Category: Canadian Decisions

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Appeal Of “Bad Beyond Argument” Federal Ruling Accuses Judge Of Bias

It’s probably not a good idea to throw the term “bias” around like this.

Readers of this site will likely remember the February 21, 2023 Ruling in the Federal Court that was covered here. This was a challenge to the Fall 2021 dictate for vaccine passports at the Federal level, launched by Toronto lawyer Rocco Galati. A case involving some 600 Plaintiffs was struck in its entirety as being “bad beyond argument”, among other issues. Justice Simon Fothergill was extremely critical of the case.

That February Decision is now being appealed.

To understand the Appeal, here is a brief review of what happened:

Approximately 2/3 of the Plaintiffs were permanently barred from using the Court as a remedy. As members of the Federal Government, Section 236 of the FPSLRA, or Federal Public Sector Labour Relations Act, requires that they seek alternate remedies for employment matters.

The other 1/3 of the Plaintiffs were allowed to file an amended lawsuit, but with other restrictions. These were either members of Crown Corporations, or employees of Federally regulated industries.

There was also the problem that the wrong paperwork had been filed. When challenging a Decision from a Federal Board, Commission or Tribunal, Sections 18(1) and (3) of the Federal Courts Act require that a Notice of Application be filed, and not a Statement of Claim.

Extraordinary remedies, federal tribunals
18 (1) Subject to section 28, the Federal Court has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.

Remedies to be obtained on application
(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.

As was mentioned during the January 2023 hearing, if all that the Plaintiffs were seeking was damages, then a Statement of Claim was fine.

The Decision referenced the specific portions of the Federal Court Rules that were not followed. The Rules outline the basics of how pleadings are supposed to be drafted. These were the most notable errors here as well.

173 (1) Pleadings shall be divided into consecutively numbered paragraphs.
Allegations set out separately
(2) Every allegation in a pleading shall, as far as is practicable, be set out in a separate paragraph.

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

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

By “particulars”, this really means “specifics”. When pleading a document, the person must give enough specific and detailed information so that the other side is able to address the allegations.

This is very common with Galati: he makes plenty of accusations, but doesn’t plead any factual basis. Consequently, the Defendants are often left with so little information that they can’t respond meaningfully. This is partly why so many of his cases get thrown out.

Simply stating: “and the fact is” doesn’t make something a fact.

As outlined in the original critique, this suit failed to meet even the bare minimum standards of drafting as set out by the Federal Courts Rules. Justice Fothergill apparently didn’t find it worthwhile to go through it point by point to outline the deficiencies. This has been extensively detailed by Justice Ross in Vancouver, for the Action4Canada case, and the parallels are striking.

Pleadings in the Courts of British Columbia and Ontario were plagued by the same deficiencies. Regardless of jurisdiction, there are minimum levels of organization and quality that have to be followed.

Anyhow, the Federal Decision has been appealed, and is it ever interesting. The Notice of Appeal makes a number of statements that appear to accuse (or at least imply) that Justice Fothergill sabotaged the case intentionally.

This is not a wise thing to do without evidence.

(a) It’s alleged that Justice Fothergill “blatantly ignored” Plaintiffs’ submissions regarding the standards which employment terms could be reviewed by a Court.

(b) It’s alleged that he “biasedly ignored” and “refused to address” submissions regarding the tort of public malfeasance, with respect to collective bargaining.

(c) It’s alleged that the finding of “deficient” and “bad beyond argument” was blindly applied from an unrelated case, and was completely inappropriate.

(d) It’s alleged that there was “clear (reasonable apprehension of) bias”. Really, it’s a repeat of the bias accusation, but is worded in a way to water it down.

It’s unclear who actually wrote the Notice of Appeal, but it’s already off to a bad start. Accusing a Federal Judge of bias and ignoring his responsibilities is not going to sit well. There has to be something pretty damning for this to hold water.

Granted, the Action4Canada Appeal of September 2022 is baseless, and doomed to fail, but at least BCSC Justice Alan Ross never received that kind of backlash.

The Notice of Appeal doesn’t specify what Justice Fothergill’s bias supposedly is. Is this to imply that he has certain personal views that are not appropriate? Should we interpret this to mean that he threw the case intentionally, and that the outcome was rigged?

This suggestion has been made before.

This also isn’t the only time Galati has recently claimed (or at least implied) that a Judge ruling in one of his cases was biased. Supposedly, Justice Elizabeth Stewart appeared biased when she dismissed Kulvinder Gill’s and Ashvinder Lamba’s defamation case as a SLAPP. This of course is a strategic lawsuit against public participation.

Clearly, we’ll have to wait and see what other documents are coming for the Federal Appeal. However, this is a dangerous path to take, and can have professional consequences.

A source told this site claimed that Galati and his staff are already soliciting more money for this “unexpected” trip to the Federal Court of Appeals. Apparently, they are at least mentally preparing to attempt to get into the Supreme Court of Canada.

It’s estimated that $400 to $700 more will be sought from each of the 600+ Plaintiffs. In total, that could bring in close to half a million more. The stated reason is that the $1,000 retainer was set aside for Trial.

This seems plausible, especially in light of the fact that Action4Canada is also asking for money, despite their case being “fully funded”.

