Category: Canadian Decisions

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ONSC Rules Child Cannot Be Forced To Take Injections

An Ontario Superior Court Judge dismissed an application to essentially force a minor to get a shot against her will.

Parents were in the midst of divorce and custody issues, and the topic of the “vaccines” came up. The father was insistent that the daughter get it, while the mother said she would respect the girl’s own choices. The girl, who is 12 years old, has outright refused to get it.

Throughout the decision, the term “taken judicial notice” comes up again and again. What this means is that a court will not look into an issue, simply because some other court or adjudication body has already done so. While there is a certain logic to it, garbage rulings can also simply be accepted on this basis.

[1] The respondent father brings this motion seeking an order directing that the applicant mother ensure that their daughter is vaccinated against COVID-19 and that she receives any further and additional scheduled vaccinations in accordance with provincial recommendations, failing which the father shall be permitted to return this matter to seek sole decision-making authority over all aspects of the child’s medical care.

[11] Unfortunately, Mr. Tonge was not able to provide the opinion requested. By letter to the parties dated February 22, 2022, Mr. Tonge stated that he understood he was requested and agreed to assist S. in reconnecting with her father and not to undertake an assessment of parental influence. He was unaware of the vaccination issue until it was raised by S.. Mr. Tonge could not comment on the “presence or absence of parental influence and the understanding, capacity and maturity of this child to make a decision” as he was not asked to, nor did he agree to conduct such an assessment.

[15] The respondent father’s position is that it is presumptively in S.’s best interest that she be vaccinated against the COVID-19 virus and mother has provided no evidence to rebut this presumption. The apparent objections of S. do not stem from any sound medical evidence or opinion. Mother has improperly left the decision up to S. who is not old enough, mature enough, or knowledgeable enough to make such a major health decision. Thus, it falls on this court to step in and protect the child’s best interests, to make sure that she receives her COVID-19 vaccination to protect her and to protect her classmates, her friends, her neighbours, and family.

[37] The issue before the court in taking judicial notice of scientific facts is not assessing whether the science is “fake science”, but whether scientific facts that would normally require expert opinion to be admitted, may be judicially noticed without proof. This issue was recently addressed by Breithaupt Smith J. in R.S.P. v. H.L.C. 2021 ONSC 8362 in which she provided what has been described as a timely warning (J.N. v. C.G., 2022 ONSC 1198 at para 65):

[42] I am not prepared to take judicial notice of any government information with respect to COVID-19 or the COVID-19 vaccines.

[43] Even if I were to take judicial notice of the “safety” and “efficacy” of the vaccine, I still have no basis for assessing what that means for this child. I must still determine how safe, how efficacious the vaccine is for this child. Does safe mean there are no side effects? Is the vaccine effective in protecting her from contracting COVID-19, from spreading it, from dying from it, from severity of symptoms? As with informed consent, there are many factors that must be carefully considered in weighing risks and benefits.

[58] I am mindful in considering S’s best interests that an order that mother ensure she is vaccinated would have irreversible consequences, if S. was vaccinated as a result. One cannot be unvaccinated. In that respect, it is a final order.

[59] Finally, I am satisfied that S. is a “mature minor” as explained by Abella J. in A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 at para 47. S. is capable with respect to treatment pursuant to s. 4 of the Health Care Consent Act, 1996, SO 1996, c 2, Sch A. She is mature enough to accept or refuse treatment.

There is a certain logic to it. If young children are “mature” enough to get the shot, then they should be mature enough to make the decision to refuse it.

The court also makes the observation that a person cannot ever be “unvaccinated”. That alone should be enough to give pause before pushing these injections. It was also noted that the “evidence” seems to keep changing, which is another reason to not take the matter as settled.

This adolescent girl seems to have more sense than either of her parents, but at least the mother was willing to respect her personal choices.

(1) https://www.canlii.org/en/on/onsc/doc/2022/2022onsc4580/2022onsc4580.html
(2) https://www.canlii.org/en/on/onsc/doc/2022/2022onsc4580/2022onsc4580.pdf

M.M. v. W.A.K., 2022 ONSC 4580

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Canadian Bill Of Rights: Why Bother With The Charter?

The Canadian Charter of Rights is regularly mocked and ridiculed because of its built-in defects. For examples, there’s Section 1, which allows for the “reasonable limitations” on those rights. However, it’s a bit baffling why the Bill of Rights wouldn’t be the default laws to rely on in major court cases, when it comes to Constitutional matters.

It makes little sense to launch any challenge when not using the strongest laws available. Is the goal to lose on purpose?

Section 1, in principle, seems fine, as it’s governed by the Oakes Test:

The Government must established something is “pressing and substantial.” While this is often not difficult, there’s a 3 part test that follows.

  • The remedy sought must be RATIONALLY connected to the purpose
  • The remedy sought must create a LIMITED IMPAIRMENT to society
  • The remedy sought must be PROPORTIONATE, and not overreaching

Sounds fine in principle. However, the last few years have shown that Judges are all too willing to bend the rules for some abstract sense of the “greater good”. The Bill of Rights doesn’t have this.

