Category: Canadian Decisions

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Universal Ostrich Farms, Part 6: A Look Into The Motion Staying Cull Order

We’re back to covering the ongoing saga of Universal Ostrich Farms, and the CFIA’s attempt to cull (kill) approximately 400 birds on a B.C. farm. The story keeps getting stranger. An Appeal is underway to challenge a Federal Court ruling, permitting it to go ahead.

See Parts 1, 2, 3, 4 and 5 in the series for more information.

The Appeal was initiated in late May to set aside Justice Zinn’s ruling, which upheld the Canada Food Inspection Agency’s (CFIA’s) cull order as “reasonable”. The last article mentioned the sort of concerns that will be raised at the hearing.

But before that, there’s another more immediate problem. Unless otherwise halted, the current cull order is set to go into effect. A Motion was recently filed in order to prevent that, at least for the time being.

The Motion includes Affidavits from Karen Espersen and David Bilinski, in addition to the Notice, and the written arguments.

Such a Motion would likely not involve a hearing. Instead, a single Judge would consider all the filings and issue a decision behind closed doors.

Beyond simply requesting that the culling be deferred, the Motion reveals a lot about the operation that wasn’t previously public (or at least well known).

Motion To Stay Culling Is Well Written

To be more balanced, the filings submitted here are of better quality than what is usually covered on this website. At the end of January, 2025, Justice Battista did temporarily stay the killing of the ostriches. It’s reasonable to assume that the Court of Appeal may as well. While not guaranteed, it’s quite possible.

UOF’s argument to postpone the culling amounts to the following:

  • This appeal is neither frivolous nor vexatious
  • UOF will suffer irreparable harm if its ostriches are slaughtered
  • UOF will suffer the greater harm if a stay is denied

The full Motion Record is available, and includes all the documents. The Notice of Appeal outlines a number of serious errors, such as Justice Zinn not fully understanding the arguments that were before him. It’s stated that he deferred far too much to the CFIA, instead of diving more into the evidence himself. Beyond that, there are allegations (albeit not fleshed out) of financial conflicts of interest with prior counsel.

The Motion further requests that additional testing be done on the birds to see if there are illnesses that may have spread. It’s offered that the Appellants would cover such expenses.

The Motion points out the obvious: if the stay isn’t granted, and the birds are culled anyway, then the entire Appeal becomes moot. There would be no birds left to save.

In fairness though, the CFIA did appeal the Order of Justice Battista at the end of January. It was dropped for being “moot” after Justice Zinn upheld the CFIA order as reasonable. It’s fair to assume that the CFIA will be opposing such a Motion this time around as well.

Bilinski Affidavit Sheds New Light On Business Operations

The Affidavit of David Bilinski is very interesting. It outlines in considerable detail where he and Karen anticipated taking the business to, and whom they would be partnering with. Exhibit “E” is the business plan that was submitted.

An important detail is that the agreement with Breathe Medical fell through when the company declared bankruptcy. The partnership with the Quebec-based Immune Biosolutions appears to have not fared well either. However, there were apparently other options available.

19. By December 2020, UOF’s operations became entirely dedicated to scientific research through antibody production.

20. In Early 2021, Breathe Medical Manufacturing declared bankruptcy and our exclusive supply agreement and corresponding revenue expectations were not realized.

21. In 2022, Karen and I incorporated Struthio Bio Science Inc. (“Struthio”) to, in partnership with UOF, engage in manufacturing and marketing of ostrich egg IgY antibodies and related products. As of the date of this Affidavit, Struthio is wholly owned by Karen and I with each of us holding a 50% share.

22. In April 2024, Karen and I negotiated and entered into agreements which would, inter alia, implement a new ownership structure for Struthio. Under this proposed restructuring, an majority interest in Struthio would be transferred to new principals and governed by a board of directors, including Dr. Tsukamoto – in exchange for investment and the licensing of certain patents necessary for commercialization of IgY antibodies and related products.

23. Exhibit “E” to this affidavit is a true copy of the Struthio BioScience Business Plan dated December 5, 2023 (“Struthio Business Plan”) and accompanying PowerPoint presentation. The Struthio Business Plan is a detailed roadmap for Struthio’s venture to develop and commercialize biomedical products derived from ostrich eggs, and it identifies UOF as a crucial partner supplying the necessary ostrich eggs. Among other things, the plan describes Struthio’s proposed proprietary research into antibodies from ostrich egg yolks, new corporate and governance structure and projects the financial returns from this research over the next several years (in the order of millions of dollars annually). Karen and I would retain 25% each interest in Struthio BioScience Inc.

24. I do not put this forward to assert that those revenue projections will in fact be realized or that the science will succeed. Rather, I rely on the Struthio Business Plan to show the existence of Struthio’s business model and the expectations that UOF and Struthio had at the time: namely, that UOF’s ostrich flock would be used to produce a continuous supply of eggs enabling Struthio’s venture to move forward. The very inclusion of UOF as a key supplier in this plan, and the magnitude of the projected benefits, demonstrate how integral our ostrich flock is to UOF’s commercial strategy with Struthio. The plan provides important context for UOF’s anticipated growth – context which will be completely upended if the flock is destroyed. Any statements or figures in the business plan are being referenced here only to illustrate what Struthio anticipated and the scale of the opportunity UOF stood to gain, not as proof that those outcomes are guaranteed.

25. Exhibit “F” to this affidavit is a true copy of the terms of Struthio and Ostrich Pharma KK (“OPKK”) Agreement (“OPKK Agreement”) which was executed On April 11, 2024.

26. The OPKK Agreement sets out the principal terms of a proposed investment and partnership whereby OPKK agreed in principle to partner with Struthio’s egg-based biotech venture. The OPKK Agreement references anticipated investment, exclusive patent licencing, technology transfer and a revised corporate structure for Struthio. This reflects that OPKK’s confidence in Struthio’s business which was inextricably predicated on UOF’s ostrich flock and egg production.

Do read Bilinski’s Affidavit, especially the business plan which was attached as Exhibit “E”.

