Letter Intent To Strike May 2024
(4) Payne Defendant Motion Record To Strike August 2024
(5) Payne Plaintiff Responding Motion Record October 2024
(6) https://www.canlii.org/en/ca/fct/doc/2025/2025fc5/2025fc5.pdf
(7) https://www.canlii.org/en/ca/fct/doc/2025/2025fc5/2025fc5.html

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Is The Military Veterans’ Injection Pass Appeal Already Time Barred?

Back in mid-November, this site covered the 2023 case of some 330 members of the Canadian Forces, which had been struck by Associate Judge Catherine Coughlan.

The case was full of serious problems, including: (a) Statement of Claim not pleaded properly; (b) Evidence not being properly pleaded; and (c) Section 29 of the National Defence Act, or N.D.A.

The N.D.A. specified a grievance process was to be used, as opposed to suing in Court. This is common in most unionized and Government workplaces in Canada. Even though the lawyer was trying to argue around that requirement, over 100 of her clients were concurrently trying to grieve.

Worse, the Plaintiff’s lawyer, Catherine Christensen, had been told by the Federal Court back in late 2021 that clients couldn’t bypass the N.D.A. She knew, or at least should have known, that this problem would come up again.

Since the pleading was struck by an Associate Judge, as opposed to a Judge, there is a Rule which allows a Motion to be filed to ask for a review of the decision. However, counsel’s handling of this was comically bad, and very negligent.

This “Lionel Hutz” episode would be funny, except for the real world consequences.

Christensen Missed The Deadline To File Notice Of Motion

The case notes on the Federal Court website list November 12th as the date of the ruling. CanLII gives it as November 13th. Here, it doesn’t really matter, since there was no notice for a month.

There are actually 2 different types of Appeals within the Federal Courts, and those are addressed below. The one that the Plaintiffs here wanted had a time limit of just 10 days. Counsel took 29 to respond. One has to wonder if she got them mixed up initially, and only realized the error later.

Had she sought an extension of time right away, this headache could have been avoided. Similarly, if a Notice of Motion (for the Appeal) was filed, followed by seeking an extension, it would be okay. But that’s not what ended up happening.

A Motion for an extension of time was filed on December 12th, with the Government responding on December 16th.

Granted, Courts often will allow for filings beyond the limitations period, if there are good reasons provided. However, this is far from counsel’s only error.

Appealing WITHIN Federal Courts V.S. Appealing BETWEEN Them

APPEAL RULING FROM PROTHONOTARY JUDGE
Appeal Goes Where Federal Court Federal Court Of Appeal
Appeal Ruling To Single Judge (FC) Panel of Justices (FCA)
Rules of Procedure Rule 51 Rules 335 to 357
Time Limit For Notice 10 Days 30 Days
Initial Document Notice Of Motion Notice Of Appeal
Procedure Motion Appeal
New Evidence Allowed? No With Leave, Rule 351

Note: Prothonotary and Associate Judge are the same thing.

Many will find this nitpicky and boring. But procedurally, there are very different rules to follow depending on who one wants to appeal to. As stated, this would be a Rule 51 Appeal, and the time limit is just 10 days to serve and file a Notice of Motion.

Had the case been struck by a Judge initially, then going to the Federal Court of Appeal would have been the only recourse. Rule 51 doesn’t allow Judges to overturn each other.

Mixing Up “Moving Parties” And “Applicants” Repeatedly

This may seem petty, but is worth mentioning:

Action: This is brought by filing a Statement of Claim. The people who initiate it are called the Plaintiffs, and the people who respond are the Defendants.

Application: This is brought by filing a Notice of Application, seeking Judicial Review of an Order or decision. The people who initiate it are called the Applicants, and the people who respond are called the Respondents.

Appeal: This is brought by filing a Notice of Appeal, seeking to challenge another Court decision. The people who initiate it are the Appellants, and the people who respond are the Respondents.

Motion: This is brought to by filing a Notice of Motion, to initiate steps within, or related to an Action, Application, or Appeal. The people who initiate them are the Moving Parties, and the people who respond are the Respondents.

Since Christensen filed a Motion seeking permission for an extension of time, her clients, at this point, would be considered MOVING PARTIES. But she repeatedly refers to them as “Applicants”, even though they never were. Even calling them “Plaintiffs” would be more accurate.

She also cites the “Federal Courts Act” at times when she really means the “Federal Court Rules”. Those are 2 completely different things. Still, the Court will know what the references are.

