Category: Canadian Decisions

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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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Court Of Appeal Overturns Payne, Tosses Case …. On The Spot?

Recently, the Federal Court of Appeal overturned a ruling of the Lower Court, which had permitted an employment case to advance. Just after the new year, Justice Southcott stunned many by allowing a lawsuit brought by Federal workers to proceed. It brought some hope.

The hearing took place on October 23rd, 2025. Normally, the Court of Appeal takes weeks, if not months to hand down a ruling. Very unusually, it issued one the same day. While Justice Southcott was willing to let the case proceed, this Panel wasn’t.

In a short ruling, the Appeal was granted, and the case struck in its entirety.

This was a Proposed Class Action brought by the group Feds4Freedom. It was on behalf of workers who had lost their jobs or otherwise had been punished for refusing the injection mandates back in 2021. Typically, lawsuits brought by Government employees don’t get far at all.

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.

These challenges were based on Sections 208 and 236 of the FPSLRA, or Federal Public Sector Labour Relations Act. Put simply, employees have the right to grieve and to arbitrate, but not to litigate. They have no access to the Courts.

This case was different in that it attacked not the “vaccine passports” themselves, but the way in which they were implemented. There was no meaningful consultation, negotiation, collective bargaining, or accommodation, as mandates were simply imposed. If this sounds like a union argument, it is.

See Parts 1, 2, 3, 4, 5, 6, and 7 in this series on s.2(d) challenges.

There are several Proposed Class Actions at various stages, and they all incorporate some version of Section 2(d), or freedom of association. This is based on the idea that employers and employees have the right to do business as they see fit, without justifiable interference.

The Free2Fly (Hill) case was also brought in Federal Court and survived a preliminary challenge. But the key distinction is that these were airline employees, who were Federally regulated, but not members of the Government. As such, the FPSLRA didn’t apply to them. It was still a s.2(d) case, but based on inducement to breach a contract.

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.

January 13th, 2025: Notice of Appeal is filed.

January 21st, 2025: Notice of Appearance is filed.

February 12th, 2025: Parties file their agreement as to what the contents of the Appeal Book will be. This is a requirement unique to the Federal Court of Appeal.

March 14th, 2025: The Appeal Book is filed.

April 14th, 2025: Appellants file their written arguments.

May 14th, 2025: Respondents file their written arguments.

October 23rd, 2025: Hearing takes place at Federal Court of Appeal

October 23rd, 2025: Panel immediate throws the case out.

This is extremely unusual to get a ruling out the same day. Considering the complexity and nuance of labour law, one would think they’d need more time. Also, this ruling was to overturn that of the Federal Court, not to confirm it.

More bizarrely, this is the same Appellate Court that expanded the relief available in the Adelberg case, previously ruled “bad beyond argument“. They overturned Justice Fothergill, allowing the travel claims to proceed.

Payne Part Of Series Of s.2(d) Challenges In Canada

CASE NAMES Feds4F/BCPSEF Free2Fly/UHCWBC/UHCWO
Government Workers? Yes No
Filed Federally? Feds4F Free2Fly
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

While Payne (Feds4Freedom) could theoretically be overturned by the Supreme Court of Canada, it’s an uphill battle. The Court refuses the vast majority of Applications it receives. On the other hand, the consequences are potentially huge:

If jurisdiction is awarded: it means that Federal workers will have at least an opportunity to sue if the terms of employment are upended, without any negotiation or collective bargaining. There will be some sort of reprieve available.

If jurisdiction is refused: it means the last realistic path for Federal workers to take any type of employment claim litigation would be extinguished. Regardless of circumstances, there will be no option at all for relief.

[14] Therefore, we will allow the appeal with costs here and below, set aside the judgment of the Federal Court, and strike the Claim in its entirety for want of jurisdiction without leave to amend.

And just to twist the knife a little more, the Court of Appeal is permitting costs for this and for the previous decision. “and below” is presumably referring to Justice Southcott’s ruling, which forced everyone to pay their own costs. Good way to deter others from filing.

There has been no announcement yet as to whether or not they will attempt to seek Leave with the S.C.C., but there’s still time to decide.

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Universal Ostrich Farms, Part 9: Closing Off With What Alternative Media Didn’t Report

The saga at Universal Ostrich Farms has come to an end, with the Supreme Court refusing to hear a final Appeal. The birds are now dead, and many people are still angry from it. This will be the last of it, at least here and will attempt to cover some points mostly left out by “alternative” media.

***As an aside, most people didn’t want the birds killed. I didn’t. However, blame for this falls on the owners who turned them into test subjects. And the farm — for lack of a better term — became an open air biolab.

Probably the most shocking is that the owners attempted to cover up dozens of bird deaths, and that it wasn’t their first time doing this. Had a neighbour not reported this, it’s likely that few would ever have known.

See Parts 1, 2, 3, 4, 5, 6, 7 and 8 in the series for more information.