Could the Federal ruling be successfully appealed? It seems doubtful. While a competent attorney might be able to make the case that malfeasance is grounds to bypass Section 236 FPSLRA, the entire Claim needs to be rewritten.

And this copy/pasting of pleadings from case to case deprives clients of the services that they’re paying for.

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

FEDERAL VAXX PASS CHALLENGE
(1) https://policeonguard.ca/wp-content/uploads/2022/06/Filed-SOC.pdf
(2) Federal Court Vaccine Mandate Challenge
(3) Federal Vaccine Passport Challenge Retainer Agreement
(4) Federal Court Vaccine Mandate Challenge Motion To Strike
(5) Federal Court Vaccine Mandate Challenge Affidavit Of Service
(6) Federal Court Vaccine Mandate Challenge Responding Motion Record
(7) Federal Court Of Canada Rules
(8) https://www.laws-lois.justice.gc.ca/eng/acts/F-7/page-3.html#docCont
(9) https://www.laws-lois.justice.gc.ca/eng/acts/P-33.3/page-13.html#h-406405
(10) https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/522970/index.do
(11) T-1089-22 Federal Court Decision On Motion To Strike
(12) https://www.canlii.org/en/ca/fct/doc/2023/2023fc252/2023fc252.html
(13) https://canucklaw.ca/wp-content/uploads/Federal-Vaccine-Passport-Challenge-Retainer.pdf

ACTION4CANADA COURT DOCUMENTS:
(1) A4C Notice of Civil Claim
(2) A4C Response October 14
(3) A4C Legal Action Update, October 14th 2021 Action4Canada
(4) A4C Notice of Application January 12
(5) A4C Notice of Application January 17
(6) A4C Affidavit Of Rebecca Hill
(7) A4C Response VIH-Providence January 17
(8) A4C Response to Application BC Ferries January 19
(9) https://action4canada.com/wp-content/uploads/Application-Record-VLC-S-S217586.pdf
(10) https://drive.google.com/file/d/1BfS_MyxA9J11WeYZmk8256G7GsWEFZ62/view
(11) https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1507/2022bcsc1507.html
(12) A4C Notice of Discontinuance Federico Fuoco Fire Productions
(13) A4C Notice of Discontinuance Amy Muranetz
(14) A4C Notice Of Appeal September 28 2022

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Chief Justice Hinkson, The Vancouver Foundation, And Many Unanswered Questions

It was recently revealed that the Justice who presided over several anti-lockdown cases in British Columbia runs a group called the Vancouver Foundation. Looking into the details of this charity a bit more, this creates — at a minimum — the appearance of a potential conflict of interest. (See archive.)

The group describes itself in this way:

“Vancouver Foundation grants to hundreds of charities and non-profits in BC every year. Our vision is to create healthy, vibrant, and livable communities, and we focus on supporting projects that address the root causes of important issues. Our funding comes from generous gifts from the community, as well as from managing endowment funds for people, charities, and businesses.”

The Vancouver Foundation is involved in many different areas, and has undoubtedly has done a lot of good work. However, some things need to be questioned.

Anyhow, this is quite the rabbit hole, so let’s jump in.

The Vancouver Foundation Act is what governs the organization. This isn’t a traditional group, but one that was created in 1943 by an Act of Parliament.

Board of directors
5 (1) The board of directors of the foundation is to consist of at least 10 and not more than 18 persons, with the directors determining the number of directors from time to time in the bylaws of the foundation.
(1.1) If the number of directors is below the minimum number set out in subsection (1) or in the bylaws, as applicable, the board continues to have the authority to carry out its duties and exercise its powers until all vacancies are filled.
(1.2) Subject to section 6, the board consists of the following members:
(a) the Chief Justice of the Supreme Court of British Columbia or, if applicable, the judge appointed by the Chief Justice under that section;
(b) a member of the Law Society of British Columbia who has been nominated by the Law Society of British Columbia in accordance with the bylaws of the foundation and whose nomination has been accepted by the board;

Chief Justice Christopher Hinkson is a Director at the Vancouver Foundation, by virtue of his position on the Court. Far from being just a name on paper, he’s prominently listed as a Director (see margin on page 3). He also made the following rulings:

COURT CASES PRESIDED OVER BY CHIEF JUSTICE HINKSON

(A) Kassian v. British Columbia, 2022 BCSC 1603
(Refusal for exemption to vaccine passport)
https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1603/2022bcsc1603.html

(B) Eliason v. British Columbia (Attorney General), 2022 BCSC 1604
(Refusal for charter rights to travel, s.6 of Charter)
https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1604/2022bcsc1604.html

(C) Maddock v. British Columbia, 2022 BCSC 1605
(Refusal for compensation due to injury)
https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1605/2022bcsc1605.html

(D) CSASPP v. British Columbia, 2022 BCSC 1606
(Refusal to allow health care workers to opt out)
https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1606/2022bcsc1606.html

(E) Beaudoin v. British Columbia, 2021 BCSC 248, BCSC 248
(Refusal to allow a church to remain open)
https://www.canlii.org/en/bc/bcsc/doc/2021/2021bcsc512/2021bcsc512.html

True, one might get the impression that he simply called these cases as he saw fit. But there is more to things than meet the eye.

