Federal Court Of Appeal Partially Overturns “Bad Beyond Argument” Injection Mandate Case

The Federal Court of Appeal partially overturned a 2023 ruling on injection mandates for over 600 Plaintiffs who had sued back in May 2022. This suit covered a broad range of employers, both part of the Government, and others regulated by Ottawa.

There were additional claims pleaded related to loss of mobility rights and freedom of travel. However, these seemed to be almost an afterthought. Primarily, this was a lawsuit over workers refusing to take the injections in the Fall of 2021.

Back in February 2023, Justice Fothergill struck the Claim for most (about 400) of the Plaintiffs without leave to amend. This meant that they wouldn’t be allowed to submit a new version. The other 200 or so saw their claims struck with permission to refile. A lump sum of $5,000 in costs was also awarded.

To explain this a little better: the Court created Schedules “A” and “B”, and lumped various employers into each. The “A” employers were part of the Federal Government. By contrast, The “B” employers weren’t part of the Government, but part of Federally regulated industries. The reason for this is that there’s a distinction in how their respective claims were to be handled.

Employees who fell into Group “A” were prohibited from going to Court at all over employment. The reason is that sections 208 and 236 of the Federal Public Sector Labour Relations Act allow the right to grieve, but not to sue.

Employees who fell into Group “B” were not necessarily restricted from going to going to Court. However, the pleadings were so horribly written that a new version would need to be created. The Court referred to it as “bad beyond argument”, and for “substantially the same reasons” as the Action4Canada case, it had to be struck. As with the Vaccine Choice Canada case, this one failed to follow the basics of civil procedure — once again.

That said, with this Appellate ruling, all Plaintiffs will be allowed to file something.

What this means is that everyone will be able to make claims for restrictions on their movements. That can still go ahead. However, the employment claims for all Schedule “A” litigants are still barred, with the possible exception of those employed by the RCMP. They’re governed by different provisions in the FPSLRA.

One of the problems with having so many Plaintiffs is that there’s no information pleaded about any of them specifically. Instead, generalizations are made, without reference to who it applies to. As for the travel restrictions, it’s unclear which litigants are alleging it.

Hopefully, these people will retain a competent lawyer this time.

Alternatively, maybe counsel will take a remedial refresher course on how to plead documents.

SCHEDULE “A”: PLAINTIFFS WHO ARE MEMBERS OF THE CORE PUBLIC ADMINISTRATION

  • Canada Opportunities Agency
  • Canada Border Services Agency
  • Canada Revenue Agency
  • Canada School of Public Service
  • Canadian Coast Guard (Department of Fisheries and Oceans)
  • Canadian Food Inspection Agency*
  • Canadian Forestry Service (Department of Natural Resources)
  • Canadian Institutes of Health Research*
  • Canadian Nuclear Safety Commission*
  • Canadian Radio-television and Telecommunications Commission
  • Canada Revenue Agency*
  • Canadian Security Intelligence Service*
  • Core Public Service
  • Canadian Space Agency
  • Correctional Service of Canada
  • Courts Administration Service
  • Department of Agriculture and Agri-Food
  • Department of Canadian Heritage
  • Department of Employment and Social Development
  • Department of Fisheries and Oceans
  • Department of Justice
  • Department of National Defence
  • Department of Natural Resources
  • Department of Transport
  • Department of Veterans Affairs
  • Elections Canada (“Office of the Chief Electoral Officer” and “The portion of the federal public administration in the Office of the Chief Electoral Officer in which the employees referred to in section 509.3 of the Canada Elections Act occupy their positions”)
  • Environment and Climate Change Canada (Department of the Environment)
  • Federal Economic Development Agency for Southern Ontario
  • Global Affairs Canada (Department of Foreign Affairs, Trade and Development)
  • Government of Canada
  • Immigration, Refugees and Citizenship Canada (Department of Citizenship and Immigration)
  • Indigenous and Northern Affairs Canada (Department of Crown-Indigenous Relations and Northern Affairs)
  • Indigenous Services Canada (Department of Indigenous Services)
  • Innovation, Science and Economic Development Canada
  • National Film Board of Canada (National Film Board)*
  • National Research Council Canada*
  • National Security and Intelligence Review Agency (National Security and Intelligence Review Agency Secretariat)*
  • Office of the Auditor General of Canada*
  • Parks Canada*
  • Polar Knowledge Canada (Canadian High Arctic Research Station)*
  • Public Health Agency of Canada
  • Public Safety Canada (Department of Public Safety and Emergency Preparedness)
  • Public Services and Procurement Canada
  • Royal Canadian Mounted Police**
  • Service Canada (Department of Employment and Social Development)
  • Shared Services Canada
  • Staff of the Supreme Court
  • Statistics Canada
  • Treasury Board

NOTES:

All organizations are part of the core public administration as defined at s 11(1) of the Financial Administration Act (Schedules I and IV), except as noted.