In fairness, it’s rather naive to trust laws and politicians. However, switching to the Bill would remove an obvious weakness.

Preamble
The Parliament of Canada, affirming that the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions;
Affirming also that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law;
And being desirous of enshrining these principles and the human rights and fundamental freedoms derived from them, in a Bill of Rights which shall reflect the respect of Parliament for its constitutional authority and which shall ensure the protection of these rights and freedoms in Canada:
Therefore Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

PART I
Bill of Rights
Marginal note: Recognition and declaration of rights and freedoms
.
1 It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
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(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the protection of the law;
(c) freedom of religion;
(d) freedom of speech;
(e) freedom of assembly and association; and
(f) freedom of the press.

2 Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to:
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(a) authorize or effect the arbitrary detention, imprisonment or exile of any person;
(b) impose or authorize the imposition of cruel and unusual treatment or punishment;
(c) deprive a person who has been arrested or detained
(i) of the right to be informed promptly of the reason for his arrest or detention,
(ii) of the right to retain and instruct counsel without delay, or
(iii) of the remedy by way of habeas corpus for the determination of the validity of his detention and for his release if the detention is not lawful;
(d) authorize a court, tribunal, commission, board or other authority to compel a person to give evidence if he is denied counsel, protection against self crimination or other constitutional safeguards;
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;
(f) deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause; or
(g) deprive a person of the right to the assistance of an interpreter in any proceedings in which he is involved or in which he is a party or a witness, before a court, commission, board or other tribunal, if he does not understand or speak the language in which such proceedings are conducted.

The above sections are similar to the Charter in regards to: fundamental freedoms (Section 2); security of the person (Section 7); unreasonable search and seizure (Section 8); arbitrary detention (Sections 9 & 10); rights in criminal proceedings (Section 11); and cruel and unusual punishment (Section 12). Again, there’s no loophole which allows a court to simply suspend those rights.

There’s also no Section 33, the Notwithstanding Clause, to allow Parliament to simply legislate blatantly unconstitutional things into law. However, the start of Part 2 may be seen as one.

There is also this at the end: “(3) The provisions of Part I shall be construed as extending only to matters coming within the legislative authority of the Parliament of Canada.” Therefore, it may not apply to Provincial matters.

An interesting video from last year, from a lawyer with a different opinion.

Just something to think about.

(1) https://laws-lois.justice.gc.ca/eng/acts/c-12.3/page-1.html
(2) https://www.canada.ca/content/dam/pch/documents/services/download-order-charter-bill/canadian-charter-rights-freedoms-eng.pdf
(3) https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/rfcp-cdlp.html
(4) https://www.youtube.com/watch?v=spvrch5mmnc

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Action4Canada Finally Has Hearing Over Application To Strike

May 31, 2022: Action4Canada finally had a hearing over its August 17, 2021 lawsuit against the B.C. Government, Canadian Government, and various other named and unnamed parties. The decision is reserved, and will be issued sometime in the future.

This session was based on multiple applications filed by Defendants to strike the pleadings as being frivolous, scandalous, vexatious, prolix, and otherwise an abuse of process.

Striking differs from dismissing in that the Court is not being asked to make a determination on the merits. Instead, the documents themselves are challenged. In this case, it was argued that the 391 page Statement of Claim was so convoluted and poorly written, that it was impossible to determine what the case was.

As painful as this is to admit, they’re not wrong about this.

Without completely rehashing the original assessment, here are the major parts of the civil procedure that are worth noting:

Rule 3-1 — Notice of Civil Claim
Notice of civil claim
(1) To start a proceeding under this Part, a person must file a notice of civil claim in Form 1.
.
Contents of notice of civil claim
(2) A notice of civil claim must do the following:
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(a) set out a concise statement of the material facts giving rise to the claim;
(b) set out the relief sought by the plaintiff against each named defendant;
(c) set out a concise summary of the legal basis for the relief sought;
(d) set out the proposed place of trial;
(e) if the plaintiff sues or a defendant is sued in a representative capacity, show in what capacity the plaintiff sues or the defendant is sued;
(f) provide the data collection information required in the appendix to the form;
(g) otherwise comply with Rule 3-7.

Rule 3-7 — Pleadings Generally
Content of Pleadings
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Pleading must not contain evidence
(1) A pleading must not contain the evidence by which the facts alleged in it are to be proved.
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Documents and conversations
(2) The effect of any document or the purport of any conversation referred to in a pleading, if material, must be stated briefly and the precise words of the documents or conversation must not be stated, except insofar as those words are themselves material.
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When presumed facts need not be pleaded
(3) A party need not plead a fact if
(a) the fact is presumed by law to be true, or
(b) the burden of disproving the fact lies on the other party.

This isn’t hard. Broadly speaking, a lawsuit must do 3 things:
[1] Briefly set out the facts as alleged
[2] Set out what remedies are being sought
[3] Briefly list what important laws will be relied on

Instead of following these simple rules, a 391 page mess was dropped on the Courts last year. Even someone researching for the last 2 years would have considerable difficulty following along.

