Category: Canadian Decisions

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Cowichan Tribes: How The Parties Concealed The Case From The Public

The shocking decision from the B.C. Supreme Court last year is in the midst of an Appeal. However, it seems that the public is not fully aware of the efforts to keep it hidden over the last decade.

Instead of a high level of incompetence, it appears the Municipal, Provincial and Federal officials did what they could to keep it hidden. While sounding the alarm now, they had over a decade to do so, but decided to conceal the risks from residents.

Madam Justice J. A. Power: “….my decision does not prevent any of the defendants from providing informal notice to private landowners if they wish to do so.” Cowichan Tribes v Canada (Attorney General), 2017 BCSC 1575 at paragraph 27.

Most people heard about this ruling last August. It’s where a B.C. Judge essentially declared a portion of Richmond to belong to Cowichan Tribes, a group in the area.

***Note: pardon the late follow-up. The story fell through the cracks, but is definitely worth reporting. This is especially true in light of “negotiations” that have recently started.

The case has been appealed, and a number of Cross-Appeals have been filed as well. There’s a lot more to cover. But an important point needs to be addressed: the parties went out of their way to conceal this case from the public at large. The Federal Government, B.C. Government and City of Richmond could have let people know years ago, but chose not to.

This is not to say that they couldn’t have notified Richmond residents. There was no prohibition stopping them. They simply decided not to.

Is this an outrageous claim? Perhaps, but in light of what has happened, it’s about the only logical conclusion one can draw from this.

Specifically, 5 points will be raised in support of this position.

  1. Cowichan filed the challenge in Victoria to reduce unwanted attention
  2. Cowichan had parts of their evidence declared private
  3. The entire case was removed from B.C. Court Services Online
  4. Governments did not alert property owners about case in 2016
  5. Governments did not alert property owners about case in 2017

Why wouldn’t Cowichan Tribes want heavy scrutiny about this case? Consider what they were asking for, and what the decision awarded them.

Declarations Made By B.C. Supreme Court

  1. The Cowichan have Aboriginal title to the Cowichan Title Lands within the meaning of s. 35(1) of the Constitution Act, 1982;
  2. The Crown grants of fee simple interest in the Cowichan Title Lands, and the Crown vesting of the soil and freehold interest in certain highway lands in the Cowichan Title Lands, unjustifiably infringe the Cowichan’s Aboriginal title;
  3. Except for Canada’s fee simple titles and interests in certain lands (the “Vancouver Airport Fuel Delivery Project Lands”), Canada and Richmond’s fee simple titles and interests in the Cowichan Title Lands are defective and invalid;
  4. With respect to the Cowichan Title Lands, Canada owes a duty to the Cowichan to negotiate in good faith reconciliation of Canada’s fee simple interests in the Vancouver Airport Fuel Delivery Project Lands with Cowichan Aboriginal title, in a manner consistent with the honour of the Crown;
  5. With respect to the Cowichan Title Lands, BC owes a duty to the Cowichan to negotiate in good faith reconciliation of the Crown granted fee simple interests held by third parties and the Crown vesting of the soil and freehold interest to Richmond with Cowichan Aboriginal title, in a manner consistent with the honour of the Crown; and
  6. The Cowichan have an Aboriginal right to fish the south arm of the Fraser River for food within the meaning of s. 35(1) of the Constitution Act, 1982.

Cowichan Tribes has filed their own Appeal, arguing that the Judge should have given them everything, not just portions of the area.

1. Cowichan Filed In Victoria To Reduce Unwanted Attention

The case concerns land in Richmond, but was filed in Victoria. Vancouver was a far closer choice. New Westminister or Abbotsford would also require less commuting time. The obvious question: why go to a further Court?

This is going to sound incredibly cynical, but the likely reason for filing in Victoria was to reduce the chances that it would be leaked, prior to a ruling.

2. Cowichan Had Parts Of Their Evidence Declared Private

What makes thing more suspicious is that a number of sealing orders were made between 2021 and 2023. Even if one went to the Court in Victoria, these exhibits would still be restricted.