  • Organizations that are portions of the federal public administration listed in Schedule V (Separate Agencies of the Financial Administration Act, whose employees have rights to grieve under the Federal Public Sector Labour Relations Act).

** The RCMP is part of the core public administration and is listed in Schedule IV of the Financial Administration Act; RCMP members have limited rights to grieve under s 238.24 the Federal Public Sector Labour Relations Act, but have other grievance rights under the Royal Canadian Mounted Police Act.

SCHEDULE “B”: PLAINTIFFS WHO ARE NOT MEMBERS OF THE CORE PUBLIC ADMINISTRATION

  • Air Canada
  • Air Canada Jazz
  • Air Inuit
  • Bank of Canada
  • Bank of Montreal
  • BC Coast Pilots Ltd
  • BC Ferries
  • British Columbia Maritime Employers Association
  • Brookfield Global Integrated Solutions
  • Canada Mortgage and Housing Corporation
  • Canada Pension Plan
  • Canada Post
  • Canadian National Railway
  • Canadian Pacific Railway
  • City of Ottawa Garage Fed Regulated
  • DP World
  • Export Development Canada
  • Farm Credit Canada
  • G4S Airport Screening
  • Garda Security Screening Inc
  • Geotech Aviation
  • Global Container Terminals Canada
  • Greater Toronto Airports Authority
  • House of Commons
  • Human Resources Branch, Innovation
  • Kelowna Airport Fire Fighters
  • National Arts Centre
  • NAV Canada
  • Ontario Northland Transportation Commission
  • Ontario Power Generation
  • Pacific Pilotage Authority
  • Parliamentary Protection Service
  • Public Sector Pension Investment Board
  • Purolator Inc
  • Questral Helicopters
  • RBC Royal Bank
  • Rise Air
  • Rogers Communications Inc
  • Royal Canadian Mint
  • Sasktel
  • Scotiabank
  • Seaspan Victoria Docks
  • Shaw
  • Skynorth Air Ltd
  • Telesat Canada
  • Via Rail Canada
  • Wasaya Airways
  • Waterfront Employers of British Columbia
  • Westjet
  • Westshore Terminals
  1. Did the Federal Court err in determining that the plaintiffs employed by the RCMP were subject to the bar in section 236 of the FPSLRA?
  2. Did the Federal Court err in determining that the bar in section 236 of the FPSLRA forecloses the right of action for claims in respect of the Interim Order and other travel related restrictions?
  3. Did the Federal Court err in striking, without leave to amend, the claims related to the TB Policy made by the plaintiffs who were employed by the organizations listed in Schedule “A” to the Federal Court’s Reasons?
  4. Did the Federal Court err in finding certain other claims to be non-justiciable?
  5. Did the Federal Court err in striking the Statement of Claim due its being generally improper and failing to plead necessary material facts?

1. Did the Federal Court err in determining that the plaintiffs employed by the RCMP were subject to the bar in section 236 of the FPSLRA? YES

[42] On the first issue, I conclude that the Federal Court erred in finding that the bar in section 236 of the FPSLRA applies to the plaintiffs who were members of the RCMP.

[43] It will be recalled that subsection 236(1) of the FPSLRA provides that the “right of an employee to seek redress by way of grievance for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute”.

[44] To recall, the relevant definition of what constitutes a grievance is set out in subsection 206(1) of the FPSLRA. That section states that a grievance is one that may be filed under either section 208 or 238.4 of the FPSLRA. Thus, the bar in section 236 applies only to those who could seek redress via a grievance under section 208 or 238.4 of the FPSLRA.

[45] Yet, section 238.4 of the FPSLRA applies only to grievances arising under a collective agreement applicable to RCMP members who meet the statutory definition of “employee” in the FPSLRA. Based on the materials that were before the Federal Court and that are now before this Court, it is impossible to ascertain whether any collective agreement has been negotiated for RCMP members. The National Police Federation was certified as the bargaining agent for RCMP members in 2019 by the FPSLREB in National Police Federation v. Treasury Board, 2019 FPSLREB 74. However, it is unclear if a collective agreement has been achieved and, if so, whether a challenge to the TB Policy could be the subject of a grievance under any such agreement. Given this lack of information, it is not plain and obvious that the plaintiffs who were members of the RCMP possessed rights to grieve the TB Policy under a grievance to which section 238.24 of the FPSLRA pertains.

