Category: Canadian Decisions

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The Nadon Reference Case: What Really Happened (Gonzo Logic)

It’s time to put a decade long myth to rest: the Nadon Reference Case.

This was a 2013 challenge in Federal Court to the appointment of Marc Nadon to the Supreme Court. The specific issue was not his abilities, but where he had worked. Under Canadian law, Quebec is entitled — rightly or wrongly — to 3 out of the 9 spots on the Supreme Court of Canada. Judges from the Federal Court or Federal Court of Appeal can sit on the SCC, but not take those 3 positions.

Yes, there was an Application filed by “Mr. Bad Beyond Argument” in October 2013. However, that’s not what decided Nadon’s fate. The Attorney General brought a Motion to stay (defer) the case, and an Order In Council (OIC) forward the matter to the Supreme Court. This was decided as a Constitutional Question. The case was deferred on consent, meaning all sides agreed to hand it over.

The original Application was eventually dismissed in 2014. However, it seems that costs were just as important — if not more so — than the principle of how SCC Justices are selected. This leads to the absurd idea that there is a “Constitutional right” to costs, even for lawyers who don’t actually win their cases. Gonzo logic!

The case was never “won on the merits”.

It was more a case of “thank you for bringing it to our attention”.

Ever wonder why no ruling is ever help up as a trophy? That’s because there isn’t one.

(A) Consent Order staying the 2013 Application
(B) https://www.canlii.org/en/ca/scc/doc/2014/2014scc21/2014scc21.html
(C) https://www.canlii.org/en/ca/fct/doc/2014/2014fc1088/2014fc1088.html
(D) https://www.canlii.org/en/ca/fca/doc/2016/2016fca39/2016fca39.html
(E) https://www.canlii.org/en/ca/scc-l/doc/2016/2016canlii47514/2016canlii47514.html

The above are a: consent to stay; SCC Reference, involving many Intervenors; and then three (3) subsequent dismissals. The earth shattering victory we are told about isn’t there.

Timeline Of Major Events

Now, the above is a lot to take in, so hopefully, this will clarify the details how events unfolded.

October 7th, 2013: A Notice of Application is filed in Federal Court, challenging the appointment of Justice Marc Nadon to the Supreme Court of Canada.

October 22nd, 2013: Order-In-Council (OIC) 2013-1105 is signed, referring the issue of the appointment of Justice Nadon to the Supreme Court for a Reference.

October 28th, 2013: The Attorney General’s Office brings a Motion to stay (defer) the case, since it has already been sent off for reference anyway.

November 12th, 2013: Justice Zinn signs a Consent Order staying the Application, pending the outcome of the SCC Reference.

March 21st, 2014: The Supreme Court of Canada rules that Justice Nadon isn’t eligible to use any of Quebec’s 3 seats on the Court. However, that doesn’t mean he couldn’t sit on the bench in any of the other 6 spots.

September 26th, 2014: “Mr. Bad Beyond Argument” files a Motion for costs, and for Leave (permission) to dismiss the case. He didn’t win, and wants it dismissed, but claims he’s entitled to costs anyway.

October 31st, 2014: The Attorney General’s Office files a Cross-Motion (a Motion of their own), asking that the original Application be dismissed, since the issue of Justice Nadon’s appointment if now moot. They also ridicule the demand for costs, since the Applicants didn’t actually win.

November 7th, 2014: Reply submissions (rebuttal arguments) are filed in the Motion for costs.

November 20th, 2014: Justice Zinn hands down a ruling dismissing the original Application, and awarding a lump sum of $5,000 in costs to the Applicants. This is in spite of them not actually winning their case. The Motion was “in writing”, and as the name implies, done without an oral hearing.

January 11th, 2016: The Federal Court of Appeal hears the Appeal on costs. This is not about Justice Nadon’s appointment, but whether there’s a “Constitutional right” to costs.

February 8th, 2016: Federal Court of Appeal hands down scathing rebuke, along with $1,000 Order for bringing baseless Appeal in the first place.

July 28th, 2016: Supreme Court of Canada denies Leave (permission) to file Appeal over the demand for costs. This was the second attempt at appealing.

Now, to expand more on these….

Application Was Stayed (Deferred) On Consent

Almost immediately after the Application was filed, the Attorney General’s office brought a Motion to stay the proceedings (or defer) the case.

The Motion references Order In Council 2013-1105, an “Order referring to the Supreme of Canada for hearing and consideration the questions related to the Appointment of Supreme Court Justices From Quebec”.

Justice Russel Zinn signed a Consent Order, which stayed the Application while the subject was brought before the Supreme Court of Canada in the form of a Reference Question. By consenting, it was known to all — or should have been known — that it was surrendering control to the SCC.

This wasn’t a “win on the merits” by any means. However, it was an indication that the Federal Government took the issue seriously enough to forward it onward.

Many “Intervenors” For SCC Reference Question

Although the Supreme Court Reference is very lengthy, this is the main point. Should Justice Nadon be allowed to take a “Quebec spot” on the SCC if he’s sitting on the bench for the Federal Court of Appeal?

[109] This reference stems from the appointment of the Honourable Justice Marc Nadon to fill one of the three seats on this Court allocated to the Province of Quebec. Justice Nadon is a former member of the Quebec bar of almost 20 years standing. At the time of his appointment to this Court, he was a judge of the Federal Court of Appeal.

  • René LeBlanc and Christine Mohr, for the Attorney General of Canada
  • Patrick J. Monahan and Josh Hunter, for the intervener the Attorney General of Ontario
  • André Fauteux and Jean‑François Beaupré, for the intervener the Attorney General of Quebec
  • Sébastien Grammond, Jeffrey Haylock and Nicolas M. Rouleau, for the interveners Robert Décary, Alice Desjardins and Gilles Létourneau
  • Rocco Galati, on his own behalf
  • Sébastien Grammond, for the intervener the Canadian Association of Provincial Court Judges
  • Paul Slansky, for the intervener the Constitutional Rights Centre Inc

But what frequently gets overlooked is that there were many Intervenors — 3rd party participants — at the Supreme Court review over the Nadon appointment. It wasn’t just one person against the Government.

[8] After carefully considering the Attorney General’s motion for a stay (for a period of 7.6 hours, in Mr. Galati’s case), the Joint Applicants eventually consented to a stay of the Joint Application in exchange for the Attorney General’s undertaking not to oppose their application for intervener status in the Reference.

Some comments from the Federal Court of Appeal are pretty funny. If their 2016 ruling is to be taken at face value, it seems that the Attorney General didn’t even want him at the SCC Reference. It comes across as him only agreeing to the Consent Order if there was no objection to him being an Intervenor. That’s got to hurt.

What if the AG had opposed Intervenor status? Would he have held up the Motion to stay the case?

Now, if this Reference result really was a “win on the merits”, then it looks as though every Intervenor could make that same claim. All of them submitted papers, and all were allowed to speak.

The most charitable interpretation of this would be a “shared win”.

Now, the real fun begins.

Federal Court Dismisses Motion For Costs, Dismisses Application

After the Supreme Court decision, the original Application became moot. After all, Justice Nadon was gone from the bench, so there wasn’t a real issue to resolve.

However, a Motion was filed demanding costs. The “claim” was that lawyers who bring constitutional challenges are entitled to costs. Apparently, this wasn’t just about principle. There was money to be made on this.

There were obviously problems with this. The most prominent is that fact that there was no “win or success”, which is typically required to receive costs. From the Attorney General of Canada:

The Federal Government filed a Cross-Motion, asking that the original Application be dismissed, and that the Court refuse costs.

The reason for dismissing the Application is obvious: mootness. Justice Nadon is gone, so there’s nothing left to deal with. It’s unclear why “Mr. Bad Beyond Argument” would seek leave (permission) to dismiss, instead of just discontinuing on his own. A cynic may think that it would be harder to claim “success” if he simply dropped the case.