BOARD OF DIRECTORS:

  • Chairman – Dr. Yasuhiro Tsukamoto- President of Kyoto University, Founder and Scientist of Ostrich IgY patents
  • CEO – Interm – Dave Bilinski – Presently recruiting for full time position – Production Expert for Ostrich, 31 Years experience
  • VP – IgY Egg Production – Karen Espersen -, IgY Egg Production Expert for Ostrich, Director Alberta Ostrich Association, 33 Years experience
  • VP Product Development – Dr. Stu Greenberg –, CEO Ostrich Pharma USA
  • Board Member – Dr. Lyle Oberg – Presently Chariman of Alberta Health Services
  • CF0 – Actively recruiting for position
  • CMO – Carol Epstein, M.D. .Dr. Epstein has been in the biopharmaceutical industry for over 25 years. She has served as Chief Medical Officer of IRX Therapeutics, Inc
  • Board Member – To be chosen by investor

ADVISORY BOARD:

  • Dr. Alessio Fasano- Director of Center for Celiac Research & Treatment at MassGeneral Hospital. Director of the Mucosal Immunology and Biology Research Center at MassGeneral Hospital for Children (50 scientists and staff). Founder of Zonulin
  • Dr. Meer Janjua – BioNektar Inc. Founder and Chief Medical Officer, International Distribution management through Doctors network
  • Dr. Willian Bithoney MD, FAAP – Dr. William Bithoney is an experienced healthcare professional with more than 35 years of experience in the healthcare sector having served as a physician executive in diverse academic and hospital systems
  • Dr. Elma Hawkins, Ph.D. – Dr. Hawkins’s 30-year career encompasses pioneering efforts in biotechnology and drug development, and executive roles in corporate development, strategy, fundraising, and general management
  • Hassan Hassan = Business Development – CEO of Aim-X Canada. Dedicated International Entrepreneur in Natural Resource Exploration & Sustainable Development
  • Ken Davidson , CPA, CA, CFP, ICD.D -Ken Davidson is an accomplished corporate director, consultant, entrepreneur, Chartered Professional Accountant (CPA) and certified Corporate Director (ICD.D) with over 30 years of experience in a diverse range of industries across Canada, the US and the Caribbean

Currently, Espersen and Bilinski co-own Struthio BioSciences, holding 50% each. The proposed new structure would see that reduced to 25% each, and a more corporate format. Bilinski would become the CEO, at least on an interim basis. Espersen would be a Vice President. This is a far cry from the “family farm” that had been portrayed by media outlets.

Wasn’t this supposed to be about protecting the food supply?

Considering the disdain that the Freedom Movement has for “public health” in general, it seems odd to be supporting the expansion of an enterprise that would see the Chairman of Alberta Health Services become one of the Directors.

In other words, donors are contributing to these legal proceedings in order to protect the expansion of a company engaged in scientific research. These ostriches are test subjects, plain and simple.

At this point, one should ask what benefit donors are getting from contributing to this case. Consider that Bilinski and Espersen were willing to give outsiders a 50% stake in the new company. What would be fair to people contributing to these legal proceedings? Should larger donations merit equity, or dividends?

Silence From “Alternative Media” Outlets

Espersen and Bilinski have every right to earn a living. However, when donations are solicited, there’s an expectation that there will be transparency. While this Motion does shed a lot of light on their business model, it seems unlikely that contributors were fully aware of it.

It’s a fair question to ask if Universal Ostrich Farms will even exist a few years from now, regardless of what the CFIA does. Espersen doesn’t own the land, and the Quigleys are trying to kick them out. Yes, it’s still being disputed in Court in B.C., but still worth asking.

Would people be protesting around the farm’s perimeter if they knew these details? Would they (or their children) feel safe around animals injected with experimental antigens? People need to know what else — if anything — these birds were exposed to.

Druthers, among others, did cover the story, and report on these birds being the solution for “natural immunity”. Covid doesn’t exist, but that’s beside the point here. While Kyoto University was mentioned, there was nothing about where the parties planned to take their relationship.

The proposed trajectory is open-ended pharmaceutical testing, where ostriches will be little more than guinea pigs. Again, this is the kind of thing many in the Freedom Movement are against.

A follow-up from Connie would also be nice.

COURT OF APPEAL (CHALLENGING JUSTICE ZINN’S ORDER)
(1) Ostrich APPEAL Notice Of Appeal (May, 2025)
(2) UOF APPEAL Notice Of Appearance (May, 2025)

COURT OF APPEAL (MOTION TO STAY CULL ORDER)
(1) UOF APPEAL Motion Record To Stay Culling (June, 2025)
(2) UOF APPEAL Notice Of Motion To Stay Culling (June, 2025)
(3) UOF APPEAL Bilinski Affidavit To Stay Culling (June, 2025)
(4) UOF APPEAL Bilinski Affidavit Exhibit E June, 2025)
(5) UOF APPEAL Espersen Affidavit To Stay Culling (June, 2025)
(6) UOF APPEAL Moving Party Submissions To Stay Culling (June, 2025)

COURT OF APPEAL (JUSTICE BATTISTA STAYING CULL ORDER):
(1) UOF Order To Stay Culling (January, 2025)
(2) UOF Notice Of Appeal (February, 2025)
(3) UOF Notice Of Appearance (February, 2025)
(4) UOF Agreement Appeal Book Contents (March, 2025)
(5) UOF Joint Appeal Book (April, 2025)
(6) UOF Consent To Extend Time (May, 2025)
(7) UOF Notice Of Discontinuance (May, 2025)

FEDERAL COURT DOCUMENTS (CFIA):
(1) Ostrich Notice Of Application Certified (January, 2025)
(2) Ostrich Notice Of Application (January, 2025)
(3) Ostrich Notice Of Motion (January, 2025)
(4) Ostrich Bilinski Affidavit (January, 2025)
(5) Ostrich Espersen Affidavit (January, 2025)
(6) Ostrich Pelech Affidavit (January, 2025)
(7) Ostrich Jones Affidavit (January, 2025)
(8) Ostrich Responding Motion Record (January, 2025)
(9) Ostrich Responding Motion Record Expedited (February, 2025)
(10) Ostrich Motion Record Ex-Parte (February, 2025)
(11) Ostrich Exemption Notice Of Application (February, 2025)
(12) Ostrich Exemption Motion Record (February, 2025)
(13) Ostrich Ruling Of Justice Zinn (May, 2025)

MONEY:
(1) https://bcrising.ca/save-our-ostriches/
(2) https://www.gofundme.com/f/help-ostrich-farmers-fight-to-save-herd-from-avian-flu?attribution_id=sl%3A80e09934-7413-429b-acfb-2f7015cc19d3&lang=en_CA
(3) https://www.givesendgo.com/save-our-ostriches
(4) https://www.kinexus.ca/

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The Gleason Directive: Is It Time To Start Filing Malpractice Lawsuits?

This is a follow-up to the military vaccine passport case of some 330 soldiers. See parts 1, 2, 3, 4 and 5 for background on the litigation.

In the last article, Catherine Christensen was scolded by Justice Locke at the Federal Court of Appeal. She pulled the “improper and high handed” stunt of filing a Notice of Discontinuance on behalf of about 50 clients, without their knowledge or consent. Supposedly, this was over unpaid fees. This was instead of the accepted method of filing a Motion to withdraw. One Appellant, Mark Lolacher, filed a Motion on his own behalf for reinstatement, and was successful.

Rather than simply take the loss, Christensen attempted to file a Notice of Appeal to the same Court. There was also a half hearted attempt to file a Motion to withdraw.

Since the Notice of Appeal was never actually filed, it’s impossible for the average citizen to pull it, or the Motion materials. Nonetheless, we can still deduce a lot from the notes, and the ruling.

Instead of simply complaining, let’s explore a practical solution at the end.

True, the overall Appeal is still ongoing. That being said, it’s beyond obvious at this point the case will never get to Trial. Heck, the first Notice of Appeal doesn’t even challenge Justice Manson’s decision to refuse an extension of time.