The RCMP Plaintiffs may still have their employment claims struck at some point. However, with the information available on this Motion, they couldn’t be now.

2. Did the Federal Court err in determining that the bar in section 236 of the FPSLRA forecloses the right of action for claims in respect of the Interim Order and other travel related restrictions? YES

[53] The Federal Court therefore erred in finding that the plaintiffs’ claims related to the Interim Order and other travel-related measures could have been grieved or were subject to section 236 of the FPSLRA. While these claims suffer from the lack of proper pleadings and a failure to plead the necessary material facts that characterize the Statement of Claim generally, they should not have been struck without leave to amend. If properly pleaded, it may perhaps be possible for the plaintiffs to raise a claim that could come within the jurisdiction of the Federal Court. Without seeing an amended pleading, however, it is impossible to discern whether or not a valid claim might be advanced. The plaintiffs therefore should have been granted leave to amend the claims related to the Interim Order and other travel-related measures on the same basis as the Federal Court allowed other claims to be amended.

All Plaintiffs should be given the right to have their travel-related claims heard.

In fairness to Justice Fothergill, it was unclear who exactly was pleading that their travel related rights were infringed. The Statement of Claim was so lacking in detail that it was impossible to tell.

3. Did the Federal Court err in striking, without leave to amend, the claims related to the TB Policy made by the plaintiffs who were employed by the organizations listed in Schedule “A” to the Federal Court’s Reasons? NO

[54] On the third issue, I conclude that the Federal Court did not err in striking, without leave to amend, the claims related to the TB Policy made by the plaintiffs who were employed by the organizations listed in Schedule “A” to the Federal Court’s Reasons, other than the RCMP. However, the Federal Court erred in striking the claims of RCMP members related to the TB Policy.

[55] It is not disputed that the plaintiffs who were employed by organizations other than the RCMP could have filed grievances under section 208 of the FPSLRA challenging the TB Policy or its application to them. As noted, the TB Policy was a term and condition of employment and thus subject to grievance under section 208 of the FPSLRA, which allows the employees of the organizations listed in Schedule “A” to the Federal Court’s Reasons other than the RCMP to file grievances relating to their terms and conditions of employment. That said, the FPSLREB recently held in Rehibi v. Deputy Head (Department of Employment and Social Development, 2024 FPSLREB 47, that a grievance challenging the application of the TB Policy could not be referred to adjudication due to the fact that only a subset of matters that may be grieved under the FPSLRA may be referred to adjudication under subsection 209(1) of the FPSLRA.

[64] Since the defendants sought to strike the Statement of Claim based on the fact that a grievance process was available, it was incumbent on the defendants to establish that the TB Policy could have been grieved by RCMP members. However, no evidence was tendered on this issue and the statutory scheme is not sufficiently clear to definitively establish that the TB Policy could have been grieved by RCMP members. I therefore conclude that the Federal Court erred in striking the claims of RCMP members related to the TB Policy without leave to amend. The plaintiffs who were members of the RCMP should have been granted leave to amend their claims related to the TB Policy on the same basis as the plaintiffs who were employed by organizations other than those listed in Schedule “A” to the Federal Court’s Reasons were granted leave to amend.

Since the RCMP are governed by a different part of the FPSLRA, the Federal Court of Appeal concluded that their employment claims shouldn’t have been struck under s.236. That’s not to say that it may not happen anyway. That said, all other Schedule “A” Plaintiffs are out of luck.

This is a pattern that’s become more obvious: lawyers bringing cases to Court that involve Government and/or union workers. There’s almost always some legislation or collective bargaining agreement that gets these thrown out.

See below, under the “precedents” section. Since the 2023 decision, 5 more cases have been thrown out (4 in Federal Court, and 1 in B.C. Supreme Court) citing this Adelberg ruling as precedent.

4. Did the Federal Court err in finding certain other claims to be non-justiciable? NO

[65] I see no error in the Federal Court’s determination that 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, are not justiciable in a civil action.

[66] As for the validity of the TB Policy and the Interim Order, it would appear that those issues may now well be moot. In addition, while it might have been possible to argue that the policies at issue were invalid in the context of a justiciable claim for relief on some other basis in accordance with the decision of the Supreme Court of Canada in Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, the Federal Court did not err in holding that an order setting aside the TB Policy and the Interim Order could only be obtained by way of an application for judicial review.

[67] I accordingly see no basis for setting aside any of the foregoing rulings made by the Federal Court.

