Category: Canada

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Citizens Alliance Nova Scotia Has Case Dismissed For Mootness

CANS, the Citizens Alliance of Nova Scotia, has had their Application for Judicial Review dismissed for “mootness” by the Nova Scotia Supreme Court. This concerns a 2021 case filed to challenge the dictates issued by Robert Strang, Nova Scotia’s “Medical Officer of Health”. He had banned gatherings and public assemblies (among other things) under the guise of safety.

For context, the Nova Scotia Court of Appeal had previously found that the basic freedoms of residents had been infringed.

Quite simply, it’s apparently not worth the time or expense to hear the case. Since none of the related orders are currently in force, Justice John A. Keith won’t hear a challenge to their legality.

The Judge heard arguments for the Motion in December, 2024, and took over a year to render a decision. He also took several months before ruling on public interest standing. On the bright side, at least costs were not ordered.

This ruling gives off some serious “CSASPP vibes”, where litigants were kept waiting far longer than necessary.

2 Separate Motions: Public Interest Standing & Mootness

In early 2024, CANS sought public interest standing in their case, which would have enabled them to seek far greater remedies. It was denied.

[35] I will deal first, and separately, with CANS’ request for an Order prospectively banning any attempt by a future provincial government (or its representative) to legislatively impose “anything but a voluntary immunization program at any time”.

[36] I do not find that this aspect of the claim raises a serious justiciable issue. The Court does not address challenges based on hypotheticals or conjectural scenarios that may or may not come to pass. The Courts determine disputes involving real people and real facts as demonstrated through existing evidence. They do not stray into decisions based on what might happen in the future but has not yet occurred. The claims and complaints of a litigant must almost always be anchored in existing facts to help ensure that “… the issue will be presented in a sufficiently concrete and well-developed factual setting” (Downtown Eastside Sex Workers at para. 51. See also Alberta Union of Public Employees v. Her Majesty the Queen (Alberta), 2021 ABCA 416 at paras. 27 – 30).

Justice Keith didn’t see it as worthwhile to prevent Strang (or his successor) from attempting something similar in the future. He stated that it was “speculative” or “predictive” to pursue litigation based on what someone may do. Of course, that sidesteps the concern that these things had already been done.

He also referred to CANS as “…a fledging organization which materialized recently and in response to certain actions taken by the government (or its representatives) during the pandemic”.

After that, the Government filed a Motion to get the case thrown out for “mootness”. The stated rationale is that these measures no longer exist, and it’s not worthwhile to hear the case. It was granted. The usual reasons were given, such as there being a limited amount of resources for the Court to use.

CANS wasn’t after money, just assurances that the rights of citizens would be protected from similar conduct in the future.

Timeline Of Major Events In Case

October 27th, 2021: Citizens Alliance of Nova Scotia files Application for Judicial Review in Yarmouth County.

March 24th, 2022: The minor co-Applicant JM (full name redacted) through his litigation guardian KM joined in the Application for review.

Due to a number of delays resulting from CANS’ former counsel, activity was repeated pushed back. They eventually ended up representing themselves.

August 25th, 2023: CANS files to obtain public interest standing.

January 24th, 2024: Motion on public interest standing is argued in Supreme Court.

February 1st, 2024: Final submissions are made on public interest standing.

August 8th, 2024: Public interest standing is refused.

December 6th, 2024: Mootness Motion is argued in Court.

July 19th, 2025: Additional submissions are filed with the Court on mootness.

January 20th, 2026: Case is thrown out for “mootness”.

Refiling As A Claim For Damages?

Apparently, group members have discussed the possibility of appealing. But there is something else. From the Motion on public interest standing, there was an interesting section from the Judge:

[74]
I note:
1. All parties recognize that CANS and J.M. have standing as a private entity to pursue at least aspects of the claim. Thus, there is no dispute that both CANS and J.M. have private litigant standing to assert that the Impugned Orders are ultra vires. In addition, while the Respondents appears to dispute whether the allegations of additional bad faith are sustainable, these reasons should not be interpreted as saying that either CANS or J.M. lack private litigant standing to proceed on that aspect of the claim. The only matter before me is CANS application for public interest standing. This decision is limited solely to the unique considerations which bear upon that issue and should not be used or interpreted for any other purpose. Those issues may come forward at another time. For present purposes, the point is that this decision on public interest standing will not determine whether the proceeding moves forward or fails entirely. Neither CANS nor J.M. will be shut out entirely or precluded from advancing their specific, personal interests;

Although public interest standing, and the Application overall, are dead in the water, there is another possibility. Claims for damage could be filed. Of course, given how long it takes to get a response, how long would that take.

It’s frustrating to see another case that won’t be heard on the merits — at least in its current form. The self-represented members of CANS clearly put a lot of work into their documents.