Rule 9-5 — Striking Pleadings
.
Scandalous, frivolous or vexatious matters
(1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that
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(a) it discloses no reasonable claim or defence, as the case may be,
(b) it is unnecessary, scandalous, frivolous or vexatious,
(c) it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or
(d) it is otherwise an abuse of the process of the court,
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and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs.

In short, the Defendants alleged that the Plaintiffs failed to meet even the basic requirements of a pleading, as laid out in Rules 3-1 and 3-7 of the Rules of Civil Procedure for B.C. The remedy sought was to strike the case, as outlined in Rule 9-5.

There is considerable vindication for the previous critique of this lawsuit, for what it’s worth. One doesn’t have to be lawyer to see how plain and obvious the defects are.

Yes, there was a considerable amount of truth in the Statement of Claim. However, it was such an incomprehensible mess that it would be next to impossible to sift through. While a bitter pill to swallow, the various Defendants had valid reasons to try to strike it. That’s what any sensible person would have done in that position.

At the hearing, the Government lawyers essentially argued the points in the Notices of Application, outlining why this Claim was so poorly written.

The issues with the Claim:

  • It is 391 pages long
  • It has over 1300 paragraphs and subparagraphs
  • It seeks over 200 declarations
  • Its rambling and disjointed nature makes it difficult to follow along
  • It’s impossible to separate fact from speculation or conjecture
  • It contains mostly irrelevant or redundant material
  • It goes on at length about non-parties
  • It seeks criminal remedies (improper for a civil case)
  • It seeks the kind of international relief a B.C. Judge can’t provide
  • Its tone comes across as unhinged and ranting

The Claim contains many footnotes from various media sources, which is improper to include in a lawsuit. While the content is interesting, that alone could lead to the Claim being struck.

The Governments also argued that the case was brought for improper purposes, such as causing harassment to various Officials. As proof, they introduced the Notices of Liability that had been downloaded from the Action4Canada website.

It was confirmed that Action4Canada had raised in excess of $750,000 for this case. It was pointed out that despite this amount of money, there was no activity besides the convoluted Statement of Claim.

Action4Canada accepts no responsibility or liability for any harms or losses that occur as result of delivering this notice. If you do not agree to these terms then please do not use this notice. We do not make any representations or warranties about the potential consequences of delivering this Notice of Exemption/Non-Consent (eg. removal of child from a private school). A parent/legal guardian must decide what is in the best interest of their child.

It’s darkly amusing that there is a portion on the website that explicitly states Action4Canada assumes no responsibility or liability for using their forms.

The Responding Parties (Plaintiffs) essentially had one main argument: a case shouldn’t be thrown out just because it’s complicated or difficult. People reading this article should see the Claim itself, and come to their own conclusions.

The Plaintiff’s arguments for the Application (overall) actually weren’t that bad. However, considering how shoddily the Claim was written, there’s likely no saving it.

The Application was supposed to have been heard on February 3rd, 2022, but an alleged illness from the Plaintiff’s lawyer pushed that back until April 5th. That was again delayed for medical reasons. Interestingly, it was admitted that the only reason it was heard on May 31st was that the Defendants’ lawyers refused to consent to further extensions of time. Perhaps they thought a 4 month delay was long enough.

It’s still unclear why co-counsel Lawrence Wong couldn’t have taken the case. He is a B.C. lawyer with 35 years experience, and was called to the Bar in 1987.

One has to wonder what’s even the point at this stage. Even on the remote chance this suit were successful, what good comes from it? It’s been 2 years, and some 90% or so of the country has taken the shots (for a non-existent virus). Was the goal to run out the clock?

Do the Plaintiffs not know that they will be on the hook for very substantial Court costs once this case is thrown out?

It was interesting that the B.C. Government referenced the recent defamation case of Kulvinder Gill. This was a $12.75 million lawsuit filed in late 2020. It was found to be completely baseless, and dismissed as a SLAPP, or a Strategic Lawsuit Against Public Participation.

Side note on that case: despite the suit being thrown out as having no merit, a Notice of Appeal was filed. However, it seems that the Appeal Books themselves never arrived. On May 12, 2022, the Registrar’s Office issued a Notice of Intent to Dismiss for delay. The new deadline was May 31. The Respondents/Defendants say they still received nothing, so, presumably that Appeal is over as well. It’s alleged that getting the original SLAPP decision cost over $1.3 million, or about $55,000 for each Defendant. If this is true, Gill and Lamba will have to dig deep.

As for the Vaccine Choice Canada suit from July 6th, 2020, that’s going nowhere as well. It’s been left to sit for 2 years, and can be dismissed for delay at any time. No Default Judgement was ever sought. This is in addition to many other serious defects. The Police On Guard and schools cases could probably also be dismissed for delay, as they’ve each sat dormant for over a year.

The B.C. Court has reserved the decision (deferred it), and this is pretty typical. It’s unknown when the ruling will be handed down for Action4Canada, and the other Plaintiffs.

Prediction: the Action4Canada case will be struck in its entirety, without leave (permission) to amend. We can expect appeals after that, though it would be far more productive to have just done a proper Claim from the beginning.

It’s disheartening to have to cover content like this. That said, far too few people do any due diligence before handing over money. And many don’t seem to care even when the facts are laid bare.