This is comical and goofy. Experienced lawyers should know what Courts can and cannot adjudicate over. It reeks of incompetence that this keeps happening over and over again.

Bad beyond argument.

5. Did the Federal Court err in striking the Statement of Claim due its being generally improper and failing to plead necessary material facts? NO

[68] Finally, I see no error in the Federal Court’s finding that the Statement of Claim was improperly pleaded and lacked the necessary material facts. As noted in Mancuso v. Canada (National Health and Welfare) 2015 FCA 227, [2015] F.C.J. No. 1245 at para. 16, a plaintiff must plead, in summary form, but with sufficient detail, the constituent facts to support the relief sought. As the Federal Court rightly noted in this case, for the claims in respect of which leave to amend is granted, the plaintiffs must set out with sufficient particularity the facts they rely on in support of their claim, including details of how they were specifically impacted by the policies they impugn and the bases for and all material facts necessary to ground the claims advanced. The Statement of Claim, as drafted, is entirely devoid of these necessary material facts.

[69] I therefore see no reviewable error in the decision to strike the Statement of Claim in its entirety. However, leave to amend it should be granted to all the plaintiffs in accordance with these reasons.

This is common sense, or at least it should be. If you want to sue someone, you have to spell out the allegations with enough specific detail that they can respond to it.

Here’s he TL, DR (too long, didn’t read) version of things:

(1) Members and former members of the RCMP may still be able to bring employment related claims around their refusal to take the injections.

(2) All Plaintiffs — both Schedules “A” and “B” — can make travel related claims

(3) Other than RCMP, all other Schedule “A” Plaintiffs have their employment claims barred

(4) The Statement of Claim is filled with issues a Civil Court can’t preside over

(5) The Statement of Claim fails to comply with the Rules of Civil Procedure, and doesn’t plead the facts necessary to be properly responded to.

(6) The $5,000 cost award is set aside, and no costs were awarded here.

The “bad beyond argument” findings of Justice Fothergill (here), and Justice Ross (Action4Canada) have been upheld. Neither case was pleaded in a coherent manner. And both needed to be redone. It’s still mind boggling that veteran lawyers don’t understand how to draft documents.

While all Plaintiffs can now go ahead with something, a few questions:

(a) Since the Schedule “A” employment claims are still prohibited, will there be an attempt to appeal to the Supreme Court of Canada? That was promised after all.

(b) Since so much time has passed, will any new allegations be barred by the Statute of Limitations? For most things, there’s a 2 year time limit.

(c) Will any more of the litigants discontinue their case? Will others try to proceed, but with more “effective” counsel?

(d) Considering that Action4Canada never bothered to file an amended Notice of Civil Claim, even 4 months after “winning” their Appeal, will this happen here too? Will these Plaintiffs call their critics “paid agitators“?

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
(3) FCA Adelberg V. HMTK A-67-23 Appellants MFL
(4) FCA Adelberg V. HMTK A-67-23 Respondents MFL

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) Federal Court Decision On Motion To Strike (Archive)
(9) https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/522970/index.do
(10) https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1507/2022bcsc1507.html
(11) https://laws-lois.justice.gc.ca/eng/regulations/sor-98-106/page-9.html#h-1013947
(12) https://www.laws-lois.justice.gc.ca/eng/acts/P-33.3/page-13.html#h-406405

PRECEDENTS CREATED
(1) https://www.canlii.org/en/ca/fct/doc/2023/2023fc280/2023fc280.html#par85
(2) https://www.canlii.org/en/ca/fct/doc/2023/2023fc929/2023fc929.html#par17
(3) https://www.canlii.org/en/bc/bcsc/doc/2023/2023bcsc1701/2023bcsc1701.html#par30
(4) https://www.canlii.org/en/ca/fct/doc/2023/2023fc1752/2023fc1752.html#par24
(5) https://www.canlii.org/en/ca/fct/doc/2024/2024fc137/2024fc137.html#par44

MONEY
(1) Letter to Federal Worker Plaintiffs
(2) Federal Workers Action Donation Link For PayPal
(3) Ontario First Responders Action Donation Link For PayPal
(4) School Action Donation Link For PayPal
(5) Police Officer Action Donation Link For PayPal
(6) https://www.web.archive.org/web/20220526170932/https://www.constitutionalrightscentre.ca/
(7) Federal Workers Retainer Agreement
(8) Ontario First Responders Retainer Agreement
(9) Donate To Public Citizens Inquiry
(10) Donations For Supposed B.C. Doctors Action

CSSEM Cases Thrown Out: $530,000 For Petitions That Don’t Actually Challenge Anything

The British Columbia Supreme Court dismissed 3 Petitions challenging a requirement that health care workers (HCW) still have to take the clot-shots to keep their jobs.