COURT DOCUMENTS (MOOTNESS MOTION):
(1) CANS Walsh Affidavit Mootness Motion
(2) CANS Milburn Affidavit Mootness Motion
(3) CANS Hipson Affidavit Mootness Motion
(4) CANS Hipson Affidavit Mootness Motion More Attachments
(5) CANS Government Arguments Mootness Motion
(6) CANS Applicants Arguments Mootness Motion
(7) CANS Government REPLY Arguments Mootness Motion
(8) CANS Decision On Mootness
(9) https://www.canlii.org/en/ns/nssc/doc/2026/2026nssc21/2026nssc21.html

COURT DOCUMENTS (PUBLIC INTEREST STANDING):
(1) CANS Applicants Brief For Public Interest Standing Augst 25 2023
(2) CANS Applicants Book Of Authorities August 25 2023
(3) CANS Respondents’ Brief respecting Public Interest Standing Motion
(4) CANS Applicants Rebuttal Brief For Public Interest Standing Motion November 20 2023
(5) CANS Applicants Book Of Documents Volume 1 Of 2 December 11 2023
(6) CANS Applicants Book Of Documents Volume 2 Of 2 December 11 2023
(7) https://www.canlii.org/en/ns/nssc/doc/2024/2024nssc253/2024nssc253.html

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Getting Started With Finding Court Files

A topic that frequently comes up is fundraising for public interest litigation. Individuals and groups solicit money for a variety of causes, and they ask others to donate. In principle, there’s nothing wrong with doing that.

But instead of being told which cases are potentially worthwhile, let’s look at ways people can determine for themselves if something has merit. These principles apply regardless of the issue being litigated, whether it’s vaccine passports, climate, free speech, gender nonsense, victim compensation, etc… But for simplicity, it will only address civil matters.

When asking others for money, many will describe their case in glowing terms. They’ll pitch the cause, as well as the progress that’s being made.

Look at this from a consumer protection point of view. If you are being asked to contribute to a cause, how do you know that your money will be wisely spent? Simple, you do your own research.

I’m Busy, How Long Will This Take?

That depends on how much effort one is willing to put into this. Phoning a Court or sending an email can take a few minutes. Reading some of the papers (depending on what’s there) can be a few hours, or more. Like with any potential investment, the proposal needs to be examined carefully.

It’s true that decisions already released can be found within seconds. But that is of no help to an ongoing case, unless any procedural rulings are posted, which is rare.

However, if someone has enough money that this does not matter, then donate away!

First, Get Whatever Documents Are Published Or Available

Before doing any court searches, see what’s already in the open. This likely means contacting whoever is seeking money, and they should provide something.

Usually, a Statement of Claim or similar document will be readily available. This makes further searching easier, if necessary. You will have the file number at this point.

Unless Restricted By Order Or Some Law, Files Are Public

Rather than simply take someone’s word on what’s happening within a case, look for yourself. Court documents are surprisingly easy to get ahold of.

The Federal Court offers the best system for accessing files. With just a party name or file number, anyone can look up the entire progress of the case. Specific documents can are usually provided with a simple email request. Note: to cut down on the size of the request, focusing on pleadings or motion records is usually best.

The Alberta Court of King’s Bench is likely the worst. It costs $25 (up from $10) to pull all of the documents, if you have the case information. If not, you may have to issue a general search first, going in blind, and pay another $25.

The Manitoba Court of King’s Bench allows file history to be instantly searched, much like with Federal Court. However, there is a charge of 50 cents per page to have them sent.

The British Columbia Supreme Court has instant, but paywalled access, unless you live in the Province, and use a Law Library. It costs $6 to access a file, and another $6 to download documents, although many are not available online.

The Ontario Superior Court recently modified its online system. Civil cases in Toronto generally list major filings and updates, while other regions show only basic information and upcoming appearances. Courts will often send documents that were filed electronically for free, but charge for paper copies.

While the methods (and costs) vary by Province, the point is that these filings are available to the public, expect in rare circumstances. Pulling these records may seem excessive. But if someone is asking for money to help finance a case, isn’t this just researching an investment?

Of course, a quick update can be obtained by calling the Court directly, if anyone answers. The clerks typically provide general information upon request.

Now, if this is too much effort to bother with, the question must be asked: does it really matter what’s going on with this case?

Assess For Yourself If This Case Is Worth Your Money

Now that the necessary documents are available, read them, or at least some. Then decide.

***People will probably interject at this point, saying they are not lawyers. For this, they don’t have to be.

A Statement of Claim is supposed to have 3 main parts:
(a) Facts alleged – the who, what, where, when that supposedly happened
(b) Relief sought – what remedies are being sought
(c) Laws relied on – what is the legal basis for the suit

A Statement of Claim should be well written, organized, and clearly explain the events that happened. The sections of relief and laws are typically very short.