Motion Brought Under Wrong Rule (Should Be Rule 8, Not 51)

TAKE NOTICE THAT the Applicants will make a motion to the Court in writing under Rule 51(1) of the Federal Courts Rules.

Extension or abridgement
8(1) On motion, the Court may extend or abridge a period provided by these Rules or fixed by an order.

When motion may be brought
8(2) A motion for an extension of time may be brought before or after the end of the period sought to be extended.

This is already wrong. While the ultimate goal is to appeal the decision of Associate Judge Coughlan, first, an extension of time needs to be granted. In reality, this Motion should state Rule 8. True, the Court would still understand what she’s trying to do, but missing the deadline now means filing another Motion.

The written submissions make clear the extension is sought under Rule 8, but the Notice of Motion still needed to be fixed.

Christensen explains that the delay was caused by the difficulties of corresponding with over 300 clients. The Government responded that that the Notice of Motion could have been filed anyway, with the option to discontinue, or even just a Notice to ask for an extension. It would have cost just $20.

Motion Asks For Written Representations…. In Court Of Appeal?

leave for the Motion to be heard with written representations under Federal Courts Act Section 369.2(1);

Written representations only — Federal Court of Appeal
369.2 (1) Unless otherwise ordered by the Court and subject to subsection (2), all motions brought in the Federal Court of Appeal shall be decided on the basis of written representations.

Christensen asks that the Judge determine the Motion with written representations, as opposed to having an oral hearing. This is common for simple Motions, and by itself, is not unreasonable.

However, Rule 369.2(1) applies to the Federal Court of Appeal. If she intends to appeal the decision of an Associate Judge, it remains within the Federal Court.

Unnecessarily Asking For Leave To Appeal?

2. leave for an extension of time to apply for Appeal of a prothonotary order;

3. leave to commence an application for Appeal under Federal Courts Act Section 51(1);

Appeals of Prothonotaries’ Orders
51 (1) An order of a prothonotary may be appealed by a motion to a judge of the Federal Court.

Service of appeal
(2) Notice of the motion shall be served and filed within 10 days after the day on which the order under appeal was made and at least four days before the day fixed for the hearing of the motion.

Items #2 and #3 don’t make any sense. Rule 51 is very short, and there’s no Leave (permission) needed to appeal a decision of a Prothonotary or Associate Judge. You just file a Notice of Motion. It’s also unclear what “apply for an appeal” means, but perhaps it’s a reference to Leave, which isn’t required.

And again, Christensen mixed up “Motion” with “Application”.

Christensen Improperly Swears Her Own Evidence

Use of solicitor’s affidavit
82 Except with leave of the Court, a solicitor shall not both depose to an affidavit and present argument to the Court based on that affidavit.

There’s a practice that lawyers aren’t suppose to argue their own evidence, as it tends to blur the lines between witness and counsel. Typically, an associate, clerk or client will swear it out. A Judge “may” allow it, but there are no guarantees.

Missing the deadline was bad enough. This is just a procedural Motion, seeking an extension of time, and it’s full of very basic mistakes.

Did Plaintiffs Always Intend To Appeal?

One thing the Government brought up is that the Motion says that the parties agreed to appeal, but not that they always intended to do so. This seemingly trivial choice in wording may sink the Motion, depending on how lenient the Judge is.

Motion Doesn’t Specify How Appeal May Be Successful

On paragraph 20 of their submissions, the Government lawyer states that the Plaintiffs offer no insight as to how an Appeal would theoretically be successful, assuming they were granted a time extension.

Paragraphs 7 through 16 of the Notice of Motion very broadly list a series of errors, but none of it is specified. Perhaps a better idea would have been to attach a draft version of the submissions they intended to use — except they weren’t done.

This could have been avoided if a request for a time extension had been filed right away. Seriously, it would have cost just $20, and their position would be a lot better.

Timeline Of Major Events In This Lawsuit

June 20th, 2023 – Statement of Claim is filed in Federal Court on behalf of 330 Plaintiffs.

July 28th 2023 – Amended Statement of Claim is filed.

August 7th, 2023 – Notice of Intention to Respond is filed by the Government.

September 11th, 2023 – Statement of Defence is filed by the Government.

September 22nd, 2023 – Reply to the Statement of Defence is filed.

January 30th, 2024 – Court compels Defence to file their Affidavit of Documents.

March 3rd, 2024 – Court orders case management for the lawsuit.

April 29th, 2024 – Court gives a schedule of events to unfold.

  • Defendants shall serve and file their motion to strike by July 12th, 2024.
  • The Plaintiffs shall serve and file their motion in response by August 9th, 2024.
  • Hearing of motion to strike to be in-person at the Federal Court August 20th, 2024.