It’s curious that none of the “freedom lawyers” will call out the nonsense that others put out, no matter how poorly written. What, is there some gentlemen’s agreement in place?

Of course, the requests for donations are still ongoing, which isn’t surprising. Despite the fact that this case is supposedly 100% funded, Action4Canada continues to ask for money. And when the Claim is struck, there will probably be more requests for help to finance appeals.

COURT DOCUMENTS
(1) A4C Notice of Civil Claim
(2) A4C Response October 14
(3) A4C Legal Action Update, October 14th 2021 Action4Canada
(4) A4C Notice of Application January 12
(5) A4C Notice of Application January 17
(6) A4C Affidavit
(7) A4C Response VIH-Providence January 17
(8) A4C Response to Application BC Ferries January 19
(9) https://action4canada.com/wp-content/uploads/Application-Record-VLC-S-S217586.pdf
(10) https://drive.google.com/file/d/1BfS_MyxA9J11WeYZmk8256G7GsWEFZ62/view

OTHER
(11) https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/168_2009_00
(12) https://canucklaw.ca/action4canada-statement-of-claim-fatally-defective-will-never-make-it-to-trial/
(13) https://canucklaw.ca/delay-prevents-action4canada-case-from-being-immediately-thrown-out/
(14) https://canucklaw.ca/action4canada-case-to-be-put-off-indefinitely/
(15) https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1279/2022onsc1279.html
(16) https://canucklaw.ca/wp-content/uploads/Notice-of-Appeal-and-Appellants-Certificate-Gill.pdf
(17) https://canucklaw.ca/wp-content/uploads/Gill-and-Lamba-Appeal-Notice-of-Intention-to-Dismiss-Appeal-for-Delay.pdf
(18) https://action4canada.com/covid-liability-notices/
(19) https://action4canada.com/court-update-may-31-2022/
(20) https://canucklaw.ca/vaccine-choice-canada-lawsuit-fatally-defective-will-never-make-it-to-trial/

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Kulvinder Gill’s Frivolous And Vexatious Claim Dismissed As A SLAPP

“[17] I also conclude that these claims are precisely ones that are of the kind that s. 137.1 is designed to discourage and screen out. ”

“[58] For greater clarity, I view all of the expressions or statements complained of by the Plaintiffs to have been made on matters of public interest. The test required by s. 137.1 has been applied to each in order to determine the appropriate result. In each case, I should be taken to have accepted and adopted fully the submissions advanced on behalf of each of the Defendants.” – Justice Stewart

A $12.75 million defamation lawsuit filed in December 2020 has been ended. The Ontario Superior Court ruled that it fully met the criteria for being classified as a SLAPP, and was dismissed. Kulvinder Gill and Ashvinder Lamba demanded millions in damages from online words. They literally tried to bankrupt people they disagreed with on platforms like Twitter.

Perhaps bragging about it in the national papers wasn’t the best idea.

The substance of this came from online postings related to restricting people’s freedoms, and what pharmaceuticals were best during a “pandemic”. (It’s fake, but that’s a discussion for another time).

In a 51 page ruling, Justice Elizabeth Stewart said that it was exactly the sort of case which anti-SLAPP laws were designed for. The sheer number of Defendants, 23, and the amount of money sought was staggering. Despite this, the Plaintiffs never produced any real evidence of damages to justify the millions they demanded.

To be blunt, this case appears to be frivolous and vexatious.

Considering how this came about, and all of the racism accusations leveled in the Statement of Claim, Gill and Lamba are very lucky they weren’t countersued for defamation. The Defendants would have had a much stronger case. Nonetheless, this lawsuit never stood a chance, if it even made it to trial.

A Quick Introduction To Civil Procedure

There are several sections of the Rules of Civil Procedure for Ontario which permit cases to be ended early. Truly meritless Claims and Applications clog up the system, and deserve to be removed.

  • Rule 2.1.01(6) this allows the Registrar to stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court
  • Rule 20: this covers Summary Judgement Applications. Either side can file for one, if it appears that either there is no case, or no valid defense. Appropriate when there are no major issues to resolve
  • Rule 21.01: in order to expedite a case, permits: (a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or (b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defense
  • Rule 24: if Plaintiffs are unnecessarily delaying the proceedings, and this can happen in different stages, the Court has the discretion to dismiss it
  • Rule 25.11: an option to strike the pleadings — which does not amount to trying the case — if a pleading is frivolous, scandalous, vexatious, or otherwise an abuse of process

Rule 2.1.01(6) is meant for a Registrar, or low-level official. This is restricted to the very obvious cases. The others involve higher standards, and are meant for Justices, Judges or Associate Judges.

In the case of defamation lawsuits, Section 137.1 of the Courts of Justice Act provides another remedy. If a Plaintiff is using the Courts as a weapon to silence discourse on an important public issue, this can be stopped by filing an anti-SLAPP Motion.

SLAPP Means Strategic Lawsuit Against Public Participation

This isn’t unique to Ontario. There are other Provinces and U.S. States which have very similar laws on the books, and the principles are much the same.