Kate Hammer is the Vice President for Engagement, was previously a Senior Policy Advisor for the Minister of Education (Ontario), and also worked in the Office of the Premier under Kathleen Wynne. Sure, that’s Ontario, but people in political circles have very deep networks of connections, and it’s rarely limited to a region. (See archive.)

She’s also now lobbying the B.C Government on behalf of the Vancouver Foundation. Things get even more convoluted. Why? Because the B.C. Lobbying Registry shows exactly what subject matters are being discussed.

The Vancouver Foundation is trying to get more access and influence from the B.C. Government. This can cause a problem.

  • Activities to support an amendment to Vancouver Foundation Act related to definition of “reserve amount”
  • Vancouver Foundation seeks to discuss with the BC Government options and opportunities for ensuring legislation and regulations related to lobbyists transparency do not limit charities and non-profits from participating in vital conversations about government policies and priorities.
  • Vancouver Foundation seeks to discuss with the BC Government options and opportunities for the charitable sector to play a key role in pandemic recovery
  • Vancouver Foundation seeks to discuss with the BC Government options for expanding the Unclaimed Property Act’s ability to use dormant assets to boost investment in community initiatives and organizations.

Let’s think about this one. Chief Justice Hinkson, a Director at the Vancouver Foundation, is making key Court rulings relating to “pandemic measures”. Meanwhile, his organization is lobbying the B.C. Government for greater influence in exactly those areas.

And what taxpayer sources is the Vancouver Foundation getting money from?

SOURCE DATE AMOUNT
Provincial Employees Community Services Fund 2022-09-08 $68.00
City of Surrey 2022-08-26 $3,000.00
City of Surrey 2022-06-22 $48.13
Advanced Education and Skills Training 2022-04-07 $250,000.00
Children and Family Development 2022-04-05 $2,760,000.00
Social Development and Poverty Reduction 2022-04-01 $1,350,000.00
Social Development and Poverty Reduction 2022-04-01 $30,000,000.00
Canada Cultural Investment Fund 2022-03-21 $1,005,258.00
City of Vancouver 2022-03-11 $45,000.00
Forests, Lands, Natural Resource Operations, and Rural Development 2022-02-24 $5,000,000.00
City of Surrey 2020-10-08 $45.00
BC Arts Council 2020-04-02 $200,000.00
Social Development and Poverty Reduction 2020-04-02 $590,000.00
Advanced Education, Skills and Training 2020-03-31 $250,000.00
Canada Cultural Investment Fund 2020-03-16 $955,718.00
Provincial Employees Community Services Fund 2020-03-13 to 2020-09-10 $59.80
City of Vancouver 2020-03-13 $22,500.00

The Vancouver Foundation has received several millions of taxpayer money in the last few years.

Glenn Wald gets an honourable mention. He was the Director of Communications at Vancouver Foundation from November 2017 until October 2022. He has also been involved with both the Federal and British Columbia Governments. (See archive.)

Joe Gallagher, Vice President Indigenous Health & Cultural Safety at Provincial Health Services Authority, is also worth listing. He was a Board Member at the Vancouver Foundation until July 2022, so very recent. (See archive.)

Dara Parker is formerly a Program Manager for the United Nations Association in Canada, and an advisor for the U.N. Human Resettlements Programme. (See archive.)

As covered previously, the B.C. Centre for Disease Control (BCCDC) Foundation is in fact a registered charity that contributes substantial amounts annually to up to 4 “qualified donees”. These are:

  • B.C. Centre for Disease Control
  • Community-Based Research Centre Society (also a charity)
  • Provincial Health Services Authority (also a charity)
  • University of British Columbia (also a charity)

The BCCDC Foundation used to have a scroller to cycle through their major donor list. It’s since been removed, but thankfully saved in an earlier article:

The BCCDC Foundation proudly lists the Vancouver Foundation as a donor, as well as companies like Pfizer. The BCCDC-F also admits that a significant portion of its funding comes from pharmaceutical companies. Is it any wonder why the B.C. Government is so pro-pharma?

In terms of following the money, the next sections are from CSASPP’s March 12, 2023 summary for the Vancouver Foundation’s financials. As a registered charity, it’s required to disclose a fair amount of information publicly. Rather than reinvent the wheel, here are the highlights:

Based on the T3010 Registered Charity Information Return filed with the Canada Revenue Agency, several years of reporting periods are available. The records are copious with thousands of donees. We will save you the trouble of sifting through them. The following is a summary of our provisional material findings.

In fiscal year 2021 the Vancouver Foundation donated to the Public Health Association of British Columbia $193,072 and to Fraser Health Authority $93,434. The year prior of 2020 Vancouver Coastal Health Authority received $100,000 from the Foundation. A charity setup by the British Columbia Centre for Disease Control to receive donations, the BCCDC Foundation for Population and Public Health, received $13,000.

During the onset to the alleged pandemic in 2019, many of you will recall the traditional intellectual safeguards were largely mute. The British Columbia Civil Liberties Association received $151,718.

Other recipients during that fiscal year include the BCCDC’s Foundation at $57,667, Fraser Health Authority at $41,055, the Registered Nurses Foundation of BC at $4,276, and a charity setup by the Canadian Broadcasting Corporation at a $1,000.

