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

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

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

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

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

Article posted by Canadian Nurses Association, September 9, 2021

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

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

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

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

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

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

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

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

Statements of Defense laid groundwork for anti-SLAPP Motion

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

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

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

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

Lawsuits like this actually harm freedom movement

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

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

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

Appeal is already being promised

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

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

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

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

Union Collective Agreement Causes BCSC Judge To Throw Out Vaccine Mandate Case

Recently, a B.C. Supreme Court Justice threw out a case involving several former employees working for the City of Quesnel. They sued the City, the City Manager, and the Province of British Columbia for attempting to force them into taking certain “injections”, to protect against an imaginary disease.

This case wasn’t decided on its merits. Instead, it came down to a lack of jurisdiction. The Plaintiffs had hoped the Court would be able to fix their problems. They were all part of the Canadian Union of Public Employees (CUPE), which probably did nothing to advance their interests.

However, there are several sections of the B.C. Labour Relations Code which have made this lawsuit impossible to advance. Specifically, as union employees with the City of Quesnel, they are prohibited from taking this to Court. Their union and collective bargaining agreements state there are different remedies.

Consequently, the Defendants brought an Application to Strike based on Section 9-5 of the B.C. Rules of Civil Proceedure. Given the terms of the collective agreement, it was argued that there was no cause of action against Quesnel.

This is not to justify (in any way) attempting to coerce the clot-shots. But the regulations make it inevitable that no court case would proceed.

It goes something like this: City employees are required to bring their issues up in the form of a grievance. If there still isn’t satisfaction, then the next step is arbitration. There are then limited avenues to appeal the outcome of arbitration, if it was unfair.

Effect of certification
27(1) If a trade union is certified as the bargaining agent for an appropriate bargaining unit,
.
(a) it has exclusive authority to bargain collectively for the unit and to bind it by a collective agreement until the certification is cancelled,
(b) if another trade union has been certified as the bargaining agent for the unit, the certification of that other trade union is cancelled for the unit, and
(c) if a collective agreement binding on the unit is in force at the date of certification, the agreement remains in force.

Section 84 gets into dismissal and arbitration. Every collective agreement has to address this in some form or another. Although the terms of dismissal and discipline vary considerably, something must still be put into writing.

Dismissal or arbitration provision
84(1) Every collective agreement must contain a provision governing dismissal or discipline of an employee bound by the agreement, and that or another provision must require that the employer have a just and reasonable cause for dismissal or discipline of an employee, but this section does not prohibit the parties to a collective agreement from including in it a different provision for employment of certain employees on a probationary basis.
.
(2) Every collective agreement must contain a provision for final and conclusive settlement without stoppage of work, by arbitration or another method agreed to by the parties, of all disputes between the persons bound by the agreement respecting its interpretation, application, operation or alleged violation, including a question as to whether a matter is arbitrable.

Section 89 of the Act gives an arbitration board the final say to impose a remedy.

Unfortunately, this is hardly unique. Most (if not all) public sector employee unions have some sort of clause which mandates grievances and arbitration as an alternative to Court. But in fairness, it’s doubtful that any of these were drafted with this specific issue in mind.

The employees argued that the circumstances of this case were an exception to the requirements that would have them go through other processes. However, that argument was rejected.

They also brought up the idea that pressuring employees to take this drug would amount to assault under the Criminal Code of Canada. That fell apart when it was pointed out that civil remedies for criminal allegations weren’t possible. Additionally, none of the Plaintiffs actually took the shots.

The Claim against the Province was struck on the basis that it “does not allege the existence of any employment relationship between the province and the plaintiffs”. The counter argument was that the vaccine mandates came from the Province itself.

The Plaintiffs did try to remove the City Manager from the case. But they didn’t seek an Order under Rule 6-2(7) of B.C. Civil Procedure. As such, he remained as a Defendant, and would now be able to seek costs.