Prevention of Proceedings that Limit Freedom of Expression on Matters of Public Interest (Gag Proceedings)
.
Dismissal of proceeding that limits debate
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Purposes
.
137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,
.
(a) to encourage individuals to express themselves on matters of public interest;
(b) to promote broad participation in debates on matters of public interest;
(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

Once a SLAPP Motion is brought forward, it freezes everything else. Nothing can happen until this is resolved, which includes possible appeals to the higher Court(s).

It’s important to note that anti-SLAPP applies to speech that’s of a public interest matter. It doesn’t apply to disputes over private issues. Once the Defendant(s) satisfy the Court that the speech is of a public matter, the burden then shifts to the Plaintiff(s). To prevent dismissal, Judge or Justice must be convinced there are grounds to believe that:

  1. the proceeding has substantial merit, and
  2. the moving party has no valid defence in the proceeding; and
  3. 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.

If the Plaintiff cannot meet all 3 parts of this test, then the case qualifies as a SLAPP. Here, the Court found that they didn’t meet even a single prong of the test. As such, the Court had no choice but to dismiss the case. And as the Justice stated, the laws were designed for cases like this.

The Ontario Libel & Slander Act has built in provisions which allow for the protection of certain categories of speech. These include fair comment and qualified privilege, which were heavily referenced in the Decision.

Justification
.
22 In an action for libel or slander for words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges

Fair comment
.
23 In an action for libel or slander for words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.

Fair comment
.
24 Where the defendant published defamatory matter that is an opinion expressed by another person, a defence of fair comment by the defendant shall not fail for the reason only that the defendant or the person who expressed the opinion, or both, did not hold the opinion, if a person could honestly hold the opinion.

Communications on Public Interest Matters
Application of qualified privilege
.
25 Any qualified privilege that applies in respect of an oral or written communication on a matter of public interest between two or more persons who have a direct interest in the matter applies regardless of whether the communication is witnessed or reported on by media representatives or other persons.

It’s important to know that there are safeguards written into the Act. These are just some of them. A free society can’t function properly if speech is weaponized like this.

Could This Dismissal Be Appealed?

In theory, yes. Rule 61.04 allows 30 days to file a Notice of Appeal. However, given how badly the case went, Gill and Lamba would have to be pretty dense to even try. It’s a high burden.

Housen v. Nikolaisen, 2002, sets out the standard for review of a decision. Broadly speaking, Appeals are heard because of an alleged error of fact or law.
(i) The standard of review for findings of fact is such that they cannot be reversed unless the trial judge has made a “palpable and overriding error”. A palpable error is one that is plainly seen.
(ii) By contrast, a possible error of law is treated “de novo”, and looked at as if hadn’t been ruled on before. It might be viewed as a lower standard.

The reasoning behind “giving deference” to the factual findings is that the Judge is there, and more able to assess what’s going on. Also, there has to be some presumption of competence.

The Justice stated that there was no evidence of damages, the tweets were about public interest matters, and not defamatory. These are findings of fact, and unless something obvious is missed, not easy to challenge. In short, a hypothetical appeal would go absolutely nowhere.

What About Costs For The Defendants?

In the ruling, the Justice gave the Defendants 30 days to make submissions for costs. And here’s where things get more interesting.

There are 19 lawyers listed for the Defendants in the REASONS FOR DECISION. While it’s unclear how much the total fees are, it’s likely a lot. This case involved depositions, and a SLAPP Motion. Both of these are expensive and time consuming. Estimating an average $30,000 each — which may be at the low end — this case would have cost them over half a million to defend.

It’s quite possible that the Plaintiffs could each be on the hook for well over $100,000. Although most allegations didn’t involve Ashvinder Lamba, she clearly participated in the suit.

The final ruling made it clear that there was no evidence of damages, and that the issues addressed were public matters. Despite the tone in some of the messages, they were protected speech. The suit was frivolous and vexatious, so a stiff award can be expected.

What Exactly Started All Of This?

In the case of Gill and Lamba, this case arose largely over Twitter spats. The Plaintiffs (primarily Gill), got into arguments with people on Twitter, which later ended with her blocking them. I guess there’s a little Rempel in all of us.

These other people — who they later sued — were promoting vaccines and martial law measures, for a non-existent virus. Gill, to her credit, opposed these restrictions, but promoted alternative medicines, again for a non-existent virus. However, this was Twitter nonsense, and shouldn’t be taken seriously.

Instead of ignoring people if there was such a disagreement, Gill, Lamba, and their representative were documenting and archiving social media posts. To a casual observer, it appears as these may have been planned as a way of generating evidence. In the end, Gill and Lamba sued 23 doctors, media personalities, and media outlets, over relatively harmless comments.

One has to wonder if this was just an overreaction, or a calculated way to silence differing views. Most people supporting freedom want more speech available, not less.

Even on the miniscule chance that this lawsuit had been successful, what was the goal? Suing private parties doesn’t result in changes to public policy. There’s no way that any money (besides a nominal amount) would ever have been awarded. If anything, it makes lockdown objectors appear unprincipled, despite claiming to support freedom.