June 26th, 2024 – Plaintiffs contact Court, ask for hybrid setup so that Plaintiffs can attend the proceedings remotely.

July 11th, 2024 – Government files Motion to Strike the case.

August 12th, 2024 – Court contacted to request permission to file materials.

August 14th, 2024 – Court allows Plaintiff Motion materials to be filed, despite them not complying with the rules and procedure laid out.

August 14th, 2024 – Motion Record with 35 Affidavits filed by Plaintiffs

August 20th, 2024 – Court adjourns Motion to Strike hearing until September 19th.

September 19th, 2024 – Motion to Strike heard in Court.

November 12th, 2024 – Statement of Claim is struck without Leave to Amend. $5,040 in costs ordered.

December 12th, 2024 – Plaintiffs serve Notice Of Motion to extend time limits

December 17th, 2024 – Government responds, saying time extension shouldn’t be granted.

Now, the Court may very well grant an extension to file the Rule 51 Motion papers. There has been a longstanding aim of not using procedural rules unjustly to hinder litigation.

That being said, the Plaintiffs are far from guaranteed any success with this Appeal, even if it were heard. The Statement of Claim had many defects, as outlined in the last article. It’s unclear how any of it could be fixed.

For just a $20 fee, Christensen could have asked for an extension right away. She could have explained that some clients wanted to appeal, while others had not yet responded. Such a request would have been difficult to refuse.

COURT DOCUMENTS:
(1) Qualizza Statement Of Claim June 2023
(2) Qualizza Amended Statement Of Claim July 2023
(3) Qualizza Statement Of Defence September 2023
(4) Qualizza Reply To Statement Of Defence September 2023
(5) Qualizza Defendants Motion To Dismiss Claim July 2024
(6) Qualizza Plaintiffs Motion To Extend Time To Appeal December 2024
(7) Qualizza Defendants Respond To Motion To Extend Time To Appeal December 2024

OTHER:
(1) https://www.laws-lois.justice.gc.ca/eng/acts/n-5/
(2) https://www.laws-lois.justice.gc.ca/eng/acts/n-5/page-3.html#h-374837
(3) https://www.fct-cf.gc.ca/en/court-files-and-decisions/court-files#cont
(4) https://www.canlii.org/en/ca/fct/doc/2021/2021fc1443/2021fc1443.html
(5) https://www.canlii.org/en/ca/fct/doc/2024/2024fc1801/2024fc1801.html
(6) https://nationalpost.com/news/canada/hundreds-of-military-part-of-lawsuit-over-mandatory-covid-vaccine
(7) https://valourlegalactioncentre.org/
(8) https://www.youtube.com/watch?v=hifDPBW4r0w

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Action4Canada Sued In Kelowna For Defamation

Action4Canada (A4C) will be back in Court soon, but for an entirely different reason. It seems that a drag performer didn’t like what the group was saying about him. The Plaintiff, Tyson Cook, filed a defamation lawsuit in Kelowna on December 19th. It listed the organization, 3 named Defendants, and 1 unidentified Defendant.

In addition to seeking damages, it’s clear that an Injunction will be sought to take the postings down, and to prevent future ones from going up.

Unlike the train wreck the group filed in August 2021, this suit is short, to the point, and well written. It spells out exactly what has been said and done.

To be clear, this isn’t a defence of drag performances in general. However, people REALLY need to be careful about what they publish on the topic, since it can result in lawsuits.

According to the Notice of Civil Claim, or NOCC, the content published by Action4Canada goes far, far beyond criticizing Cook for being a performer. The postings quoted are still available online.

It makes accusations that he:

  • is a pedophile
  • sexualizes children
  • exploits and abuses minors
  • is a sexual deviant
  • indoctrinates children
  • is connected to a rise in child pornography and sexual abuse
  • performs sexually explicit content in the presence of children
  • promotes self-harm, murder, and cannibalism to children, and/or
  • is an inappropriate role model for children

The content is still up on the Action4Canada website today.

In one such publication from last year, A4C posts his photo along with allegations of specific sexual offences.

20… The following sections provide the categories of offences tending to sexually exploit and corrupt the morals of minors, and/or make available or promote, sexually explicit material or activities: Section 151, 152, 153 (1), 163.1, 171.1(5), 172.1(1), 173 (2), 174 (1), 175(1) (see attachment). These are indictable offences liable to imprisonment.

Although the sections of the Criminal Code of Canada are listed, the actual offences are not specified in the Claim. Here they all are.