All in all, the ruling is disappointing, but not a huge surprise. Unions typically have agreements which limit the ability of employees to seek legal action in Court. The only way to get into Court would be a limited scope to appeal if arbitration was unfair or biased.

But being pressured into taking certain drugs probably isn’t what the people who wrote these agreements had in mind.

(1) https://www.bccourts.ca/jdb-txt/sc/22/20/2022BCSC2003.htm
(2) https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc2003/2022bcsc2003.html
(3) https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc2003/2022bcsc2003.pdf
(4) https://www.canlii.org/en/bc/laws/regu/bc-reg-168-2009/latest/bc-reg-168-2009.html
(5) https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-244/latest/rsbc-1996-c-244.html
(6) https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec265_smooth

CSASPP Certification Hearing Approaching For Class Action Suit Against Bonnie Henry

With all the bad news about Court challenges being thrown out, here’s one to keep an eye on. British Columbia may very well have a class-action suit against Bonnie Henry and the B.C. Government get to Trial in April 2023. This comes from the Canadian Society for the Advancement of Science in Public Policy, or CSASPP.

It’s nice to see regular status updates, which should be commonplace in litigation that involves public donations. People don’t want to be left in the dark.

B.C. uses a service called “Court Services Online“, which allows members of the public to search for cases in the Supreme Court, and Court of Appeal. However, it’s behind a paywall, so here are some highlights of what’s been going on.

It appears there have been Court appearances every few months (on average). This is encouraging to see, as long silences make people wonder.

Here are the notes of the decisions thus far, and it’s mostly procedural stuff.

Yes, the courts do proceed at a snail’s pace, but it’s nice to be able to see some progress being made. This is especially important for donors who have chipped in.

There is to be a certification hearing from December 12 to 16, 2022. That’s just a few weeks away. The Judge will make the decision as to whether this class action will go ahead or not.

If the case is certified, then BCPHO Bonnie Henry would be forced to testify under oath. And she does have so much to answer for.

There are a few other (smaller) cases that CSASPP is working on, but this class action is by far the largest. We will see how things turn out.

As for other B.C. news: remember that in August 2021, Action4Canada filed an incoherent 400 page Notice of Civil Claim in Vancouver. Predictably, it was struck in its entirety, although a rewrite was allowed. Instead of fixing the problem, it was appealed for some strange reason.

The CSASPP/A4C comparison is like professional baseball v.s. children’s T-ball. Guess having competent lawyers does make a difference. Then again, the T-ball players generally don’t sue spectators for pointing out glaring flaws.

In any event, the certification hearing in December will be worth watching, and hopefully it will be broadcast online. Below is just a section of the documents that are available. Many more aren’t listed.

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

(1) https://justice.gov.bc.ca/cso/index.do
(2) https://www.covidconstitutionalchallengebc.ca/court-documents
(3) https://www.covidconstitutionalchallengebc.ca/status-updates
(4) https://www.covidconstitutionalchallengebc.ca/faq
(5) https://www.covidconstitutionalchallengebc.ca/transparency

AB Court Of Appeals Confirms HCW Are “Independent Contractors”, Can Refuse Unvaccinated Patients

The Alberta Court of Appeals had upheld a Queen’s Bench (now King’s Bench) decision that allows life saving treatments to be denied on the basis of vaccination status.

Interestingly, both Courts acknowledged, but skirted around the issue of whether these shots were actually safe. Instead, it came down to the case of doctors not actually being Government agents. As such, they can’t be forced to protect people’s Charter rights and freedoms.

This seems to be — at least in part — semantics, as Alberta Health Services gives direction on these kinds of issues all the time.

That said, the Lower Court stated that it was pointless, and in fact, unproductive, to issue Orders unless it was prepared to enforce them.

[42] In my view it is not necessary for the Treating Physicians to reconcile these differences in expert opinions rather, they must be free to decide which expert opinions they accept in exercising their clinical judgment, which informs the standard of care.