After the costs are paid, this won’t really be the end. Expect this decision to be a standard for dismissing meritless defamation claims. We now have a precedent of lockdown opponents trying — and failing — to silence and bankrupt their critics. Gill and Lamba will become very well known by lawyers, but for all the wrong reasons.

This isn’t to defend people like Abdu Sharkawy, and the quackery promoted. This site has exposed many of the hacks, and media payoffs. Nonetheless, this lawsuit did an enormous disservice to real resistance in Canada. The Plaintiffs can honestly say that they fought, and won, a baseless lawsuit.

If there is something positive in all of this, it’s that the Ontario Superior Court did throw out an abusive case because of the chilling effect it would have on public discourse. Read both the Statement of Claim, and Decision for more context. As absurd as these “health measures” are, throwing the suit out really was the right decision.

(1) Gill & Lamba v. Maciver decision CV-20-652918-0000 – 24 Feb 2022
(2) Gill & Lamba Defamation Lawsuit
(3) https://www.canlii.org/en/on/laws/regu/rro-1990-reg-194/latest
(4) https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html
(5) https://www.canlii.org/en/ca/scc/doc/2002/2002scc33/2002scc33.html
(6) https://www.canlii.org/en/on/laws/stat/rso-1990-c-l12/latest/rso-1990-c-l12.html
(7) https://www.theglobeandmail.com/canada/article-lawsuit-thrown-out-after-anti-vaccine-doctors-sue-over-challenges-to/?utm_source=dlvr.it&utm_medium=twitter
(8) https://nationalpost.com/news/canada/doctor-who-said-canada-doesnt-need-covid-vaccine-calls-online-critics-hyenas-in-6-8m-libel-suit

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Who Needs Science When We Have “Judicial Notice”? From The Federal Court….

This case was recently brought to the attention of Canuck Law, and it’s worth a read. This isn’t because of some great legal skill or revolutionary insight. It’s because legitimate issues and cases can simply be tossed aside if there is “judicial notice”.

Specifically, this was a Notice of Application brought to challenge the vaccine mandates of the Federal Government. Finally, we see mention in court that this “virus” may not even exist. However, it doesn’t seem to matter, since the Attorney General can ask the Court to “take judicial notice”.

You’d think that the Babylon Beaver wrote the decision, but it’s apparently for real. It’s very disturbing how cases can just be swept aside.

[1] Mr. Khodeir seeks judicial review of the federal government’s requirement that all its employees be vaccinated against COVID-19. He asserts that this requirement is unreasonable, because he believes that the virus that causes the disease does not exist.

[2] The Attorney General is asking me to strike Mr. Khodeir’s application at the preliminary stage. He says that I should take judicial notice of the existence of SARS-CoV-2, the virus that causes COVID-19. As a consequence, Mr. Khodeir will be unable to prove the central premise of his application, which is thus bound to fail.

[6] The Attorney General responded to Mr. Khodeir’s application by bringing a motion to strike, pursuant to Rule 221 of the Federal Courts Rules, SOR/98-106. He asserts that Mr. Khodeir’s application is bereft of any possibility of success, because the Court can take judicial notice of the existence of SARS-CoV-2. He also asserts that Mr. Khodeir has no standing to bring the application, because he is not an employee of the core public administration and cannot claim public interest standing in the circumstances.

[16] I accept the Attorney General’s invitation to take judicial notice of the existence of the SARS-CoV-2 virus, which causes COVID-19. To explain why, I must begin by outlining the contours of the concept of judicial notice. I then show that the existence of the SARS-CoV-2 virus is beyond reasonable debate and that Mr. Khodeir’s submissions to the contrary are without merit.

[17] Courts make decisions based on evidence brought in each particular case. Some facts, however, are so obvious that courts assume their existence and no evidence of them is required. This is called judicial notice: Jean-Claude Royer, La preuve civile (6th ed by Catherine Piché, Cowansville, Yvon Blais, 2020) at paragraphs 139-147 [Piché, La preuve]; Léo Ducharme, Précis de la preuve (6th ed, Montreal, Wilson & Lafleur, 2005) at paragraphs 74-92 [Ducharme, Précis]; Sidney N Lederman, Alan W Bryant and Michelle K Fuerst, Sopinka, Lederman and Bryant: The Law of Evidence in Canada (5th ed, Toronto, LexisNexis Canada, 2018) at paragraphs 19.16-19.63 [Sopinka, Law of Evidence]; David M Paciocco, Palma Paciocco and Lee Stuesser, The Law of Evidence (8th ed, Toronto, Irwin Law, 2020) at 573-583 [Paciocco and Stuesser, Law of Evidence].

CHAPTER II
[Quebec Civil Code]
JUDICIAL NOTICE
2806. No proof is required of a matter of which judicial notice shall be taken.

2808. Judicial notice shall be taken of any fact that is so generally known that it cannot reasonably be questioned.

[23] Facts may be notorious even where the decision-maker cannot ascertain them personally. For example, in R v Khawaja, 2012 SCC 69 at paragraph 99, [2012] 3 SCR 555 [Khawaja], the Supreme Court of Canada took judicial notice of the war in Afghanistan, even though it is highly unlikely that its members, like most Canadians, travelled there to witness the hostilities. The existence of the war is nevertheless notorious because over the years, trusted sources of information have repeatedly mentioned it. Thus, reasonable persons would not doubt that there was a war in that distant country.