  1. s.151: Sexual interference
  2. s.152: Invitation to sexual touching
  3. s.153(1): Sexual exploitation
  4. s.163(1): Child pornography
  5. s.171.1(5): Making sexually explicit material available to child
  6. s.172.1: Luring a child
  7. s.173: Indecent acts
  8. s.174: Nudity
  9. s.175: Causing disturbance, indecent exhibition, loitering, etc.

It’s rather baffling that A4C would post such content, which explicitly accuses him of child sex crimes, but not expect a lawsuit in response. One has to wonder if A4C genuinely believed this to be the case, why not call the police?

What About Bringing An Application To Strike?

Rule 9-5 of Civil Procedure for British Columbia does allow for Applications to Strike if a NOCC hasn’t been pleaded properly. That is, of course, what happened with A4C’s previous 391 page suit.

That’s not the case here though. The entire NOCC is just 17 pages, including the covers. It clearly spells out the expression which is being sued upon, who made it, and when. It’s explained why Cook finds it defamatory. Whether or not it can be proven at Trial is another question, but it won’t be struck.

What About An Anti-SLAPP Application?

For reference, B.C. does have the PPPA, or the Protection of Public Participation Act of 2019. It’s based heavily on the Ontario model, and it written in an almost identical manner.

Note: This isn’t legal advice, just commentary.

(1) The Defendant must convince the Judge the expression is of public interest. If this is done, the burden shifts to the Plaintiff to do 3 things:

(2a) Convince the Judge that the case has substantial merit.

(2b) Convince the Judge that there’s no likely defence.

(2c) Convince the Judge that the public interest in allowing the case to proceed to greater than the public interest in protecting the expression.

It may be a very hard sell for A4C to persuade that these kind of accusations are of public interest. But even if they do, it’s far from over. The case clearly has substantial merit (2a) — he’s called a pedo, among other things — and a Judge will very likely prefer that Cook get his day in Court (2c). The only possible defence here would be one of truth, if it can be established.

[1] Rainbow Alliance Dryden et al. v. Webster. This Ontario case involved comments about “groomers”, which was found to not be public interest speech, among other flaws. That Judge rejected “fair comment” as a defence, dismissed an anti-SLAPP Motion and allowed the case to proceed.

That case also had EGALE Canada acting as an Intervenor. It’s not too farfetched to think that they’ll also try to get involved with Cook and A4C.

[2] Teneycke v McVety, is an Ontario case which saw the anti-SLAPP Motion dismissed. It made allegations that pharma lobbying and a connection to Doug Ford were the reasons the Canada Christian College and School of Graduate Theological Studies didn’t receive Provincial certification. The school was against vaccine mandates. While Kory Teneycke is indeed a lobbyist with Rubicon Strategies, and has political ties to Ford, cause and effect couldn’t be established.

[3] Dong v. Global News is another case that survived an anti-SLAPP Motion in Ontario. Some CSIS sources had believed that M.P. Han Dong had betrayed the “2 Michaels” who were held by China. However, Global News published this as if it were an established fact. The defences of truth and responsible communication failed.

A4C may face the same hurdles with establishing truth or responsible publication. All 3 of the above cases saw their Motions dismissed, at substantial costs to the Defendants.

Another problem here is that not everything can be classified as expression.

18. On or about January 20, 2023, the Defendants, Action4Canada and/or Person A, created an online petition entitled “STOP Taxpayer Funded Drag Queen Sexualization of Children” (the “Petition”), and posted the Petition on the website CitizenGo. The Petition remains available online for individuals to sign virtually.

19. Please sign and share this petition and demand that the City of Kelowna STOP using taxpayers’ money to fund Drag Queen Story Hours, and further demand that the School District reassess Mr. Cook’s suitability as an EA”.

One other factor that goes against A4C relying on anti-SLAPP laws is that this wasn’t just about expression or speech. They created a petition, and essentially tried to get him fired from his job.

Would This Lawsuit Be Covered By Insurance?

44. On or about April 25, June 18, and December 4, 2024, counsel for the Plaintiff sent cease and desist letters to the Defendants, advising them that the Defamatory Publications were false and defamatory. The cease and desist letters demanded that the Defendants remove the Defamatory Publications from the internet and refrain from posting further defamatory statements.

According to the NOCC, Cook’s lawyers sent several cease and desist letters demanding that the content in question be removed. A4C does have insurance, which is not surprising. However, it would be interesting to know if these letters were ever forwarded. For the purpose of mitigating risk, they should have been.