Defining the Legal Relationship Between Treating Physicians and the Applicant
[44] In Rasouli (Litigation Guardian of) v. Sunnybrook Health Sciences Centre, 2011 ONSC 1500, the following passages are found at paragraphs 88 and 89:
.
However, as noted by Ellen I. Picard and Gerald B. Robertson in their text Legal Liability of Doctors and Hospitals in Canada:
.
In the great majority of cases, patients engage and pay their doctor (usually through medicare plans) and have the power to dismiss them. The hospital does not employ the physicians nor are they carrying out any of the hospital’s duties to the patient. They are granted the privilege of using personnel, facilities and equipment provided by the hospitals but this alone does not make them employees. They are independent contractors who are directly liable to their patients, and the hospital is not vicariously liable for their negligence.
.
Doctors owe a duty of care to their patients that begins upon the formation of the doctor-patient relationship. When this duty is breached, it is the individual doctors who are liable in negligence, not the hospital.
.
[45] In the result, the Treating Physicians are independent contractors who owe the applicant a duty of care.

Is the Relationship Between the Applicant and Her Treating Physicians Governed by the Alberta Bill of Rights?
[46] Since the advent of the Charter, Courts have looked to the Charter to determine if constitutionally protected rights are affected as the Charter can be interpreted more generously than Provincial Bills of Rights. There is no need to consider the claim under the Alberta Bill of Rights because if the Charter claims fail, her claim under the Alberta Bill of Rights will necessarily fail as well.

[52] The fact that the Treating Physicians, who are independent contractors, work in publicly funded hospitals under the rubric of Provincial and Federal healthcare legislation, does not mean that they are state actors subject to the Charter.

[56] In R v Dersch [1993] SCR 768, it was held at para 20, that a doctor who illegally took a blood sample at the request of the police was acting as an agent of government subjecting the action of the doctor in taking the blood sample to Charter scrutiny.
.
[57] However, at para 18, the Court observed that the actions of emergency room physicians in providing emergency treatment to the accused did not render the physicians agents of government for the purposes of the Charter.

[61] There is no evidence that at any time the Treating Physicians became agents of government in establishing preconditions for transplantation or that any governmental body was in any way involved in this process.

[69] In order for the medical system to function properly, Treating Physicians who are providing clinical advice, must be free to do so and are not governed by the Charter but rather by the standard of care which is owed to every patient.

[77] In Sweiss v Alberta Health Services, 2009 ABQB 691 at paragraph 60, the perils of the court attempting to interfere with the exercise of the clinical judgment were described:
.
The overriding theme which pervades the reasons of the English Court of Appeal in Re J. relates to its concern over the Court ordering a medical professional to treat his or her patient in a fashion which is contrary to clinical judgment. The Court in Re J. expressed its rationale as follows at 519:
.
…The Court is not, or certainly should not be, in the habit of making orders unless it is prepared to enforce them. If the Court ordered a doctor to treat a child in a manner contrary to his or her clinical judgment, it would place a conscientious doctor in an impossible position. To perform the Court’s order it could require the doctor to act in a manner which he or she generally believed not to be in the patient’s best interests; to fail to treat the child as ordered would amount to a contempt of court. Any judge would be most reluctant to punish the doctor for such a contempt, which seems to me to be a very strong indication that such an order should not be made.

Conclusion
[89] In the result, I conclude that the Charter has no application to clinical treatment decisions made by the Treating Physicians, and in particular has no application to the Treating Physicians establishing preconditions for XX transplantation. The Originating Application is dismissed in its entirety.

The Courts also brought up the issue of scarcity: people can be denied organs, given their relatively low supply, if they don’t meet certain criteria. Again, it’s not forcing anyone to get the shot, as long as they are fine with not getting the organs they need.

It’s difficult to view this as anything other than coercion.

IV. Conclusion
[74] This is not the first time medical judgments about allocation of scarce resources have been made in the face of competing needs. While such decisions are doubtless exceedingly difficult, they nevertheless must be made. In this case, the Charter does not apply to the respondents’ exercise of clinical judgments in formulating pre-conditions to [organ] transplant, including requiring vaccination against COVID-19 in the wake of the pandemic.