1. 6 July 2021: Sealing Order and Publication Ban made 22 & 26 January 2021 regarding Vancouver Fraser Port Authority documents;

2. 2 November 2021: Sealing Order made 26 July 2021, regarding Musqueam fisheries mandate information;

3. 24 June 2022: Sealing Order and Publication Ban made 25 October 2021, regarding information contained in DARS recording, Clerk’s Notes, and trial transcript for 25 October 2021;

4. 24 June 2022: Sealing Order made 25 October 2021, regarding Exhibits 1490–1588, unsealed as of 10:46:25AM, and resealed as of 4:16:00PM

5. 24 June 2022: Sealing Order and Publication Ban made 26 October 2021, regarding information contained in DARS Recording, Clerk’s Notes, and trial transcript for 26 October 2021;

6. 24 June 2022: Sealing Order made 26 October 2021, regarding Exhibits 1490–1588, unsealed as of 10:23:31AM, and resealed as of 12:23:29PM;

7. 24 June 2022: Sealing Order and Publication Ban made 29 October 2021, regarding information contained in DARS Recording, Clerk’s Notes, and trial transcript for 29 October 2021;

8. 24 June 2022: Sealing Order made 29 October 2021, regarding Exhibit 1556;

9. 29 November 2022: Sealing Order and Publication Ban made 2 November 2022, varying the Sealing Order and Publication Ban made 22 & 26 January 2021 (noted above) concerning Vancouver Fraser Port Authority documents;

10. 29 March 2023: Sealing Order made 28 February 2023, regarding Musqueam Indian Band’s privileged July 1996 recording;

11. 2 November 2023: Sealing Order and Publication Ban made 20 October 2023; a publication ban was engaged at 11:17:57AM and continued until 2:01:24PM;

12. 2 November 2023: Sealing Order and Publication Ban made 23 October 2023; a publication ban was engaged at 10:03:11AM and continued until 11:26:06AM.

“All parties agree that the evidence subject to sealing orders in the court below ought to be the subject of fresh sealing order(s) on appeal, with the exception of the plaintiffs, who have advised that they take no position pending receipt of the proposed consent order and a brief written submission regarding the basis for the sealing orders in due course, consistent with Publication Bans, Sealing Orders, and Anonymization Orders (Civil and Criminal Practice Directive, 10 June 2024).”

Many critical exhibits were sealed from public view over the duration of the case. The British Columbia Government asks that the seal be extended.

3. The Entire Case Was Removed From B.C. Court Services Online

BC CSO, or Court Services Online, is the website where people can look up *most* civil cases online. Also, traffic and Provincial criminal cases are generally accessible too. However, the Cowichan case was removed entirely, due to some documents being sealed.

Despite the public interest, a request to post at least some of the non-sealed material was refused. This is apparently standard procedure. Now, if people wish to see anything, they have to go to the Victoria Court in person.

4. Governments Did Not Alert Property Owners About Case (2016)

[1] Tsawwassen First Nation (“TFN”) makes application to be added as a defendant to this action.

[2] Cowichan Tribes (“Cowichan”) and others bring a representative action for declarations relating to aboriginal title of lands in what is now the City of Richmond, including at Tl’uqtinus and the south shore of Lulu Island, and relating to aboriginal fishing rights in the south arm of the lower Fraser River. As of November 2015, the defendants included Canada, British Columbia, and the City of Richmond.M.o

[3] The plaintiffs consented in November 2015 to deem notice letters to third parties as constituting formal notices of claim. These third parties included the Musqueam Indian Band (“Musqueam”), the Vancouver Fraser Port Authority (the “VFPA”), and TFN. In January 2016, the plaintiffs consented to the addition of the VFPA and Musqueam as defendants to the action.