(a) If these letters were never forwarded, an insurance company may very well refuse to cover a lawsuit, and leave A4C to fend for themselves.

(b) If these letters were indeed forwarded, it’s inevitable that an insurer would have insisted the content be removed. After all, their business involves minimizing risk. If that was ignored, then again, the insurer would likely refuse to cover the expenses involved in defending the case.

So, A4C is in trouble again. If the group had any sense, they would take down the postings — voluntarily — and work to settle the case quickly. It’s not disputed at all that Cook does drag shows, but the other allegations may be very difficult to prove.

Action4Canada needs to hire a competent lawyer.

(1) Cook Action4Canada – Notice Of Civil Claim
(2) Cook Flannigan Response To Civil Claim Red
(3) https://www.bclaws.gov.bc.ca/civix/document/id/lc/statreg/168_2009_01#rule9-5
(4) https://laws-lois.justice.gc.ca/eng/acts/C-46/page-28.html#h-118604
(5) https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/19003
(6) https://www.canlii.org/en/on/onsc/doc/2023/2023onsc7050/2023onsc7050.html
(7) https://www.canlii.org/en/on/onsc/doc/2023/2023onsc1710/2023onsc1710.html
(8) https://www.canlii.org/en/on/onsc/doc/2024/2024onsc3532/2024onsc3532.html

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Worse Than The Original: Galati/Action4Canada File Amended Notice Of Civil Claim

A word of advice: when a party to a lawsuit dies, it’s best to have their name removed. It can look pretty silly when this isn’t done, as is the case with former B.C. Premier, John Horgan.

Action4Canada has (surprisingly) filed their Amended Notice of Civil Claim, or NOCC. They, and their counsel, have decided to keeping spamming the Courts by resubmitting content similar to what’s been struck as “bad beyond argument”.

And “spamming” is how one can describe this.

It’s hard to imagine at this point that it’s being done in good faith. There’s only so many times the Courts — and online trolls — can explain the same points to “Canada’s top Constitutional lawyer”. 5 separate Courts have struck similar pleadings, yet the new one here is more of the same.

To be somewhat balanced, there are genuine improvements. The length has been cut from 391 pages down to 54. The claims about Bill Gates, Klaus Schwab, GAVI, the World Economic Forum, etc… have been removed. The allegations pleaded by the various Plaintiffs are better organized, and more readable. And since this is older content being refiled, the Statute of Limitations shouldn’t be much of a factor. Overall, this version is far easier to follow.

Briefly, here are the positions as alleged.

  1. Action4Canada: An advocacy group, with an interest in the rule of law
  2. “Jane Doe”: Mistreatment by the hospital for not honouring mask exemption
  3. Ilona Zink: Lost her business in 2020 due to forced shutdowns
  4. Valerie Ann Foley: Forced from Vancouver public transit, assaulted, over no mask
  5. Linda Morken: Refused service over no mask, arrested for refusing to leave
  6. Gary Morken: Fined over no mask, had to pick up Linda
  7. Pastor Randy Beatty: Church services disrupted over lockdown measures
  8. Brittany Wilson: Nurse, forced from her career over mask and vaccine requirements

Hard to believe, but there *might* be valid Causes of Action. That said, this is hardly the groundbreaking Claim we were all led to believe was coming.

True, there were initially other Plaintiffs, but they left in 2022, following the comically bad performance of Galati and the “bad beyond argument” decision.

That being said, the newer version goes considerably downhill in many ways, compared to the original. It introduces new errors that weren’t present in 2021, and leaves many older problems unfixed. The new errors were likely the result of copying portions of more recent claims.

One of the most comical screwups is that Action4Canada and the other Plaintiffs are still suing John Horgan. He died of cancer a month ago, and the story was national news. While other parties were removed from the Style of Cause (names at the top), Horgan is still there. It’s not his estate that’s being sued, it’s him personally, which is now impossible.

But don’t worry, it gets much, MUCH worse.

Galati Content Previously Struck By 5 Different Courts

For some additional context, here’s the recent Dorceus review, which outlined the frustration the Courts are feeling about Galati refiling the same cases.