Christensen Has Been A Trainwreck Since Day One

(1) Associate Justice Coughlan: Struck the case originally because the pleadings fell far, FAR below what was necessary to make out a case. Even worse, the Federal Court had no jurisdiction because s.29 of the National Defence Act mandated a grievance scheme for everyone to follow.

(2) Justice Manson: Refused an extension of time for a Rule 51 Appeal. The 10 day time limit to file was missed, with no explanation of why. The Motion to extend time also failed to explain, or even hint at, what such an Appeal would look like anyway. The rulings states that, “The interests of justice do not justify the Court allowing poorly prosecuted litigation to proceed forward when there is no likelihood of success.”

(3) Justice Rennie: Had to unnecessarily respond to a Motion to determine the contents of the Appeal Book. Christensen tried to improperly include content that the previous Judge (Manson) had not see. This is generally not allowed, and the parties should have been able to agree on their own.

(4) Justice Locke: Chewed out Christensen for unilaterally filing a Notice of Discontinuance with respect to dozens of her (ex?)-clients, rather than following protocol. Normally, counsel is supposed to file a Motion to Withdraw. Worse, she even opposed a subsequent Motion from Mark Lolacher to be reinstated.

(5) Justice Gleason: Refused attempts to both, (a) file a Notice of Appeal within the same Court, and (b) file a Motion to Withdraw that doesn’t name appropriate parties. The materials weren’t served to everyone anyway, which is another violation of procedure.

Christensen knew in advance that this lawsuit would be (or was at least very likely to be) thrown out due to lack of jurisdiction. The Neri ruling of December, 2021 explained the requirement to follow the grievance scheme, and to not simply sue.

Christensen also knew in advance that failure to abide by the Statute of Limitations would likely see the Rule 51 Appeal being time barred. September, 2024, another of her cases, Tondreau, was tossed for commencing an Application well after the deadline.

Justice Gleason Rules NONE Of The Material Can Be Filed

The amended appeal book may be filed and will replace the appeal book originally filed. The appellants’ memorandum of fact and law and proofs of service, submitted May 30, 2025 may also be filed.

The Registry has also sought direction pursuant to Rule 72 of the Federal Courts Rules, S.O.R./98-106 (the Rules) regarding a Notice of Appeal submitted on behalf of the appellants and Ms. Christensen, counsel of record for the appellants, which names the appellant, Mark Andrew Lolacher, as a respondent. This document has not been filed. The Notice of Appeal purports to appeal to this Court the Order of the Court issued by Justice Locke on May 7, 2025. In the Notice of Appeal, the appellants also seek an order removing Ms. Christensen as counsel of record for 51 of the appellants. The Notice of Appeal was signed by another solicitor, Bath-Shéba van den Berg of the firm Ergonomy Law.

The Notice of Appeal may not be filed. It is wholly irregular because this Court has no jurisdiction to sit in appeal from one of its orders. An appeal lies from an order of this Court, with leave, only to the Supreme Court of Canada. The Notice of Appeal is also irregular in that it substitutes someone else as solicitor of record, names one of the appellants, Mark Andrew Lolacher, as a respondent and counsel of record as an appellant without any order from the Court changing the style of cause or replacing counsel of record.

As was noted in the Reasons for this Court’s Order of May 7, 2025, the proper procedure when counsel wishes to get off the record is for the solicitor to bring a motion under Rule 125 of the Rules. Counsel other than the counsel of record may act on behalf of the counsel of record in such a motion. Indeed, Rule 82 of the Rules provides that a solicitor shall not depose an affidavit and present arguments to the Court in respect of their affidavit, except with leave. Thus, if Ms. Christensen wishes to bring a motion under Rule 125 and files an affidavit in support of the motion, she should either be represented by another solicitor, such as Bath-Shéba van den Berg, or seek leave of the Court under Rule 82 to file the affidavit and present the motion. Her motion record in support of any such motion must be served on all parties for whom she formerly acted, as provided in Rule 125(2). In addition, in accordance with Rule 369.2(1), such motion should be brought in writing or request an oral hearing in accordance with Rule 369.2(2).

As also noted in the Reasons for this Court’s Order of May 7, 2025, Mr. Lolacher, on his own volition, may take steps to no longer be represented in this appeal by Ms. Christensen. He may either file a notice under Rule 124 to appoint a new solicitor (using Form 124A) if he hires new counsel or a notice to act in person (using Form 124C). These steps may also be taken by any of the appellants.

The Registry has also sought direction regarding several documents submitted subsequent to the Notice of Appeal, none of which have been filed.

The first of these is a motion record submitted on behalf of Ms. Christensen by Bath-Shéba van den Berg to remove Ms. Christensen as counsel of record on behalf of 51 of the appellants, to set aside and stay this Court’s Order of May 7, 2025, and to “sever” the appellant, Mark Andrew Lolacher, from the other appellants. It is unclear who the respondents and appellants are on this motion as the style of cause in the Notice of Motion lists only one appellant and respondent and then uses “et al.”. It appears from the affidavit of service that this motion record was served only on counsel from the Department of Justice (who appeared on behalf of the governmental respondents) and Mr. Lolacher, but not on the other 50 appellants for whom Ms. Christensen no longer acts. This motion record may not be filed as it is wholly irregular. To the extent it seeks to appeal this Court’s Order of May 7, 2025, as noted, this Court has no jurisdiction to hear an appeal from one of its orders. To the extent it seeks an order removing Ms. Christensen as counsel of record for Mr. Lolacher and 51 other respondents, the motion record has not been properly served. The stay application appears to be ancillary to the other relief sought.

The remaining documents in respect of which the Registry seeks direction were submitted in response to the foregoing motion or in reply to the responding motion records. None of them may be filed as there is nothing to respond or reply to given that the motion record discussed in the preceding paragraph cannot be filed.

So long as this appeal is outstanding, unless and until a motion is properly brought under Rule 125 and the Court removes Ms. Christensen as counsel of record for some of the appellants or until, one, some or all of them file notice(s) under Rule 124, Ms. Christensen continues to be the solicitor of record for all the above listed appellants unless she or they die, she is appointed to public office, incompatible with the solicitor’s profession, or is suspended or disbarred as a solicitor. To the extent that Mr. Lolacher wishes to make a complaint about Ms. Christensen, his remedy lies with the Law Society of Alberta and not with this Court. Indeed, all the foregoing should have been abundantly clear from the Reasons for this Court’s Order of May 7, 2025.

***Note: one exception is that the Court did permit an amended Appeal Book, for the overall proceeding, to be filed. Everything else was disallowed.

According to Justice Gleason, the Notice of Appeal cannot be filed because it lacks jurisdiction. The Federal Court of Appeal cannot hear an Appeal from one of its own decisions. The only path forward is the Supreme Court of Canada, and Leave (permission) is needed for that. It’s stunning that neither Christensen, nor her “counsel” know this.

The Notice of Appeal also names new counsel, and has new parties, and the Court has signed off on NONE of this.