The previous fiscal year of 2018 the BCCDC Foundation again received $57,667, Fraser Health Authority $41,472, the BC Civil Liberties Association $36,104, and the CBC’s charity $1,000.

From the voluminous records we were able to analyze in the time invested, this is where money directly went. The question of where money went after the Vancouver Foundation donated it to the BCCDC Foundation is also worth commenting on.

Unlike the Vancouver Foundation, the BCCDC’s Foundation does not donate to thousands of donees. Based on its own T3010 filing, from fiscal years 2017 to 2021, it donates to only one to four donees a year. A sophisticated organization, such as the Vancouver Foundation, cannot reasonably be said to not know where the aforementioned benefactor receiving a donation would subsequently direct it to.

In every filing we uncovered problematic benefactors. In fiscal year 2021 the BCCDC Foundation donated to the Provincial Health Services Authority $140,247. The year prior of 2020 an amount of $487,689 was donated to the PHSA. In 2019 they received $588,553. In 2018 they received $290,267. In 2017 they received $426,016. The BCCDC Foundation then in 2017 donated to the BCCDC itself $15,300.

Recall that the PHSA is Dr. Henry’s employer, a defendant named in all of our litigation – including the petition in which the Chief Justice presided over. It is impossible for any reasonable person to characterize the movement of substantial sums of money in this manner under the direction of the Chief Justice as, at the very least, not carrying the perception of a conflict of interest.

What is the result of all of this? We get a situation where there really is no separation between the judiciary, the legislature, and N.G.O.s with financial interests. Everything seems to blend together.

Was there anything to those anti-lockdown rulings in B.C.? Impossible to say for sure, but the connections of the Vancouver Foundation do raise a lot of questions.

SOURCES:
(1) https://www.vancouverfoundation.ca/detail/chief-justice-christopher-hinkson/
(2) https://archive.is/wPjZm
(3) https://www.bclaws.gov.bc.ca/civix/document/id/lc/psl/00032_01
(4) https://www.vancouverfoundation.ca/about-us/our-people/our-team/
(5) http://2007.vancouverfoundationvitalsigns.ca/sites/default/files/publications/VF_Magazine_2020_web.pdf
(6) https://www.lobbyistsregistrar.bc.ca/app/secure/orl/lrs/do/vwRg?cno=3770&regId=56555677
(7) https://www.lobbyistsregistrar.bc.ca/app/secure/orl/lrs/do/reports/funding/received?cocId=3770&regId=56555677&extnl=true
(8) https://www.lobbyistsregistrar.bc.ca/app/secure/orl/lrs/do/vwRg?cno=3770&regId=56567332
(9) https://www.linkedin.com/in/kate-hammer-5226a6a6
(10) https://archive.is/9RHmI
(11) https://www.linkedin.com/in/daraparker/details/experience/
(12) https://archive.is/cNFEY
(13) https://www.linkedin.com/in/glennewald/details/experience/
(14) https://archive.is/QFi7M
(15) https://www.linkedin.com/in/joe-gallagher-1730a0b3/
(16) https://archive.is/SL24p
(17) https://www.covidconstitutionalchallengebc.ca/status-updates

(A) BCCDC Foundation Charity Page
(B) University Of British Columbia Charity Page
(C) Provincial Health Services Authority Charity Page
(D) Community-Based Research Centre Society Charity Page
(E) Vancouver Foundation Charity Page

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Action4Canada Roasted By B.C. Law Society Over Horrendous Galati Filing

The Law Society of British Columbia is the organization that’s responsible for licensing lawyers in that Province. Unsurprisingly, lawyers are expected to have a certain level of competence in order to practice. This is to ensure that members of the public don’t end up with a complete moron representing them, costing lots of money.

In any event, the “Professional Legal Training Course 2023” is now available online. This is aimed primarily at articling students who want to take the last steps to be licensed.

The course is explained as follows:

“The Law Society’s PLTC has earned international recognition and has served as a model for Bar admission programs all over the world. It emphasizes practical skills training, ethics, practice management and practice and procedure to help new lawyers bridge the gap between law school and practice.”

“PLTC is a full-time, 10-week course. Classes are held three times a year at the Law Society offices in Vancouver, and once a year at Camosun College in Victoria and at Thompson Rivers University in Kamloops. Classes are taught by full-time faculty with many years of teaching and practice experience and by practising lawyers who volunteer to share their expertise.”

Makes sense. Prospective lawyers need to prove a high degree of skill. Now, here’s where things really start to get interesting.

On page #15, (or the 27th page of the pdf), we see a new entry:

Action4Canada

Yes, that infamous dumpster fire that was struck by Justice Alan Ross is now being used as a “teaching exercise” by the Law Society of B.C. to demonstrate how pleadings shouldn’t be done.