For anyone not too up to date with the story, here are some key events:

  • The CFIA, or Canadian Food Inspection Agency, issued an order at the end on 2024 to cull approximately 400 ostriches (or some amount) from a farm in the Interior B.C. This was on the basis that the ostriches had the “H5N1 virus” based on “PCR testing”.
  • The farmers filed an Application for Judicial Review in Federal Court.
  • The Federal Court granted a temporary stay of the culling until the case was heard.
  • The Federal Court (Justice Zinn) dismissed the Application in May.
  • The Federal Court of Appeal issued another stay in June, until the Appeal was heard.
  • The Appeal was dismissed in August.
  • The Court of Appeal refuses a further stay in September.
  • Following the FCA refusal to issue a further stay, the CFIA moved in (with RCMP protection) and seized control of the farm.
  • September, the Supreme Court has issued a stay of their own, however, the CFIA will retain possession of the farm until the proceedings are concluded.
  • November 6th, SCC refuses to hear the Appeal. The birds are killed that night.

Most of the documents from the Supreme Court are attached below. The arguments seemed to revolve largely around whether there should have been reconsideration.

To clarify, litigants don’t automatically have the right to be heard. They must file an Application for Leave, and persuade the Court their case is worth hearing. Considering that only about 5% to 7% are granted each year, the odds are never good.

FROM CATHY FURNESS’ JUNE 2025 AFFIDAVIT:
(0) UOF APPEAL Responding Motion Record Volume 1
(1) UOF Furness Call Log
(2) UOF Furness Declaration An Infected Place
(3) UOF Furness Exemption Request Documentation
(4) UOF Furness Denial Of Exemption Request
(5) UOF Furness Requirement To Dispose
(6) UOF Furness Notice Of Violation Failure To Report
(7) UOF Furness Notice Of Violation Failure To Comply
(8) UOF Furness Inspection Report
(9) UOF Furness More Inspection Reports
(10) UOF Furness Another Inspection Report
(11) UOF Furness Inspection Report Protestors

1. It Was A Neighbour, Not The Farmers Who Reported

This was from Exhibit “S” of the Furness Affidavit. It was a neighbour, not the farmers themselves who reported that ostriches were dying. This is a serious problem, as owners are expected to report deaths and suspected outbreaks.

2. Bilinski Covered Up Previous Suspected Outbreak

This is from Exhibit “Z” of the Furness Affidavit. On January 2nd, 2025, Bilinski reveals for the first time that there was a suspected outbreak 2 years ago, and some birds had died. He claimed that the survivors had immunity.

3. All But 2 Deceased Were Too Decomposed To Test

This is from Exhibit “T” of the Furness Affidavit. A lot of noise had been made about the CFIA only testing 2 dead birds. But according to their inspection report, only 2 were able to be tested on. The rest were either severely decomposed, or had been attacked by scavengers.

4. No Evidence Brought Forward For Exemption

This is from Exhibit “EE” in the Furness Affidavit. A package was sent to the farmers outlining the information that would be required to support a request for an exemption. Instead, the information they provided to the CFIA more closely resembled a business plan.

5. Farmers Claim Not To Know How Many Birds There Are

This is from Exhibit “G” of the Furness Affidavit. Bilinski and Espersen received a visit on January 20th, 2025. Among other things, they were asked how many birds there were in total. They answered that they didn’t know, and would have to count. This is an issue that would come up repeatedly.

Consider that Espersen and Bilinski claimed to have about 450 birds at one point. And again, they’re not sure. The CFIA only counted 314 when the culling was done. Does this mean that nearly 1/3 died over the last year? Were some sold or otherwise moved off the property?

6. Farmers Fined Twice For Not Following Rules

These are from Exhibits “RR” and “SS” of the Furness Affidavit. The farm was fined twice. The first was for not reporting deaths and a suspected outbreak, and the other was for not following quarantine protocols. Reading the package as a whole, it’s surprising that UOF wasn’t hit with many more tickets. If the CFIA had been vindictive, they very easily could have.

Come to think of it, it’s surprising that the CFIA didn’t just try to seize the farm a lot sooner. From what they describe in their inspections, few, if any health protocols were followed.

7. Decades Of Debt And Foreclosure

This was somewhat addressed in Part 4. The farmers here seem to owe everyone money, so it’s worth wondering if and how that would ever be paid back. It also raises questions about whether creditors could have seized the birds, had their not been killed. After all, they were essentially the only asset. They don’t own the land, so it’s not like that could be sold.

As one example: June 2023, Espersen and Bilinski were ordered to pay $244,323 in a foreclosure done by consent.

(A) 0752063 Bilinski Petition To Court
(B) 0752063 Bilinski Notice Of Application
(C) 0752063 Requisition General
(D) 0752063 Bilinski Consent Order Of Foreclosure

Rocky Mountain Ostrich, Espersen’s former company, was ordered to pay $61,134 in 1996 by the Federal Court. In 2002, another $24,310 was ordered.