There was one small victory though. The Public Health Office is to review the requirement that remote workers have to get the shots. This would also apply to others who don’t come into any contact with patients, residents or clients. The reasons for that start on paragraph 210 of the ruling.

It doesn’t necessarily mean that remote workers or workers who don’t come into contact with others will be exempt from the injection orders. It simply means that it must be reconsidered.

[315] The petitions are dismissed, with the exception that, under JRPA s. 5(1), I remit to the PHO for reconsideration, in light of this decision, whether to consider requests under s. 43 of the PHA, for reconsideration of the vaccination requirement from healthcare workers able to perform their roles remotely, or in-person but without contact with patients, residents, clients or the frontline workers who care for them.

What percentage would this apply to?

These cases were financed by a group called CSSEM, the Canadian Society for Science & Ethics in Medicine. On their website, they take credit for raising $530,000 to date. There’s overlap with the people running this group, and those who had campaigned for Action4Canada.

Whether coincidental or by design, the name is strikingly similar to CSASPP, the Canadian Society for the Advancement of Science in Public Policy. Both groups have the same goals. Was this done to piggyback off of their fundraising?

Hsiang et al v. Provincial Health Officer of British Columbia SCBC Vancouver Registry No. S224731

Hoogerbrug v. Provincial Health Officer of British Columbia SCBC Vancouver Registry No. S224652

CSASPP et al v. Dr. Bonnie Henry in her capacity as Provincial Health Officer for the Province of British Columbia SCBC Vancouver Registry No. S2110229

Tatlock et al v. Attorney General for the Province of British Columbia et al.SCBC Vancouver Registry No. S22242

Previously, there were 4 Petitions to be heard together, but CSASPP discontinued, after advising that it would be the case.

From the looks of their website, CSSEM is still funding the other 3 cases. While they weren’t anywhere near the dumpster fire that the Action4Canada one is, there are several problems which led to them being dismissed anyway:

  1. Petitions don’t challenge the “emergency” declarations in any meaningful way
  2. Petitions don’t challenge the junk “science”
  3. Petitions don’t challenge the Public Health Act
  4. Petitions should probably have been done as Civil Claims

Instead, the Petitions largely focus on narrow exemptions under the Canadian Charter. It’s a “cookie-cutter” challenge that’s been seen many times — including from the JCCF — and never goes anywhere. Seriously, it cost over half a million dollars for this?

26. The Petitioners seek the following orders under sections 2(2) and 7 of the Judicial Review
Procedure Act, RSBC 1996, c 241:
.
a. An order in the nature of certiorari quashing and setting aside the order of the Provincial Health Officer, dated November 18, 2021, entitled “Hospital and Community (Health Care and Other Services) Covid-19 Vaccination Status Information and Preventive Measures – November 18, 2021” (“Order”), to the extent that it requires individuals to have received the SARS-CoV-2 vaccination in order to work in hospital and designated community settings;
b. A declaration that the decision to continue in effect, or the failure or refusal to rescind, the November 18 Order, at any time after November 18, 2021, in response to the Petitioner’s requests or otherwise, is unreasonable and ultra vires, as there is not presently a reasonable basis for the exercise of emergency powers under the Public Health Act, SBC 2008, c 28, and the vaccination mandate is not a reasonable or effective way to address the spread of SARS-CoV-2;
c. In addition or in the alternative, a declaration that there is no reasonable basis to refuse or decline or neglect to issue notice under section 59 of the Public Health Act “that the emergency has passed”, and to follow the specified steps required under section 60 of the Public Health Act, including rescission of the November 18 Order;
d. Such other relief as the Court deems warranted and just; and
e. Costs of the Petition.

This is the Relief sought in the Hsiang Petition. As is obvious, there’s no challenge to the Public Health Act, the legislative structure that allowed this in the first place. Nor does it ask for a declaration that there was never any emergency at all — just that there currently isn’t one.

The test on a Judicial Review typically is “reasonableness”. Since all major facts are conceded, there isn’t much to argue over. In the ruling, Justice Coval simply “defers” to the expertise of Bonnie Henry and the Public Health Office.

1. Petitions Don’t Challenge Emergency Declarations

Looking at the Hsiang, Morgan and Vandergugten Petition, there are already serious problems. The Petition argues that there currently isn’t an emergency, and that there is no longer a need for restrictions on people’s liberties and livelihoods.