[36] Over the last two years, most people on this planet have been affected in various ways by the COVID-19 pandemic. It has become common knowledge that COVID-19 is caused by a virus called SARS-CoV-2. Numerous trusted sources of information have repeated this fact, to the point that it is now beyond reasonable dispute. There is a lack of debate on this issue in scientific circles.

[37] A fact, however, does not become indisputable by mere repetition. One must consider channels through which the information is conveyed, scrutinized and exposed to criticism, and the fact that these channels operate in a society based on freedom of discussion. This is particularly important in this case because, over the last two years, the COVID-19 pandemic and the public health measures deployed to fight it have been one of the most significant topics of public debate. Scientific knowledge about COVID-19 has developed under intense public scrutiny. The existence of the SARS-CoV-2 virus and the fact that it causes COVID-19 are at the root of the matter. As matters related to the pandemic have been debated so thoroughly, it is unimaginable that any actual scientific debate about these basic facts would have escaped public attention. Moreover, if there was any evidence incompatible with the existence of the virus, one would have expected Mr. Khodeir to provide it to the Court. As we will see later, he utterly failed in this regard.

[62] In summary, the fact that COVID-19 is caused by a virus called SARS-CoV-2 is so notorious that it is beyond reasonable dispute. Like many other judges across Canada, I am taking judicial notice of this fact. Despite having had the opportunity to present evidence and submissions, Mr. Khodeir failed to put forward any cogent reason for concluding otherwise.

What it really comes down to: the debate is over.

The Court, which is supposed to be a trier of facts, is unwilling to try facts, simply because other Courts have declared the issue to be over. The problem with precedent (rulings based on previous rulings) is that nonsense decisions become very difficult to overturn, as they are now the standard

We can’t try or examine serious issues since another Court has already determined it to be settled. If you have any faith in the Canadian Judiciary, it’s probably best to rip that bandaid off.

Read the entire decision to make sure no context is missing.

(1) https://www.thelawyersdaily.ca/employment/articles/32863/sars-cov-2-virus-is-real-federal-court-judge-tells-challenger-to-federal-vaccine-mandate
(2) https://www.canlii.org/en/ca/fct/doc/2022/2022fc44/2022fc44.html
(3) Federal Court Virus Never Proven To Exist Who Cares
(4) https://www.canlii.org/en/qc/laws/stat/cqlr-c-ccq-1991/latest/cqlr-c-ccq-1991.html
(5) https://www.fluoridefreepeel.ca/wp-content/uploads/2022/01/decision-T-1690-21_E.pdf
(6) https://www.fluoridefreepeel.ca/fois-reveal-that-health-science-institutions-around-the-world-have-no-record-of-sars-cov-2-isolation-purification/

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Ontario Divisional Court Rules Requirement For Teachers To Be Proficient In Math Is Unconstitutional

There is a group that’s asking for handouts in order to water down the standards required to teach in Ontario. Unfortunately, it seems that they’ve had success.

The Ontario Teacher Candidates’ Council is an NGO that claims to advocate on behalf of (potential) teachers looking to get certified in Ontario. The group states that it was created largely in response to the new requirement that new teachers have a certain level of proficiency prior to getting to teach students. The online begging started quickly.

Is this really in the best interests of students? Is eliminating a pretty reasonable requirement in the name of “diversity and equity” the way to go about this? It’s pretty alarming that (apparently) large numbers of people can obtain and undergraduate degree, and a bachelor of education, and have a limited grasp of mathematics.

This also highlights a serious flaw with the legal system in Canada. NGOs can commence lawsuits claiming they have a “public interest standing”, and try to get the laws changed to suit their political ideologies. Providing the papers are worded properly, this is routinely down. Courts often grant such standing.

The Ontario Teacher Candidates’ Council was founded in early October [2019] largely in response to the Math Proficiency test which was made a mandatory requirement for the qualification of new teachers. According to the OCT, “On August 20, 2019 two regulations were filed: Regulation 271/19, Proficiency in Mathematics, under the Ontario College of Teachers Act, and Regulation 272/19, Objects of the Office under the Education Quality and Accountability Office Act, 1996. As a result certification requirements were updated to ensure that Ontario teachers are prepared for the modern demands of a changing society and increasingly dynamic learning environment.”

We believe that this test is not equitable, fair, justified or backed by data. The EQAO office has been rushed into creating a massive test in just months. In the past, EQAO has taken 3 years to roll out new tests. There is no definitive evidence which suggests that new teachers will become more effective math instructors as a result of this test, nor that students will perform better in math as a result of this. The last government-implemented test for teachers cost taxpayers $22 million and the results were mostly abandoned. This new legislation is costing tens-of-millions of dollars for a test which decides the futures of thousands of Ontarians. This new legislation comes to teacher candidates who have spent tens of thousands of dollars on their education and carefully planned the steps they would need to take to reach their goals. These thousands of jobs deeply affect the economy and future of our great province. Read our Email Templates on the Newsletter page to see our questions and arguments regarding this test. Help us, the people, even if our government will not.