Christensen has apparently tried to file a Motion to withdraw as counsel for some 50 or so clients. However, she needed to include everyone as named parties, and had to serve everyone. Again, shocking that these basics are not followed.

Justice Gleason was also critical of Mark Lolacher for continuing to complain about Christensen’s conduct. She says that the proper venue about misconduct is the Law Society of Alberta. While true, the LSA isn’t going to handle a complaint when the underlying litigation is still open.

A Practical Solution: Look Into Malpractice Lawsuits

While it may seem daunting, suing former counsel for professional malpractice is an option. It’s not necessary to establish any malice or dishonesty, which makes it easier. This site covered recent examples, here and here, including a Class Action. Here are a few ideas.

TORT OF NEGLIGENCE:

  • Establish duty of care exists between the parties
  • Establish that the duty of care has been breached
  • Establish that the breach of the duty of care resulted in damages

TORT OF BREACH OF FIDUCIARY DUTY:

  • Establish a fiduciary duty (obligation) exists between the parties
  • Establish that the fiduciary duty has been breached
  • Establish that the breach of fiduciary duty resulted in damages

TORT OF BREACH OF CONTRACT:

  • Establish the existence of a valid contract
  • Establish that the contract has been breached
  • Establish that the breach of contract resulted in damages

As is pretty obvious, although these torts are framed differently, the requirements are much the same. The first element can be established by filing the retainer agreements, or other contracts. The second element can be proven with the assistance of the various rulings, showing unprofessional conduct. Lastly, Plaintiffs would have to give some evidence of damages, whether financial, or otherwise.

Neri and Tondreau happened prior to the mistakes here, meaning that Christensen should have been well aware of what was going on. Whether this is intentional, or just incompetence and negligence, Plaintiffs have been let down every step of the way.

Lawyers are required to have insurance to practice. However, that doesn’t mean that the money is there to pay out victims. Commonly, money is used to hire lawyers to fight against justice. Still, it can be overcome, if there is a strong enough case.

If there is a path to justice, it’s through Christensen’s insurance money.

FEDERAL COURT/CLAIM STRUCK:
(1) Qualizza Statement Of Claim (June 2023)
(2) Qualizza Amended Statement Of Claim (July 2023)
(3) Qualizza Statement Of Defence (September 2023
(4) Qualizza Reply To Statement Of Defence (September 2023)
(5) Qualizza Defendants Motion To Dismiss Claim (July 2024)
(6) Qualizza Plaintiff Motion To Strike Written Submissions (August 2024)
(7) Qualizza Order Striking Statement Of Claim Without Leave (November 2024)

FEDERAL COURT/RULE 8 MOTION TO EXTEND TIME/RULE 51 APPEAL:
(1) Qualizza Plaintiffs Motion To Extend Time To Appeal (December 2024)
(2) Qualizza Defendants Respond To Motion To Extend Time To Appeal (December 2024)
(3) Qualizza Order Denying Extension Of Time (January 2025)
(4) Qualizza Federal Court Notes

FEDERAL COURT OF APPEAL/CONTENTS OF APPEAL BOOK:
(1) Qualizza Notice Of Appeal (January 2025)
(2) Qualizza Motion Record Contents Of Appeal Book (February 2025)
(3) Qualizza Responding Motion Record Contents Of Appeal Book (March 2025)
(4) Qualizza Order Contents Of Appeal Book (April 2025)

FEDERAL COURT OF APPEAL/MARK LOLACHER REINSTATEMENT:
(1) Qualizza Notice Of Discontinuance (January 2025)
(2) Qualizza Lolacher Motion Record (March 2025)
(3) Qualizza Lolacher A.G. Responding Motion Record (March 2025)
(4) Qualizza Lolacher Christensen Responding Motion Record (March 2025)
(5) Qualizza Lolacher Order For Reinstatement (May 2025)
(6) Qualizza Lolacher Reasons For Reinstatement (May 2025)

FEDERAL COURT OF APPEAL/VENDETTA AGAINST LOLACHER:
(1) Qualizza Lolacher Letter To Court (May 2025)
(2) Qualizza Federal Court Notes FCA
(3) Qualizza Order Justice Gleason Refusing Filing Of Materials (June, 2025)

SUPREME COURT OF CANADA, APPLICATION FOR LEAVE:
(1) Qualizza SCC Notice Of Application For Leave To Appeal
(2) Qualizza SCC Application For Leave To Appeal
(3) Qualizza SCC Certificate File Access
(4) Qualizza SCC Response From AG Opposing Application
(5) Qualizza SCC Responding Certificate

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Universal Ostrich Farms, Part 5: Notice Of Appeal Alleges Incompetent & Conflicted Counsel

The proceedings with Universal Ostrich Farms didn’t end when Justice Zinn ruled that the Canada Food Inspection Agency (CFIA) had acted reasonably. It’s being challenged again. It’s heading back to the Federal Court of Appeal, in order to overturn that decision.

See Parts 1, 2, 3 and 4 in the series for more information.

A Notice of Appeal has been filed with the Federal Court of Appeal, attempting to overturn the decision of Justice Zinn. It challenges a number of issues both with the ruling, and the previous representation. This isn’t to reargue the case, but to demonstrate that the findings were flawed. An initial response has been filed, although more documents are still coming in.

  • The Federal Court erred in determining the scope of the CFIA mandate
  • The Federal Court applied the test wrong in reviewing administrative decisions
  • The Federal Court erred in assessing the available evidence
  • The Federal Court misunderstood several key arguments
  • Previous counsel was ineffective at doing their job
  • Previous counsel had (presumably undisclosed) conflict of interest

Also noteworthy: there’s a Motion filed to again stay the cull order, pending resolution of the larger proceeding. At the time of writing this, the Appellants have sent in their Motion Record, but the CFIA has not yet responded.

Appeal Claims Previous Counsel Had Conflict Of Interest

13. In addition and/or in the further alternative, the Appellant submits that the order of Zinn J. be set aside given the ineffective assistance of Appellant’s counsel at the application for judicial review. The Appellant’s prior counsel’s acts and omissions at that hearing fell well outside the range of reasonable professional assistance, amounted to incompetence, and resulted in a miscarriage of justice. Notably, the Appellant’s prior counsel had a financial stake in the destruction of the Appellant’s ostriches, resulting in a blatant conflict of interest that adversely affected counsel’s representation of the Appellant’s interests.

The Notice of Appeal alleges ineffective assistance of counsel at the previous proceeding. Worse, it claims that there were a financial conflict of interests that would work against good representation. Now, it’s not spelled out what this conflict(s) was, but hopefully it will be in later documents.

Appeal Of Justice Battista’s Stay Discontinued

January 31st, 2025, Justice Battista of the Federal Court stayed the CFIA cull order, at least until the broader challenge could be heard. The Government appealed it, although it was eventually dropped. Presumably, Justice Zinn’s ruling made it moot.

The rest of the documents are linked below.

Timeline Of Major Events In Proceedings

For clarity, this hasn’t gone ahead in a linear manner. There have been multiple, overlapping proceedings along the way. Hopefully, this helps somewhat.