When the dust finally settles, will creditors go after the GoFundMe or GiveSendGo accounts? It appears to be the only money they have. This probably isn’t what donors expected.

8. There Never Was A Happy Ending For The Ostriches

While it’s easy to be sympathetic, the reality is those birds were dead anyway. They were effectively a lab experiment, and would have been killed afterwards. Even without all this, apparently is was their practice to kill animals… by Halal methods?

Note: This isn’t my video, but was circulating on X (formerly, Twitter). This is Rick Walker of Maverick News. He gives many good takes on this case.

About Those Claims Evidentiary Review Not Sought…

There have been comments online that efforts should have been made to attempt to introduce new evidence for the Appeal(s). This is worth mentioning.

When the Federal Court of Appeal stayed the culling temporarily, their Order specified that there was not to be any new material sent. Instead, the existing Application Records (evidence) would simply be reused. While the Supreme Court *may* have allowed new evidence, they refused to hear the case anyway.

One has to ask if this farm would have enjoyed anywhere near the support it did, had the media covering it been transparent. Instead of endless stories about heartbreak, it would have been nice (or at least necessary) to get a complete account of how this farm operated.

Finally, there’s that run-in that counsin Danny Bilinski also had with the British Columbia Securities Commission (BCSC) back in 2002. Dan and David tried raising money, but weren’t transparent with investors about ongoing financial problems.

(A) https://www.bcsc.bc.ca/-/media/PWS/Resources/Enforcement/Decisions/2002/2002-BCSECCOM-102.pdf

SUPREME COURT OF CANADA DOCUMENTS (LEAVE TO APPEAL APPLICATION)
(1) UOF SCC Decisions Of FC And FCA
(2) UOF SCC Notice Of Application For Leave To Appeal
(3) UOF SCC Notice Of Name
(4) UOF SCC Application No Prohibition On Publication
(5) UOF SCC Application For Leave To Appeal
(6) UOF SCC Memorandum Arguments For Leave To Appeal
(7) UOF SCC Notification Opposing Leave
(8) UOF SCC Response To Application For Leave
(9) UOF SCC Applicants Reply Memorandum
(10) UOF SCC Applicants Reply

COURT OF APPEAL (CHALLENGING JUSTICE ZINN’S ORDER)
(1) Ostrich APPEAL Notice Of Appeal (May, 2025)
(2) UOF APPEAL Notice Of Appearance (May, 2025)
(3) UOF FCA Appeal Denied (August, 2025)
(4) UOF FCA Motion To Stay Dismissed (September, 2025)

COURT OF APPEAL (MOTION TO STAY CULL ORDER)
(1) UOF APPEAL Motion Record To Stay Culling (June, 2025)
(2) UOF APPEAL Notice Of Motion To Stay Culling (June, 2025)
(3) UOF APPEAL Bilinski Affidavit To Stay Culling (June, 2025)
(4) UOF APPEAL Bilinski Affidavit Exhibit E June, 2025)
(5) UOF APPEAL Espersen Affidavit To Stay Culling (June, 2025)
(6) UOF APPEAL Moving Party Submissions To Stay Culling (June, 2025)
(7) UOF APPEAL Responding Motion Record Volume 1
(8) UOF APPEAL Responding Motion Record Volume 2 (June, 2025)
(9) UOF APPEAL Responding Submissions To Stay Culling (June, 2025)
(10) UOF APPEAL Order Staying Cullings Pending Appeal (June, 2025)

COURT OF APPEAL (JUSTICE BATTISTA STAYING CULL ORDER):
(1) UOF Order To Stay Culling (January, 2025)
(2) UOF Notice Of Appeal (February, 2025)
(3) UOF Notice Of Appearance (February, 2025)
(4) UOF Agreement Appeal Book Contents (March, 2025)
(5) UOF Joint Appeal Book (April, 2025)
(6) UOF Consent To Extend Time (May, 2025)
(7) UOF Notice Of Discontinuance (May, 2025)

FEDERAL COURT DOCUMENTS (CFIA):
(1) Ostrich Notice Of Application Certified (January, 2025)
(2) Ostrich Notice Of Application (January, 2025)
(3) Ostrich Notice Of Motion (January, 2025)
(4) Ostrich Bilinski Affidavit (January, 2025)
(5) Ostrich Espersen Affidavit (January, 2025)
(6) Ostrich Pelech Affidavit (January, 2025)
(7) Ostrich Jones Affidavit (January, 2025)
(8) Ostrich Responding Motion Record (January, 2025)
(9) Ostrich Responding Motion Record Expedited (February, 2025)
(10) Ostrich Motion Record Ex-Parte (February, 2025)
(11) Ostrich Exemption Notice Of Application (February, 2025)
(12) Ostrich Exemption Motion Record (February, 2025)
(13) Ostrich Ruling Of Justice Zinn (May, 2025)

MONEY:
(1) https://bcrising.ca/save-our-ostriches/
(2) https://www.gofundme.com/f/help-ostrich-farmers-fight-to-save-herd-from-avian-flu?attribution_id=sl%3A80e09934-7413-429b-acfb-2f7015cc19d3&lang=en_CA
(3) https://www.givesendgo.com/save-our-ostriches
(4) https://www.kinexus.ca/

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CSASPP Certification Refused, Appeal Being Considered

A long overdue ruling has finally come for the Canadian Society for the Advancement of Science in Public Policy, or CSASPP. This is the Proposed Class Action filed in Vancouver, back in January, 2021.