Warning signs include: extremely long pleadings, lots of irrelevant details added, necessary information missing, caselaw being argued, opinions being inserted, or a generally convoluted structure. Keep in mind, the Judge hearing the case knows nothing at the start.

Preliminary challenges are common, especially when the Government is the Defendant. They would prefer to get the case thrown out immediate on a Motion to Strike. If one is filed, read the arguments. It may be baseless, but at least their objections should be clear.

These challenges often raise issues such as: jurisdiction, time limits (normally 2 years), or missing information. Again, read what they’re filing.

What has happened since? While it’s true that not everything gets filed, there should be some progression as time passes. If nothing is obvious, contact the Court, or ask the people who want your money.

***For busy people, focus on a few key documents: Statement of Claim; Statement of Defence; and any written submissions for Motions. The main ideas should be clear from those.

Yes, this takes time, but consider the donation as an investment. Due diligence is usually helpful before making a decision.

This Is How Court Cases Are Evaluated On Canuck Law

Court documents are routinely pulled, and scrutinized for their content. If a case looks well organized, strong, and is making progress, then it’s worth keeping an eye on. Although nothing is guaranteed, there’s a better chance of getting to trial.

And if there are serious problems, then the public should know about them. If there seems to be an absurdly large amount of paperwork being filed, why is that happening? And when there’s no apparent activity for years, what is the hold up?

Although this is done for reporting, the same techniques apply for prospective donors.

The more people look into litigation and legislative matters, the better. Other postings here have included: (a) general tips; (b) ATIP, or access to information; (c) CanLII searches; (d) lobbying registries; and (e) charity lookups.

People can ask for recommendations on which cases are worthwhile to invest in. And they may very well get good advice. But they may not.

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Adam Skelly, Part 5: The De Villa Transcript

It’s been over 5 years since Toronto Police showed up in force to close down Adam Skelly’s restaurant in Etobicoke. And it has been ongoing ever since.

He is awaiting sentencing on criminal charges that are stayed pending the outcome of this Application. If he wins here, the charges presumably get thrown out. If this Application fails, then the stay is lifted.

See parts 1, 2, 3 and 4 for background information.

Skelly is taking both the Ontario Government and the City of Toronto to Court, and is directly challenging sections of the Reopening Ontario Act (R.O.A.) which made these shutdowns possible. Adamson Barbeque itself had been named as an Applicant, but has since gone bankrupt.

Finally, we get to hear from Eileen De Villa, who was at the time, the Toronto Medical Officer of Health. She has left the position and claims to be “living her life”.

Currently, the hearing is set for 3 days at the end of February.

Also, the Factum is available, and is an interesting read. Other documents include Skelly’s transcript, and that of Matthew Hodge.

Toronto Health Officials Barred From Revealing Advice To Ford

From pages 95-96: The subject of a November 16th, 2020 publication came up. When asked about whether or not health officials had signed non-disclosure agreements, De Villa’s lawyer refused to answer. A request to see the NDA itself was also refused.

On page 98, her lawyer refused to answer whether or not the topic of Constitutional or Charter Rights had been discussed.

De Villa Admits No Authority To Issue Notice To Trespass

Starting at page 168, De Villa admits she had no actual authority to issue a “Notice To Trespass”. However, it didn’t stop her from issuing orders that effectively did just that. On page 181, her lawyer refuses a request to produce any other related orders she had issued.

Other Interesting Developments

De Villa frequently claims to not remember specific details. It’s unclear whether this is true, as so much time as passed, or if she’s being evasive.

At page 45, De Villa confirmed that she had sought legal advice to determine whether or not she actually had the authority to implement certain measures. A request to get information on that advice was refused.

Page 66, De Villa refused a request to release all data and evidence that had been shared with David Williams, who was the Provincial Medical Officer of Health. This was in response to an October 2nd, 2020 letter. She also refused to answer whether or not her orders were controversial, or had a political impact.

Page 76, De Villa refuses to answer whether or not she had sough input from members of the restaurant or entertainment industry before closing indoor dining. She claims it wasn’t her intention to “decimate” them, but apparently didn’t consult anyone.

Page 81, De Villa is asked about the assertion that 44% of cases from September 20th to 26th had been in restaurants, bars and entertainment venues. She couldn’t answer the source of that information.

Page 99, De Villa refused to discuss what evidence had been shared with the City of Toronto in order to justify various restrictions.

At page 182, De Villa’s lawyer says that she was allowed to issue trespass notices, but will come up with a reason as to why it’s justified.

At page 196, De Villa admits that when the Toronto Public Health Unit filed a lawsuit against Skelly to recoup their funds, he filed a 3rd-Party Claim against her.