Federal Court Takes Note Of Overbilling In Costs Motion

In their Cross Motion, the Attorney General argued that even if costs should be awarded (for an unsuccessful case), the amounts sought were unreasonable. They point out that for Ontario lawyers, even the most experienced ones litigation the most complex matters were only entitled to $350/hour. This Motion demanded $800/hour, more than double that.

In the 2014 reasons (dismissing the Application and the Motion for costs) the Court notes at paragraphs 5-7 that the amounts sought are “excessive and unwarranted”. They want nearly $70,000 for litigation was stayed at the very beginning stages. It’s even more absurd given the self-representation that was going on.

Almost as an aside, Justice Zinn remarks that if not for the original challenge, the SCC Reference would likely not have happened. From a certain perspective, it could be viewed as public service.

He ultimately awarded a lump sum of $5,000. This is still a fair amount of money, but less than 10% of what the Applicants had originally demanded.

Federal Court Of Appeal Dismisses Appeal For Costs

[12] Mr. Galati argued for an award of costs in his favour calculated on the basis of 56.4 hours of service at an hourly rate of $800, plus disbursements in the amount of $638, for a total award (including tax) of $51,706. The CRC claimed costs of $16,769 based on 14.55 hours of service by its counsel, Mr. Slansky, at an hourly rate of $800. In argument, Mr. Galati acknowledged that his regular hourly rate is not $800 as his clientele do not have the means to pay such an exalted rate. He advised that $800 per hour is the rate for substantial indemnity pursuant to Part 1 of Tariff A of the Ontario Rules of Civil Procedure, R.R.O. 1990 Reg. 194, for lawyers of his year of call and experience.

[13] The Attorney General opposed Mr. Galati’s and the CRC’s motions and filed a cross motion seeking the dismissal of the Joint Application. On the question of costs, the Attorney General argued that since, as of the date of the argument, no judgement had been rendered in the Joint Application, there was no successful party and therefore no basis for an order for costs. In any event, the Attorney General argued that there was no constitutional right to costs. If an order of costs were to be made, having regard to the factors mentioned in Rule 400(3) of the Federal Courts Rules, SOR/98-106, it should be a single award assessed on Column III of Tariff B.

[28] The difficulty confronting the Joint Applicants is that they were not successful in their application. The Federal Court found that the Joint Application “was derailed and supplanted by the Reference”: see Reasons at paragraph 12. It was therefore dismissed for mootness. Mr. Galati and the CRC take the position that because the Reference produced the result which they sought in the Joint Application, they were successful and entitled therefore to their solicitor client costs. It doesn’t work that way. The fact that their application apparently set in motion a series of events which led to the conclusion which they hoped to achieve in their application does not make them successful litigants. It may make them successful politically or in the popular press, but that is a different matter. They can only claim costs in relation to the judicial treatment of the Joint Application which, as noted, was dismissed. To hold otherwise would be to create something in the nature of a finder’s fee for constitutional litigation.

[35] To be “in bed” with someone is to collude with that person. I do not understand how one could hope to protect the right to a fair and independent judiciary by accusing courts of colluding with the government if they don’t give the applicant its solicitor client costs. The entire Court system, it seems, must be alleged to be actually or potentially acting in bad faith in order to instill public confidence in the fairness and independence of the judiciary. This is reminiscent of the gonzo logic of the Vietnam War era in which entire villages had to be destroyed in order to save them from the enemy. The fact that this argument is made in support of an unjustified monetary claim leads to the question “Whose interest is being served here?” Certainly not the administration of justice’s. This argument deserves to be condemned without reservation.

[47] Like my colleague, I agree that there are no grounds for setting aside the costs order of the Federal Court and I would dismiss the appeal with costs in the amount of $1,000. Had the respondents asked for more, I would have granted more.

The Federal Court of Appeal was pretty scathing in their review. Yes, the $5,000 award was appealed on the grounds that it wasn’t nearly enough, and the Applicants had a “right” to costs.

The FCA reiterated that there was no “win on the merits”. The parties had agreed to stay the Application in favour of letting the SCC Reference go ahead. True, it produced the outcome that was sought, but that’s not the same as actually winning.

The FCA took serious issue the implication that the Courts were “in bed with” the Government for not giving him his costs. Keep in mind, he was self represented. In the public sphere, this would have led to a defamation lawsuit.

The FCA rejected the notion that the Nadon appointment “went to the architecture of the Constitution”. Yes, it was an important question, but outside of a small amount of people, it had no impact.

The FCA also pointed out how absurd it was to use the Ontario guidelines for costs submissions when in Federal Court. Was this simply oversight? Incompetence? Or a way to justify inflated billing?

Supreme Court Denies Application For Leave (For Costs)

The applications for leave to appeal from the judgement of the Federal Court of Appeal, Number A-541-14, 2016 FCA 39, dated February 8, 2016, are dismissed with costs.

Not content with losing at the Federal Court of Appeal, “Mr. Bad Beyond Argument” sought Leave (permission) to appeal to the Supreme Court of Canada. This wasn’t about Justice Nadon, but another attempt at having someone recognize “his Constitutional right to costs”. This is nonsense, and it appears that he spent more time and effort trying to get costs than in the original Application.

Serious question: Is it considered fraud to misrepresent the results of Court cases, if done for the purposes of self-promotion, and generating business? The Nadon case has been held up as a “major win on the merits”, even though that’s not the truth. This was from 2013 to 2016.

Again, a better description would be, “thank you for bringing it to our attention”.

Fast forward to 2024, and groups like Action4Canada and Vaccine Choice Canada lie about their cases in order to keep the donation money rolling in. They pretend that losses and endless delays are somehow “wins”. At what point does puffery and self-promotion cross into outright deception?

COURT DECISIONS:
(1) Supreme Court Reference ss. 5 and 6 2014 SCC 21 (CanLII), [2014] 1 SCR 433
(2) Federal Court On Motion For Costs 2014 FC 1088 (CanLII)
(3) Federal Court Of Appeal On Costs 2016 FCA 39 (CanLII)
(4) Supreme Court Of Canada On Costs 2016 CanLII 47514 (SCC)

COURT DOCUMENTS:
(1) Nadon Reference Case Notice Of Application
(2) Nadon Reference Case AG Motion To Stay
(3) Nadon Reference Case Order Staying Application
(4) Nadon Reference Case RG Motion For Costs
(5) Nadon Reference Case AG Cross Motion Record
(6) Nadon Reference Case AG Reply Submissions On Costs

ORDER IN COUNCIL SEARCH:
(1) https://orders-in-council.canada.ca/

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Adam Skelly, Part 3: R.O.A. Challenge Finally To Be Heard?

Starting on October 1st, 2024, the Ontario Superior Court will finally hear a long delayed challenge to the Reopening Ontario Act, or R.O.A. Of course, this assumes that there are no more setbacks. Given how things have played out so far, there are no guarantees.

This Application is from William Adamson Skelly (a.k.a. Adam Skelly), and stems from his refusal to bend the knee to Doug Ford back in 2020.

Part 1: The Akbarali Decisions
Part 2: Swinwood Malpractice Claim

Due to Michael Swinwood — the former lawyer — screwing up the case in 2021, and then walking away, the matter has been unnecessarily delayed for years. This is in spite of getting several expert witnesses ready to appear.

  1. Byram Bridle
  2. Douglas Allen
  3. Gilbert Berdine
  4. Harvey Risch
  5. Joel Kettner
  6. William Briggs

There are, of course, differences in the reports that have been submitted. However, what they all argue is that this “global pandemic” is vastly overblown. Lockdown measures weren’t needed, nor was there any benefit to society from implementing them.

Now, in the year 2024, why does this still matter? While the so-called “pandemic” may be over, the Reopening Ontario Act is still in effect, even if there aren’t any shutdowns going on.