However, it’s not what many had been hoping for, as certification was refused. Justice Crerar referred to the case as an “abuse of process”.

An obvious question is why it took 2 1/2 years to issue a decision, if the defects were so clear cut. The hearings concluded in April, 2023, and it’s now October, 2025. The case had been under reserve the entire time.

While the Judge seemed disinclined to issue costs over the unsuccessful certification, the Defendants are still able to request them anyway.

The status update on CSASPP’s website goes into detail about issues with the decision. It’s more detailed than here, and worth reading. The update concludes as follows:

“If we are to appeal the ruling, we have 30 days to do so from the date of the ruling. We have not made any decision and will continue to analyze your options. If you would like us to pursue an appeal, you can show your support in donating. As usual, we will continue to keep you apprised in the meantime.”

Here are a few points to consider.

1. Justice Crerar Critical Of Several Versions Of Pleadings

[47] To be fair to the plaintiff, to some extent the factual basis has evolved in real time: as more public health orders were issued, it was not wholly unreasonable for the plaintiff to amend its pleadings to particularise those new orders. Further, the evolving Covid jurisprudence rendered many of the plaintiff’s legal claims and arguments untenable. That said, many of the amendments could have been anticipated and pleaded at an early stage of the litigation. To give two critical and fundamental examples: as discussed below, the plaintiff was in a position to properly identify and define the subclasses at an early stage, and it was always ill-conceived to have the Society serve as the proposed representative plaintiff.

[133] The plaintiff’s constantly moving pleadings target has consumed a grossly disproportionate amount of time of the parties and the Court: it is near-impossible to respond to or adjudicate on a pleading that is so mutable. Such constant amendments constitute in themselves an abuse of process.

The Judge would go on at length how the Notice of Civil Claim had been amended several times. He said there were 8 versions in total. However, he offers a reasonable justification for most of it: Bonnie Henry issued new health orders over time, and older ones became obsolete. As such, changes would be necessary, in order to avoid mootness becoming an issue.

Yes, it was something of a “moving target”, but that was the result of a steady stream of new orders.

The case was filed in January 2021. Travel restrictions within the Province wouldn’t be introduced until April, and terminate in June. Injection passes wouldn’t become a reality until September or October for most people. It’s difficult to litigate issues prior to their existence.

And if having the Society itself was such a problem, it would have been better to know that sooner. Alternatives were offered.

2. Justice Crerar Critical Of Multiple Proceedings

[163] As a further basis for striking the claim as an abuse of process, the plaintiff Society has filed three proceedings against the same defendant—Dr. Bonnie Henry—each concerning various health orders. It is an abuse of process for the plaintiff to bring this action against these defendants when it has already brought other proceedings in relation to the same subject matter (one petition of which has now been dismissed, and the other abandoned).

The Judge would cite 2 Petitions that CSASPP had filed against Bonnie Henry. One was to challenge the limit on public gatherings, and the other was the new injection mandate for health care workers. He had a point in that they did have overlapping issues.

However, these were limited challenges, and ones that couldn’t wait years for the Court to act in the larger case.

And it’s not as if he was efficient in handing down this ruling.

3. Justice Crerar Preferred Petition Over Claim

[195] First, as set out above, the present claim is a thinly-veiled challenge to administrative decisions that would be appropriately brought as a judicial review. In Ernst, the existence of judicial review as a more appropriate remedy to address the essence of the plaintiff’s complaints weighed heavily against the continued survival of a claim based in Charter damages:

[199] Declaratory relief is a more appropriate remedy than Charter damages in a case like this one that deals with broad questions of policy, public health, and medical and epidemiological judgment. Of course, the plaintiff would prefer to avoid that administrative law remedy, as it appropriately requires deference to the expert decision maker entrusted by the legislature with those decisions, as seen in Hoogerbrug and Beaudoin, and many other Covid-related decisions.

A Petition, or Judicial Review, is a limited challenge to existing orders or decisions. Unlike a Civil Claim, this isn’t meant to be broad, or to have much of an evidence gathering process. There’s also no opportunity to pursue a Class Action.

Moreover, there’s typically a high degree of deference given to the “expert decision makers”, which often renders Petitions ineffective.