At page 197, De Villa refused to answer whether it would be considered a conflict of interest if her husband, Richard Choi, had financial interests in Astra Zeneca.

Overall, it seems pretty clear that De Villa’s counsel was trying to avoid having her answer as many questions as possible. She objected to virtually everything. However, we’ll have to see what the judge decides.

COURT DECISIONS:
(1) Skelly – Restraining Order Deferred Matter
(2) Skelly – Restraining Order Decision, December 2020
(3) Skelly – Criminal Court Limits What He Can Post Online
(4) Skelly – Judge Lacks Jurisdiction To Hear Case, June 2021
(5) Skelly – Costs Of $15,000 Ordered For Failed Motion
(6) Skelly – Costs From 2020 Kimmel Decision, Previously Deferred
(7) Skelly – Motion For Security For Costs Decision, September 2023

2020/2021 COURT DOCUMENTS:
(1) Skelly – Application Record Restraining Order (Michael Swinwood)
(2) Skelly – Notice of Constitutional Question (February)
(3) Skelly – Amended Notice Of Constitutional Question (June)
(4) Skelly – Book of Transcripts – Respondents (Applicants)
(5) Skelly – Book of Transcripts – Respondent on Motion – HMTQ
(6) Skelly – 2021 Motion Factum
(7) Skelly – 2021 Motion Amended Factum – Respondents (Applicants)
(8) Skelly – DeVilla Transcript
(9) Skelly – 2021 Motion Reply Factum

(1) Skelly – RBC Default Judgement Order

MALPRACTICE SUIT AGAINST MICHAEL SWINWOOD:
(1) Skelly – Swinwood Malpractice Statement Of Claim

NEW APPLICATION DOCUMENTS:
(1) Skelly – Notice Of Application (Ian Perry)
(2) Skelly – Costs – Notice of Motion – Moving Party (Respondent) HMTK
(3) Skelly – Costs – Motion Record-Moving Party (Respondent)
(4) Skelly – Costs – Applicant Responding Motion Record Security For Costs
(5) Skelly – Costs – Factum – Moving Party – HMK
(6) Skelly – Costs – Responding Factum Applicants Skelly et al
(7) Skelly – Justice Akazaki Deferral Of Case
(8) Skelly – Transcript De Villa
(9) Skelly – Transcript Hodge
(10) Skelly – Transcript Skelly
(11) Skelly – Factum 2026 Hearing

EXPERT REPORTS:
(1A) Skelly – Byram Bridle Resume
(1B) Skelly – Byram Bridle Expert Report
(1C) Skelly – Byram Bridle Expert Reply Report

(2A) Skelly – Douglas Allen Resume
(2B) Skelly – Douglas Allen Expert Report
(2C) Skelly – Douglas Allen Expert Report

(3A) Skelly – Gilbert Berdine Resume
(3B) Skelly – Gilbert Berdine Expert Report
(3C) Skelly – Gilbert Berdine Expert Reply Report

(4A) Skelly – Harvey Risch Affidavit
(4B) Skelly – Harvey Risch Expert Report

(5A) Skelly – Joel Kettner Resume
(5B) Skelly – Joel Kettner Expert Report
(5C) Skelly – Joel Kettner Expert Reply Report

(6A) Skelly – William Briggs Resume
(6B) Skelly – William Briggs Expert Report
(6C) Skelly – William Briggs Expert Reply Report

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Case Conference Sought In Stale Military Injection Pass Case

Parties in a 2023 case over injection passes in the military are asking the Court what to do next. The disagreement comes over how to proceed. The Defendants want to bring a Motion to Strike — to throw out the case — while the Plaintiffs want to pursue other steps first.

The lawsuit itself hasn’t progressed since the pleadings were filed in 2023.

The information about the Plaintiffs is interesting, and the paths they’ve taken are varied. The lengths of service for some exceed 25 years. They’re located all over Canada, and are involved in many occupations. Some of them were kicked out for refusing the shots, or forced to retire. Others took them, and have ongoing health problems.

From the information listed in the Statement of Defence, any preliminary challenge would most likely be based on 2 ideas:

  1. Lack of jurisdiction (a.k.a. alternative system available); and
  2. Insufficient detail pleaded in Statement of Claim

1. Government Claims “Grievance Scheme” Should Have Been Used

15. The Plaintiffs had recourse through the grievance process established under the National
Defence Act (“NDA”). The CAF grievance process is set out in sections 29 to 29.15 of the NDA and Chapter 7 of the Queen’s Regulations and Orders (“QR&O”). Subsection 29(1) of the NDA provides that any officer or non-commissioned member of the CAF who has been aggrieved by any decision, act or omission in the administration of the affairs of the CAF for which no other process for redress is provided under the NDA is entitled to submit a grievance.