January 30th, 2025: Universal Ostrich Farms filed Application to challenge the CFIA “cull order” of their ostriches.

January 30th, 2025: UOF brings Motion to temporarily block culling.

January 31st, 2025: CFIA files a Responding Motion Record to the Stay sought.

January 31st, 2025: Justice Battista issues a temporary stay of the CFIA cull order.

February 7th, 2025: UOF brings a second Application, this time challenging the refusal of the CFIA to issue an exemption for their birds.

February 10th, 2025: CFIA begins Appeal against the staying of the cull order.

February 11th, 2025: UOF files Motion Record in support of request for exemption.

February 20th, 2025: UOF files that it intends to respond at the Appeal.

March 12th, 2025: Parties send their agreement as to the contents of the Appeal Book.

April 11th, 2025: Appeal Book is filed, in challenge to Justice Battista’s ruling.

May 13th, 2025: Justice Zinn denies both Applications. Those were (a) to challenge cull order, and (b) to challenge the exemption refusal.

May 23rd, 2025: A Notice of Discontinuance is filed in the Appeal against Justice Battista’s stay. Since Justice Zinn ruled on the overall case, it would be considered moot.

May 26th, 2025: Notice of Appeal is filed against Justice Zinn’s decision.

May 28th, 2025: CFIA files a Notice of Appearance.

June 2nd, 2025: UOF files its Motion Record to stay the culling.

Note: All of the dates listed can be confirmed by searching the respective cases on the Federal Court website. It keeps a detailed listing of all significant events.

Anyhow, readers will be updated with whatever twists and turns emerge. But it’s clear that these people won’t go down without a fight.

Regardless of what ultimately happens in Court, Universal Ostrich Farms is still operating what amounts to a bio-lab on their land. Or rather, the Quigleys’ land. Judging by the response that earlier articles have received, and the work of David Dickson, it seems many people didn’t know this.

COURT OF APPEAL (CHALLENGING JUSTICE ZINN’S ORDER)
(1) Ostrich APPEAL Notice Of Appeal (May, 2025)

COURT OF APPEAL (JUSTICE BATTISTA STAYING CULL ORDER):
(1) UOF Order To Stay Culling (January, 2025)
(2) UOF Notice Of Appeal (February, 2025)
(3) UOF Notice Of Appearance (February, 2025)
(4) UOF Agreement Appeal Book Contents (March, 2025)
(5) UOF Joint Appeal Book (April, 2025)
(6) UOF Consent To Extend Time (May, 2025)
(7) UOF Notice Of Discontinuance (May, 2025)

FEDERAL COURT DOCUMENTS (CFIA):
(1) Ostrich Notice Of Application Certified (January, 2025)
(2) Ostrich Notice Of Application (January, 2025)
(3) Ostrich Notice Of Motion (January, 2025)
(4) Ostrich Bilinski Affidavit (January, 2025)
(5) Ostrich Espersen Affidavit (January, 2025)
(6) Ostrich Pelech Affidavit (January, 2025)
(7) Ostrich Jones Affidavit (January, 2025)
(8) Ostrich Responding Motion Record (January, 2025)
(9) Ostrich Responding Motion Record Expedited (February, 2025)
(10) Ostrich Motion Record Ex-Parte (February, 2025)
(11) Ostrich Exemption Notice Of Application (February, 2025)
(12) Ostrich Exemption Motion Record (February, 2025)
(13) Ostrich Ruling Of Justice Zinn (May, 2025)

MONEY:
(1) https://bcrising.ca/save-our-ostriches/
(2) https://www.gofundme.com/f/help-ostrich-farmers-fight-to-save-herd-from-avian-flu?attribution_id=sl%3A80e09934-7413-429b-acfb-2f7015cc19d3&lang=en_CA
(3) https://www.givesendgo.com/save-our-ostriches
(4) https://www.kinexus.ca/

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Universal Ostrich Farms, Part 2: The Pelech Affidavit, $48,000 Per Egg

A segment of the public has been following the case of a British Columbia farm that was ordered cull approximately 400 of its ostriches. The order came from the Canadian Food Inspection Agency (or CFIA) and was challenged in the Federal Court. It was unsuccessful, but an Appeal is likely. The coverage that the “alternative” media has shared would lead people to believe this is simply an attack on the local food supply.

However, looking a little deeper into the case, it seems that these animals had other purposes. This included being used to generate “antibodies” for the so-called “SARS-CoV-2” virus. Or rather, their eggs would be. What else have these animals been treated with?

See Part 1 in the Universal Ostrich Farms series for more information.

This digging for the truth — while pleasing to some — has angered others. However, this site doesn’t “bend the knee”, just because people get annoyed.

Also, this isn’t Liberty Talk, so don’t expect some “feel good” speech or interview.

Now we get to the main Affidavit of Steven Pelech, the expert witness. He’s a professor at the University of British Columbia (UBC), and has an interesting research specialty. He also makes it abundantly clear he believes virology is a legitimate science.

Pelech Clarifies Ostriches Used For Biomedical Research

Pelech’s Affidavit makes it clear that there may be perceived problems with his objectivity. He states that has been involved in developing antibodies against SARS-CoV-2. He’s been doing this kind of work for years. This is also the same purpose that the ostriches in question are being used for.

These birds weren’t destined to be food (hopefully), but were used for biological testing.

Pelech Believes PCR Testing Is Legitimate

Since 2020, many, MANY people have been speaking up about the legitimate concerns of PCR (or Polymerase Chain Reaction) testing. Pelech isn’t one of them. Instead, he speaks glowingly about this “technology”. His only real objection seems to be in how it’s applied. Specifically, the number of times it’s cycled through is apparently too high.

Pelech apparently doesn’t object to this? And why would he? His entire livelihood centers around the idea that these sort of tests are legitimate, and that samples can be treated with other things he creates.

It’s unclear how exactly he would help. It these ostriches were wrongfully diagnosed with H5N1 (or anything), Pelech isn’t making any convincing argument about it.

Further down in the Affidavit is a main point in Pelech’s “expert” evidence. He’s not sure what the cycle count of the PCR testing was, and that it’s unreliable at the higher ones. At no point does he state, or imply, that the test itself is faulty.

58. The main issue is whether the remaining ostriches represent a health hazard to each other, the staff and visitors to the UOF, and wild birds and animals that come to the farm. In view of the information that there has been no deaths from infectious disease on the farm for over two weeks, and all of the ostriches appear to be healthy, it is highly likely that the herd immunity has been achieved in the flock. It is extremely unlikely that they would be shedding virus to each other, their caretakers, and to other birds and animals. The longer that these birds remain healthy, the lower the risk of potential transmission of the virus.

Pelech again never challenges the “positive test” in any meaningful way. He shifts from speculating that PCR testing may have been done at too high a cycle, to speculating about herd immunity.

Pelech On Economic Benefits Of This: $48,000/Egg

We get to the heart of the matter: these ostriches are a gold mine. Pelech steps out of his role as a “scientific expert” to make an economic case for why these birds should be spared.