Instead of that taking that there never was a need, and hence the measures were overblown, the document claims that it doesn’t apply now. It tacitly admits that such regulations may have been entirely reasonable and necessary at earlier dates.

This was certainly noticed by Justice Coval.

When the starting position is that there used to be a significant risk of spreading this (alleged) virus, you’ve already lost.

2. Petitions Don’t Challenge Junk Science

Apparently, the people challenging the injection mandate also “trust the science”. By this, there’s no effort to challenge any of the extensive lies and distortion that has come out the last few years. Admittedly, Petitions aren’t designed to be deep dives. However, these ones take almost everything the B.C. Government takes at face value.

Here’s an easy one: what’s the definition of a “Covid death“?

3. Petitions Don’t Challenge Public Health Act

This is yet another area that’s mind boggling. The Petitioners didn’t challenge any (or all) of the B.C. Public Health Act. This is the legislation that made all of this possible.

Instead, the lawyers are reduced to essentially arguing for exemptions within the framework of the PHA itself. This would have been a perfect time for a full attack on the PHA, but that didn’t happen.

(A) World Health Organization Constitution legally binding on member
(B) International Health Regulations are legally binding on WHO members
(C) Canada’s Bill C-12 (2005 Quarantine Act) was written by WHO
(D) Provincial Health Acts are extension of WHO-IHR
(E) Public Health Agency of Canada a de-facto branch of World Health Organization

There’s a wealth of information available on this. Instead of pursuing exemptions within the Charter, shouldn’t lawyers be asking by the World Health Organization is drafting our laws?

4. Petitions Should Have Been Filed As Civil Claims?

Although the names vary by jurisdiction, there are different ways a person can start a Court process. This matters as it appears the CSSEM chose the wrong one.

The most well known method is by “Action”. It’s starting by filing a Statement of Claim, or a Notice of Civil Claim, as it’s called in B.C. It also has a few other names. These can be extremely simple, or they can be very complex, depending on the circumstances.

A lesser known method is by “Judicial Review”. This is when someone goes to Court to challenge an Order from some branch of Government, or Government Official, or Crown Corporation. These are meant to be a more streamlined process than Actions.

Petitions aren’t meant to be a deep dive into the science. They’re designed as reviews of whether or not decisions are reasonable. Considering what isn’t being challenged above, the outcome was inevitable.

JURISDICTION ACTION JUDICIAL REVIEW
Federal Statement Of Claim Application
Ontario Statement Of Claim Application
British Columbia Notice Of Civil Claim Petition

On the surface, a Petition appears to be the correct method. After all, these were challenges to specific orders from Bonnie Henry. However, things like discovery aren’t permitted here. They’re meant for Actions. The Hsiang and Hoogerbrug Petitioners attempted to augment (add to) their evidence the following:

  • Any and all documents relating to the incidence of COVID infections, transmission and serious illness, as well as hospitalization and death attributable to COVID, broken down by vaccination status and number of doses and age, since the emergence of the Omicron variants.
  • Any and all documents that support the comments made by the PHO in a media conference on January 21, 2022, during which the PHO stated that the provincial government’s approach to the COVID virus has shifted to be “much like how we manage other respiratory illnesses – influenza, or RSV (respiratory syncytial virus), or enteroviruses that cause the common cold”, including documents from January 2022 to September 12, 2022 that support this statement.
  • Any and all documents relating to the measures put in place to prevent infection and transmission of influenza and other respiratory illnesses, other than COVID, at hospitals and community health care facilities from 2009-2019.
  • Any and all documents relating to the relative effectiveness of the primary course of vaccination: In preventing people from contracting and transmitting COVID, since emergence of the Omicron variants; and compared to infection acquired immunity without vaccination with respect to preventing infection, transmission and serious illness, BC and other jurisdictions about vaccine mandates.
  • Any and all documents relating to the prevalence or estimated prevalence of infection and/or infection-acquired immunity in the provincial population.
  • All documents related to the consideration given to the two publicly available letters to UBC President & Vice-President Chancellor, Dr. Santa Ono, from the Vancouver Coastal Health Chief Medical Officer, Dr. Patricia Daly et al, dated February 16, 2022, and the and the UBC Faculty professors Dr. David Patrick, Dr. Sarah (Sally) Otto, and Dr. Daniel Coombs, dated February 20, 2022
  • All documents relating to the decision to permit unvaccinated individuals with a medical exemption to continue working at hospitals and community health care facilities, but not extending the same opportunity to unvaccinated persons with valid religious reasons for not being vaccinated
  • All documents relating to the measures put in place for those working at hospitals and community health care facilities with a medical exemption
  • Any and all documents relating to the effectiveness of measures other than vaccination in preventing the transmission of COVID at hospitals and community health care facilities, including, but not limited to, measures such as the use of personal protective equipment, hygiene policies, and daily or less frequent testing
  • All documents relating to the transmission of COVID by registered health professionals at hospitals and community health care facilities to patients and vice versa, including by vaccination status
  • All documents relating to the transmission of COVID at hospitals and community health care facilities by persons who are not subject to the vaccination mandate

It would have taken weeks or months to get all of this information together.