Just as in Qualizza and Neri, the Government here claims that Plaintiffs “should” have filed grievances, similar to what unionized workers do. This is invoking the defence that the Federal Court has no jurisdiction to hear the case, regardless of the merits. This has gotten many related suits thrown out.

The Statement of Defence also says that current and former veterans have the option of applying for compensation, which must be exhausted prior to commencing litigation.

2. Inadequate Pleading, Considering Allegations Made

The Government also criticises the quality of the Statement of Claim itself. While over 30 declarations are sought, critical detail is missing from the pleading.

A complaint here (and common in these cases) is that necessary detail is missing to even theoretically advance. For example, while many Plaintiffs claim to have a religious objection to the shots, under Section 2(a) of the Charter, not one of them explains what the objection actually is. Here’s a primer in what should be added.

True, one could easily argue that the Charter is useless, and it largely is. But then, why makes such claims in the first place?

While the Statement of Claim makes many accusations against the military, and very serious ones, they do need to be spelled out in much greater detail.

Unfortunately, far too few people get their “day in Court”. In an ideal world, every valid case would get to Trial. However, thousands of Plaintiffs have seen their cases thrown out (often for lack of jurisdiction) prior to any ruling on the merits. And others are bogged down by drafting deficiencies.

(1) Bruce Statement Of Claim
(2) Bruce Statement Of Defence
(3) Bruce Reply Statement
(4) Bruce Notice Of Discontinuance McLaren
(5) Bruce Notice Of Discontinuance Radford
(6) Bruce Letter To The Court

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UHCWBC And BCPSEF Conclude Certification Hearings, Decision Under Reserve

A pair of Proposed Class Actions wrapped up their hearings for certification on Friday, in the B.C. Supreme Court. These groups are attempting to convince a Judge that this is the most expeditious way to process thousands of claims related to loss of employment over injection mandates from 2021.

On a related note: the Court will also consider Applications brought to throw both cases out completely. The Government is making the usual arguments about how these cases are an “abuse of process”, and an ineffective way to resolve disputes. Notes from the hearings were provided by observers who attended, and are quite detailed. For simplicity, they were compiled into a single document. The suits came from:

(1) UHCWBC – United Health Care Workers of British Columbia
(2) BCPSEF – British Columbia Public Sector Employees For Freedom

It’s unclear how many Plaintiffs would result if either case was certified, but it could be in the hundreds, if not thousands. A lot of people didn’t like being pressured to take the shots.

See Parts 1, 2, 3, 4, 5, 5, 7, and 8 in this series on s.2(d) challenges.

UHCWBC And BCPSEF Part Of Series Of s.2(d) Cases

CASE NAMES FEDS4F/BCPSEF FREE2FLY/UHCWBC/UHCWO
Government Workers? Yes No
Filed Federally? Feds For Freedom Free To Fly
Filed in B.C.? BCPSEF UHCWBC
Filed in Ontario.? n/a UHCWO
Wrongful Termination by Gov’t? Yes No
Inducement to Breach Contract? No Yes
Breach s.2(d) Charter Rights? Yes Yes
Malfeasance of Public Office? Yes Yes

There are actually 5 different Proposed Class Actions going on which are based on a variation of the s.2(d) argument. While similar, there are differences in the arguments being advanced.

Feds For Freedom (Payne) initially got past a Motion to Strike at the beginning of 2025, but that was overturned by the Court of Appeal. By contrast, Free To Fly (Hill) survived a preliminary challenge that the Government did not appeal. This bodes well for the health care worker cases, as the arguments are essentially the same.

Update: The case of British Columbia Teachers’ Federation v. British Columbia, 2016 SCC 49 was mentioned after this publication. Without getting lost in the weeds, it allowed Court access in instances where collective bargaining was impacted unilaterally without good faith consultation. There isn’t the comparable “ouster” that exists Federally, over constitutional challenges. This is good news for public sector workers, hoping to avoid the fate of Payne.

The B.C. cases are having both Applications to Strike and for Certification heard at the same time. The Ontario lawsuit appears to have been pushed back to the end.

Another wildcard is that CSASPP was refused certification recently, but Justice Crerar’s decision has been appealed. There is potentially some overlap with the ones here.

Understanding The Arguments Of These s.2(d) Cases

Government Workers: It is true that unionized and Government workplaces typically have a collective bargaining agreement. This means that there’s some sort of grievance process to follow, and then arbitration. How these differed is that the Plaintiffs are arguing that injection mandates “added a term or condition” to the employment, without any meaningful consultation, negotiation or consideration. In the Payne case, that was accepted initially, then overturned.