[75] In conclusion, we are not persuaded this Court can, or ought to, interfere with generalized medical judgments or individualized clinical assessments involving Ms Lewis’ standard of care. In the circumstances of this appeal, while Ms. Lewis has the right to refuse to be vaccinated against COVID-19, the Charter cannot remediate the consequences of her choice.

[76] The appeal is dismissed.

Think about the ramifications of these rulings: a person cannot be forced to get an experimental vaccine. However, doctors have the right to withhold life saving treatments if they refuse. In other words, it’s still “take the vaccine or die”.

A cynic may wonder if doctors are going along with this since they were forced to get the shots in order to keep practicing. Perhaps they wish for everyone to suffer, instead of admitting they made a mistake.

This may (or may not) be the end of the road. At this point, the only available option is to file an Application for Leave to be heard at the Supreme Court. And although they reject cases deemed not to be “in the national interest”, it seems likely that this one would be heard at least.

(1) https://www.canlii.org/en/ab/abqb/doc/2022/2022abqb479/2022abqb479.html
(2) https://www.canlii.org/en/ab/abqb/doc/2022/2022abqb479/2022abqb479.pdf
(3) https://www.canlii.org/en/ab/abca/doc/2022/2022abca359/2022abca359.html
(4) https://www.canlii.org/en/ab/abca/doc/2022/2022abca359/2022abca359.pdf
(5) https://edmontonjournal.com/news/crime/court-upholds-doctors-right-to-require-covid-vaccination-for-organ-transplant-patient-saying-alternative-is-medical-chaos

N.S. Court Of Appeals Rules On Strang’s Attack On Free Assembly

The Nova Scotia Court of Appeal ruled a week ago on a challenge to a May 2021 injunction. Previously, the Provincial Supreme Court ruled ex-parte that Robert Strang could effectively suspend freedom of assembly on an indefinite basis.

The Canadian Civil Liberties Association, CCLA, applied to intervene to appeal the matter. It was granted on August 31, 2021. Due to the complexity of the issues, and other delays, it took a year for the case to be heard.

While the issue of infringing on civil rights did come up in the decision, it wasn’t front and center. Instead, there were many procedural errors cited. Still, the trio did make many findings which can be used at a later date. It wasn’t a total loss.

Strang got (rightfully) rebuked for his overreaching power grab, but it could have been done in a much more forceful way.

Overall, it’s a “meh” kind of ruling.

Issues:
1. Should the Court hear an appeal of an ex parte order?
.
2. Should the Court entertain a moot appeal?
.
3. Did the judge err by:
a) Granting an injunction order without the applicants having advanced any common law cause of action, statutory authority, or other right to a remedy;
b) Applying the test for an interlocutory injunction to the applicants’ request for a permanent injunction;
c) Stating and applying the wrong test for a quia timet injunction;
d) Granting an Injunction Order against all Nova Scotians without requiring evidence that such a remedy was needed against all Nova Scotians;
e) Granting an injunction order without considering that the order infringed the Charter rights of all Nova Scotians and that this infringement may not be justified in circumstances;
f) Accepting the evidence of a named applicant as independent expert evidence, without compliance with Rule 55 or the common law requirements for independent expert evidence.

Between the 3 Justices, there was some dissent on a few issues, although they seemed to agree for the most part. The more important things they were all in agreement on:

  • The Attorney General’s application should not have been ex parte;
  • The Court should hear this moot appeal;
  • Dr. Strang’s expert opinion was not admissible;
  • The Nova Scotia Supreme Court had the jurisdiction to issue a quia timet injunction to enjoin apprehended breaches of the Public Health Order made pursuant to the Health Protection Act;
  • The motion judge erred when he employed the test for an interlocutory injunction when he actually was asked for and did issue a permanent injunction;
  • The motion judge erred by not considering the impact on Charter rights when considering if he should issue the requested injunctive relief;
  • The motion judge erred by issuing injunctive relief that was far too broad.