(1) British Columbia Supreme Court (Justice Ross)
Action4Canada v British Columbia (Attorney General), 2022 BCSC 1507 (CanLII)
https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1507/2022bcsc1507.html

(2) British Columbia Court of Appeal (Justices Marchand, Dickson, Voith)
Action4Canada v. British Columbia (Attorney General), 2024 BCCA 59 (CanLII)
https://www.canlii.org/en/bc/bcca/doc/2024/2024bcca59/2024bcca59.html

(3) Federal Court of Canada (Justice Fothergill)
Adelberg v. Canada, 2023 FC 252 (CanLII)
https://www.canlii.org/en/ca/fct/doc/2023/2023fc252/2023fc252.html

(4) Federal Court of Appeal (Justices Gleason, Boivin, LeBlanc)
Adelberg v. Canada, 2024 FCA 106 (CanLII)
https://www.canlii.org/en/ca/fca/doc/2024/2024fca106/2024fca106.html

(5) Ontario Superior Court of Justice (Justice Koehnen)
Dorceus v. Ontario et al., 2024 ONSC 7087 (CanLII)
https://www.canlii.org/en/on/onsc/doc/2024/2024onsc7087/2024onsc7087.html

5 separate Courts: (a) 2 Federal Courts; (b) 2 British Columbia Courts; and (c) the Ontario Superior Court have all thrown out similar pleadings. Justice Chalmers, also in Ontario, took a hardline as well.

This is “Bank of Canada” level bad.

Now, what’s wrong with the current Action4Canada NOCC?

1. Galati STILL Seeks Relief Outside Civil Court Jurisdiction

Galati has been told REPEATEDLY by various Courts to seek only Relief that is within the jurisdiction of the Court. Different types of Courts have different roles, and they need to respect each other. This is obvious, and shouldn’t need explaining.

Except Galati does need to have this explained again and again. Once more, he seeks Relief surrounding: (a) Nuremberg Code; (b) Helsinki Declaration; (c) Criminal Code of Canada, (d) Convention on the Rights of the Child, and more. One has to suspect he simply doesn’t read decisions in his own cases.

2. “Relief Sought” Section Runs Nearly 13 Pages, Is Unworkable

Galati pleads the the section on Relief Sought from paragraph 96 (page 35) to paragraph 121 (page 47). This amounts to nearly 13 pages. Keep in mind, this isn’t 13 items he’s asking for. It’s 13 pages. It’s based largely on facts that aren’t pleaded, and expert evidence improperly listed.

Worth mentioning, the original A4C Claim had 44 pages of Relief Sought, and covered the same sorts of non-justiciable issues. While shorter, it hasn’t really improved in terms of quality.

3. Galati Again Using Pseudo-Legal Concepts To Argue Case

A problem that regularly creeps into his cases is that he cites authorities that don’t have a place in modern Canadian jurisprudence, such as the English Bill of Rights. From the CSASPP defamation case, Justice Chalmers had this to say:

[75] In the e-mail to Mr. Dicks, Mr. Gandhi states that lawyers who reviewed the Ontario claim, “said it was very poorly drafted” and “will most likely get struck”. I am of the view that there is justification for this comment. The Ontario pleading is prolix and argumentative. The claim advances pseudo-legal concepts and conspiracy theories that the pandemic was pre-planned and executed by the WHO, Bill Gates, the World Economic Forum and unnamed billionaires and oligarchs. The similarly drafted A4C claim was struck by Justice Ross. In doing so, he described the pleading as “bad beyond argument”.

Another of his favourites is the Magna Carta. While it’s recognized as a historical document, it simply isn’t used in modern times as a basis for law.

4. Relief Sought Over Torts No Plaintiff Pleaded

A common problem with the Amended NOCC is that it seeks Relief based on facts that no Plaintiff actually pleaded. This problem is persistent. While too numerous to list them all, here’s one:

Paragraph 107 seeks Declaratory Relief about the so-called “vaccine passports” being imposed by the Government. The issue here is that no Plaintiff pleads anything about it. Keep in mind, the original NOCC was filed in August 2021, before these were a thing.

The closest is Brittany Wilson saying that she needed vaccination to work in health care. However, that came from her employer, not the Government — at the time.

There’s also Declaratory Relief sought that vaccine passports breach Section 6 (Mobility) Charter Rights. This was probably cut-and-pasted from the travel mandates cases. No Plaintiff pleads that they were citizens prevented from entering, remaining in, or leaving Canada. Nor do any plead that they were refused the right to move between Provinces, or to earn a livelihood elsewhere.

5. Relief Sought For NON-EXISTENT Minor Plaintiffs

Galati seeks Declaratory Relief regarding 12-17 year olds being offered vaccines. Problem is: NONE of the Plaintiffs are minors, nor are any seeking remedies for any children in their care or custody. For this to apply, at least one Plaintiff would have to be in this situation.

6. Relief Against NON-EXISTENT Municipal Defendants

In this section, Galati seeks various forms of Declaratory Relief against “Provincial and Municipal Defendants”. Problem is, there aren’t any Municipal Defendants. Perhaps this was just cut-and-pasted from another Claim.