In fairness, CSASPP also tried to add evidence to their existing record. However, it was nowhere near what’s been listed above. Petitions are designed to be simple and straightforward, not the fact finding mission that’s being requested here.

CSASPP discontinued their Petition in 2023. In their status updates here and here, they blame lawyer Peter Gall (Hsiang and Hoogerbrug Petitions) for endless delays. If done in bad faith — and who knows — it would amount to hijacking the other challenges. The protracted nature of these cases merits a piece all on its own.

The Attorney General’s Office wasn’t happy about attempts to greatly expand the scope of the Petitions.

This isn’t quite as absurd as Action4Canada appealing a decision to strike their Claim, as opposed to simply rewriting it. But it’s still pretty bad.

But in the end, what was really challenged?

The (remaining) Petitioners don’t seem to have an issue with: (a) an emergency being declared at all; (b) the completely fraudulent science going unchecked; and (c) the B.C. Public Health Act. All that’s left is whether or not health care workers still have to get the shots under the current order.

If these suits were supposed to involve many procedural steps, such as discovery, then they should have been Civil Claims, not Petitions.

An interesting Twitter thread covering this case came from Peyman Askari. He breaks down other parts of the ruling quite well.

Administrative staff who work remotely, or who have no contact with patients, may get a reprieve in all of this. That said, this is nowhere near all of the health care workers in the Province.

Now, there will very likely be an Appeal. But what exactly would they argue?

(1) https://www.cssem.org/
(2) https://www.cssem.org/donate
(3) CSSEM Petition To The Court
(4) CSSEM Notice Of Assignment Justice Coval Assigned
(5) CSSEM Memorandum Justice Coval Will Hear All Petitions Together
(6) CSSEM Affidavit #3 Of Sophie Harney
(7) CSSEM Affidavit #4 of Sophie Harney
(8) CSSEM Gall’s Requisition To Set JMC For 19 Oct 2022
(9) CSSEM Peter Gall Disputes Record With Crown
(10) CSSEM Peter Gall’s Cover Letter For His Application
(11) CSSEM Gall Writes AG Regarding Further Amended Petitions
(12) CSSEM AG Writes Peter Gall To Advise His Proposed Amendments Are Convoluted
(13) CSSEM CSASPP Petitioner Advises Of Discontinuance
(14) CSSEM CSASPP Notice Of Discontinuance
(15) CSSEM Peter Gall’s Written Submissions For CPC Regarding Another Adjournment
(16) CSSEM Corrected Reasons Dismissing Peter Gall’s Application To Augment Record
(17) CSSEM CanLII Version Reasons For Decision (Augmenting Record)
(18) CSSEM Reasons For Decision (Dismissal)

COURT SERVICES ONLINE UPDATES:
(1) CSSEM Procedural Updates 01
(2) CSSEM Procedural Updates 02
(3) CSSEM Procedural Updates 03
(4) CSSEM Procedural Updates 04

CSSEM DOCUMENTS:
(1) CSSEM Applicants For Incorporation
(2) CSSEM Certificate Of Incorporation
(3) CSSEM Constitution
(4) CSSEM Incorporation Application
(5) CSSEM Model Bylaws
(6) CSSEM Statement Of Directors And Registered Office

CSASPP STATUS UPDATES:
(1) https://www.covidconstitutionalchallengebc.ca/status-updates#20221116
(2) https://www.covidconstitutionalchallengebc.ca/status-updates#20230301
(3) https://www.covidconstitutionalchallengebc.ca/status-updates#20230608

Jordan Peterson Quietly Drops Lawsuit Against Wilfrid Laurier University

The long anticipated anti-SLAPP Motion between Jordan Peterson and Wilfrid Laurier University (WLU) will never be heard. Shortly before it was scheduled to go ahead, the parties quietly settled the case. Or to be more accurate, Peterson dropped the lawsuit and agreed to pay partial costs.