  • Antibodies derives from animals are worth a lot of money
  • A rabbit can produce 1.5 mg of antibody, at $6,000 each
  • An ostrich egg can produce 12 mg of antibody, at $48,000 each
  • An ostrich can lay eggs for decades

Does it make sense now? The people at Universal Ostrich Farms are sitting on a gold mine. Assume each bird lays one egg per year, just for the sake of argument, we get this:

400 birds * ($48,000/egg) = $19.2 million

This flock of birds has the potential to generate tens of millions of dollars, per year, for this farm. That’s why they’re so against the cull.

“Freedom Movement” Duped Into Financing Legal Challenge

The GoFundMe account has raised $51,000 so far. GiveSendGo is at nearly $39,000. This doesn’t include etransfer, cash, or cheques being mailed in. Altogether, there’s a lot of money coming in.

Well meaning donors are giving money they likely don’t have to a farm which performs the kind of testing they’d be ideologically opposed to. And the Court case is being brought to protect their multi-million dollar project.

Does anyone feel suckered yet?

Pelech was part of the Canadian Covid Care Alliance, or CCCA. He’s also been featured on Librti, What’s Up Canada?, and the NCI. Seriously, did no one vet him in any way?

Kinetek Pharmaceuticals: Pelech Founder, Former CEO

In his Affidavit, Pelech gives his employment record, and it’s quite interesting. He founded 2 companies in the 1990s

  1. Kinetek Pharmaceuticals, which he departed in 1997
  2. Kinexus Bioinformatics Corp, which he is still presently part of

It appears that Kinetek was discontinued as a corporation in 2004.

Kinexus Bioinformatics: Pelech Founder, Director, Scientific Officer

According to the information provided, Pelech is still involved with Kinexus. On their products page, they list the following:

Quality antibodies, peptides and other reagents at reasonable prices with fair representation and extensive validation.

In other words, there’s a financial interest in seeing this kind of work continue. Antibodies is specifically listed as a product that the company sells.

With all of this in mind, one could view Pelech’s Affidavit in an entirely different light. He has direct financial interests with the antibody industry. He also acknowledges that these ostrich eggs could be worth $48,000 each, assuming they’re of good quality. While he may be honest and forthright in his Affidavit, all of this is too much to ignore.

This isn’t about protecting the food supply.

That’s all emotional blackmail and misdirection.

FEDERAL COURT DOCUMENTS:
(1) Ostrich Notice Of Application Certified (January, 2025)
(2) Ostrich Notice Of Application (January, 2025)
(3) Ostrich Notice Of Motion (January, 2025)
(4) Ostrich Bilinski Affidavit (January, 2025)
(5) Ostrich Espersen Affidavit (January, 2025)
(6) Ostrich Pelech Affidavit (January, 2025)
(7) Ostrich Jones Affidavit (January, 2025)
(8) Ostrich Responding Motion Record (January, 2025)
(9) Ostrich Responding Motion Record Expedited (February, 2025)
(10) Ostrich Motion Record Ex-Parte (February, 2025)
(11) Ostrich Exemption Notice Of Application (February, 2025)
(12) Ostrich Exemption Motion Record (February, 2025)
(13) Ostrich Ruling Of Justice Zinn (May, 2025)

MONEY:
(1) https://bcrising.ca/save-our-ostriches/
(2) https://www.gofundme.com/f/help-ostrich-farmers-fight-to-save-herd-from-avian-flu?attribution_id=sl%3A80e09934-7413-429b-acfb-2f7015cc19d3&lang=en_CA
(3) https://www.givesendgo.com/save-our-ostriches
(4) https://www.kinexus.ca/

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Universal Ostrich Farms: Did Anyone Actually Read The Decision? Or Anything Else?

A few days ago, the Federal Court of Canada refused to block the killing of approximately 400 ostriches in British Columbia. Some had tested positive to H5N1, leading to the order. Justice Zinn said the the Canada Food Inspection Agency, or CFIA, was reasonable in the orders that it issued. This had members of the “Freedom Movement” up in arms about it.

However, the real story was far different from what people were being led to believe.

If developers working for Pfizer or Moderna had approached the “Freedom Movement” asking for money, they would have been shunned. And rightfully so. However, when an ostrich farm working on developing “covid masks” whines about its animals being culled, people rush to their defence.

There are certainly fundraising efforts underway. At the time of writing this, the GoFundMe page has raised nearly $51,000. And there’s another $34,000 from GiveSendGo. There are most likely other amounts that are not publicly disclosed.

It seems that there really is no cure for stupidity.

But in fairness, perhaps it’s wrong to be too harsh on supporters when they were never told the full truth to begin with.

Quotes From Justice Zinn’s Decision

[25] The Applicant has developed what it considers a uniquely large strain of ostriches through selective breeding since the 1990s. The ostriches are allegedly selected for body size and favourable genetic traits, with surplus birds not meeting these standards being discarded or culled. Some ostriches currently on the farm trace back to early imports from Africa and remain part of the breeding stock.

[26] From approximately 2020 onward, the Applicant shifted its primary commercial focus to extracting and studying antibodies, notably immunoglobulin Y, from ostrich eggs. For the Applicant, these antibodies have lucrative commercial and research values, especially in the development of diagnostics or therapeutics relevant to human viruses, such as the COVID-19 causing virus of SARS‑CoV‑2. To advance this antibody-based venture, the Applicant has collaborated with both domestic and international partners, including scientific researchers and private sector entities. Despite this strategic shift, some level of ostrich sales, along with sales or planned sales of products derived from ostrich fat and eggshells, continued through to at least December 2024.

[27] By early December 2024, the farm reportedly housed about 450 ostriches, including older breeding stock and newly introduced birds.

These quotes come directly from Justice Zinn’s own ruling. The Applications weren’t brought based on some compassionate grounds. Instead, it was to ward of the CFIA’s attempts to interfere with the company’s economic interests.

And again, it had to do with “fighting Covid”.

In her own Affidavit, Espersen admitted the real reason she was against having the animals culled. If there were to be, the business — related to Covid testing — would not be able to recover. This is far from what the public had been led to believe.

Karen Espersen’s LinkedIn: Virus Variants And A Nasal Spray

Karen Espersen’s LinkedIn page is open to the public, and it explains exactly what she has been up to. (See archive).

I have been in the Ostrich Industry for 30 plus years now and work with incubating, hatching, raising of chicks, breeder care and product manufacturing and distribution. Consistently producing top quality products (meat, oil, hides, eggs and feathers) We are presently producing Neutralizing COVID 19 Antibodies. These amazing antibodies also cover any variants that come along. We are working hard to find the right company to put these antibodies into a nasal spray. Very Very proud of our work

.

The ostriches on this farm were being used to:

  • produce “neutralizing” COVID antibodies
  • be used to further variants
  • eventually end up as a nasal spray

While the “save the ostriches” rallying cry centered around compassion, it seems that vast majority of the public was unaware of the full truth.

Very Little Information On Struthio BioScience Inc.