Here are the provisions being challenged:

Orders continued
2 (1) The orders made under section 7.0.2 or 7.1 of the Emergency Management and Civil Protection Act that have not been revoked as of the day this subsection comes into force are continued as valid and effective orders under this Act and cease to be orders under the Emergency Management and Civil Protection Act.
.
Exception
(2) Subsection (1) does not apply to the order filed as Ontario Regulation 106/20 (Order Made Under the Act — Extensions and Renewals of Orders).
.
Clarification
(3) For greater certainty, an order that is in force is continued under subsection (1) even if, on the day that subsection comes into force, the order does not apply to any area of the Province.

Power to amend orders
4 (1) The Lieutenant Governor in Council may, by order,
.
(a) subject to subsections (2) and (5), amend a continued section 7.0.2 order in a way that would have been authorized under section 7.0.2 of the Emergency Management and Civil Protection Act if the COVID-19 declared emergency were still in effect and references in that section to the emergency were references to the COVID-19 pandemic and its effects;
.
(b) amend an order continued under section 2 to address transitional matters relating to the termination of the COVID-19 declared emergency, the enactment of this Act or the continuation of orders under section 2.

Provisions applying with respect to orders
7 (1) Subsections 7.2 (3) to (8) of the Emergency Management and Civil Protection Act continue to apply, with necessary modifications, with respect to orders continued under section 2, including any amendments to such orders made under this Act.
.
Same
(2) Subsections 7.0.2 (6) to (9) of the Emergency Management and Civil Protection Act continue to apply, with necessary modifications and the modifications specified in subsection (3), with respect to continued section 7.0.2 orders, including any amendments to such orders made under this Act.
.
Modifications
(3) The modifications referred to in subsection (2) are the following:
.
1. The reference, in paragraph 1 of subsection 7.0.2 (7) of the Emergency Management and Civil Protection Act, to the emergency is deemed to be a reference to the COVID-19 pandemic and its effects.
.
2. The reference, in paragraph 2 of subsection 7.0.2 (7) of the Emergency Management and Civil Protection Act, to when the declared emergency is terminated is deemed to be a reference to when the order in relation to which that paragraph applies is revoked or ceases to apply.

Temporary closure by police, etc.
9.1 (1) A police officer, special constable or First Nations Constable may order that premises be temporarily closed if the police officer, special constable or First Nations Constable has reasonable grounds to believe that an organized public event or other gathering is occurring at the premises and that the number of people in attendance exceeds the number permitted under a continued section 7.0.2 order.

Offences
10 (1) Every person who fails to comply with subsection 9.1 (2) or (3) or with a continued section 7.0.2 order or who interferes with or obstructs any person in the exercise of a power or the performance of a duty conferred by such an order is guilty of an offence and is liable on conviction,
.
(a) in the case of an individual, subject to clause (b), to a fine of not more than $100,000 and for a term of imprisonment of not more than one year;
.
(b) in the case of an individual who is a director or officer of a corporation, to a fine of not more than $500,000 and for a term of imprisonment of not more than one year; and
.
(c) in the case of a corporation, to a fine of not more than $10,000,000.
.
Separate offence
(2) A person is guilty of a separate offence on each day that an offence under subsection (1) occurs or continues.
.
Increased penalty
(3) Despite the maximum fines set out in subsection (1), the court that convicts a person of an offence may increase a fine imposed on the person by an amount equal to the financial benefit that was acquired by or that accrued to the person as a result of the commission of the offence.

The Reopening Ontario Act may be seen as “sleeper” legislation. While there may be no obvious harm now, it can be used at any time, and under almost any pretense. We have seen this elsewhere, and the public is lulled into a false sense of security, believing the threat to be over.

But that’s not all. The Health Protection and Promotion Act is also facing a challenge given the heavy handed and unconstitutional manner which it was employed.

Interpretation
Directions by M.O.H.
24 (1) A medical officer of health, in the circumstances specified in subsection (2), may give directions in accordance with subsection (3) to the persons whose services are engaged by or to agents of the board of health of the health unit served by the medical officer of health. R.S.O. 1990, c. H.7, s. 24 (1).
.
When M.O.H. may give directions
(2) A medical officer of health may give directions in accordance with subsection (3) where the medical officer of health is of the opinion, upon reasonable and probable grounds, that a communicable disease exists in the health unit and the person to whom an order is or would be directed under section 22,
(a) has refused to or is not complying with the order;
(b) is not likely to comply with the order promptly;
(c) cannot be readily identified or located and as a result the order would not be carried out promptly; or
(d) requests the assistance of the medical officer of health in eliminating or decreasing the risk to health presented by the communicable disease.

This is a bit of rabbit hole, but the Ontario Health Protection and Promotion Act is part of a much larger picture. The source material is extensive, but an informative read. To sum it all up:

  • Canada signed on to the WHO’s legally binding Constitution in 1946
  • The International Sanitation Regulations came into effect in 1951
  • The International Health Regulations (1st Ed.) came into effect in 1969
  • The International Health Regulations (2nd Ed.) came into effect in 1995
  • The International Health Regulations (3rd Ed.) came into effect in 2005
  • Bill C-12, the Quarantine Act, is Canada’s domestic implementation of WHO-IHR 3rd Ed.
  • The Provinces implemented their own version of the Quarantine Act, such as HPPA
  • The HPPA (really) came from the WHO

See parts 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 from the Canuck Law site.

Now, with all of this in mind, it seems pretty obvious that the Reopening Ontario Act didn’t just happen. It was brought in to compliment and help enforce existing public health measures. Our politicians are actors, reading scripts. They weren’t responsible for drafting any of this, but they did pass it.

The Concerned Constituents of Canada, or CCOC, is putting this case together, and the documents are readily available. Given that the hearing isn’t for several months, there will certainly be updates.

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

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

(1) Skelly – RBC Default Judgement Order

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

NEW APPLICATION DOCUMENTS:
(1) Skelly – Notice Of Application (Ian Perry)
(2) Skelly – Costs – Notice of Motion – Moving Party (Respondent) HMTK
(3) Skelly – Costs – Motion Record-Moving Party (Respondent)
(4) Skelly – Costs – Applicant Responding Motion Record Security For Costs
(5) Skelly – Costs – Factum – Moving Party – HMK
(6) Skelly – Costs – Responding Factum Applicants Skelly et al

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

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

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

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

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

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

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Adam Skelly, Part 2: Swinwood Malpractice Claim

This is the second part on William Adamson Skelly, (a.k.a Adam Skelly). He made national headlines back in 2020, for refusing to capitulate to Doug Ford and Christine Elliott. A restraining order was granted against him in December, but a “come-back Motion” was allowed to go ahead to challenge it in an ad-hoc manner.

For background information on this, see Part 1. It outlines many of the major events that led up to this moment. This is hardly exhaustive of what happened.

Anyhow, his highly anticipated challenge was derailed due to the gross incompetence of then lawyer Michael Swinwood. Despite all of the time, money and effort that had gone into the challenge, it didn’t follow the basics of procedure.

Specifically, the purpose of the come-back Motion was to challenge the December order. Instead, Swinwood filed a Motion for damages, something that wouldn’t have been allowed at this stage anyway. Justice Akbarali ruled that there was no jurisdiction to hear it, but gave permission to refile the papers correctly.

When a litigant wants to make changes to their Notice of Motion, the correct method is to serve an AMENDED Notice of Motion. Instead, a second Notice was issued, and it wasn’t clear which the Court was supposed to consider.

Neither Notice set out that the point of the Motion was to challenge the December order, and any basis for issuing it. That was brought up afterwards. And it’s pretty common knowledge that a Notice has to spell out what is being asked for.

Apparently, there was no Notice placed in the Motion Record (a book of documents), which is a pretty basic oversight.

Despite this being a Motion, Skelly was listed as an Applicant on Court documents. He should have been referred to as a Moving Party. Just because a Notice of Constitutional Question is included, it doesn’t change this reality. Again, this is amateurish.

If damages were sought, then an “originating process” such as a Statement of Claim, or a Notice of Application would have to have been filed. This Motion was not the way to do it. Still Justice Akbarali allowed another attempt to fix things.