In their Motion Record, submitted back in 2022, Laurier includes correspondence with Peterson over the scheduling of Cross-Examinations. The school attempted many times to set dates. However, it appears that he repeatedly gave them the run around.

Put simply, if a party wants to put evidence into the file, the other side is entitled to ask them questions. This is commonly referred to as “testing the evidence”. Peterson can put anything he wants into an Affidavit, as long as he’s willing to be questioned about it.

For background on the case, see here and here.

Now, he won’t be on the hook for full indemnity, or 100% of costs. This is typical when defamation suits are dismissed under section 137.1 of the Courts of Justice Act for Ontario, or the anti-SLAPP laws. Instead, he’ll only have to pay a portion of those.

To be clear, Peterson never won anything. He just negotiated a lower rate in return for abandoning this lawsuit. He dragged out the case for 5 1/2 years just to leverage reduced costs.

From the April 15th, 2024 Civil Endorsement of Justice Akazaki:

The case conference was brought before me as the judge assigned to hear the anti-SLAPP motion on April 18, 2024. Before I began the conference, counsel confirmed that there was no objection to my hearing the motion due to my participation, prior to my appointment, in an on-campus debate organized by University of Toronto students touching on the plaintiff’s ideas. I have, separately, determined there are no grounds for recusal.

The grounds for the motion for adjournment was the need to join the two related actions. Subsection 137.1(5) does not provide for judicial discretion based on other steps that could be taken, because it specifically prohibits further steps. Once an anti-SLAPP motion has been brought, the plaintiff cannot even discontinue the action: Canadian Thermo Windows Inc. v. Seangio, 2021 ONSC 6555, at para. 35. Since the grounds for seeking the adjournment entail prohibited procedural steps, I saw no reason to grant the adjournment.

I discussed with counsel the nature of the second statement of claim as being less of a libel claim than a pleading of aggravation of the cause of action set out in the first statement of claim. Counsel for the University stated that she had no instructions to bring an anti-SLAPP motion in the first claim. Counsel appeared willing to discuss a resolution of the motion, possibly subject to argument regarding costs under subsections (7) and (8).

In the event the motion is resolved or the issues change as a result of that discussion, counsel should contact my judicial assistant to inform me same.

Few people know (or will remember) that Peterson actually sued Laurier twice. The first time was after the Shepherd audio got leaked. The second was when Laurier publicly responded to the first lawsuit. The whole thing smacks of lawfare.

At the first case conference, Peterson tried to join the 2 suit. But since invoking anti-SLAPP in the second lawsuit stays that proceeding, procedurally, this isn’t allowed to happen.

Apparently, the original lawsuit is still open. This is the one which Laurier filed a 3rd Party Claim against Lindsay Shepherd, arguing that she’s responsible for damages Peterson may have suffered.

From April 18th, 2024 AMENDED Civil Endorsement of Justice Akazaki:

On consent, this court hereby orders:

  1. The motion is granted, and this action is dismissed.
  2. The plaintiff shall pay the defendant’s costs of the motion and of the action on a partial indemnity basis, in an amount to be agreed by the parties or to be assessed.
  3. If the costs are to be assessed, the assessment may be commenced by either party in accordance with rule 58.
  4. The costs amount shall be payable within 30 days of the parties’ agreement on value or the date of assessment, as the case may be.

So, that appears to be the end of it. Peterson won’t have to face the consequences of his lawsuit, and Laurier will get (at least some) costs back. The original lawsuit, while still open, seems dead in the water. There’s no way to advance it without facing another anti-SLAPP Motion.

Considering that both defamation lawsuits were filed in 2018, this comes across as a weak way to end it. Peterson has been — for years — dodging attempts to move the anti-SLAPP Motion forward. Now, just before the hearing, he jumps ship.

Oddly, Peterson isn’t as media happy about it now as he was then.

(1) Wilfrid Laurier University Anti-SLAPP Motion Record
(2) Wilfrid Laurier University Endorsement Form
(3) Wilfrid Laurier University Amended Endorsement
(4) https://www.justiceservices.jus.gov.on.ca/MyAccount/screens/CaseLookup/CSLKUP001.xhtml
(5) https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html#sec137.1_smooth
(6) https://www.youtube.com/watch?v=PkNv4LFpGf4
(7) https://www.youtube.com/watch?v=a8zLcMGCedA
(8) https://www.youtube.com/watch?v=PfjQeLn0hyI
(9) https://www.youtube.com/watch?v=WXYuqrO8LLo
(10) https://nationalpost.com/news/canada/jordan-peterson-lawsuit-wilfrid-laurier?

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/

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

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