[10] Contemplating the predecessor to subrule (b)(ii), the court in Kitimat, at para. 30, referred to Morishita v. Corporation of the Township of Richmond (1990), 1990 CanLII 211 (BC CA), 44 B.C.L.R. (2d) 390 at 393 (C.A.), where it defined a necessary party as a person “whose direct interests might be affected by the granting of the relief sought.” The court in Kitimat considered it “difficult to see how a binding order can be made in the terms sought in the petition, limiting the instruments held by Alcan, without its participation” (para. 32). Because Alcan’s “direct interests might be affected by the granting of the relief sought” according to the terms of the petition, it was a necessary party for a full determination of the issues, including at the appellate level,” and was thus “one who ‘ought to have been joined as a party.’”

Tsawwassen First Nation was added as a party in 2016, because the Court decided that it had a legitimate interest in the outcome of the case. But none of the parties served any kind of notice on the public.

Interestingly, Canada and British Columbia both complained that they didn’t have enough detailed information to fully process and respond to the lawsuit. There’s a glaring irony in this, since they couldn’t be bothered to notify the public at large.

5. Governments Did Not Alert Property Owners About Case (2017)

There are dozens of interlocutory decisions related to this case, but one from September 2017 is quite revealing. Specifically:

[1] These reasons follow the hearing of an application, brought by the defendant Attorney General of Canada (“Canada”), concerning whether or not this Court should order formal notice to the private registered owners of fee simple lands within the area referred to, in the Second Further Amended Notice of Civil Claim, as the Lands of Tl’uqtinus (the “Claim Area”), whose interests may be adversely affected by the relief sought by the plaintiffs in this action.

[2] Canada seeks an order that the plaintiffs deliver formal notice within 45 days of the date of this decision, or alternatively that the defendant, Her Majesty the Queen in Right of British Columbia (“British Columbia”), deliver such formal notice to affected private landowners.

Conclusion
[25] While I am not persuaded by the plaintiffs that the authorities definitively decide the issue before me, I have concluded that in the context of these circumstances I should exercise my discretion by dismissing Canada’s application.

[26] As a result, I further decline to comment on the issue, raised by Canada, concerning whether it is more appropriate for the plaintiffs, as initiators of this litigation, or British Columbia, from whom private landowners derive their fee simple titles from, to be the party to provide formal notice.

[27] In these particular circumstances, I decline to exercise the court’s discretion to require the plaintiffs to serve formal notice on private landowners. However, as I have already outlined above, my decision does not prevent any of the defendants from providing informal notice to private landowners if they wish to do so.

In 2017, the Federal Government filed an Application to compel Cowichan Tribes to serve at least an informal notice on all of the potentially impacted property owners. In the alternative, Ottawa said that the B.C. Government should be doing it.

The Court never said that notice couldn’t be served, just that it couldn’t be compelled. However, neither the Federal nor Provincial Governments apparently did.

Many thousands of dollars was spent on an Application to demand that landowners be notified, when it could have just been done for less money.

What readers need to understand is that this case was deliberately kept hidden from the public for years. They didn’t want the scrutiny that would follow. One has to wonder if this was done so that Cowichan Tribes would have a stronger hand in the “negotiations” that follow.

COURT RULINGS:
(1) https://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc1660/2016bcsc1660.html
(2) https://www.canlii.org/en/bc/bcsc/doc/2017/2017bcsc1575/2017bcsc1575.html
(3) https://www.canlii.org/en/bc/bcsc/doc/2025/2025bcsc1490/2025bcsc1490.html

OTHER DOCUMENTS:
(1) Cowichan Notice Of Appeal Cowichan Tribes
(2) Cowichan Notice Of Appeal City Of Richmond
(3) Cowichan Notice Of Appeal Musqueam Indian Band
(4) Cowichan Notice Of Appeal Tsawwassen First Nation
(5) Cowichan Notice Of Appeal Vancouver Fraser Port Authority
(6) Cowichan BC Requests Sealing Order Be Maintained

MISCELLANEOUS:
(1) Cowichan Rosenberg Taxes Petition
(2) Cowichan Rosenberg Taxes Response

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Justice For EI Misconduct, Part 1: Court Of Appeal Dismisses Case

The Federal Court of Appeal dismissed an Application for Judicial Review on Wednesday. This challenged the decision of the Social Security Tribunal (S.S.T.) to refuse a man employment insurance (E.I.) for not taking the injections in late 2021.