However, that never happened. So, what did Skelly do?

He sued his lawyer for negligence and professional malpractice, demanding $200,000. It’s always interesting to hear when such a thing happens. From the Statement of Claim:

22. In late 2020 or early 2021, Mr. Skelly learned about Mr. Swinwood and retained him to pursue a constitutional challenge against the public health measures.

23. Mr. Skelly was under the impression that Mr. Swinwood was not only a reasonably competent lawyer but also one who had significant experience in constitutional and civil matters.

24. Throughout the duration of his retainer, Mr. Swinwood representing Mr. Skelly, acted with complete disregard for the Rules of Civil Procedure and in a manner that can only be described as completely incompetent and negligible.

25. In an Endorsement of the Honourable Justice Myers dated February 26, 2021, His Honour reprimanded Mr. Swinwood for sending an unsolicited letter to Justice Kimmel asking that she remain seized of the matter. Justice Myers highlighted that she was never seized of the matter to begin with and explicitly ordered that “Mr. Swinwood is to comply with Rule 1.09 in any future communication with the Court.”

26. In Her Honour’s Direction dated March 9, 2021, the Honourable Justice Akrabali set out a timetable for the hearing of the constitutional issues raised by Mr. Skelly, with the hearing to take place on June 28 and 29, 2021 (the “June Hearing”).

27. In the Direction, Justice Akrabali made a point to tell Mr. Swinwood to make sure he files his materials with the proper style of cause as the materials he submitted failed to do so. A hearing for the come-back motion contemplated by Justice Kimmel and Mr. Skelly’s constitutional challenge was scheduled for June 28 and 29th, 2021.

31. In her Endorsement dated June 28, 2021, Justice Akrabali pointed out various flaws in the
steps taken by Mr. Swinwood resulting in the court not having the issues properly raised before it (the “June Endorsement”). These flaws are listed below:
i. Not seeking to vary or set aside the Order of Justice Kimmel based on unconstitutionality in the Notices of Motion making it deficient rendering the proceeding procedurally unfair;
ii. Not properly placing the February Notice of Motion before Her Honour;
iii. Not having the February Notice of Motion initially placed in the respondent’s Motion Record and adding it only after the applicant brought up the issue in an attempt to fix the defect;
iv. The relief in the February Notice of Motion is not based on any Notice of Constitutional Question;
v. Having two Notices of Motion for the same motion instead of amending the document;
vi. Not making it clear to Ontario which Notice of Motion the hearing was to proceed on;
vii. Not giving appropriate notice of the relief sought in the Notice of Motion;
viii. The Notice of Constitutional Question did not raise the issue of setting aside the legislative scheme on the basis of unconstitutionality until its third iteration on June 8, 2021, which was well after the date of cross-examinations and the finalization of the evidentiary record;
ix. Neither Notice of Motion sought an Order setting aside the legislative scheme on the basis of unconstitutionality;
x. Failing to put before Her Honour the Affidavits of Service for Mr. Swinwood’s June 24, 2021, Motion Record; and,
xi. No originating process for the damages or declaration of invalidity sought.

32. At paragraph 44 of Justice Akrabali’s June Endorsement she states the following: “This is not a case where the respondents are self-represented parties. They were represented at the hearing by two counsel, at least one of whom has been practicing for many years. Earlier in the proceedings, when the Notices of Motion were being prepared, the respondents were represented by four counsel. I cannot explain why none of them considered these very basic issues, or if they did, why they did not address the deficiencies in the proceeding which could have been done easily and efficiently in February or March 2021…”

38. In the six months that passed Mr. Skelly obtained new counsel to issue the correct originating process Mr. Swinwood failed to issue and to bring Mr. Skelly’s challenge back for a hearing on the merits.

39. During this time, neither Mr. Skelly nor his new counsel received any correspondence regarding the desire of Ontario to receive the December Costs

It’s hard to imagine that a veteran lawyer could repeatedly make such basic errors unless done intentionally. Not only did Swinwood mess up, he never went ahead with another attempt. He effectively let the case die. Even with the trouble and expense of having 6 expert witnesses, Swinwood didn’t try again.

The Notice of Constitutional Question (all iterations of it) were also very poorly written. Instead of briefly outlining the issues, Swinwood appears to try to turn it into a Factum and make full arguments. 27+ pages was excessive.

All sorts of theories were floated, including that Swinwood had been bribed and/or threatened. However, without proof, those are just theories.

To date, there has been no activity in this malpractice suit other than the Claim itself being issued.

Now, there is a new Application scheduled to go ahead in October 2024. The 1st, 2nd and 7th are set aside for it. The Concerned Constituents of Canada, or CCOC, is putting that together. Mootness may be an issue — or at least the Province will argue it — given how much time has passed, but we’ll have to see. The R.O.A. hasn’t been formally rescinded.

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

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

(1) Skelly – RBC Default Judgement Order

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

NEW APPLICATION DOCUMENTS:
(1) Skelly – Notice Of Application (Ian Perry)
(2) Skelly – Costs – Notice of Motion – Moving Party (Respondent) HMTK
(3) Skelly – Costs – Motion Record-Moving Party (Respondent)
(4) Skelly – Costs – Applicant Responding Motion Record Security For Costs
(5) Skelly – Costs – Factum – Moving Party – HMK
(6) Skelly – Costs – Responding Factum Applicants Skelly et al

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

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

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

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

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

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

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Adam Skelly, Part 1: The Akbarali Decisions

This is the first of a multi-part series on William Adamson Skelly (a.k.a. Adam Skelly). He made national news back in the Fall of 2020 for refusing to bend the knee to the dictates of Doug Ford. This led to both civil and criminal cases in the months to come. His comically bad legal representation also generated attention.

He has another Application, this one to be heard over 3 days in October 2024. This is being organized by the Concerned Constituents of Canada, or CCOC. Since a lot of work was put together a few years ago, letting it go seemed like a major waste of time and money.

Now, the Government can — and most likely will — bring up the issue of mootness. Lawyers will claim that this is all old news, and that there are no orders in effect. Still, it would be nice to actually hear the case on its merits, especially as the Reopening Ontario Act wasn’t ever taken down.

To begin, here was his run in with Justice Jasmine Akbarali back in 2021.

To make a long story short: the Government was successful in bringing a restraining order against Skelly and his business in December 2020. They did it on an expedited basis, with no real chance to defend. However, the ruling allowed for a “come-back Motion” to be brought. This would be Skelly’s chance to show that he was in the right.

From Justice Kimmel’s ruling:

[46] The applicant asked for its costs. The Crown argued that this was not actually an ex parte motion because they had provided notice, even though the court, by an earlier endorsement, had permitted the respondents not to respond. The respondents did not oppose the relief sought (except to raise procedural objections). The Crown had an onus to meet, irrespective of any position of the respondents. If the Crown had proceeded ex parte, it concedes that it would not have been entitled to costs by virtue of Rule 57.03(3).

[47] Although the Crown did provide notice, the respondents’ participation has been deferred until the come-back motion. I have determined that any costs that might be recoverable by the applicant for this motion should be addressed in the context of that come-back motion if it proceeds.

[48] The court’s practice is to fix the costs of each step in a proceeding if possible. The applicant represented to the court that its bill of costs on a partial indemnity scale for the application amounted to $19,675.00. I can appreciate that there was a need for three counsel on a file such as this. This amount is within the realm of expected costs for an urgent application of this nature, although perhaps a little on the high side having regard to comparable cost awards that I was directed to in contested proceedings.

Since the Crown did (technically) provide notice, they were presumptively entitled to costs. However, Justice Kimmel decided — as an act of fairness — that Skelly should have the chance to make his case. Therefore, the option of a “come-back” Motion was granted. Sounds okay, right?

There were a number of problems that came up. First of all, the person(s) filing a Motion are referred to as the “Moving Parties”, not the “Applicants”. It seems that Skelly’s lawyer, Michael Swinwood, wasn’t even aware of what documents he was filing.