Non-Government workers: The argument differs here, because the Government isn’t actually the employer. Instead, Plaintiffs allege the Government induced a breach of contract, by causing the employer to “add a term or condition” to the employment, without any meaningful consultation, negotiation or consideration. Another way to look at this is as third party interference.

In both variations, the Plaintiffs state that their Section 2(d) Charter rights (freedom of association) were violated. This was caused by the Government not allowing employers and employees to engage in voluntary relationships. Presumably, employers wouldn’t have fired anyone (or very few), without authorities meddling.

The UHCWBC case (and similarly, the UHCWO one) appear to be on more solid ground because they are not Government employees. The go-to tactic of claiming lack of jurisdiction does not apply to them.

We’ll have to wait for a decision, however long that takes. Assuming certification of either happens, this is only the beginning. Much more will have to be done prior to Trial. Both groups are still fundraising to cover existing costs, and CSASPP is trying to raise money for their ongoing Appeal.

BCPS EMPLOYEES FOR FREEDOM COURT DOCUMENTS:
(1) BCPS Notice Of Civil Claim October 2023
(2) BCPS Amended Notice Of Civil Claim April 2024
(3) BCPS Response To Civil Claim May 2024
(4) BCPS Requisition Case Management August 2024
(5) BCPS Notice Of Application Certification October 2024
(6) BCPS Notice Of Application To Strike October 2024
(7) BCPS Response To Application To Strike November 2024
(8) BCPS Consent Order Scheduling Of Materials January 2025
(9) BCPS Plaintiff Submissions Certification And Strike December 2004
(10) BCPS UHCWBC Plaintiff REPLY Submissions Cert/Strike January 2025

UHCWBC COURT DOCUMENTS:
(1) UHCWBC Notice Of Civil Claim October 2023
(2) UHCWBC Amended Notice Of Civil Claim April 2024
(3) UHCWBC Response To Notice Of Civil Claim May 2024
(4) UHCWBC Amended Response To Notice Of Civil Claim May 2024
(5) UHCWBC Requisition For Case Management Scheduling August 2024
(6) UHCWBC Notice Of Application For Certification October 2024
(7) UHCWBC Response To Application For Certification October 2024
(8) UHCWBC Notice Of Application To Strike Claim October 2024
(9) UHCWBC Consent Order Scheduling October 2024
(10) UHCWBC Response To Application To Strike November 2024

CERTIFICATION NOTES:
(1) UHCWBC and BCPSEF Certification Notes
(2) https://x.com/uhcwbc
(3) https://unitedtogether.ca/
(4) https://x.com/bcpsef
(5) https://bcpsforfreedom.com/
(6) https://www.covidconstitutionalchallengebc.ca/

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“Posties” Appeal Again: Hennelly Factors And Getting The Runaround

Let’s start with a thought experiment. How aggressively are litigants supposed to be following up with counsel? What separates diligence from excessiveness?

Employees of Canada Post (a.k.a. The “Posties”) have commenced yet another Appeal, trying to extend the deadline to challenge an earlier ruling.

To summarize: employees of Canada Post brought grievances when their company implemented the injection pass back in 2021. It eventually went to Arbitration, where it was deemed to be a “reasonable” policy in 2022.

Instead of challenging this ruling via Application for Judicial Review, they found a lawyer who convinced them to file a Statement of Claim. It was predictably tossed for lack of jurisdiction, in addition to the inadequate pleading itself.

Although Plaintiffs wanted to file an Appeal, they were given the runaround by counsel, and eventually abandoned. They found a new lawyer, but needed to file for an extension. The deadline had long expired.

See Parts 1, 2 and 3 for background information.

Over the last year, the focus was on getting an extension of time to Appeal. There were questions of whether or not Plaintiffs “acted diligently”, and if Defendants really were “prejudiced” by the delay.

Hennelly Factors And Deadlines To Appeal

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

Understanding the Appeal process depends on who issued a ruling. If a decision comes from a Justice, then a Notice of Appeal goes to the Federal Court of Appeal. There’s a 30 day time limit. However, if it comes from an Associate Justice (Prothonotary), then there’s just 10 days to serve a Notice of Motion. Here though, because it took months for the Plaintiffs to file anything, it didn’t seem to matter.

Obtaining an extension of time to begin a proceeding is often doable, but may not be easy. The decision comes down to the Hennelly Test, which is a “suggested” list of 4 considerations. Other factors may also be looked at.

  1. Did the moving party have a continuing intention to pursue the application?
  2. Does the moving party have a reasonable explanation for the delay?
  3. Is there some potential merit to the application?
  4. Is there prejudice to the other party from the delay?

In the original Motion to extend time to Appeal, Associate Justice Cottor acknowledged the first part of the test, that the Plaintiffs had a continuing intention to pursue it.