If pleadings are inadequate the matter will typically not get as far as trial. In a recent example of wholly inadequate pleadings the plaintiff filed a 391-page notice of civil claim that was struck (see §2.06(3) below on striking pleadings) as being “prolix” and “bad beyond argument.” In Action4Canada v. British Columbia (Attorney General), 2022 BCSC 1507, the plaintiffs sued a host of politicians and crown corporations over pandemic-related measures they said were not based in science, exceeded the defendants’ authority, and breached Charter rights. The notice of civil claim was struck in its entirety. The judge said (at para. 51) it is counsel’s job to draft pleadings that do not offend the Rules. The judge also said the claim was too prolix for the defendants to be able to respond, and it was not the court’s job to interpret the claim:

To put those points another way, I have indicated above that the prolix nature of the NOCC makes it impossible for the defendants to respond to it. For the same reason, I am not able to parse the 391 pages of the improperly drafted NOCC and indicate whether paragraphs, categories or claims should remain in, or should be struck. That is not the proper role of this court. It is counsel’s obligation to draft pleadings that do not offend the mandatory requirements of the Rules.

It turns out that the NOCC (Notice of Civil Claim) from Action4Canada was so inadequate that it never stood a chance of going to Trial. If only someone could have warned Tanya about that either in advance, or shortly after the fact. It was pretty obvious.

And what were the thanks received? A $7,000,000 defamation lawsuit.

Have to wonder if the Law Society of B.C. will now be sued as well for publishing Action4Canada’s decision in their training manual. After all, Galati sued the Law Society of Ontario for $500,000 for daring to forward complaints by the public to him for comment.

Why are all the topics mandatory?
.
When you are licensed to practise law in British Columbia, you are licensed as both a barrister and solicitor and permitted to practise in any area of the law. PLTC has therefore identified core practice areas that represent typical areas of practice for articled students and newly called lawyers. By requiring you to demonstrate entry-level competence in each of these practice areas, PLTC supports the Law Society’s mandate to set standards for lawyers and to protect the public interest.

Unsurprisingly, there is an FAQ section. It’s explained that it’s in the public interest to ensure that licensed lawyers have a basic level of competence in certain areas.

Keep in mind, this is geared towards new lawyers. Constitutional lawyers with decades of experience should probably have a handle on this sort of thing already.

And again, the Action4Canada case is being used as an example of what not to do, as it’s liable to waste large amounts of time and money, by getting it struck.

The B.C. Law Society also publishes a practice manual specifically for civil, and it’s quite informative. On page #13, (or the 25th page of the pdf), we get to the sections on pleading documents.

The fundamental purpose of pleadings is to define the issues to be tried with clarity and precision, to give the opposing parties fair notice of the case to be met, and to enable all parties to take effective steps for pre-trial preparation: Mayer v. Mayer, 2012 BCCA 77 at para. 215.

Proper Pleadings are Good Advocacy
In practice, pleading the case properly is critical. Pleadings come at an early stage of the litigation, often before all the facts are known. Some counsel fail to craft pleadings carefully, perhaps expecting to clean them up later, if necessary, through amendments. This is poor practice: pleadings are the foundation upon which a case is constructed. If you take care and exercise diligence in framing the pleadings, the rest of the case will fall into line. The pleadings also determine what is relevant at the discovery stage, so proper pleadings will ensure relevant documents are produced and examinations for discovery canvas relevant issues.

And this last part sums up the Action4Canada case well.

Good pleading will not, in my opinion, give a litigant with a bad case a victory. But bad pleading
may very well deprive a litigant with a good case of a victory that ought to be his.

This perfectly outlines what happened with the NOCC. While there certainly were valid causes of action, the NOCC was drafted so poorly that the entire document had to be struck out. While a rewrite was allowed, this was a huge waste of time and money.

And once again: these documents from the B.C. Law Society are aimed at prospective lawyers. This is designed for newbies. And the Action4Canada case is now teaching material for what not to do.

Action4Canada’s suit was struck in its entirety on August 29, 2022, for the reasons mentioned earlier. Instead of simply doing the Claim properly, it was appealed instead.

It would be interesting to see the Professional Legal Training Course in a few years. Perhaps it will updated again to include Action4Canada in how not to appeal a case. See critique.

Although their case is “fully funded”, Action4Canada is once again asking for money. Apparently, the extra costs of filing an appeal weren’t factored in. Despite promises to submit an amended Claim, it hasn’t happened in over 6 months.

Remember to donate, suckers!

LAW SOCIETY OF BC:
(1) https://www.lawsociety.bc.ca/Website/media/Shared/docs/becoming/material/civil.pdf
(2) https://www.lawsociety.bc.ca/becoming-a-lawyer-in-bc/admission-program/professional-legal-training-course/
(3) https://www.lawsociety.bc.ca/becoming-a-lawyer-in-bc/admission-program/professional-legal-training-course/faq-pltc/

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

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Federal Court Ruling Confirms Lack Of Jurisdiction In Most Employment Matters

The Federal Court of Canada has confirmed a decision that Court lacks jurisdiction with many employment matters due to the Federal Public Sector Labour Relations Act, or FPSLRA.

While this isn’t specifically related to vaccine passports, there is overlap with the reasons this case was thrown out.

Dreena Davis works for the RCMP Employee & Management Relations Office Workplace Responsibility Unit, as an Internal Conflict Management Practitioner. The problems go back to 2017, and the specifics are beyond the scope of this article.

As a side note: it’s always interesting to see someone self-representing, as was the case here. Just because lawyers are involved, it doesn’t mean they are worth the expense.