While the issue of people suing or grieving after losing their jobs has been covered here extensively, E.I., has not been addressed nearly enough.

Until recently, it was normal that a person would be considered “constructively dismissed” if the employer made significant changes, or imposed new conditions. It would be seen as a repudiation of the employment contract. He or she would be able to walk away.

But that effectively ended in 2021. Suddenly, refusing experimental shots was to be viewed as “misconduct” and “insubordination”. The S.S.T. would treat it as such, instead of evaluating cases individually. They realized that the fund could not afford tens (or hundreds) of thousands of people walking away from their jobs, and getting benefits.

Appellate Court Saw Nothing Wrong With S.S.T.’s Reasons

In dismissing the case, the Court of Appeal agreed with the S.S.T. in several areas.

A: Misconduct for purposes of the EI Act does not imply that the conduct in question was the result of wrongful intent; it is sufficient that the misconduct be conscious, deliberate or intentional (paragraph 20 of the Decision).

B: The General Division’s role was to assess (i) whether Mr. Arnold was guilty of misconduct, and (ii) whether that misconduct led to his dismissal (paragraph 21 of the Decision).

C: It was not for the General Division to focus on the conduct of the employer or to consider whether the Vaccination Policy was reasonable or whether the imposition of the Vaccination Policy violated the employment law relationship because those concerns fall outside of EI law; the General Division had to focus on Mr. Arnold’s conduct (paragraphs 34, 36, 37 of the Decision).

D: Any question of accommodation, violation by Purolator of the law or the collective bargaining agreement in imposing the Vaccination Policy, or any violation of Mr. Arnold’s human or constitutional rights, is a question for another forum (paragraphs 38 and 40 of the Decision)

In short, the S.S.T. has no jurisdiction to look at: (a) intent; (b) the employer’s conduct; (c) whether the changes violated the contract; (d) violation of collective bargaining agreements; (e) human rights; or (f) constitutional rights. Any of these should have been sufficient to at least consider whether or not there was justification.

How Does This Case Differ From Other E.I. Ones?

This case went into significantly more detail than similar ones, and raises real questions about fairness, impartiality, and possible corruption. Other former workers just wanted to be compensated.

(a) First, the Applicant alleges that the rules had been altered specifically to make it “misconduct” to refuse an employer’s demand for employee vaccination.

(b) Second, that the decisions had prepared ahead of time with various “templates” depending on which grounds workers cited in refusing the shots.

(c) Third, that it was a “business decision” to mass refuse applications, since the E.I. fund was legally required to be revenue neutral. It simply did not have the funds to pay out anywhere near the full amount of employees.

(d) Fourth, the Applicant went into some of the data about the rates of applying, and getting approved for E.I. in 2021/2022, compared to other years in the same time period.

More to follow in subsequent articles.

Timeline Of Proceedings With Federal Court Of Appeal

There were significant delays in 2024, due largely to the volume to material that had to be prepared, and filed. Being self-represented was another setback.

February 8th, 2024: Notice of Application is filed with the Federal Court of Appeal.

February 19th, 2024: Attorney General’s office files a Notice of Appearance.

March 6th, 2024: Attorney General consented to an extension of time to bring the Application Record. The quantity of material had led to delays.

April 16th, 2024: Justice Monaghan Matter gave an order that an outstanding Affidavit be completed by April 23rd, 2024.

June 24th, 2024: A further extension was granted, to July 25th, but with the instructions that no more extensions would be, absent exceptional circumstances.

May 5th, 2025: The Court rejects some of the Applicant’s papers on procedural grounds.

June 6th, 2025: Applicant send in the Book of Authorities (case law), along with the Record (evidence), finally completed.

January 20th, 2026: Hearing is finally scheduled for February.

February 18th, 2026: Applicant sent a letter to the Court asking that his nephew be allowed to join him as a support person. The request was granted.

Feburary 25th, 2026: Hearing takes place at Federal Court of Appeal.