Cottor entertained the idea of “giving the benefit of the doubt” to the third part, that there was some potential merit to the Appeal. That’s interesting, considering no explanation was ever provided on how to challenge the lack of jurisdiction (as Arbitration was required).

That being said, Cottor ruled against the Posties on the second and fourth part of the Hennelly Test. He said there was no reasonable explanation for the day, and presumed that there was prejudice caused by its length.

The request to extend time was 234 days past the deadline, of which 53 days of which was caused by Gratl himself. He didn’t act promptly after taking the case.

In this decision, Justice Kane said there was no error in how this had been applied, and upheld the refusal to extend time.

Now, the Notice of Appeal argues that the same mistakes were made.

Were Plaintiffs Supposed To Hound Their Former Counsel?

No Motion was ever filed by this firm.

In their first and more recent Motion Records asking for more time, the Plaintiffs give substantial evidence that they tried to get an Appeal started. The above screenshots are from one of the Affidavits. They were effectively led on, and then abandoned.

However, Associate Justice Cottor (starting on paragraph 9) wasn’t convinced that the Plaintiffs had pursued this diligently enough.

[35] A delay of 53 days is significant, and there is a no reasonable explanation for it. As per Singh 2023 the question is whether the Moving Plaintiffs have a reasonable explanation for the entire delay from the March 25 Appeal Deadline to the service of the Notice of Appeal on November 14. Since they do not have a reasonable explanation for a significant portion of the period, namely 53 days, it is not possible to conclude that they have a reasonable explanation for the delay. The outcome of the analysis of the initial delay of almost six months will not change this conclusion.

[36] While it may not be necessary to also consider the initial delay of almost six months given the above conclusion, I will do so for completeness. The initial delay is the period from the Appeal Deadline of March 25 until Current Counsel was engaged on September 22. As noted above, the Moving Plaintiffs blame Former Counsel for that delay. The defendants advanced various arguments in response, the general tenor of which is that: a) clients must live with their choice of counsel and counsel’s actions (subject to limited exceptions which the defendants say do not apply), with clients and counsel being treated as one for the purposes of a motion to extend time; and b) that the Moving Plaintiffs were insufficiently diligent in following up with Former Counsel in the circumstances of this case. The Moving Plaintiffs argued in response that the cases that have held that errors or inadvertence of counsel is not a reasonable explanation for…

[37] Using the approach advocated for by the defendants, namely that errors or inadvertence of counsel is not a reasonable explanation for the delay, then there is no reasonable explanation for the delay. However, if that approach is not used, it is appropriate to consider the behavior of the Moving Plaintiffs during that period … Considering the conduct of the Moving Plaintiffs during that period of delay does not assist them. They knew that the Appeal Deadline had been missed, and that the filing of a motion for an extension of time was lagging considerably (and more so as time went on). However, despite that, there was only occasional follow-up by the Moving Plaintiffs. Having regard to what transpired during that initial period of almost six months, it is not possible to conclude that the Moving Plaintiffs diligently addressed the situation

Associate Justice Cottor saw this as 2 separate delays: (a) nearly 6 months from previous counsel, Grey; and (b) another 53 days from current counsel, Gratl. He concluded there was no reasonable explanation. In the Appeal, Justice Kane saw no problem with this reasoning.

It raises the question of what litigants need to do. Are they expected to hound their lawyers day-in and day-out to check the progress of the case? Are they supposed to involve the Law Society? If lawyers mislead clients and lie to them, are they not able to fix their case?

Of course, none of this addresses the elephant in the room: there’s no jurisdiction to sue the company, as Canada Post is unionized, with a collective bargaining agreement.

Brief Timeline Of Major Events

September 2021: Canada Post announces that it will change the “vaccination” policy, requiring that all employees (and new hires) take the shots in order to be employed. It’s to take effect on November 26th, 2021.

October 26th, 2021 mandatory injection policy is formally approved.

November 15th, 2021: CUPW, Canadian Union of Postal Workers, files grievance against Canada Post’s new policy of requiring the injections in order to stay employed.

January 18th, 2022: Arbitration hearing is held over Canada Post’s policy requiring the injections of all employees. There would be several sessions over the coming months.

April 27th, 2022: Arbitrator dismisses the grievance against Canada Post, saying that the injection requirement is “reasonable”.

***It’s important to remember that this didn’t start with a lawsuit. It began with grievances and then arbitration. This matters as it relates to the lack of jurisdiction of the Federal Court.

July 12th, 2022: Statement of Claim is filed with the Federal Court. It names: (a) Canada Post Corporation; (b) Her Majesty the Queen, as Elizabeth was Queen at the time; and (c) Attorney General of Canada.