From the ruling:

[24] On January 14, 2022, the Defendant moved to strike the claim on the basis that: (i) the essential character of the Plaintiff’s claims are employment issues which are regulated by an exclusive labour relations regime, therefore pursuant to section 236 of the Act the Plaintiff has no right of action; (ii) the Plaintiff’s recourse is to grieve each of her employment-related allegations and proceed with those grievances until their final resolution, as to do otherwise would create a parallel system; (iii) if there are allegations relating to her dissatisfaction with administrative decisions then the proper remedy is judicial review of any final decision after proceeding through the complaints process; and (iv) the claim is an abuse of process as the Plaintiff is seeking to make a collateral attack on administrative findings.

[25] In response to the motion to strike, the Plaintiff submits that “Part 2 of the [Act] does not apply to the excluded and unrepresented employees due to the Legislative error.” She alleges that legislative error occurred in 2003 when Parliament attempted to import the excluded and unrepresented employees into the Act by changing the definition of an “employee”. She submits that the grounds of the Defendant’s motion relating to the complete code as comprised in the Act, including section 236, are therefore “moot” because the Act does not apply to unrepresented employees on the basis of this legislative error.

[26] The Plaintiff further submitted in response that “there is no grievance procedure for the unrepresented employee within the RCMP”. She requests that the Court use its residual discretion on the basis that harassment and systemic negligence constitute extraordinary circumstances. The Plaintiff alleges that the grievance process was a sham and corrupt, as was the grievance system generally. Alternatively, the Plaintiff requested that she be able to apply in the appropriate forum.

In fairness, there were issues with the drafting itself, but those can often be fixed by amendment, or by redrafting.

What’s odd is that the Plaintiff appeared to be following the right steps originally. She filed a harassment complaint with the RCMP in December 2018 (paras 11 and 12), but didn’t like the decision. Afterwards, she filed a grievance over the outcome in March 2020, which was escalated internally (paras 13 and 14). June 2021, the grievance was denied.

After that, she filed an Application for Judicial Review in July 2021, in order to quash the earlier findings. This would have been the correct step, if there were issues to look at.

Bizarrely, Davis discontinued the Notice of Application on September 3, 2021, and filed a Statement of Claim on the 9th. Perhaps she found the scope available from an Application was too narrow.

March 2022, there was a hearing, as the RCMP tried to have the case thrown out. While the Claim was “unfocused, argumentative, and convoluted” (para 32), the fatal error came when the Associate Judge ruled that Section 236 of the FPSLRA meant the Courts lacked jurisdiction to hear the matter. The Claim was struck.

A review was sought, and this week a Judge concluded that there was no reversible error. The Federal Court wasn’t able to hear the Claim because of Section 236 of the FPSLRA.

From the ruling, it’s clear that there was some grievance process in place, and that she did make use of it. But the Courts typically don’t get involved in such employment matters.

Davis had also questioned whether the Associate Judge had been accommodating enough to her as a self-represented litigant. The response was that she had been.

Again, this isn’t a vaccine passport case, but there are parallels with the issues. If there is legislation or a collective bargaining agreement in place, there can be virtually no access to the Courts. While she may not have been part of a union, there were other options available, and she used them, the Court found.

(1) https://www.canlii.org/en/ca/fct/doc/2023/2023fc280/2023fc280.html

And on the topic of lockdown measures, including vaxx passes….

RECENT LOCKDOWN CASES (LIST IS NOT EXHAUSTIVE BY ANY MEANS)
(A) Ontario Court Rules 12 Year Old Cannot Be Forced To Take Vaxx
(B) Case Thrown Out When Judge “Takes Judicial Notice”
(C) BCSC Throws Out 4 Cases Involving Vaccine Passport
(D.1) Motion To Strike Federal Travel Restrictions Cases For “Mootness”
(D.2) Federal Court Vaccine Passport Challenges All Struck As “Moot”
(E) University Of Lethbridge Vaccine Pass Challenge Thrown Out For “Mootness”
(F) NS Court Of Appeals On Strang’s Ban On Public Gatherings
(G) AB Court Of Appeals Confirms HCW Can Deny Care For Unvaxxed
(H) University Of Western Ontario, And Their Vaxx Pass Getting Upheld
(I) BCSC Throws Out Quesnel Case, Arbitration Mandated As Solution
(J.1) CSASPP Lawsuit Approaching Certification For Class Action Status
(J.2) CSASPP Certification Hearing Videos Now Available Online
(J.3) CSASPP Certification Hearings To Resume In April 2023

(K) UCalgary Prof Files CHRT Complaint To Bring Back Masks On Planes

Posted on

Federal Vaccine Pass Case Struck As “Embarrassing” And “Bad Beyond Argument” (Another Galati Special)

In a decision that should surprise no one, a Federal Court Judge has ruled that a lawsuit was so poorly written that it was impossible to answer. (See archive and CanLII).

Justice Simon Fothergill ruled “the statement of claim is an embarrassing pleading. It contains much that appears to be unnecessary. As well, it is constructed in a manner calculated to confuse the defendants and to make it extremely difficult, if not impossible, to answer.”

In short, the document was incoherent, filled with irrelevant material, and so disorganized that it was unreasonable to expect the Defendants to respond. But it gets much worse.

Approximately two thirds of the more than 600 Plaintiffs are permanently barred from taking legal action. The other third can still go ahead, but the case needs to be completely redone.