In addition to running Universal Ostrich Farms and ONU Body Care Inc. (which makes beauty products), Esperson co-owns a company called Struthio BioScience Inc.

There’s very little available on the company, but it was registered in Alberta from 2022 until 2024. That space is now occupied by a law firm. Struthio is currently registered in B.C.

In his own Affidavit, Bilinski talks about the contract with a Quebec company, Bio Solutions Inc. Now we see what’s really going on. These people are asking the public to subsidize a legal challenge that (if successful) allow them to complete the $13,000,000 agreement.

Activities Of Bilinski/Espersen Public Knowledge For Years

“Working with a lab back east, we inoculated our hens with the dead COVID-19 virus. The hen produces antibodies in two weeks and two weeks after that she puts them into her eggs,” says Espersen, adding that is one of the reasons they were so hesitant to abandon their 500 birds.

“This is a very natural process and last year we were able to block 99.9 per cent of the coronavirus if it was infused in a face mask.”

For various reasons, the face mask was never mass produced, but a different company began testing and they discovered the birds could be the key to neutralizing COVID-19 completely.

“We were so excited about being able to help the world we dedicated all of our laying hens on the farm to this program,” says Espersen, adding ostriches can produce an egg every two days for several months in a row.

“We inoculated all of our hens and this summer they have been producing antibodies that can neutralize the COVID-19 virus.”

Bilinski says the antibodies are extracted from the egg yolks, with a single ostrich egg being equivalent to 24 chicken eggs.

“This last week, we got word from the lab the antibodies are neutralizing the Delta (variant),” says Bilinski.

Espersen says they are now taking the next step and are working with a company out of Vancouver to create a nasal spray that could be administered to anyone with COVID.

Vancouver Is Awesome covered the farm back in the Summer of 2021, nearly 4 years ago. Bilinski and Espersen were open about the Covid testing that was going on. This included the production of a mask that would “glow” when exposed to Covid. There were also ambitions about the eventual creation of a nasal spray.

“Covid Mask” From Ostrich Extracts A Real Concept

This ostrich farm isn’t the only organization who has thought about creating a virus detection system made from the birds’ antibodies. The idea has been around for several years now. The World Economic Forum had a similar vision as well.

Liberty Talk Does No Research Whatsoever On Story

Liberty Talk hosted an interview about the ostriches, but apparently never did any fact checking ahead of time. It’s a bit embarrassing to “cover” a story, but not have a clue about what’s really going on. Then again, she shilled hard for Action4Canada.

As an aside, Connie Shields appears to be livid with some of the questions that skeptics are asking. This article comes across as downright unhinged.

There are all kinds of questions that still need answering:

  • What else have these birds been infected/poisoned with?
  • What other testing is on the agenda?
  • Who else has been involved in running this project?
  • What is the ultimate goal(s) of these experiments?
  • Are there any other subsidies taxpayers have had to fund?

***Note: a thank you to David Dickson, for giving a nudge in the right direction. It’s nice that there are people who will ask those tough questions.

(1) Ostrich Notice Of Application
(2) Ostrich Notice Of Motion
(3) Ostrich Bilinski Affidavit
(4) Ostrich Espersen Affidavit
(5) Ostrich Pelech Affidavit
(6) Ostrich Jones Affidavit
(7) Ostrich Ruling Of Justice Zinn
(8) https://www.canlii.org/en/ca/fct/doc/2025/2025fc878/2025fc878.html
(9) https://www.canlii.org/en/ca/fct/doc/2025/2025fc878/2025fc878.html#par26
(10) https://bcrising.ca/save-our-ostriches/
(11) https://www.gofundme.com/f/help-ostrich-farmers-fight-to-save-herd-from-avian-flu?attribution_id=sl%3A80e09934-7413-429b-acfb-2f7015cc19d3&lang=en_CA
(12) https://www.givesendgo.com/save-our-ostriches
(13) https://www.linkedin.com/in/dave-bilinski-1ba2b826/
(14) Dave Bilinski LinkedIn Page
(15) https://www.linkedin.com/in/karen-espersen-a82b563a/
(16) Karen Espersen LinkedIn Page
(17) https://albertacorporations.com/struthio-bioscience-inc
(18) https://gowlingwlg.com/en/global-reach/canada/calgary
(19) https://www.bclaws.gov.bc.ca/civix/document/id/corpreg/corpreg/crpn0505fin1322
(20) https://www.vancouverisawesome.com/highlights/bc-ostrich-farm-developing-antibodies-that-could-put-an-end-to-coronavirus-4216550
(21) https://www.youtube.com/watch?v=JzTTWIe5Ntc
(22) https://www.youtube.com/watch?v=9T6QkqDY1YE
(23) Odessa’s Facebook Post On Story
(24) https://www.youtube.com/watch?v=4sIXdqZj4TI
(25) https://unlockalberta.substack.com/p/christine-massey-david-dickson-pat
(26) https://x.com/dksdata/status/1924565628054339929

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WestJet Forced To Pay Over Refusal To Accommodate Religious Objection To Injection Mandate

A Calgary Court has now ruled that WestJet improperly terminated an employee over the 2021 vaccination mandates, and didn’t adequately provide alternatives.

Justice Argento awarded Duong Yee $65,587.72, or the equivalent of 11 months of her salary. After more than 11 years of employment, she was terminated in the Fall of 2021, for refusing to take the injections. She had tried — but failed — to obtain an exemption on religious grounds.

Many lawsuits in recent years have invoked religious beliefs. However, this is a rarer one that actually details what those beliefs are. The case was pursued by Jody Wells and James Kitchen.

Yee didn’t challenge the Government policy itself, but how it was implemented. While not a repudiation to the injection pass in general, this is nonetheless a nice win showing that some exemptions can be protected.

Although many have referred to this as suing WestJet, there were in fact 3 Defendants: (a) WestJet, an Alberta Partnership; and its Partners (b) Westjet Airlines; and (c) 2222304 Alberta Corp.

The lawsuit sought $100,000 for economic and other harms:

  • $66,500 for severance pay
  • $12,000 for benefits
  • $21,500 for “moral damages” or aggravated damages
  • Costs

While Yee did get an award for severance pay, and presumably the benefits lumped in, the request for damages was denied. The Judge said that none had been proven, and there was nothing overly insensitive or egregious in how the company had acted.

WestJet further argued that Yee failed to mitigate her damages (improve her own situation), but that was rejected by the Court.

Quotes From WestJet Exemption Questionnaire

Question #6. Explain why you are requesting an accommodation:

Based on sincerely held beliefs as a bible believing Christian, the vaccine is betrayal of faith to my healer, Lord and Saviour Jesus Christ.

Question #7. Describe the accommodation you are seeking:

Exemption from vaccination; from masks; from rapid testing

Question 9. Describe how you are a practicing member of this religion:

I attend online worship and sermons with my church, I have a weekly bible study with my church group to continue understanding God’s word, as well as my own daily prayer, worship and bible readings to commune with my heavenly father.

Question #10. How long have you been a practicing member of this religion?