This is what Swinwood was filing.

By contrast, the Ontario Government listed that Skelly and his restaurant were in fact the Moving Parties. These are the titles that should have been shown. Just because a Notice of Constitutional Question is included, doesn’t mean that a Motion suddenly becomes an Application.

Look above. The first screenshot is from Swinwood, and the second from Ontario.

Had Skelly been initiating the entire proceeding by way of Judicial Review, then yes, he would have been considered an Applicant. Instead, he was filing a Motion to challenge an earlier ruling, but within the same case.

For Ontario Courts, Applications are governed by Rule 14.05. One can be started with any of Forms 14E, 14E.1, 68A or 73A. Motions are governed by Rule 37, and are initiated by Form 37-A. These are different forms, and completely different rules apply. Now, a Notice of Motion was filed, but it’s baffling why Skelly would be listed as an “Applicant”.

In June 2021, Justice Akbarali refused to hear the Motion, stating that she had no jurisdiction over the matter. She did, however, allow Skelly and his lawyer another attempt, if it were drafted properly.

Here is a very, very brief timeline of events.

November 28th, 2020: The Ontario Government files an emergency Application against Adam Skelly and his business in order to limit the amount and type of business that it can do. Although he is served with notice, this is done on such a short time frame that there wasn’t really the chance to respond.

December 1st, 2020: The Ontario Government serves their Application Record.

December 2nd, 2020: The Ontario Court defers ruling on a decision on the status of Adamson Barbeque, until the following week.

December 11th, 2020: Justice Kimmel of the ONSC grants the Application from Ontario forcing the business to only operate (or not operate) within the parameters of the Reopening Ontario Act. While $15,000 in costs is awarded, it’s deferred pending an anticipated “Comeback Motion” to be filed.

January 22, 2021: A Criminal Court Judge issues and order restricting what Skelly can post online, including any incitement or encouragement that the Ontario “restriction measures” not be followed.

February 1st, 2021: The Notice of Motion is filed, along with the first iteration of the Notice of Constitutional Question.

February 17th, 2021: Swinwood files a 27 page Notice of Constitutional Question. Rather than simply listing the issues to be considered, it’s filled with argument, and reads more like a Factum.

March 9th, 2021: The Toronto Board of Health sues Skelly in an attempt to recoup the costs of paying over 100 police officers to enforce their mandates. There’s another suit filed on March 10th, and it looks like they went after him twice (CV-21-00658431-0000 and CV-21-00658546-0000).

April 12th, 2021: Skelly and the various expert witnesses have their Affidavits sworn. Note, the documents themselves are attached below. As an aside, it’s a bit disappointing that they all play along with the narrative that there is actually a virus.

May 25th, 2021: Matthew Hodge is cross examined on his Affidavit evidence. This would be the first of several days which he is questioned.

May 27th, 2021: Byram Bridle is cross examined on his Affidavit evidence.

May 31st, 2021: Skelly is cross examined on his Affidavit evidence.

June 8th, 2021: Swinwood amends the Notice of Constitutional Question.

June 11th, 2021: The Factum (arguments) are submitted on Skelly’s behalf.

June 14th, 2021: The Factum is amended.

June 18th, 2021: The Government sends their responding Factum.

June 22nd, 2021: Reply Factum is sent on Skelly’s behalf.

June 29, 2021: Justice Jasmine Akbarali declares that she has no jurisdiction to preside over the Motion brought by Skelly and Swinwood. It seems that Rules of Civil Procedure weren’t followed, but another chance is given to do it properly. Costs for this Motion are to be deferred for a few weeks.

July 13, 2021: Justice Akbarali hands down a $15,000 cost award against Skelly for this Motion not being able to be heard. However, the original $15,000 order from December 2020 is deferred for 6 months, pending the outcome of the original matter.

Theories were rampant as to what happened with the June Motion. Some had said Swinwood was grossly incompetent.

Others suggested that Justice Akbarali was biased, and that the case was rigged. Now Swinwood could have simply redone the paperwork, but he didn’t. However, without proof, this is all speculation.

October 2021: Despite the Toronto Board of Health suing Skelly and his business back in March, they don’t actually serve anything for several months.

February 1st, 2022: Michael Swinwood (Skelly’s lawyer), apparently still hasn’t properly prepared the paperwork to challenge the 2020 decision. He never made another attempt. At this point, the outstanding $15,000 is formally awarded against Skelly. Skelly wasn’t given the opportunity to defend himself personally at the hearing.

June 2nd, 2022: RBC wins a financially crippling default judgement against Adamson BBQ. However, it appears to be against the business itself, and not Adam personally.

June 17th, 2022: Another Application is brought (this time with Ian Perry as counsel) against the Ontario Government. It once again challenges the Reopening Ontario Act.

June 14th, 2023: Ontario files a Notice of Motion for security for costs. In these types of Motions, one side is concerned that another won’t (or can’t) meet its financial obligations. This is a way around that. Typically, this leads to money or property being given to the Court, pending the outcome of the dispute. Ontario argues that it’s necessary here.

June 28th, 2023: A $200,000 lawsuit for incompetence, negligence and malpractice is levied against Michael Swinwood, Skelly’s now “former” lawyer. It’s filed by Ian Perry.

August 11th, 2023: Ontario Government files Motion Record for security for costs Motion.

August 28th, 2023: Skelly files Responding Motion Record for security for costs Motion.

August 29th, 2023: Ontario Government files Factum for security for cost Motion.

September 6th, 2023: Reply Factum for security for costs Motion is filed.

September 8th, 2023: The hearing for the Motion for Security for costs takes place.

November 20th, 2023: Justice McAfee issues a $30,000 “security for costs” order against Adam Skelly. This means he’ll have to put up the money in advance, as a sort of “deposit” in order to continue the latest application.

October 1st, 2nd, 7th of 2024: The Challenge to the R.O.A. is scheduled to be heard.

Now, what was so wrong with the come-back Motion that Swinwood had filed back in 2021? Aside from naming the Parties incorrectly, there were issues with the relief sought. Justice Akbarali mentioned this in the June 2021 decision.

a. An order staying the within proceedings until the determination of the Notice of Constitutional Question, dated February 1, 2021;

b. A request for a further case conference to establish timelines for the production of materials leading to the determination of the constitutional challenge;

c. A suspension of the s. 9 order [Justice Kimmel’s order] due to the revocation of the EMCPA enunciated in s. 17 of the ROA;

d. Compensation for damages caused by the breaches of the Canadian Charter of Rights and Freedoms under s. 24(1) of the Charter;

e. Such further or other order as may be requested and the court deems just and proper.

But what’s missing here? Skelly’s lawyer isn’t asking that the original restraining order be varied or set aside (terminated). That was the entire point of the come-back Motion is the first place.

From the Ontario Factum:

5. The Respondents’ Notice of Motion does not seek any relief varying or setting aside the restraining order granted by this Court on December 4, 2020 under s. 9 of ROA. Nor does the Notice of Motion seek any declaratory relief. Neither does the Respondents’ Amended Amended Notice of Constitutional Question dated June 8, 2021 make any reference to varying or setting aside this Court’s order of December 4, 2020 or to declaratory relief.

6. The only substantive relief sought in this motion is “An Order for compensation for damages caused by the breaches of the Canadian Charter of Rights and Freedoms under Section 24(1) of the Charter.” This relief is not available, with the result that the motion must be dismissed.

7. First, damages are not available as relief on an interlocutory motion in an application. A claim for damages requires pleadings such as a statement of claim and a statement of defence. There are no pleadings in this proceeding, and the only originating process is the Crown’s Notice of Application. Moreover, there has been no notice as required by s. 18 of the Crown Liability and Proceedings Act, 2019. Failure to give the required statutory notice renders this motion a nullity.