There was dissent on the following:

  • The AGNS failed in its duty to provide full disclosure of information in its possession on the ex parte application;
  • The motion judge erred in law in finding the prerequisites for a permanent quia timet injunction had been made out;
  • Dr. Strang’s opinion about the risk of outdoor transmission should not have been accepted because he lacked the necessary independence and impartiality as set out in White Burgess.

In contrast to a few other recent decisions, the NSCOA decided to hear the case in spite of it being moot. The issues were of such a public interest that it should go ahead. This differed significantl from other recent cases, in which there was no inclination to do so.

(Para 47) The COA disagreed that applying for an injunction without notice was appropriate. Unless: (a) it’s impossible to give notice; or (b) giving notice may cause the event, this type of procedure shouldn’t be attempted. The Government could have given notice, but simply found it more expedient not to.

(Para 54) The Government chose a method that was designed for temporary measures, but the open-ended nature of the Order sought was effectively permanent, or semi-permanent. There was no end date provided.

(Para 56-57) The Government tries to argue that it would have met the test for a permanent injunction with the information it had the time. Additionally, the Court found that the wrong test had been applied for in seeking a permanent — as opposed to temporary — injunction.

(Para 61-63) The proper quia timet test was used. This is a test used to get injunctions based “on the fear of” something happening. Problem is, this test seems to be almost entirely subjective, and open to abuse.

(Para 64-69) The question came up as to whether or not there was even a valid cause of action. The Court decided that the likelihood of these Orders being violated, combined with the fear of disease spreading, was justifiable in and of itself.

(Para 127-140) The Order applied not only to certain people wanting to attend gatherings, but to Nova Scotians as a whole. The Court also said that this was overreaching given the overstated likelihood of infection.

(Para 141-148) The Court took issue with the fact that the original Order was obtained ex-parte, and there wasn’t enough consideration given to the Charter violations that would likely result.

(Para 149-168) Robert Strang, the Medical Officer of Health, should not have been qualified as an “expert”. Given his position, there was an inherent conflict of interest. He gave evidence in support of submissions that would validate his own demands. As such, he wasn’t separate enough.

[169] The Province incorrectly applied for a permanent ex parte injunction, but argued the test for an interim injunction described in RJR. The Province should have sought an interlocutory injunction on notice to which the RJR test properly applied. The Charter rights engaged should have been considered in the balance of convenience step of the RJR test.

[170] The Province did not establish a basis for granting either an interlocutory or permanent injunction because it did not tender admissible evidence of outdoor transmission of COVID-19 on which a finding of “high probability” of serious or irreparable harm could be grounded. The Chief Medical Officer should not have been qualified as an expert. In any event, the Order granted should not have been indefinite as to time, place and person.

(Para 200-218) The issue of mootness came up. Since the Orders have been rescinded, was there an issue to even be tried? The NSCOA decided to limit its scope to questions of law, and not revisit the factual findings from the Lower Court.

(Para 220-247) Robert Strang’s role as expert witness was questioned, given his conflict of interest. The NSCOA acknowledged that sections 8, 20, 24, 32 and 37 give him the right to issue directives based on his opinions and beliefs.

(Para 248-280) The ruling went on at length as to whether the proper test had been applied for permanent injunction. This was important, as it related to the concerns of Charter breaches. The Judges agreed that the test hadn’t been met.

(Para 281-303) The Court of Appeals took issue with the fact that the injunction would apply to everyone in the Province, and was done without the means to challenge in the first place. It was an error of due process to not allow others to confront accusers. This wasn’t limited to a select group, either.

(Para 303-328) The Panel avoided the question — for the most part — about whether these Orders were violation of Charter rights. A full analysis apparently wasn’t required. Instead, there was more of an issue with the roughshod way this was done. In short, there were more procedural than substantive problems.