7. Relief Sought Against NON-EXISTENT Curfews

In paragraph 97(e), Galati seeks relief surrounding various stay-at-home orders, curfews, and other lockdown measures. Thing is, these didn’t happen in B.C., where this Claim is filed. True, things were far worse in Ontario and Quebec, but this simply doesn’t apply in B.C.

8. Action4Canada Isn’t A Proper Party To This Lawsuit

The only information Action4Canada pleads is that it was co-founded in 2019 and that it “steps up” to advocate on behalf of the rule of law, the Constitution, and democratic governance. It specifically cites what happened starting in 2020.

The group seeks Charter damages pursuant to s.2 (fundamental freedoms),s.6 (mobility), s.7 (security of the person) and s.15 (equality). However, there’s no information pleaded that — even if true — would address any of these torts. There are no material facts at all. A4C clearly lacks Private Interest Standing.

Canada v. Downtown Eastside Sex Workers United, 2012 SCC 45 is the case which establishes the test for Public Interest Standing.

(a) Serious Justiciable Issue
(b) The Nature of the Plaintiff’s Interest
(c) Reasonable and Effective Means of Bringing the Issue Before the Court

In theory, A4C could argue this, but there would be serious problems, especially given that their style of litigation isn’t exactly “reasonable and effective”.

9. “Jane Doe” Isn’t A Proper Party To This Lawsuit

Something Galati routinely does is sue on behalf of anonymous Plaintiffs. This is obviously not allowed, as one has the right to confront their accusers in Court. While one may wish to not be associated with litigation, having an “open Court principle” makes this difficult.

In fact, the Dorceus ruling addressed exactly that. Justice Koehnen struck 2 “John Does” and 1 “Jane Doe” for refusing to use their real names in Court. No reason had been provided for any of them doing this. The Plaintiff in this case will meet the same fate.

10. Plaintiffs Plead No Facts About Federal Defendants (Except RCMP)

In the NOCC, it’s required for Plaintiffs to plead material facts (Rule 3-1(2)(a)), and plead particulars (Rule 3-7(17)). This is redundant, and covered many times before.

Problem is, the Plaintiffs don’t plead any facts whatsoever related to the Federal Defendants, with the exception of the RCMP. This includes:

  • Justin Trudeau, current Prime Minister of Canada
  • Theresa Tam, Canada’s Chief Public Health Officer
  • His Majesty the King in Right of Canada
  • Attorney General of Canada
  • Omar Alghabra, Federal Minister of Transport

While it’s true that details in a Claim are to be assumed true, at least initially, there’s nothing in the NOCC that suggested the Plaintiffs were harmed by any of them. Their grievances now are primarily with the Provincial Defendants. A Judge will almost certainly strike the above named.

Yes, the originally NOCC contained loads of irrelevant information, but at least that version pleaded some facts about the above Parties. That’s all gone now.

11. Pleading Evidence Instead Of Pleading Facts

Rule 3-7 — Pleadings Generally
Content of Pleadings
.
Pleading must not contain evidence
(1) A pleading must not contain the evidence by which the facts alleged in it are to be proved.

Virtually everything from paragraph 37 (page 17) until about paragraph 94 (page 34) should be struck. It gets into expert evidence, which is not the role of the NOCC. That comes much later. Galati has been told this many times before, and refuses to listen. It also mentions many people: (a) Peter McCullough; (b) Peter Hotez; (c) Michael Yeadon; (d) William Haseltine, etc… who aren’t parties, and whom the Defendants likely don’t know.

12. Arguing Caselaw In A Notice Of Civil Claim

Once more, Galati tries to argue caselaw throughout the NOCC. This is likely done in order to appear smart, but is a serious mistake. The initial pleadings are not the place to dive into the law, and it’s not supposed to look like a Factum. All of those areas should properly be struck.

Will There Be Leave (Permission) To Further Amend?

That’s actually tricky to answer. Despite the Amended NOCC being full of deficiencies, it is considerably cleaned up. Courts tend to prefer to give “that extra chance”. There are allegations raised which *potentially* would be valid Causes of Action. As such, as least some of the Plaintiffs could proceed.

On the other hand, Galati is (to a large degree) simply recycling his pleadings yet again. He seems to have mostly ignored the guidance of Justice Ross, and appealed for no real reason. This pleading has many of the same defects, and adds in new ones. The B.C. Supreme Court could simply decide to end it all at the next Application to Strike.