37. As set out above at paras. 4-6, the only substantive relief sought in the Respondents’ Notice of Motion is an order “for compensation for damages caused by the breaches of the Canadian Charter of Rights and Freedoms under Section 24(1) of the Charter.” To the extent that the Respondents purport to seek other or additional relief in their factum, the Court should not entertain such claims.

38. Rule 37.06 provides that every Notice of Motion shall “state the precise relief sought” and “the grounds to be argued, including a reference to any statutory provision or rule to be relied on.” The Respondents’ Notice of Motion makes no reference to setting aside this Court’s order of December 4, 2020 or to any declaratory relief. Nor does it refer to any Rule or statutory provision apart from s. 24(1) of the Charter.

39. The purpose of Rule 37.06 is obvious. The Divisional Court has recently confirmed that it is an error of law to grant relief not sought in a Notice of Motion, that due process underlies Rule 37.06, and that “Parties should not have to guess, speculate or intuitively understand what the issues to be decided are on a motion. In an adversarial litigation system, it is imperative that the litigants are made clearly aware of the case they have to meet.” The Respondents should not be permitted to enlarge the legal issues or claim relief in their factum not sought in their Notice of Motion, particularly since the Respondents’ factum attempting to expand the issues was delivered after the evidence on the motion was adduced and the cross-examinations completed.

Justice Kimmel allowed a come-back Motion to be filed because it was anticipated that there would be significant challenges to the original order. Instead, there were requests for damages in the Notice of Motion. There’s also the issue that a Court can’t award damages on an intermittent (case is still ongoing) Motion.

Justice Kimmel permitted “Relief A”, and instead, Swinwood asked for “Relief B”.

How could Swinwood have screwed things up so badly?

And how come he never tried to fix it later?

Anyhow, more to come.

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

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

(1) Skelly – RBC Default Judgement Order

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

NEW APPLICATION DOCUMENTS:
(1) Skelly – Notice Of Application (Ian Perry)
(2) Skelly – Costs – Notice of Motion – Moving Party (Respondent) HMTK
(3) Skelly – Costs – Motion Record-Moving Party (Respondent)
(4) Skelly – Costs – Applicant Responding Motion Record Security For Costs
(5) Skelly – Costs – Factum – Moving Party – HMK
(6) Skelly – Costs – Responding Factum Applicants Skelly et al

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

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

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

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

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

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

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A Look Into Gill’s $2 Million Professional Malpractice Claim

Kulvinder Gill’s $2 million malpractice lawsuit is out, and is it ever interesting. When previously covered, just the Notice of Action was filed, but now, there’s the Statement of Claim.

Here’s some background information on what has transpired since 2020.

It alleges incompetence, negligence, breach of contract, breach of fiduciary duties, and an overall lack of professionalism. This covers both Gill’s defamation lawsuits — there are 2 — and her dealings with the CPSO. There’s certainly a lot to break down.

The Notice listed the value at $1.85 million, but the Claim is now for $2 million. The reason is that the demand for aggravated and/or punitive damages had risen from $100,000 to $250,000. No defence has yet been filed, but it will be worthwhile to read when it is.

Disclaimer: This is just the Statement of Claim, and nothing has yet been proven. More than likely, there is some slant in Gill’s favour. However, the content is an eye opening look into how things unfolded.

Gill says (paragraph 9) that Galati represented that he, and his junior associate, Samantha Coomara, had significant experience dealing with defamation cases and the CPSO. Apparently, he talked Gill out of using other lawyers, claiming they had: (a) limited experience; (b) conflicts of interest; and (c) never litigated in Court.

As an aside: having dealt with Coomara personally, she is incompetent, and is unfit to litigate defamation Claims. She has a limited grasp of civil procedure, and would be better off working as a clerk or secretary. She doesn’t even know what documents go in Motion Records.

Gill says (paragraph 13) that she was misled into what her retainer was to cover. She relied on a verbal agreement that it would cover both her CPSO and defamation matters.

Gill says (paragraph 19) that bringing together 23 different Defendants for her defamation case with Lamba was done to leverage larger settlements. She suggests that Galati misrepresented the situation by labelling everyone “co-conspirators”, in order to make the case stronger. Considering many Defendants didn’t even know each other, this seems like a bad faith abuse of the Court process.

Gill says (paragraph 20) that Galati’s conduct was, at least in part, designed to raise is own profile as a fighter against public health measures. She implies that she was used as a pawn to advance his own professional image. He did this to the detriment of her interests. This is something she’ll repeat over and over in the Claim.

Gill says (paragraph 23) that she wasn’t promptly notified that one of the potential Defendants had threatened to bring an anti-SLAPP Motion in response to the Notice of Libel that was sent. In other words, at least one person was quite willing to use this method. Gills states she didn’t find out until after the suit had already been thrown out. If true, it would likely mean this was withheld from her in order to prevent her from backing out of suing.

Gill says (paragraph 25) that she had no idea the Defendants would be filing anti-SLAPP Motions until they actually happened. If true, it would mean that her counsel failed to advise her of the most likely path forward. This would amount to professional malpractice. Anti-SLAPP laws are designed to quickly screen out defamation cases.

Gill says (paragraph 26) that she was never given the informed choice as to whether to proceed with the case or not. She further adds that she was unaware of the potentially crippling cost consequence (full indemnity, or 100%). If she had been, she wouldn’t have pursued the case.

Gill says (paragraph 27) that she never got the opportunity to review the Statement of Claim before it was filed in December 2020.

Gill says (paragraph 29) that she didn’t get the kind of service that the fees warranted. Instead, her defamation pleading was a “template”, or a cut-and-paste version of earlier cases. Considering the money involved, she expected far more. It’s been stated here many times that Galati simply recycles his cases.

Gill says (paragraph 34) that she only found out after the fact that Amir Attaran, in a separate proceeding, had filed his own anti-SLAPP Motion. Apparently, he had been threatening to do this for some time, but it hadn’t been communicated to her.

Gill says (paragraph 38) that she wasn’t kept in the loop as to the activity surrounding the main defamation case. She had also WRONGLY been assured in February 2021 that the anti-SLAPP Motions weren’t a threat, as they wouldn’t be considered public interest expression. That turned out to be very wrong.

Gill says (paragraph 39) that Galati waited until the last minute before her CPSO deadlines that he wanted more money. Under the circumstances, and without more time, she felt forced to go along with it.

Gill says (paragraph 41) she was never consulted regarding the documents submitted for the CPSO hearings. She adds correctly that the Ontario Court threw out her Application for Judicial Review because she hadn’t exhausted internal mechanisms first. in short, it was doomed to fail since her counsel lacked a basic understanding of jurisdiction.

Gill says (paragraph 45) that the Affidavit Galati prepared for her was largely just a cut-and-paste from the Statement of Claim. It lacked the evidence within, didn’t explain why it was necessary, and didn’t lay out the harm suffered — an essential element.

And how come there was never an Affidavit for Ashinder Lamba?

Gill says (paragraph 51) that she was finally made aware of the true costs during cross-examinations. This was well into 2021. When defamation cases in Ontario are thrown out anti-SLAPP laws, or s.137.1(7) of the Courts of Justice Act, the default position is “full indemnity”. This is 100% of Court costs. This means that a losing Plaintiff would have to pay for everything. Gill claims she wasn’t advised of this in advance, and she should have been.

Gill says (paragraph 52 and 53) that Galati advised against making more settlement offers to other Defendants. This is nonsense, given how strong anti-SLAPP laws are. Gill states she later found out that there were offers coming in, and that Galati lied to her about it. If true, this is professional misconduct.

Gill says (paragraph 56) that Galati was drinking alcohol prior to the anti-SLAPP hearing in September 2021. She says she had to ask him not to drink at the actual hearing. Now, this is just her word, but he does drink during the livestreams with Vaccine Choice Canada and Action4Canada, so it comes across as plausible.

The gif is clipped from the February 8th, 2023 stream with Tanya Gaw, at the 1:24:00 mark.