(Para 329-350) Is this “virus” transmissible, and was there proper disclosure? Here, the NSCOA seemed to avoid that, and simply stated that Strang was offering full disclosure with whatever available information he had. He was able to get the injunction without introducing actual evidence. The Court didn’t seem too bothered by that.

In a sense, this was academic, as there’s currently no Order in place. Still, there’s a ruling now, and the good parts may be useful later.

SOME THOUGHTS ON THIS

It was helpful to have a (somewhat) favourable ruling from Nova Scotia. However, the problems go much deeper than just the Charter, or some Officer of Health. To date, it doesn’t seem that any lawyer has brought this forward.

1908: International Public Health Office to be created
1926: International Sanitary Convention was ratified in Paris.
1946: WHO’s Constitution was signed, and it’s scary.
1951: International Sanitary Regulations adopted by Member States.
1969: International Health Regulations (1st Edition) replaced ISR. These are legally binding on all Member States.
2005: International Health Regulations 3rd Edition of IHR were ratified.

2005 Quarantine Act, Bill C-12
2004 creation of PHAC
Health Canada’s Real History

Although probably outside the scope here, it would be nice to see the Public Health Acts themselves challenged in Court. No one ever voted for this, but the W.H.O. is able to write our laws to include medical tyranny.

If laws are put in place that aren’t written in this country, shouldn’t that be grounds to have them challenged and struck down?

Also, it’d have been preferable to fully address the issue of civil rights violations. Freedom of assembly, especially when protesting Government overreach, is an important ability to have. Without it, there’s no open society.

The NSCOA acknowledged that the May 2021 Order violated Charter rights, but didn’t really dive into it. Instead, they seemed more content to focus on the many breaches of procedure that had taken place.

The panel also seemed to go out of their way to give Strang the benefit of the doubt. He took the rights of a million people away. He needs to be held to account, not given deference.

On the bright side: there are parts of this ruling which could be the basis for future actions at a later date, such as restricting the use of ex-parte injunctions. It wasn’t a complete loss. Another Judge might quote portions of this to come to favourable conclusions elsewhere.

Guess we’ll see what happens next.

(1) https://nslegislature.ca/legc/bills/59th_1st/1st_read/b026.htm
(2) https://www.canlii.org/en/ns/laws/stat/sns-2004-c-4/latest/sns-2004-c-4.html
(3) https://www.canlii.org/en/ns/nssc/doc/2021/2021nssc170/2021nssc170.html
(4) https://www.canlii.org/en/ns/nsca/doc/2021/2021nsca65/2021nsca65.html
(5) https://www.canlii.org/en/ns/nsca/doc/2021/2021nsca65/2021nsca65.html

Following Up On The Recent Gill SLAPP Ruling, Appeal(s)

Given the developments since the costs decision was handed down against Kulvinder Gill and Ashvinder Lamba, it seems that a follow-up piece is required. Justice Stewart decided that the failed defamation lawsuit — dismissed as a SLAPP — merited full indemnity against the Plaintiffs. The price tag is about $1.1 million.

As an aside, it appears that National Post, as well as several mainstream outlets have covered the decision, and even credited this site for the research. That’s interesting. The comments pictured above are from this article.

However, it seems from the comments posted that a lot of people don’t really understand what happened, or why. Gill and Lamba weren’t in Court because someone tried to censor their speech. Instead, they sued 23 people and organisations for $12.75 million in order to silence them for their ideas, beliefs and opinions.

Gill and Lamba didn’t sue the CPSO, the College of Physicians and Surgeons of Ontario, for their practices. This was aimed primarily at critics on Twitter.

Moreover, this wasn’t for some nominal amounts, designed to make a point. Gill and Lamba demanded damages to the degree that would have bankrupted people, had they been successful.

Most readers here have already gone through the Statement of Claim filed in December 2020, and the February 2022 dismissal as a SLAPP, or strategic lawsuit against public participation. If not, they are essential for background information.