Broadly speaking, there are 2 different classes of Plaintiffs:
(1) Employees of the Federal Government, listed on Schedule A
(2) Employees of Federally regulated industries, listed on Schedule B

Federal employees are stopped by Section 236 of the FPSLRA, which is the Federal Public Sector Labour Relations Act. In short, workers employed by the Government are prohibited from filing lawsuits, and must seek other methods, such as arbitration.

Not only can they not turn to the Court, but it appears they passed on what few remedies were available, such as asking for exemptions, and going through the grievance process. And, if this retainer agreement is a valid document, it would mean they paid $1,000 each.

The Plaintiffs who are in Federally regulated industries can still theoretically proceed. But there are other significant problems.

Even if the case were allowed to proceed in its entirety, all Plaintiffs would have to be named properly. Close to 100 of them are “John Doe” or “Jane Doe”.

Sections 18(1) and (3) of the Federal Courts Act state that litigants who want to challenge Government Orders and seek injunctive relief are required to do so by way of Application for Judicial Review. This lawsuit didn’t do that. Instead, a Statement of Claim was filed. That’s right, the wrong paperwork was filed to begin with.

There are a few possible remedies here. First, the Claim could be redone as an Application. Second, the portions pertaining to challenging the Order can be removed.

Beyond that, the challenge (regardless of format) would have to be completely rewritten. The Court found that it was seriously deficient, and pleaded so poorly that a response was impossible.

173 (1) Pleadings shall be divided into consecutively numbered paragraphs.
Allegations set out separately
(2) Every allegation in a pleading shall, as far as is practicable, be set out in a separate paragraph.

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

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

As stated in the original critique, this suit failed to meet even the bare minimum standards of drafting as set out by the Federal Courts Rules.

This is a common problem is many of these cases. While there are accusations made everywhere, there are rarely (if ever) sufficient facts pled to allow a meaningful defence. Defendants are entitled to know what the case is that they must address.

As Justice Fothergill noted, it was “embarrassing” and “bad beyond argument”.

Surprisingly, things still go downhill.

In the Motion to Strike, the Defendants brought up the issue that large portions of this case were substantially similar (and sometimes identical) to the Action4Canada case that was thrown out last August. This includes:

  • allegations of criminal behaviour;
  • broad declarations respecting the current state of medical and scientific knowledge;
  • and a declaration that administering medical treatment without informed consent is a crime against humanity

Instead of Action4Canada accepting that certain remedies were beyond the scope of a Civil Court, the organization appealed. 6 months after that ruling (which allowed a rewrite), no amended Claim has been filed. It’s unclear if one ever will be.

Now the Action4Canada ruling has been used as a partial basis for throwing out the Federal case. Justice Fothergill also noted that the pleadings were just as bad here as with the other suit.

So, what will happen now? If the Action4Canada case is any indicator, there will be an Appeal filed with the Federal Court of Appeals. Nothing will never come of it, other than to waste time and money.

Do read the reasons given by Justice Fothergill. It’s mindboggling that such paperwork can be submitted and taken seriously. (See original Claim).

The outcome of this Federal case was predictable and it was far more than mere sloppiness. It takes considerable skill and effort to draft something this poorly.

FEDERAL VAXX PASS CHALLENGE
(1) https://policeonguard.ca/wp-content/uploads/2022/06/Filed-SOC.pdf
(2) Federal Court Vaccine Mandate Challenge
(3) Federal Vaccine Passport Challenge Retainer Agreement
(4) Federal Court Vaccine Mandate Challenge Motion To Strike
(5) Federal Court Vaccine Mandate Challenge Affidavit Of Service
(6) Federal Court Vaccine Mandate Challenge Responding Motion Record
(7) Federal Court Of Canada Rules
(8) https://www.laws-lois.justice.gc.ca/eng/acts/F-7/page-3.html#docCont
(9) https://www.laws-lois.justice.gc.ca/eng/acts/P-33.3/page-13.html#h-406405
(10) https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/522970/index.do
(11) T-1089-22 Federal Court Decision On Motion To Strike
(12) https://www.canlii.org/en/ca/fct/doc/2023/2023fc252/2023fc252.html
(13) https://canucklaw.ca/wp-content/uploads/Federal-Vaccine-Passport-Challenge-Retainer.pdf

EARLIER REVIEWS
(1) https://canucklaw.ca/federal-vaxx-pass-claim-fatally-defective/
(2) https://canucklaw.ca/ottawa-files-motion-to-strike-federal-vaccine/
(3) https://canucklaw.ca/federal-vaccine-passport-case-hears-motion-to-strike-claim/

Posted on

Canadian Frontline Nurses’ $1 Million Defamation Case Dismissed As A SLAPP

The group Canadian Frontline Nurses, CFLN, has had their million dollar defamation suit thrown out as a SLAPP. This is of course, short for strategic lawsuit against public participation. This is when the Courts are improperly used to silence speech or expression on public interest discussion.

Note: although the ruling has been handed down, it’s not yet posted publicly. It will be included here when that happens.

CFLN and 3 of its members: (a) Kristen Nagle; (b) Sarah Choujounian; and (c) Kristal Pitter, were all listed as Plaintiffs. They had sough general damages for defamation of $750,000.00, and another $250,000.00 for aggravated, exemplary or punitive damages.