Gill says (paragraph 60) that at her November 2021 CPSO hearing, there were several observers in attendance. She found out afterwards that this had been done to generate publicity and business for the CRC. However, she didn’t want her matters to be a public spectacle.

The Claim goes on and on, but the general theme is that Gill got thoroughly incompetent representation, and from a lawyer who had other agendas. She was kept out out of the loop with regards to important decisions. Galati also apparently tried to bill her in ways that fell outside their retainer agreement.

A few other points are worth looking at in detail:

Wholehearted Media Is A Galati Front Operation

Gill takes issue with some content being broadcast by an outlet called Wholehearted Media, which she had believed was independent. She alleges that she only later found out that her counsel co-founded it, and profited from the income it generated. In fact, he sells an e-course on the site.

Now, there’s nothing inherently wrong with lawyers, or any professionals expressing views publicly. They have the same right to free speech. However, if there is any direct, personal involvement with any media promoting its work, that needs to be disclosed. Gill says that it wasn’t made clear.

In a July 13, 2022 stream with Vaccine Choice Canada, Galati admitted that he ran Wholehearted Media with Rajie Kabli. See the clipped version.

The earliest version of the site the Wayback Machine saved is February 2021. So, this isn’t some ancient, long running publication. The earliest story seems to be announcing the July 2020 lawsuit with Vaccine Choice Canada. And in the earlier “about” section, it’s clear who runs it.

Here’s where things get interesting.

However, when Galati was specifically confronted about Wholehearted Media in his defamation suit with Canuck Law, he said under oath that wasn’t involved in the content. If true, it would mean that the site promotes his work — as a lawyer — but that he has no say in the matter.

Don’t worry, there’s more on that later.

Cases Being Used To “Double-Dip” For Donations

Archiving sites like the Wayback Machine are a gold mine of information for researchers and investigators. Just because content is removed or changed from a site, it doesn’t really disappear.

Gill is angry (paragraph 40) that her case was being used to generate side income for her lawyer. Despite her — and Lamba — paying retainers, their case was posted next to links soliciting donations.

And how does Gill know that donations to the Constitutional Rights Centre exceeded $1 million? Most likely, because it was published previously.

Although the CRC site has since been altered, the Wayback Machine shows that the Gill/Lamba case was published. It was next to a series of links soliciting donations. Clicking on those leads to various PayPal accounts.

Gee, who posted these?

This is from the defamation case against CSASPP.

From paragraph 47 of his Affidavit (in the anti-SLAPP Motion) the online donations are listed. The PayPal records themselves are also entered into evidence.

(a) in the first four months, September to December, 2020 it received $179,505.00;
(b) in 2021 it received $786,706.00, progressively tapering down, monthly, following the Defendants’ defamation and tortious conduct against me.
(c) in 2022 it received $43,878.00.
(d) as of to date, 2023, it has received $4,537.00 which is 53% less than 2022.

Note: this Affidavit was compiled in March 2023, hence the skewed 2023 number.

Starting on page 186 of the Transcript Brief, question 116, it gets into the income in recent years. It’s admitted that donations to the site were large, including over $786,000 in the year 2021.

During the CSASPP anti-SLAPP Motion, Galati refused to specify how much of the $1 million in PayPal donations went to him personally. He also refused to give a full accounting of what his total earnings were during that period. Refusing to disclose particulars contributed to that case being thrown out.

Now, in her malpractice suit, Gill is referencing these online donations to demonstrate a conflict of interest with her representation. Her case had been used — presumably without her permission — to solicit funds for the CRC.

Gill alleges that this amounts to a breach of contract, and a breach of fiduciary duty. Her lawyer’s obligations are to her, and not to self promote, as seems to be the case here.

The Federal Workers and Ontario First Responders (a.k.a. Ontario Health Workers) are also listed on the page soliciting donations. This is despite clients having paid retainers of $1,000 and $1,5000 respectively. So, it’s not just Gill’s case where there’s multiple incomes.

Health/Retirement Were Just Excuses To Dump Gill

Gill says in the Statement of Claim that Galati used his recent health troubles to remove himself as her lawyer. He would be unable to continue representing her, and would likely end up retiring overall.

However, Gill points out that despite this, he continued to represent other clients, and even filed new litigation. Perhaps his illness was case specific. It comes across as an excuse to dump her personally. If this turns out to be the case, he would likely be on the hook for the extra costs she incurred in obtaining new counsel.

Summary Of Incompetence/Negligence Allegations

Starting at page 15 in the Statement of Claim, the specific acts are listed. And is it ever a list. These are serious accusations, and they venture into the realm of professional misconduct.

a) He improperly commenced a claim that was doomed to fail.

b) He failed to advise Dr. Gill of the risks in commencing a defamation action in the Province of Ontario, including the very real potential for anti-SLAPP motions to be filed, the test for these motions and the likelihood for an adverse full indemnity costs award.

c) He failed to pursue any potential settlement with the Defamation Defendants, which would have mitigated damages and potentially rendered an action unnecessary.

d) He failed to advise Dr. Gill of critically important information that would have allowed her to make an informed decision regarding various steps in the litigation, including but not limited to (i) initiating an action, (ii) continuing the action, (iii) settling the action against various parties and (iv) properly responding to the anti-SLAPP motions.

e) He failed to properly and competently articulate, advance and argue a meritorious claim against some of the Defamation Defendants.

f) He employed and/or relied upon junior lawyers, staff, and other employees who lacked sufficient competency skills, and training for the tasks they were undertaking.

g) He held himself out as an expert in the field of defamation law, when he knew or ought to have known that he, in fact, lacked any such expertise.

h) He failed to provide Dr. Gill with competent advice and recommendations.

i) He failed to communicate with Dr. Gill in a regular, open, transparent, and clear manner.

j) He failed to provide Dr. Gill with notice and/or sufficient notice of deadlines in her legal proceedings.

k) He missed and failed to advise Dr. Gill that he had missed critical deadlines in the CPSO matters (including appeals to the Health Professions Appeal and Review Board).

l) He failed to take instructions or solicit informed consent from Dr. Gill on important steps in the litigation.

m) He placed his own beliefs, interests and/or ideology above the interests of his client, Dr. Gill.

n) He acted for Dr. Gill even though he was in a conflict of interest, seeking to advance his own interests, political or otherwise, and to personally benefit from acting for Dr. Gill and putting his own interests ahead of hers.

o) He committed flagrant breaches of his duties owed to Dr. Gill pursuant to the Rules of Professional Conduct.

p) He drafted, prepared, and issued a grossly deficient Statement of Claim.

q) He committed numerous errors and breaches in defending the anti-SLAPP Motions.

r) He prepared and delivered deficient responding motion material to the anti-SLAPP Motions.

s) He failed to provide Dr. Gill with a copy of the Motion Decision in a timely manner.

t) He prepared and delivered deficient cost submissions.

u) He prepared and delivered a deficient Notice of Appeal.

v) He abandoned Dr. Gill’s legal cases at critical times and left her in a vulnerable position.

w) He generally acted as incompetent legal counsel in advancing and protecting Dr. Gill’s interests.

x) Such further particulars as counsel for the plaintiff will advise.

Keep in mind, this is just Gill’s Statement of Claim, so this is her version of events. Still, it comes across as believable. It boggles the mind that any truly informed person would have filed such a lawsuit. Anyone with a working knowledge of anti-SLAPP laws would have immediately seen that this case was very likely to be thrown out.

As with her interview a month ago, Gill doesn’t show any regret or remorse for the people that she waged lawfare against. Indeed, her grievance seems to be that Galati and Coomara were incompetent at doing it, not that it was a bad idea in the first place.

Another thought: given Elon Musk’s promise to cover Gill financially, how does it impact this case? Her GiveSendGo has also raised a substantial amount of money.

Frankly, this case seems unlikely to go to Trial. As a practicing lawyer, malpractice insurance is mandatory, and the case will probably be settled. Still, it’s nice to finally have this out.