Not only were the Defendants faced with losses — roughly $500,000 each, had they lost — but they were forced to pay large sums of money to lawyers to protect themselves. The above includes the amounts that the Defendants claimed.

Gill and Lamba objected, stating that there was considerable duplication in the work done, and that the costs seem absurd. They have a point. That being said, they brought this on themselves. What exactly did they think would happen?

People in the freedom community would be outraged if some “lefty” or “commie” attempted to use the courts as a weapon to silence free speech. They would call this out as censorship and of weaponizing the legal system. It would never be tolerated.

However, Gill and Lamba did exactly the same thing — or at least tried to — and many of these freedom lovers celebrate them as heroes. The lack of awareness is amazing.

Had someone sued Gill for millions of dollars because she called them an “idiot”, many would rally to her defense. Meanwhile, she did just that to Amir Attaran, and there is complete silence. $7 million for two rude tweets is ridiculous.

According to the February ruling, some Defendants who sent rude tweets to Gill had since offered public apologies to her, and she still filed suit against them. Not at all a good look.

That’s right, apologies were made, but Gill tried to bankrupt them anyway.

The point is: if someone supports free and open discourse, regardless of how testy it can be, then it has to be done consistently. We cannot selectively censor, depending on one’s beliefs.

Gill and Lamba filed Notice of Appeal in March 2022. This was against the SLAPP decision. In a nutshell, they argue that the case should not have been dismissed, but sent to Trial instead. Costs were not factored in, as the cost ruling hadn’t happened at that point.

From the National Post:

Jeff Saikaley​, Gill’s lawyer, said neither he nor his client would comment as she is appealing both this week’s decision on costs, and the ruling in February that dismissed the lawsuit.”

Taken at face value, it implies that a second Appeal is coming, with this specific to the cost award that just came down. One has to ask what kind of advice these doctors are getting. Both Appeals are doomed, and here’s an explanation of why:


Appeal #1: Dismissal As Strategic Lawsuit Against Public Participation


To understand why this is baseless, look up s.137.1 Courts of Justice Act for Ontario. The criteria is laid out pretty clearly.

Order to dismiss
(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest. 2015, c. 23, s. 3.

No dismissal
(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,
(a) there are grounds to believe that,
(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the proceeding; and
(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. 2015, c. 23, s. 3.

Without going too deep, this is how it works. First, the Defendant must convince the Judge that the speech or expression is of a public interest matter. This is the “threshold burden” and it’s very low.

At that point, the burden shifts to the Plaintiff, who must show:
(a) There is substantial merit;
(b) There are no valid, reasonable defenses; and
(c) The harm outweighs public interest in allowing this expression

In the February ruling, Justice Stewart ruled that the Plaintiffs consistently failed to meet this 3-part test. Keep in mind: if any part fails, then all of it fails. Simply meeting 1 or 2 parts isn’t enough.

For most of the claims, the Plaintiffs couldn’t even meet a single branch of it.

This isn’t to agree with, or justify what the Defendants had to say. The purpose of anti-SLAPP laws is to keep public discourse going by filtering out just these kinds of cases.

Here is the Factum of the Medical Post and Tristan Bronca. All the Factums (arguments) follow this basic formula: (a) expression meets threshold burden; and (b) Plaintiff can’t meet test to avoid dismissal.

There’s significant case law in that Factum, and is worth a read.

The standard for review is given by Housen v. Nikolaisen, 2002 SCC 33. It describes the standards used to review: (a) errors of fact; (b) errors of law; and (c) mixed fact and law.

Prediction: this Appeal will go nowhere.


Appeal #2: Full Indemnity Costs Against Gill/Lamba


Going back to s.137.1 of the Courts of Justice Act:

No further steps in proceeding
(5) Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of. 2015, c. 23, s. 3.

No amendment to pleadings
(6) Unless a judge orders otherwise, the responding party shall not be permitted to amend his or her pleadings in the proceeding,
(a) in order to prevent or avoid an order under this section dismissing the proceeding; or
(b) if the proceeding is dismissed under this section, in order to continue the proceeding. 2015, c. 23, s. 3.