This lawsuit centered around 2 articles. Are they worth $1 million?

Article posted by Canadian Nurses Association, September 9, 2021

Enough is enough: professional nurses stand for science-based health care
The reckless views of a handful of discredited people who identify as nurses have aligned in some cases with angry crowds who are putting public health and safety at risk. They have drawn in anti-science, anti-mask, anti-vaccine, anti-public health followers whose beliefs align with theirs. For some reason they would have us believe that millions of the best educated health scientists, public health experts, physicians and nurses globally have all missed something they have not. Their outlandish assertions about science would be laughable were they not so dangerous.

Now the focus is on images of surly mobs happy to stand in front of health-care settings and harass, threaten, and even assault health-care workers coming and going in the business of saving lives. These protests have stunned and saddened exhausted health-care workers. They are demoralizing, infuriating and dangerous.

Anti-public health disinformation threatens to confuse a tired and bewildered public by deliberately misrepresenting personal ideology as facts, and science as conspiracy. The public should be assured that the vast majority of Canada’s 448,000 regulated nurses are united in their commitment to operate from a stringent code of ethics, and they are duty-bound to use science, evidence, and facts in assessing, planning, and evaluating the care they deliver to people across Canada. This scientific approach is a fundamental ideology of modern nursing.

This portion of an article published by the Canadian Nurses Association was quoted to support the defamation claims against the organization and leadership.

Here’s the problem: nowhere in the article are any of the Plaintiffs named. This is a fatal error in a defamation case, as defamatory speech or expression has to be of the person(s) suing. This article could refer to anyone.

However, the Claim states that they were “referred”, and that should be enough. That’s going to be a very tough sell.

Article posted by Together News/Comox Valley, September 11, 2021

There was another article, this one from Comox Valley. While this one did mention the Plaintiffs by name, it appeared to be referencing (for the most part) quotes that they had made. While the January 6 comments seem out of place, it’s difficult to see how these leads to $1 million in damages.

Statements of Defense laid groundwork for anti-SLAPP Motion

The Canadian Nurses Association and Together News both filed Statements of Defense. They raised multiple justifications:

  • CNA statement doesn’t refer to the Plaintiffs (CNA)
  • Words themselves are not defamatory (CNA)
  • Qualified privilege (Both)
  • Responsible communication on matters of public interest (Both)
  • Truth (Both)
  • No malice (Both)
  • No damages incurred (Both)
  • Fair comment (Together News)

CFLN Responding Motion Record Of Plaintiffs
CFLN Cross Examinations Volume 1
CFLN Cross Examinations Volume 2
CFLN Cross Examinations Volume 3
CFLN Supplementary Motion Record Of Plaintiffs

Both documents reference Section 137.1 of the Courts of Justice Act, which is the legislation on which anti-SLAPP is based upon. The Defendants signaled that they would be bringing Motions on this. And that’s what they did.

Lawsuits like this actually harm freedom movement

Yes, the “health restrictions” are based on deception and distortions of reality. But this doesn’t help. Considering that these groups claim to be pro-freedom, suing critics makes it difficult to take them seriously.

In December 2020, Kulvinder Gill and Ashvinder Lamba filed a $12.75 million defamation lawsuit against 23 people and media outlets. It was (predictably) thrown out as a SLAPP. Gill still has another $7 million suit against Amir Attaran and the University of Ottawa.

These kinds of suits have exposed a certain sect of society: there are plenty of people who “claim” to support freedom, and free speech, but who don’t. Instead, we have people who selectively support speech depending on the ideology involved.

Appeal is already being promised

Canadian Frontline Nurses is promising to appeal the SLAPP ruling. This is pointless, as the Ontario Court of Appeal isn’t going to overturn any of this.

Now, are they simply getting very poor advice, or are the donations that come in making it all worthwhile?

COURT DOCUMENTS
(1) CFLN Statement Of Claim
(2) CFLN Statement Of Defense CDN Nurses Association
(3) CFLN Statement Of Defense Together News/Comox Valley
(4) CFLN Responding Motion Record Of Plaintiffs
(5) CFLN Cross Examinations Volume 1
(6) CFLN Cross Examinations Volume 2
(7) CFLN Cross Examinations Volume 3
(8) CFLN Supplementary Motion Record Of Plaintiffs
(9) CFLN Freedom Rally Documentation
(10) https://www.canlii.org/en/on/onsc/doc/2022/2022onsc7280/2022onsc7280.html
(11) https://www.canlii.org/en/on/onsc/doc/2022/2022onsc7280/2022onsc7280.pdf

OTHER LINKS
(1) https://www.canadianfrontlinenurses.ca
(2) https://www.canadianfrontlinenurses.ca/donate
(3) https://t.me/NursesAgainstLockdowns/2229
(4) https://www.cbc.ca/news/canada/london/anti-vaxx-nurse-libel-suit-ontario-1.6698686
(5) https://www.cna-aiic.ca/en/blogs/cn-content/2021/09/09/enough-is-enough-professional-nurses-stand-for-sci
(6) https://comoxvalley.news/quack-quack-these-pro-virus-nurses-have-dangerous-ideas/

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