As for the Maciver Defendants: Sharkawy, Polevoy, Caulfield, Cohen, Boozary, etc…. they’re presumably still out large sums of money. Gill will never fully pay, especially in light of the “settlements” she forced. However, there is another way they can recoup their losses. And the answer is pretty obvious.

GILL PROFESSIONAL MALPRACTICE CLAIM:
(1) Gill Malpractice Notice of Action
(2) Gill Malpractice Statement Of Claim

LAMBA PROFESSIONAL MALPRACTICE CLAIM:
(1) Lamba Statement Of Claim

GILL’S LEGAL BILLS:
(1) https://twitter.com/XNews/status/1771902773358916041
(2) https://www.givesendgo.com/kulvinder
(3) https://www.youtube.com/watch?v=6v_La5W3PP4
(4) CanLII Version Of Ontario Anti-SLAPP Legislation

KULVINDER GILL BEGGING FOR MONEY:
(1) https://www.givesendgo.com/kulvinder
(2) https://www.youtube.com/watch?v=6v_La5W3PP4
(3) https://www.ontario.ca/page/search-court-cases-online

VARIOUS COURT DECISIONS:
(1) Gill v. Maciver, 2022 ONSC 1279 – Case dismissed under anti-SLAPP laws
(2) Gill v. Maciver, 2022 ONSC 6169 – Over $1 million in costs awarded
(3) Gill v. Maciver, 2023 ONCA 776 – Security for costs from The Pointer Group
(4) Gill v. Maciver, 2024 ONCA 126 – Appeal dismissed

MOTION FOR SECURITY OF COSTS
(1) Gill V. Maciver Amended Notice of Motion – 26 Sept 2023
(2) Gill v Maciver – San Grewal’s appeal for support M54554.MPF.PointerGroup – October 2023.PDF
(3) https://drive.google.com/file/d/1PbEewt3dAKqAT5Udp6BIIqrM9Y_AhPHv/view
(4) Ruling: Motion For Security Of Costs – Denied

KULVINDER GILL/ASHVINDER LAMBA CASE:
(1) Gill/Lamba Defamation Lawsuit December 2020
(2) https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html#sec137.1_smooth
(3) Gill/Lamba Factum Of Medical Post Tristan Bronca
(4) Gill/Lamba Case Dismissed As A SLAPP
(5) https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1279/2022onsc1279.html#par17
(6) Gill/Lamba Notice of Appeal and Appellants’ Certificate
(7) Gill/Lamba Appeal – Notice of Intention to Dismiss Appeal for Delay, May 12, 2022
(8) Motion To Recuse – Badly Redacted -2022-06-17 – Notice
(9) Motion To Recuse – Badly Redacted -2022 – Motion Record
(10) Gill/Lamba July 15 Letter To Obtain New Counsel
(11) Gill/Lamba Case Conference Brief July 29, 2022
(12) Gill/Lamba Endorsement New Counsel Cost Submissions August 3, 2022
(13) Gill/Lamba Case $1.1 Million In Costs Ordered October 31, 2022
(14) Gill/Lamba Appeal Dismissed As Baseless By ONCA
(15) https://coadecisions.ontariocourts.ca/coa/coa/en/item/22116/index.do

GILL/ATTARAN/UNIVERSITY OF OTTAWA CASE:
(1) Gill-Attaran Statement Of Claim
(2) Gill Attaran Affidavit Of Service
(3) Gill-Attaran Notice Of Intent
(4) Gill-Attaran Motice To Recuse
(5) Gill-Ataran Motion To Recuse Motion Record

Posted on

Action4Canada: 4 Years Later, No Legitimate Notice Of Civil Claim Filed

Yes, the Action4Canada case has been covered here before, but consider this:

It’s been nearly four (4) years since the group began fundraising, under the pretense that they were going to file a Court challenge in British Columbia. They started in the Summer of 2020, and it’s now the end of March 2024. Almost 4 years later, there’s still no valid case on file.

Despite repeatedly assuring the public that time was of the essence, every attempt has been made to ensure that it will never go forward. Probably the worst example was filing a Notice of Appeal back in September 2022, even though the Judge had granted permission to amend and refile.

It’s undeniable at this point, if it wasn’t obvious long ago. The Action4Canada case was never intended to go to Trial. It was a “placeholder” case, to give the illusion that something was being done. This was all while diverting money and energy away from other causes.

And it’s not as if the case was taken on a pro-bono (or “free”) basis. Donors have paid out hundreds of thousands of dollars for what they thought was a sincere anti-lockdown challenge. They’ve received nothing of value for their money. In the Spring of 2021 alone there was a $200,000 payment for legal services.

True, these people could be delusional, but it could just as easily be an act. It’s hard to imagine anyone this out of touch with reality being given control over an organization’s finances.

Yes, one could argue that there technically was a Claim filed a few years ago. But no sensible person who understands civil procedure takes this seriously. For a quick rundown:

(1) August, 2021: After nearly a year of stalling, Action4Canada files their Notice of Civil Claim, a.k.a. Statement of Claim. It’s 391 pages long, rambling, incoherent, and fails to follow the basics of Civil Procedure. This critique of it aged very well.

(2) August, 2022: The B.C. Supreme Court ruled that it was “bad beyond argument”, and drafted so poorly that it was impossible to respond to. Although leave (permission) was granted to amend, the Claim was never accepted as valid.

(3) February, 2023: The Law Society of B.C. put it in their training manual for new lawyers. This case is now a teaching exercise of “wholly inadequate pleadings”, and how to avoid them. See page 15. That’s right, the LSBC is using it to train new lawyers on how not to draft lawsuits.

(4) February 2024: The Law Society of B.C. puts out its newest version of their training manual for new lawyers, and the Action4Canada case is still in there. Even a year later, they still view it as teaching material. It wasn’t just a one-off.

(5) February, 2024: The B.C. Court of Appeal ruled that the original Claim wasn’t drafted in accordance with the Rules of Civil Procedure. It was too long, confusing, and difficult to follow. They didn’t address the litany of other errors contained within. The lawyer also apparently didn’t understand that you can appeal the Order, but not the Reasons.

This so-called challenge has been smacked down by the:
(a) British Columbia Supreme Court
(b) British Columbia Court of Appeal
(c) Law Society of British Columbia

And it wasn’t over some minor or technical defect or deficiency. This suit has become the laughing stock of the legal profession because it has been so absurdly handled.

More than a month after the BCCA ruling, there’s still no amended NOCC filed. There obviously is no urgency whatsoever to get anything done.

Let’s not forget that both Vaccine Choice cases, from 2019 and 2020, have been allowed to sit idly for years. No rush here either to advance those.

Fundraising started 4 years ago, and still no legitimate Claim from Action4Canada.

If there really was all this expert evidence and testimony ready to go, why mess around with incoherent and unintelligible pleadings? Why unnecessarily complicate things if all of these witnesses were set? It makes no sense whatsoever. Why delay things for years like this?

Even if a well written Notice of Claim were filed tomorrow (unlikely as that is), the Statute of Limitations would be a serious issue. Any new claims would be barred if they happened over 2 years earlier. And since most of the current NOCC is irrelevant or outside the jurisdiction of a Civil Court, there isn’t much left to go on.

What was the plan, to let Bonnie Henry just die of old age?

All that they’ve done is deliberately waste time and money. As of late, they smear their critics as “paid agitators”. Strange how it’s apparently not defamation when they suggest others are controlled opposition.

Remember to donate!

LAW SOCIETY OF BRITISH COLUMBIA:
(1) BCLS Civil Instruction Manual 2023
(2) BCLS Civil Instruction Manual 2024
(3) https://www.lawsociety.bc.ca/becoming-a-lawyer-in-bc/admission-program/professional-legal-training-course/
(4) https://www.lawsociety.bc.ca/becoming-a-lawyer-in-bc/admission-program/professional-legal-training-course/faq-pltc/

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

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

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

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