September 5, 2023: Even more Plaintiffs discontinue, or voluntarily leave the case. It worth mentioning that the Court history is filled with various Plaintiffs discontinuing. This is especially prevalent after the Motion to Strike is set out. Seems they realize that their case will go nowhere.

March 4th, 2024: Motions are eventually heard.

March 13th, 2024: Court releases reasons for striking the case.

March 13th, 2024: Order striking case is officially issued.

***Despite what happened, many Plaintiffs want to pursue an Appeal. However, they’re abandoned by their lawyer, and forced to seek a new one. They eventually hire Jason Gratl

November 15th, 2024: Gratl files a Notice of Change of Solicitor. It’s unclear why he waited nearly 2 months to do anything.

November 15th, 2024: Gratl files a Notice of Motion, indicating Plaintiffs will be seeking an extension of time to appeal the March ruling. It’s been a full 8 months at this point. Given that it was an Associate Justice who struck the case, the deadline is a mere 10 days.

February 14th, 2025: Gratl files the Motion Record for clients.

February 27th, 2025: The Federal Government files their Responding Motion Record.

May 2nd, 2025: Associate Justice Cotter refuses the extension of time.

***Since the Notice of Motion is so late, Gratl is forced to bring another Motion, this one to extend time. However, his explanation for the months long delay falls on deaf ears.

May 12th, 2025: Gratl brings another Motion, to challenge the refusal to grant an extension of time. This time, the 10 day time limit is met.

June 4th, 2025: The Attorney General of Canada files their Responding Motion Record.

September 23rd, 2025: Hearing is held via video on this Motion.

October 2nd, 2025: Justice Kane refuses Appeal that would have extended time to Appeal original decision from Associate Justice Coughlan.

***Gratl tried to explain again why the Canada Post Plaintiffs should get an extension of time, despite being months late. Again, the Court rules otherwise. At this point, the options within the Federal Court are exhausted.

October 17th, 2025: Plaintiffs file Notice of Appeal with Federal Court of Appeal.

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 in T-1436-22.

We’ll have to see what happens. But it’s frustrating for litigants to be let down when they clearly were trying to advance their case.

ARBITRATION:
(1) https://www.cupw.ca/sites/default/files/urb-ja-31-2022-ca-en.pdf
(2) Canada Post Collective Bargaining Agreement 2022
(3) Canada Post Arbitration update, February 2022 (removed)
(4) Wayback Machine Archive
(5) CUPW On Some Updates On Arbitration
(6) Wayback Machine Archive On Arbitration Updates
(7) https://www.cupw.ca/en/last-days-arbitration-vaccination-practice-grievance
(8) Wayback Machine Archive Of April 1st, 2022 Update
(9) https://www.cupw.ca/en/arbitrator-dismisses-grievance-against-canada-post%E2%80%99s-mandatory-vaccination-practice
(10) Arbitration Decision (Removed)
(11) Canada Post Arbitration Ruling Redacted
(12) Wayback Machine Archive Of Arbitration Decision
(13) https://www.fct-cf.gc.ca/en/court-files-and-decisions/court-files#cont

LITIGATION (CASE STRUCK):
(1) Canada Post Statement Of Claim (July, 2022)
(2) Canada Post Amended Statement Of Claim (June 7, 2023)
(3) Canada Post Order Timetable (July, 2023)
(4) Canada Post Defendants Motion Record (October, 2023)
(5) Canada Post Plaintiff Responding Motion Record (January, 2024)
(6) Canada Post Plaintiff Responding Motion Record CP (February, 2024)
(7) Canada Post Further Amended Statement Of Claim (February, 2024)
(8) Canada Post Decision Striking Amended Pleading (March, 2024)

LITIGATION (EXTENDING TIME TO APPEAL):
(1) Canada Post Notice Of Change Of Solicitor (November, 2024)
(2) Canada Post Affidavit of Karine Solakian (November, 2024)
(3) Canada Post Notice Of Motion (November 2024)
(4) Canada Post Applicants Motion Record Extension Of Time (February, 2025)
(5) Canada Post Motion Record Extension Of Time (February, 2025)
(6) Canada Post HMTK Motion Record Extension Of Time (February, 2025)
(7) Canada Post Order Refusing Extension Of Time To Appeal (May, 2025)

LITIGATION (APPEAL OF REFUSAL TO EXTEND TIME TO APPEAL):
(1) Canada Post Motion Record Appeal Refusal To Extend Time (May, 2025)
(2) Canada Post HMTK Written Submissions Appeal Time Extension (June, 2025)
(3) Canada Post Order Dismissing Appeal For Extension Of Time (October, 2025)
(4) Canada Post Federal Court Case History

LITIGATION (APPEAL TO FEDERAL COURT OF APPEAL):
(1) Canada Post FCA Notice Of Appeal

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