4. Justice Crerar Takes Shots At CSASPP’s Lawyer

[399] I wish to emphasise that nothing in this section should be read as casting any aspersion on the competence or ethics on plaintiff’s counsel, who has proven herself to be a skilled, eloquent, and zealous advocate in court. The plaintiff’s serial failures to meet court deadlines, and the ever-changing parameters of the proposed class proceeding, from proposed plaintiffs, to claims, to common issues, may well be the fault of the plaintiff Society and its principals rather than her law firm. The point is that a plaintiff and a law firm proposing what will be the largest and most complicated class proceeding in Canadian history must establish a commensurate degree of competence and experience, as exhibited through impeccable prosecution of the claim, to have any hope of certification.

While designed to be tactful, this comes across as insulting. And just because a case is complicated, that’s not grounds to throw it out. Such a suit would be an immense amount of work for a single lawyer, but it’s not as if more couldn’t be retained if certification was successful.

Of course, Bonnie Henry and the Government of British Columbia have an almost inexhaustible supply of money, courtesy of taxpayers. They are forced to contribute to the defence regardless of their views.

5. Alternative Representative Plaintiffs Were Offered

[381] As set out above, Ms Leppky is cited as a representative of the religious subclass: her religious beliefs prohibit her from getting vaccinated, thus affecting her ability to work, and to access various locations. Ms Gauthier is cited as a representative of the proposed medical subclass: her surgery was cancelled, affecting her pain, stress and ability to work. In contrast to the other two, Mr Parihar is not cited as a representative of any of the subclasses, but he presumably represents the vaccination subclass: the FANCC avers that he was unable to attend certain events and locations, and was shunned due to his unvaccinated status.

In the event that the Society itself was considered unsuitable, an alternative was offered that would see 3 individuals become Representative Plaintiffs. That was refused.

Timeline Of Major Events In Case

January, 2021: The case was initially filed in January 2021 as a Proposed Class Action.

March, 2021: The B.C. Government responds to the lawsuit.

June, 2021: Plaintiffs bring their proposal for case management.

July, 2021: Defendants bring their own proposal to manage the case.

September, 2021: Notice of Civil Claim is amended.

December, 2022: Certification hearings start, but take longer than originally anticipated. They were intended to be completed over a single week.

April 2023: Certification hearings resume, taking up another week. The decision is under reserve, meaning it will be issued later. However, Justice Crerar would still make several subsequent requests for submissions based on related cases happening elsewhere.

July, 2023: Ingram, the disaster of a ruling, is brought to Justice Crerar’s attention. This is the Alberta ruling that struck down orders on a technicality (Cabinet interference), but otherwise okayed them in principle.

September, 2023: Bonnie Henry’s lawyer objects to CSASPP filing a Petition against the vaccine passport for health care workers, claiming the existing litigation amounts to a duplication, and hence, abuse of process.

April, 2024: Justice Crerar sends notice that he will likely be issuing a decision on the Certification Application within a month or so. As a result, CSASPP forwards several recent rulings on related issues. But, the ruling is further delayed.

October, 2025: The Certification Application is dismissed.

Will This Ruling Be Appealed?

There’s a 30 day time limit to decide, and there’s no official word yet.

Justice Crerar was extremely critical of CSASPP for unnecessarily delaying the case. He then takes 2 1/2 years to hand down a ruling that should — by his own remarks — have been straightforward. The 144 page ruling is bloated, and could easily have been 30 or 40.

He seemed to imply at paragraph 14 that a Class Action would be less efficient than having Plaintiffs bring individual suits, which of course defies the wisdom of bringing one.

He dwelled about a lawsuit that Kip Warner had been involved with against Google. While minor, it was irrelevant to this case.

The Judge’s preferred avenue — a Petition — wouldn’t address many of the concerns raised in the Claim. Nor would there be an opportunity for any deep dive into the evidence. CSASPP also wouldn’t be able to challenge the declaration of emergency, which started this in the first place.

Interestingly, this proceeding was declared to be an “abuse” of the legal system. However, Action4Canada’s case, the most poorly drafted suit in B.C. history, wasn’t ruled to be one. Neither the Supreme Court, nor the Court of Appeal called it that.

RULING ON CERTIFICATION
(1) https://www.canlii.org/en/bc/bcsc/doc/2025/2025bcsc2051/2025bcsc2051.html
(2) https://www.canlii.org/en/bc/bcsc/doc/2025/2025bcsc2051/2025bcsc2051.pdf

DOCUMENTS AVAILABLE FROM CASE
(A) CSASPP 20210126 Notice of Civil Claim
(B) CSASPP 20210321 Request for Assignment of Judge
(C) CSASPP 20210331 Response to Civil Claim
(D) CSASPP 20210531 Cease and Desist Letter to Regulators
(E) CSASPP 20210621 CSASPPs Case Plan Proposal
(F) CSASPP 20210621 Dr Bonnie Henrys availability requested
(G) CSASPP 20210731 Defendants Case Plan Proposal
(H) CSASPP 20210813 Requisition for JMC for 1 October 2021
(I) CSASPP 20210817 Demand for Particulars
(J) CSASPP 20210821 Plaintiffs Response to Demand for Particulars
(K) CSASPP 20210913 Oral Reasons for Judgment Short Leave Application Seeking Stay
(L) CSASPP 20210915 Amended Notice of Civil Claim
(M) CSASPP 20211025 Affidavit No 2 of CSASPP Executive Director
(N) CSASPP 20211028 Proceedings in Chambers Defendants Application for Further Particulars
(O) CSASPP 20221101 Affidavit No 3 of Redacted Deponent Redacted
(P) CSASPP 20221102 Dr Henry and HMTKs Application Response for Webcast Application
(Q) CSASPP 20221115 Respondents Requisition Seeking 16 Nov 2022 CPC to Be Held by MS Teams