Feburary 25th, 2026: Without even hearing the Attorney General’s arguments, Justices Locke, LeBlanc and Walker dismiss the Application. It’s done without costs.

While the proceedings took a lot longer than they should have, it was eventually heard. However, the Court apparently was unconcerned with what was being presented.

***Note: There’s a lot more going on than simply 1 person demanding E.I. after being forced out of work. It’s much bigger, and will take several articles to properly cover.

Justice For EI Misconduct Website:
(1) https://blog.justice4eimisconduct.com/

COURT DOCUMENTS:
(1) https://www.canlii.org/en/ca/fca/doc/2026/2026fca41/2026fca41.html

FEDERAL COURTS:
(1) https://www.fct-cf.ca/en/court-files-and-decisions/court-files#cont

RUMBLE:
(1) https://rumble.com/v74raiu-s4t-friday-zoom-jan-23rd-ei-misconduct-case-update.html
(2) https://rumble.com/v76dqbc-s4t-friday-zoom-feb-27-ei-misconduct-ruling.html

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Citizens Alliance Of Nova Scotia (CANS) Files Notice Of Appeal

CANS, the Citizens Alliance of Nova Scotia, has sent in their Notice of Appeal this week. They are contesting the recent ruling, which declared their case to be “moot”. The group filed a challenge back in 2021, and it still hadn’t been heard on the merits.

See Parts 1, 2 and 3 thus far in this case.

Justice John Keith of the Nova Scotia Supreme Court (NSSC) dismissed the case, determining that there is no live controversy to try, and that it would be a waste of time and money to proceed. He ignored pleas to let it play out anyway. This comes months after he refused CANS public interest standing, calling it a “fledgling” organization.

Robert Strang, the “Medical Officer of Health”, imposed some of the harshest restrictions against basic liberties in all of Canada. He even had public gatherings banned, although that was thankfully overturned.

***Note: JM, the minor Applicant, has decided not to participate in the Appeal. Although he is listed as a Respondent, the group is not seeking any remedy against him.

Justice Keith: You Want To Make An Example Of Him?!

At the hearing in December, 2024, Justice Keith accurately addressed the motivation of CANS and their members. Specifically, they do want to make an example of him. Having grossly exceeded his authority, holding him accountably was a main goal. However, he’s still in office, which makes the “mootness” ruling even more convoluted.

Strang abused his power, and as such, he needs to be removed from office.

It was also explained at the hearing that the Applicant and members wanted a ruling on the books. That way, any future attempts to replicate the events of 2020/2021 could be shut down within hours.

Despite these reasons, Justice Keith refused to let the case proceed.

Notice Of Appeal Alleges Serious Errors By Judge

While it is common to tread lightly when appealing a ruling, the Notice from CANS is pretty harsh. It claims that mistakes were made throughout. These included:

  • Misunderstanding the evidence of “bad faith” and ultra vires” that was before him
  • Not properly considering the law in question, the Health Protection Act of 2004
  • Making conclusions that were not based on the evidence before him
  • Regarding the ongoing Application as “academic”
  • Potential bias resulting from assumption of motives
  • Downplaying the severity of the restrictions in place
  • Not understanding “Ultra Vires” completely

Overturning “discretionary” orders is difficult to do, but not impossible. Judges are given wide latitude to act, but theoretically can still be scrutinized.

Probably the most notable line came from Litigation Agent, William Ray. Suppose a bank robber got arrested and went to court. He then argued that he’s not “currently” robbing the bank. Now, should the case therefore be dismissed for mootness? It got laughs at the hearing.

One alternate remedy is either permission to file a Statement of Claim (which might be time barred), or to confirm it’s not necessary. Though that was explicitly written into the “travel mandates” cases, Justice Keith chose not to present such an option here.

More filings are expected in the coming months.

COURT DOCUMENTS (APPEAL):
(1) CANS NSCA Notice Of Appeal Draft Version
(2) CANS NSCA Notice Of Appeal FORMAL Plus Decision

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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Adam Skelly, Part 6: The Final Arguments

It’s been years, but the long overdue challenge from Adam Skelly of the Reopening Ontario Act (R.O.A.) is finally set to be heard at the Ontario Superior Court in Toronto.