It’s interesting that this group claims there’s no evidence that such requirements help. From the looks of their members, most probably couldn’t pass an introductory statistics course.

In February 2020, there was a podcast for “Education Is A Right“. Apparently, the right to a QUALITY education isn’t that important. If this really was about the students, there would be efforts to attract, retain, and upgrade the best teachers available. Instead, this group takes the opposite approach.

This isn’t something that anyone should be proud of. The Ontario Divisional Court essentially says that pandering to the anti-white diversity crowd is more important than providing quality education. Quite simply, whites passing at too high a rate implies systemic racism.

Parents would be up in arms if they were made aware of this. That said, it seems doubtful that there has been any publicity within those circles. At least the College of Teachers had enough sense to reject this idiocy.

One would think that this group would want to do what they can to ensure people of all groups are able to pass basic proficiency testing in math. However, that’s not the way they go. Turning to the ruling:

Significant Disparities in Success Rates
[32] The EQAO collected demographic information about Field Test takers through the voluntary demographic questionnaire which revealed significant disparities in success rates based on test-takers’ race, language and disabilities.

[33] In particular, the Field Test demographic data showed that non-White candidates writing in French were only successful 55 percent of the time, whereas White candidates writing in French were successful 84 percent of the time. Candidates who identified as belonging to non-White ethno-racial groups (such as African, Indigenous, Latino and Middle Eastern) failed at a significantly higher rate than White candidates. Candidates who indicated they had a cognitive disability failed the Field Test at over twice the rate of candidates without a disability.

Apparently there are differences in the average cognitive abilities between groups. The solution is obviously to reduce (or eliminate) standards, to ensure there is no difference.

Also, let’s not mince words. This isn’t just an effort to dumb down the teaching profession. This is an attempt to reduce the number of whites, and replace them with non-whites.

What Is the Appropriate Remedy?
[161] A declaration will issue that the Mathematics Proficiency Test and the legislative provisions that create it infringe s. 15 of the Canadian Charter of Rights and Freedoms and the infringement cannot be justified under s. 1. Specifically, the Proficiency in Mathematics regulation (O. Reg 271/19), as amended, and s. 18(1)(c) of the Ontario College of Teachers Act, 1996, S.O. 1996, c.12 are of no force or effect.

[162] A declaration will issue that the Ontario College of Teachers shall grant certification to teacher candidates who have not passed the Mathematics Proficiency Test (or shall grant full certification in the case of teacher candidates whose certification is conditional on passing the Mathematics Proficiency Test) but have otherwise met all other certification requirements.

Conclusion
[167] The application for judicial review is granted. The following relief is ordered:
(a) The Mathematics Proficiency Test violates s. 15(1) of the Charter, is not justified under s. 1, and is unconstitutional;
.
(b) O. Reg. 271/19, Proficiency in Mathematics, as amended, under the Ontario College of Teachers Act, 1996, S.O. 1996, c.12 is unconstitutional and of no force and effect;
.
(c) Paragraph s. 18(1)(c) of the Ontario College of Teachers Act, 1996, S.O. 1996, c.12 is unconstitutional and of no force or effect;
.
(d) The Ontario College of Teachers shall grant certification to teacher candidates who have not passed the Mathematics Proficiency Test (or shall grant full certification in the case of teacher candidates whose certification is conditional on passing the Mathematics Proficiency Test) but who have otherwise met all other certification requirements; and
.
(e) The Respondent shall pay the Applicants $90,000 in costs of the application.

Basically, the Ontario Divisional Court ruled that it was discriminatory in order to force all teachers to have a certain mathematical background.

And on top of it, a $90,000 costs award was also handed down. Now, will the donors get a refund for their contributions, or will the group owners just pocket it?

Bella Lewkowicz is a French teacher with Ottawa-Carleton District School Board. The group itself boasts some pretty impressive educational credentials. It’s baffling then why they would work like this to dumb down the teaching profession. Is it guilt? Self-hatred? Or is this some more destructive impulse?

(1) https://www.otcc.ca/
(2) https://www.otcc.ca/get-involved
(3) Home _ Ontario Teacher Candidates’ Council
(4) https://www.otffeo.on.ca/en/news/ontario-court-declares-that-the-ontario-math-proficiency-test-is-unconstitutional/
(5) https://twitter.com/OTCC19
(6) https://www.gofundme.com/f/otcc-legal-fund?utm_campaign=p_cp_url&utm_medium=os&utm_source=customer
(7) https://twitter.com/otffeo/status/1471940285210968070
(8) https://www.otffeo.on.ca/en/wp-content/uploads/sites/2/2021/12/2021-12-16-OTCC-v-Ontario-FINAL-signed-by-all.pdf
(9) Court Ruling Divisional Court 2021.12.16 OTCC v Ontario FINAL signed by all
(10) http://edisaright.ca/episode-31-student-teachers-challenge-new-math-test-in-ontario
(11) https://www.linkedin.com/in/bella-lewkowicz-5232951/