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The Pham Case: NGOs Pushed For Foreign Criminals Having More Rights Than Canadians

A disturbing trend has been in the news lately. Recently, a series of cases were published where foreigners received unusually low sentences for criminal convictions, in order to avoid deportation. Since the 2013 Supreme Court ruling in Pham, there has been a requirement to view “immigration consequences” when handing down punishment.

What’s even more unsettling is how this came to happen. A foreign drug trafficker received a 2 year sentence on a Joint Submission (agreement), but seemed to have realized after the fact that it would mean deportation.

For context: under the rules at the time, non-citizens who received a jail sentence of 2 years (or more) were excluded from many appeal options to avoid deportation. Removal was pretty much automatic. However, those convicted and receiving lesser punishment still had more prospects of staying. This was later reduced to a 6 month limit.

Hoang Anh Pham was sentenced to 2 years in prison for drug possession, for the purposes of trafficking. On Appeal, he asked that it be reduced by a day, to avoid deportation. The Court of Appeal, in a split decision, rejected it. However, the Supreme Court of Canada granted Leave (permission) to hear the case, and then did allow it.

What likely tipped the scales was that several Intervenors (interested parties) made submissions to the Supreme Court of Canada. These were:

  • British Columbia Civil Liberties Association (Charity Page)
  • Canadian Association of Refugee Lawyers
  • Canadian Civil Liberties Association (Charity Page)
  • Canadian Council for Refugees (Charity Page)
  • Criminal Lawyers’ Association of Ontario

Various groups weighed in, asking the the Supreme Court require that Judges take immigration consequences into account when imposing sentences. How does this benefit actual Canadians? How does special consideration for foreign criminals create a better society?

Hoang Anh Pham Previously Convicted For Drug Trafficking

[2] The facts as disclosed at trial were that the appellant was involved in a three-stage marijuana grow operation consisting of 591 plants at various stages of growth. It was estimated that the value of this crop ranged from $461,718 (if sold by the pound) to $738,750 (if sold by the ounce). An additional 28 grams of marijuana was found in two freezer bags in the freezer compartment to the refrigerator on the main floor.

[3] At the subsequent sentencing hearing, the appellant’s prior criminal record was entered as an exhibit. It disclosed that on December 12, 2000 the appellant had been convicted of one count of failing to attend court (section 145(2)(a) of the Criminal Code), one count of trafficking in a scheduled substance (section 5(1) of the CDSA) and one charge of possession of a scheduled substance for the purpose of trafficking (section 5(2) of the CDSA). At that time, the appellant had received a sentence of one day in gaol on the first count and a three month conditional sentence order, concurrent, on each of the other two charges.

[4] At the sentencing hearing in this case, the appellant’s then counsel and Crown counsel urged upon the sentencing judge, by way of joint submission, a sentence of imprisonment for two years. The Crown cited as aggravating factors that the appellant had benefitted financially and that he had not learned his lesson from his previous encounter with the criminal justice system.

From the Alberta Court of Appeal, we can see that Pham was already a convicted drug trafficker when this sentence was handed down.

Prosecutors Complicit With Sentence Reduction

[32] Returning to the case at bar, the appellant has previously been convicted of three offences. In 2000, he was convicted of failing to attend court, trafficking in a scheduled substance, and possession of a scheduled substance for the purposing of trafficking. For the first offence, he was sentenced to one day in jail; he received a three month conditional sentence for the other two charges. Now there is the more recent drug- related conviction, which resulted in the two year prison term he asks us to reduce. Illegal drugs are a tremendous scourge on our society. The appellant’s repeated contribution to the problem, albeit modest in the large scale of things, would normally disqualify him from leniency. However, as the prosecution has consented to this appeal, I would agree to allow it with the caveat that in future cases, this relief will not be there simply for the asking.

In a dissenting opinion with the ABCA, Justice Martin mentioned that the prosecution had consented to the appeal, which would have reduced the sentence. So, even though he was argued that he “clearly hadn’t learned his lesson”, the Crown is still okay with reducing the sentence to help prevent deportation.

1. B.C. Civil Liberties Association

2. The BCCLA submits that failure to consider the immigration consequences of a sentence would deprive the court of information required to properly consider the relevant sentencing factors, and may result in a sentence which unjustly infringes an offender’s rights and freedoms.