Action4Canada has stated on countless occasions that they have tens of thousands of pages of expert reports and evidence ready to go. It’s that true, then why mess around with screwed up pleadings? Why repeatedly sabotage your own cases?

In any event, this lawsuit will never get to Trial.

Remember: the best way to control the opposition is to lead it ourselves!

ACTION4CANADA AMENDED CLAIM:
(1) A4C Amended Notice Of Civil Claim
(2) A4C Amended Claim VIHA Response

ACTION4CANADA APPEAL DOCUMENTS:
(1) A4C Notice Of Appeal September 28 2022
(2) A4C Appeal – Notice Of Appearance – VIHA
(3) A4C Appeal – Notice Of Appearance – BC Defendants
(4) A4C Appeal – Notice Of Appearance – Attorney General of Canada
(5) A4C Appeal – Notice Of Appearance – Peter Kwok, Translink
(6) A4C Appeal – Notice Of Appearance – BC Ferries, Brittney Sylvester
(7) A4C Appeal – Appeal Book – Appellant
(8) A4C Appeal – Appeal Book – Respondent VIH And PHC
(9) A4C Appeal – Appeal Record – Stand Alone Respondents VIHA
(10) A4C Appeal – Appeal Record – Stand Alone
(11) A4C Appeal – Factum – Appellant
(12) A4C Appeal – Factum – Respondent Attorney General Of Canada
(13) A4C Appeal – Factum – Respondent BC Ferries and Brittney Sylvester
(14) A4C Appeal – Factum – Respondent HMK -Provincial Defendants
(15) A4C Appeal – Factum – Respondent Peter Kwok and Translink
(16) A4C Appeal – Factum – Respondent VIHA and Providence Health
(17) A4C Appeal – Consent Order – Factum, Time Limits
(18) A4C Appeal – Change In Representation – BC Defendants
(19) A4C Appeal – Notice Of Hearing February 2024
(20) CanLII Decision In Action4Canada Appeal

ACTION4CANADA BCSC DOCUMENTS:
(1) A4C BCSC – Notice Of Civil Claim
(2) A4C BCSC – Response to Civil Claim (Health Authority Defendants)
(3) A4C BCSC – Response to Civil Claim (Provincial Defendants)
(4) A4C BCSC – Affidavit No 1 of Rebecca Hill
(5) A4C BCSC – Notice of Application (AG and RCMP applies to strike)
(6) A4C BCSC – Notice of Application (Provincial Defendants applies to strike)
(7) A4C BCSC – Notice of Application (Translink applies to strike)
(8) A4C BCSC – Application Response (Health Authority Defendants consent to strike)
(9) A4C BCSC – Application Response (BC Ferries consents to strike)
(10) A4C BCSC – Application Response (AG and RCMP consent to Prov. strike application)
(11) A4C BCSC – Application Response (Translink consents to HA Defendants strike application)
(12) A4C BCSC – Application Response (Translink consents to Prov. strike application)
(13) A4C BCSC – Affidavit No 2 of Rebecca Hill
(14) A4C BCSC – Application Record (to strike)
(15) A4C BCSC – Application Response (all plaintiffs)
(16) A4C BCSC – Amended Application Response (all plaintiffs)
(17) A4C BCSC – Transcript Application To Strike
(18) A4C BCSC – Reasons For Striking NOCC In Its Entirety
(19) A4C BCSC – Order striking pleadings
(20) A4C BCSC – Order striking pleading in its entirety with costs payable forthwith
(21) A4C BCSC – Appointment to assess bill of costs for Kwok and Translink
(22) A4C BCSC – Notice of Discontinuance (Kimberly Woolman & Estate of Jaqueline Woolman)
(23) A4C BCSC – Notice of Discontinuance (Amy Muranetz)
(24) A4C BCSC – Notice of Discontinuance (Federico Fuoco & Fire Productions Ltd.)

OTHER:
(1) https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1507/2022bcsc1507.html
(2) https://www.lawsociety.bc.ca/Website/media/Shared/docs/becoming/material/civil.pdf
(3) https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/168_2009_01#rule3-1
(4) https://justice.gov.bc.ca/cso/index.do
(5) https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/120_2022a#division_d0e3656
(6) https://www.canlii.org/en/bc/bcca/doc/2022/2022bcca450/2022bcca450.html#par10

ACTION4CANADA FINANCIAL DOCS:
(A) A4C Docs Profits And Losses 2021-2022
(B) A4C Docs Balance Sheet 2021-2022
(C) A4C-Docs-General-Ledger-2021-2022