These anti-SLAPP laws are quite powerful. Once a Motion is started, then the case is stayed, and nothing else can happen. This also prohibits Plaintiffs from making necessary amendments to pleadings in order to avoid a dismissal.

It also provides guidance on costs.

Costs on dismissal
(7) If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances. 2015, c. 23, s. 3.

Costs if motion to dismiss denied
(8) If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances. 2015, c. 23, s. 3.

Damages
(9) If, in dismissing a proceeding under this section, the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate. 2015, c. 23, s. 3.

Full indemnity (100% of costs) is seen as the starting point in these kinds of cases. Justice Stewart is entirely within her discretion to do this.

According to Volpe v. Wong-Tam, 2022 ONSC 4071 (CanLII), paragraph 25, there’s significant, and recent history in handing down full indemnity on SLAPP cases.

(i) $164,186.76 in Canadian Thermo Workers, at para. 147,

(ii) $132,000 in Bernier v. Kinsella, 2022 ONSC 1601, at paras. 10-14,

(iii) $151,741.51 to the moving party Al Jazeera in Levant, ordered by the Court of Appeal at para. 92,

(iv) $131,076 in Niagara Peninsula Conservation Authority, at para. 23,

(v) $129,106.61 plus HST in Fortress Real Developments, at para. 76, and

(vi) $122,286.94 to the defendant Ms. Mohammed and $126,438.55 to the defendant Ms. Barclay in United Soils Management, at paras. 10, 17, and 43.

Granted, the $1.1 million award here is much higher than any listed above. However, with 23 people and businesses sued, it was bound to be messy.

Arguably, Gill and Lamba dodged a bullet. The Judge could easily have included damages, given how frivolous it was.


Defendants Already Going After Their Money


A source confirmed that the Defendants are already looking at ways to recoup their money. This includes attempting to seize assets, and to get Gill’s and Lamba’s wages garnished. Being public doctors, they are presumably paid through OHIP.

Apparently, the LSO, Law Society of Ontario, has also been approached. There is a compensation fund set up for victims of malpractice or misconduct committed by lawyers. If Gill goes bankrupt or otherwise refuses to pay, it may be the only recourse for some of the Defendants. Not all of them have insurance.

The current Appeal on the dismissal has little to no prospect of success. Anti-SLAPP laws were designed to weed out these kinds of cases. A separate Appeal is being considered for costs, but that would be a tough sell, considering costs are discretionary.

As for the suit with the University of Ottawa and Amir Attaran, Gill would be well advised to discontinue that before she’s faced with another anti-SLAPP Motion. The filing has zero chance of success.

When you’re in a hole, stop digging.

It would be nice to know what kind of advice they’ve been getting. These decisions aren’t something that intelligent, fully informed people typically make.

And for true supporters of free speech and open discourse: be very careful about embracing Gill and Lamba as heroes. What they tried to do is downright shocking.

KULVINDER GILL/ASHVINDER LAMBA CASE:
(1) Gill/Lamba Defamation Lawsuit December 2020
(2) Gill/Lamba Factum Of Medical Post Tristan Bronca
(3) Gill/Lamba Case Dismissed As A SLAPP
(4) Gill/Lamba Notice of Appeal and Appellants’ Certificate
(5) Gill/Lamba Appeal – Notice of Intention to Dismiss Appeal for Delay, May 12, 2022
(6) Gill/Lamba July 15 Letter To Obtain New Counsel
(7) Gill/Lamba Case Conference Brief July 29, 2022
(8) Gill/Lamba Endorsement New Counsel Cost Submissions August 3, 2022
(9) Gill/Lamba Case $1.1 Million In Costs Ordered October 31, 2022

KULVINDER GILL/ATTARAN/UOTTAWA CASE
(1) Gill-Attaran Statement Of Claim
(2) Gill Attaran Affidavit Of Service
(3) Gill-Attaran Notice Of Intent

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