3. Immigration consequences must be taken into account by a sentencing judge in order to ensure that the offender is not punished more than necessary. A permanent resident convicted in Canada and sentenced to two years or more is almost certain to face deportation. For many permanent residents, deportation will be the most punitive impact of their sentence. In order to ensure that sentences are consistent with the principles of proportionality and restraint, the BCCLA submits that immigration consequences are relevant personal circumstances which should be taken into account as part of the individualized sentencing assessment.

2. Canadian Council For Refugees

4. Given that a non-citizen who has been convicted of a criminal offence may face removal from Canada, it is the CCR’s submission that the judge imposing the sentence must take into account the impact that the sentence will have on the availability of remedies for the retention of status in Canada. This is based on the following reasoning:

9. Non-citizens whose human rights will be infringed by removal are entitled to have their interests considered by a competent, independent and impartial decision maker prior to removal. A scheme was created for consideration of such interests under the Immigration and Refugee Protection Act (IRPA). Relevant to this appeal, this obligation is met in the equitable appeal which is available to permanent residents and Convention refugees who face removal because of a criminal conviction but who have received a sentence of less than two years.

17. It is submitted therefore that a judge, exercising a judicial discretion in relation to the imposition of an appropriate sentence for a crime committed, ought to take into account the impact that the sentence will have on the availability to a non-citizen of a hearing which is fully in compliance with the principles of fundamental justice under s. 7 of the Charter in relation to that person’s status in Canada.

Of course, these aren’t anywhere near all of the filed documents. However, they do illustrate what the main concerns being raised are.

The Supreme Court also has the video of the hearing posted on its website, even years later. It’s worth a watch.

51:30: Canadian Association of Refugee Lawyers begins, and brings up the possible ineffective assistance of counsel argument.
1:02:00: Criminal Lawyers Association of Ontario begins.
1:08:00: British Columbia Civil Liberties Association begins.
1:13:41: Canadian Council for Refugees begins.
1:19:15: Canadian Civil Liberties Association begins.
1:38:30: Respondent (Government) begins.

While the Government (initially) asked that the case be remitted back to the Court of Appeal, at the hearing, they simply consented to the Appeal being allowed.

This should make Canadians’ blood boil. Registered “charities” are getting significant tax breaks while they try to implement caselaw to give preferential treatment to foreign criminals.

Conservative Bill A Trojan Horse?

At the risk of jumping to conclusions, consider a recent video from Michelle Rempel-Garner. She proposes a Private Member’s Bill to amended the Criminal Code. In her words, Judges “should not” be able to take immigration status into account. It’s at the 2:00 mark.

Should not?

How about cannot? Or must not? Or are prohibited from?

While this may come across as pedantic, this choice of wording would allow Judges to retain discretion as to whether or not they consider immigration status. There would merely be a recommendation against doing so, not an outright ban.

Does she not realize that every lawyer with a foreign convicted criminal for a client will be arguing that their case is exceptional?

We’ll have to see what happens.

COURT RULINGS:
(1) https://www.canlii.org/en/ab/abca/doc/2012/2012abca203/2012abca203.html
(2) https://www.canlii.org/en/ca/scc-l/doc/2012/2012canlii68768/2012canlii68768.html
(3) https://www.canlii.org/en/ca/scc/doc/2013/2013scc15/2013scc15.html

SUPREME COURT OF CANADA:
(1) https://www.scc-csc.ca/cases-dossiers/search-recherche/34897/
(2) Pham Factum Appellants Factum
(3) Pham Factum Respondents
(4) Pham Factum Appellants Reply
(5) Pham Factum BC Civil Liberties Association
(6) Pham Factum Canadian Association Of Refugee Lawyers
(7) Pham Factum Canadian Civil Liberties Association
(8) Pham Factum Canadian Council For Refugees
(9) Pham Factum Criminal Lawyers Association Of Ontario

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The Hartman Appeal, Part 1: Looking At The Notice

The Court of Appeal for Ontario will review the case of Dan Hartman, either late this year, or early next year. Back in March, the Ontario Superior Court struck the case without an opportunity to amend the pleadings.

This is a wrongful death suit filed after his son, Sean, passed away shortly after taking the injections. A similar one was filed against Pfizer.

Although there is considerable overlap in the facts pleaded, the case is argued 2 ways:

  1. Malfeasance of public office
  2. Negligence

The first tort implies intentional, while negligence implies carelessness.

However, Justice Antoniani threw the case out completely, despite offers to expand the pleadings. It was ruled that the proposed amendments — while they added more information — it wouldn’t help. The necessary elements for malfeasance weren’t pleaded. Nor was there “sufficient proximity” to establish a private law duty of care.

The Appeal seeks to overturn this ruling.

Malfeasance Of Public Office Explained

The Statement of Claim argues that the Defendants acted with “reckless indifference or willful blindness” when they pushed the vaccines on Canadians.