Currently, he’s awaiting sentencing on criminal charges that resulted from keeping his restaurant open in late 2020. This was done in defiance of the dictates of Ontario Premier Doug Ford, and Medical Officer of Health, Eileen De Villa. What happens next week in Civil Court will impact that.

If the challenge is upheld, then presumably the criminal charges will be stayed or dismissed.

If this case is thrown out, then sentencing goes ahead

See parts 1, 2, 3, 4 and 5 for background information.

We get to the various Factums, or final arguments of the parties: (a) Skelly; (b) Ontario; and (c) Toronto and Eileen De Villa. While there are plenty of other documents filed, these provide a snapshot of how the case is supposed to play out.

Skelly: Measures Were Heavy-Handed, No Scientific Basis

  • 6 expert witnesses are here to back up his position
  • No evidence that closing restaurants or prohibiting peaceful assembly would have meaningfully reduced COVID-19 transmission
  • City and Province were giving conflicting directions in 2020
  • Police illegally blocked peaceful protests and demonstrations
  • Court shouldn’t “take on faith” that these were necessary
  • No effort made to examine Charter consequences of lockdowns
  • De Villa didn’t actually have the authority to issue trespass order
  • Heavy police presence and fines were designed to “crush”
  • Ad-hoc, or after-the-fact justifications cannot withstand scrutiny
  • It’s not just this case, but a challenge to the R.O.A. itself, passed in 2020

Of course, this isn’t everything, but addresses some of the major points in Skelly’s Factum that are to be brought up at the hearing.

Ontario Wants Case Thrown Out On Procedural Grounds

  • Application amended frequently, and now hard to deal with
  • This is a collateral attack (repeat challenge) to administrative orders
  • Skelly has private standing to bring case, but not public interest standing
  • Skelly is (also) challenging provisions that didn’t apply to him
  • Challenge should have been via Health Services Appeal and Review Board
  • R.O.A. is permitted under broader Quarantine Act (which is Federal)
  • R.O.A was not vague, arbitrary, overbroad or grossly disproportionate
  • No Charter violations for Skelly took place
  • If Skelly’s rights were violated, it was justified under s.1 of the Charter

The arguments from the Ontario Government are an interesting contrast to those of Adam Skelly. Instead of presenting evidence for justification, there are typical grounds raised to dismiss over procedural concerns.

City Of Toronto Raises Similar Objections As Ontario

  • Application is a repeated challenge to settled matters (abuse of process)
  • Judicial Review brought in wrong Court
  • Judicial Review filed too late, and out of time
  • None of this actually violated Skelly’s Charter rights
  • Evidence presented doesn’t establish breaches of most Charter rights
  • If rights were violated, then s.1 justifies it
  • Under existing legal framework, measures were legal and reasonable

Just like with the Provincial counterpart, the City of Toronto and Eileen De Villa largely avoid the case that Skelly has brought. The Factum asks the Court to dismiss for other reasons.

Anyhow, that is how things are shaping up. We have an Applicant with potentially a very strong case, facing Respondents who would prefer to talk about other things. The hearing is to take place over 3 days, and should be interesting.

It would also be nice to finally deal with former counsel, Michael Swinwood. He is almost singlehandedly the reason this case was not heard in 2021.

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 – NEW – Responding Record March 2024
(6) Skelly – Costs – Factum – Moving Party – HMK
(7) Skelly – Costs – Responding Factum Applicants Skelly et al
(8) Skelly – Justice Akazaki Deferral Of Case
(9) Skelly – Transcript De Villa
(10) Skelly – Transcript Hodge
(11) Skelly – Transcript Skelly
(12) Skelly – Factum 2026 Hearing
(13) Skelly – Factum De Villa Toronto
(14) Skelly – Factum Ford Ontario

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 – William Briggs Resume
(5B) Skelly – William Briggs Expert Report
(5C) Skelly – William Briggs Expert Reply Report

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Citizens Alliance Of Nova Scotia (CANS) 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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