Over 3 years

Question #11. Explain the connection between your religious belief(s), your objection to receiving a COVID-19 vaccine and the accommodation you are seeking:

Jesus is my healer, I do not cannot rely on the use of vaccinations or medicines created artificially in order to prevent sickness. Jesus speaks of seeking out a doctor when one is sick, not well. I have no need of a vaccine in order to maintain my health.

Question #19. Do you belong to any groups (social media or otherwise) protesting or denouncing or being critical of Covid-19 measures taken by health authorities and government bodies?

Yes

Question #20. Please describe the groups of which you are a member:

I have joined groups that are peacefully seeking a community to support our freedoms; ie. conscience, religion, beliefs; choice – Jesus came to set the captives free and that we are not to live in bondage. This can be include those being critical of the covid measures, but that is not my purpose for belonging to these groups

Question #21. Do you have any concerns about the safety of any Health Canada-approved Covid-19 vaccines?

Yes, many reports of adverse reactions and death in the last 4 months of covid vaccines alone compared to last 17 years of all vaccines according to VAERS. -Severe reactions include: Inability to conceive, heart attacks, miscarriages, strokes; bloodclots, paralysis of arms and legs, reproductive dysfunction.- No long term safety has been completed to ensure they are safe and effective.-mRNA is a new technology and side effects completely unknown – Never been licensed for human use when 0 long term studies have been competed [sic] to ensure they are safe and effective, they are still in phase 3 experiment that will not be completed until trial ends late 2022.

Interestingly, when WestJet asks a direct question about practical concerns people may have, this is used as “evidence” that their objection is a personal opinion, and not a protected ground.

WestJet has carefully reviewed your request for an accommodation, including the information listed above. For the reasons stated below, WestJet declines your request for an accommodation on the basis of religion:

• The information provided or obtained in reviewing your accommodation is insufficient to establish you require an accommodation. More specifically, the information you provided to WestJet casts doubt on religion being the grounds for your application. You have written in your application form that you consider the vaccine unsafe. It is therefore reasonable to consider that you are philosophically/personally opposed to mandatory vaccine, which means you are seeking accommodation for secular reasons, not religious. We respect your opinion, but personal preference is not a Protected Ground.

One has to wonder what kind of answer Yee was supposed to give. If she had no concerns about the shots, why wouldn’t she have just taken them?

Justice Argento Accepts Argument Termination Unnecessary

[101] First, the Plaintiff’s conduct was not insubordination or disobedience of a type where the employment relationship could not continue and the misconduct was irreconcilable with continued employment. The Plaintiff continued working after her accommodation request was denied on October 4, 2021 until she was placed on unpaid leave on November 1, 2021. She continued to meet deadlines and her manager described her performance as “professional” leading up to November 1, 2021. There was no evidence that her non-compliance with the Vaccination Policy negatively impacted the workplace, other employees or the Defendant’s trust in her ability to do her job.

[102] The Plaintiff’s refusal to comply with the Vaccination Policy did not impact her job performance. It did not endanger the Defendant’s employees or the public as the Plaintiff was working from home. While a future, partial return to work was anticipated, that was not yet implemented. The issue of cause must be assessed based on what was known and understood at the time of dismissal.

[104] Next, in balancing the competing interests of the parties, it is significant that dismissal was not the only option available to the Defendant. Even though the Defendant’s Vaccination Policy stipulated that anyone failing to comply would be subject to discipline up to and including termination for cause, the Defendant did not have to proceed in this fashion.

Aside from pleading the exemption issue, the Plaintiff pointed out that she had already been working remotely for several months. This presumably could continue.

Justice Argento comments that the decision to dismiss Yee was likely unnecessary in any event. This wasn’t the sort of conduct that would destroy an employment relationship, nor was it one that would result in a lost of trust.

And most importantly, it wouldn’t endanger anyone since Yee was working from home.

WestJet Plays Games With Issue Of Jurisdiction

11. While the Plaintiff references the words “wrongful dismissal” or “wrongful termination” the substance of her claim is entirely that of a human rights complaint based on allegations of discrimination; the concept of wrongful termination itself is tied to WestJet’s failure to accommodate the Plaintiff. The duty to accommodate is an obligation of employers enshrined in human rights legislation, and WestJet’s purported failure to accommodate the Plaintiff is squarely in the purview of a human rights commission. The Civil Claim even seeks general damages for the duration of the reasonable notice period, which is a remedy only available to a human rights commission as compensation for the pain and suffering caused by discrimination.

24. The Plaintiff further claims that WestJet ceded jurisdiction of this action to this Court. With all due respect, this is inaccurate. In response to the Plaintiff’s Canadian Human Rights Complaint, and prior to the Civil Claim being filed, WestJet made a preliminary objection to the complaint on the basis that it would more appropriately be addressed under the Canada Labour Code by the Canadian Industrial Relations Board (“CIRB”). At no point has WestJet stated that this Court, or any civil court for that matter, has, or ought to have jurisdiction of a claim entirely based on an allegation of discrimination.

These passages are from the Defendants’ written submissions. For context, it’s important to realize the Yee filed a human rights complaint before suing anyone. WestJet objected, saying it would be better placed before the Industrial Relations Board (CIRB) for Arbitration. The complaint was dropped.

WestJet now complains that this lawsuit should have been filed with the Human Rights Tribunal, raising a jurisdictional issue.

While the submissions say that the preferred venue is the CIRB, this is a bit of a red herring. WestJet initially objected to jurisdiction of the Human Rights Tribunal, so they can’t really claim that it should be there after all.

The Defendants tried to argue that at its core, this wasn’t a case about breach of contract or wrongful termination. It was about discrimination and failure to accommodate. It was unsuccessful.

Note: While WestJet is a unionized employer, not all employees and contractors are covered. Mrs. Yee wasn’t, and hence, there was no duty to grieve and seek arbitration.

Timeline Of Major Events In Case

May 17th, 2010: Yee begins her employment with WestJet. At the time, she was working part time as a sales agent.

May, 2021: Yee comes back from maternity leave, and begins working remotely.

September 8th, 2021: WestJet announces their vaccination requirements.

September 20th, 2021: Yee requests a vaccine exemption.

October 4th, 2021: The request for an exemption is refused.

October 30th, 2021: The deadline imposed by WestJet for vaccination.

November 1st, 2021: Yee is placed on a month long unpaid suspension.

December 1st, 2021: Yee’s employment is terminated by WestJet, and they claim it is “with cause”.

August 15th, 2023: Yee sues WestJet in the Calgary Branch of the Alberta Court of Justice.

February 24th, 2025: Trial begins.

May 13th, 2025: Judgement is issued.

The Court declined to make an immediate decision on costs, allowing the parties the opportunity to settle them first. This may very well happen.

COURT DOCUMENTS:
(1) Yee WestJet Statement Of Claim
(2) Yee WestJet Plaintiffs Written Submissions
(3) Yee WestJet Defendants Written Submissions
(4) Yee WestJet Reasons For Decision
(5) https://www.canlii.org/en/ab/abcj/doc/2025/2025abcj87/2025abcj87.html

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