56. As a department, Health Canada is responsible for administering acts and regulations, and for implemening government-wide regulatory initatives. Health Canada was responsible for discharging the operational role of regulatory approval, monitoring, and compliance of Covid-19 vaccinations for use in Canada.

57. The Plaintiff pleads that Health Canada was recklessly indifferent or willfully blind in discharging its responsibilities of regulatory approval and oversight of the Pfizer-BioNTech COVID- 19 vaccination by, inter alia:

Starting on paragraph 61, it’s specified:

  • Issuing a certificate of compliance to Pfizer
  • Failing maintain oversight and control over Health Canda in relation to their regulatory responsibility for oversight, monitoring, evaluation, and assessment
  • Representing to Canadians in public statements and press releases that the Covid-19 vaccination was safe and effective, despite the Minister and Minister’s Department of Health possessing data to the contrary
  • Failing to revoke the certificate of compliance issued

However, the Judge gave an interesting take on the malfeasance claims, stating that the following details were required:

[81] To prove misfeasance in public office, the Plaintiff must show:
a) Deliberate, unlawful conduct in the exercise of public functions;
b) Awareness that the conduct is unlawful and likely to injure the Plaintiff’s son;
c) Harm;
d) A legal causal link between the tortious conduct and the harm suffered; and
e) An injury that is compensable in tort law.

Presumably, the Defendants know few, if any of the people who were harmed by these injections. This seems unreasonably narrow in scope.

Negligence Claim Explained: No Private Duty Of Care

While arguing intent can be tricky, the Statement of Claim also pushed variations of “negligence” as alternative torts.

77. The Plaintiff pleads that the Defendants breached the standard of care and negligently misrepresented the safety of the vaccine and did not disclose the risks associated with the vaccine which include but not limited to myocarditis and pericarditis. The particulars include:
.
(a) Failed to disclose that individuals under 40 had an increased risk of myocarditis after receiving the mRNA COVID-19 vaccine;
(b) Failed to disclose that rates of myocarditis were higher in adolescent males;
(c) Inadequate testing was performed to ensure the safety and efficacy of the vaccine;
(d) The Defendants failed to complete post market surveillance and inform the public of the results;
(e) The Defendants failed to accurately, candidly, promptly and truthfully disclose the issues with the COVID-19 vaccine;
(f) The Defendants failed to identify, implement, and verify that the procedures in place to address post market surveillance risks were in place to address issues, complaints, and timely notification of concerns; and,
(g) The Defendant failed to change the public recommendations of the COVID-19 vaccine being that it was safe and effective.

The Judge ruled that the duties of the Defendants are to the public at large, and not to individual members of the public. But really, who is the public, if not a collection of individuals?

[91] The necessary elements to ground an action in negligence are not present. The duties of the Defendants under the legislative scheme are to the Canadian public. Sufficient proximity is not established and there is no private law duty of care. Other policy considerations militate against finding such a duty. As such, it is plain and obvious that the claim cannot succeed.

One would think that when public officials make decisions, especially coercive ones, that there would be some duty of care to the people impacted. But it seems not.

Looking At The Notice Of Appeal

The Notice of Appeal alleges a number of serious errors made. Keep in mind, at this stage, the Court is to assume that all facts pleaded are true, or capable or being proven.

  • The misapplied the “plain and obvious” test applicable on a motion to strike. In particular, the judge failed to read the pleading generously and assume the facts pleaded to be true, as required.
  • The Appellant submits that this analysis was flawed. The Statement of Claim pleaded that the Respondents knew of specific risks (e.g. heightened myocarditis risk in adolescent males) and nonetheless targeted the youth population (including Sean) with assurances of safety. Facts, if proven, could establish a relationship of proximity despite the broad public context.
  • Misfeasance in public office is an intentional tort aimed at wrongful exercises of public power by officials who either intend to harm or act with knowledge that they are exceeding their lawful authority and that their conduct will likely harm the plaintiff.
  • On a Rule 21 motion, the court must assume the truth of the facts pleaded. Here, the facts pleaded (e.g. that the Minister knew of specific dangers and knowingly misled the public or ignored legal duties) should have been taken as true for the purposes of the motion. If so assumed, the misfeasance claim is legally tenable.
  • Error in Denying Leave to Amend the Pleading: The judge erred in law by denying the Appellant leave to amend the Statement of Claim.

What will happen at the Court of Appeal? It’s unclear, but there’s a chance to get this claim restored.

***Note: follow-up both with this case, and with Pfizer, are coming. This isn’t anywhere near the complete record as far as the documents go.

AGC COURT DOCUMENTS:
(1) Hartman AGC Statement Of Claim (September, 2023)
(2) Hartman AGC Reasons For Decision (March, 2025)
(3) Hartman AGC Notice Of Appeal (April, 2025)

PFIZER COURT DOCUMENTS:
(1) Hartman Pfizer Statement Of Claim (September, 2023)
(2) Hartman Pfizer Fresh As Amended Statement Of Claim (March, 2025)

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