Category: Canada

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A Beginner’s Guide: How A COMPETENT Lawyer Should Have Have Handled Federal Injection Pass Case

On Wednesday, November 8th, the Federal Court of Appeal heard a case of over 600 Plaintiffs that was struck for being “bad beyond argument“. This was the high profile case of Federal workers, and members of Federally regulated industries who objected to the CV injections being a new job requirement.

There was an additional complication, as the Federal workers were also barred by law from going to Court. The others could, in theory, still use litigation as an option. This effectively “split” the case.

The case is being handled by “Mr. Bad Beyond Argument” himself, Toronto lawyer Rocco Galati.

August 2021: Ottawa announces that “vaccine passport” will be required of all Federal workers, and members of Federally regulated industries in the next few months.

May 2022: Statement of Claim is filed on behalf of over 600 Plaintiffs.

January 2023: There’s a hearing in Federal Court to strike the Claim.

February 2023: Claim struck in its entirety without leave (no permission) to amend regarding the Federal employees. However, it’s struck with leave (permission) to refile for everyone else. The Judge also found that the quality of the writing was “bad beyond argument”.

March 2023: Notice of Appeal was filed.

April 2023: The Appeal Book is filed.

May 2023: The Appellants’ written arguments are filed.

June 2023: The Respondents’ written arguments are filed.

November 2023: The Federal Court of Appeal has hearing to review the case.

The case is on reserve, meaning that the 3 Justices haven’t yet made their findings. This is quite common, though it’s uncertain when it will be released.

Interestingly, the lawsuit wasn’t filed until May 2022, nearly a year after mandates were announced. To put it mildly, it was terribly written, and never stood a chance. That’s been covered in detail here, here, here, and here.

Instead, this is going to be a different focus. Rather than simply pointing out errors and faults with how the case has been handled, serious, constructive feedback will be offered. Here are some ways that the case could have been managed differently, and how it may have survived.

Disclaimer:
This article does not attempt to provide legal advice. Instead, it’s meant as constructive feedback and information with regards to the Adelberg v. HMTK Case. The handing, both at the Federal Court and Federal Court of Appeal was beyond inept and unprofessional. Nonetheless, do not rely on this for your own cases. If you have questions, please seek advice from a competent legal professional

Anyhow, let’s get started.

One of the first things that needs to be pointed out is that employees of the Federal Government — a.k.a. the “Core Public Administration” — don’t automatically have the right to sue. Sections 208 and 236 of the Federal Public Sector Labour Relations Act (FPSLRA) are quite clear about that.

Right of employee
208 (1) Subject to subsections (2) to (7), an employee is entitled to present an individual grievance if he or she feels aggrieved (a) by the interpretation or application, in respect of the employee, of
(i) a provision of a statute or regulation, or of a direction or other instrument made or issued by the employer, that deals with terms and conditions of employment, or
(ii) a provision of a collective agreement or an arbitral award; or
(b) as a result of any occurrence or matter affecting his or her terms and conditions of employment.

No Right of Action
Disputes relating to employment
236(1) The right of an employee to seek redress by way of grievance for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute.

Application
236(2) Subsection (1) applies whether or not the employee avails himself or herself of the right to present a grievance in any particular case and whether or not the grievance could be referred to adjudication.

Section 208 of the FPSLRA gives Federal employees the right to grieve, and that often ends in arbitration. This is similar to how workers in unionized environments, or ones with collective bargaining agreements. Section 236 is the prohibition on seeking remedies in the Courts via lawsuits. This is referred to as a lack of jurisdiction, or an “explicit ouster” from the Court.

With this in mind, Federal workers don’t automatically have the right to go to Court. In fact, they will have to demonstrate that the grievance options available to them are grossly inadequate and/or that the process is corrupted. This didn’t happen here. In fact, it doesn’t appear that any effort was made by anyone to go through the process, at least from reading the pleadings.

Approximately 2/3 of the 600+ Plaintiffs (about 400 in total) are/were members of the Federal Government. In order to sue, they’d have to demonstrate that existing options weren’t adequate.

There’s also the inter-related concern about just how poorly written the Claim is.

Anyhow, let’s offer some constructive feedback.

1. Plead Facts About How Grievance Process Is Unworkable Or Corrupt

The Statement of Claim (SoC) is 50 pages long. While this seems like a lot, the first 15 are just the Parties listed, and the other pages included in the template. The next several are the remedies sought. Then a few pages include some background information on the Parties (which is fine).

The “FACTS” start on Paragraph 22, which is about halfway through the SoC. It goes on from there until about Paragraph 30, approximately 1 page in total, explaining the allegations and pleading facts. Nearly everything else that follows is irrelevant to these proceedings.

Feedback: It would help the case immensely to plead facts about how various clients had attempted to resolve the injection mandates at their jobs. Providing details about what steps were taken (at least by some employees) to avoid this would have helped.

This certainly wouldn’t need to be all 600+ Plaintiffs, but pleading facts for about 20 or 30 of them using grievance options would have gone a long way. Or, considering that there aren’t many options available, perhaps lumping Plaintiffs together could work. For example:

-“Group A Plaintiffs” filed grievances with their union reps.
-“Group B Plaintiffs” contacted their HR Departments to seek alternatives.
-“Group C Plaintiffs” wrote to their employers, refusing, and asking for options.
-“Group D Plaintiffs” tried some combination of different methods.

This may be oversimplified, but remember, Sections 208 and 236 of the FPSLRA give Federal workers the right to grieve, but not to sue. To overcome this, they need to show that there were no options available. And to do that, they need to at least show that they tried some remedies.

Seriously, there were over 400 members and former members of the Federal Government here. Didn’t any of them attempt the grievance process? None of them plead anything of the sort.

2. Plead Facts About Clients Attempting Workarounds Or Exemptions

Paragraph 28(c) is the only mention of Plaintiffs seeking exemptions from these requirements. And only a handful of them are named. While nice to see a mention of it, this isn’t nearly enough.

Feedback: More than just a few Plaintiffs should have been named as seeking exemptions. Additionally, the SoC “should” have given more information on what types of exemptions were sought, and the responses.

Similar to the last point, Plaintiffs who sought exemptions could be grouped together to make things more organized.

-“Group A Plaintiffs” sought exemptions for religious reasons.
-“Group B Plaintiffs” sought exemptions for medical reasons.
-“Group C Plaintiffs” sought exemptions based on freedom of conscience beliefs.
-“Group D Plaintiffs” sought exemptions based on lack of current long term test data.
-“Group E Plaintiffs” sought exemptions for a variety of reasons.

Additionally, Plaintiffs could have tried to obtain various accommodations to allow them to continue working (such as remotely). Information on that could have been pleaded as well.

This could also be used to bolster the claim that the Plaintiffs sought alternative remedies, and only sued as a last resort. It would be an important point to make.

And back to Point #1: considering that by default, Federal workers don’t have the right to sue (they can grieve though), it would have been nice to see what, if any, steps were taken afterwards. But the SoC pleads none of this, and consequently, can’t overcome the s.236 FPSLRA prohibition.

Yes, it’s true that facts are presumed to be true at the initial stages, but they still need to be pleaded in the Statement of Claim.

3. Provide Evidence Of Unworkability In Motion To Strike

It’s true that in Motions to Strike (throw out), evidence is not normally allowed. This is because it’s a preliminary challenge, and the opposing side is trying to say that the suit is fatal flawed regardless.

However, there are a few exceptions to this. These are instances where it will lead to the case being thrown out without any possibility to refile. Jurisdiction is one such exception, and the Statute of Limitations is another. Galati appears to be unaware of this, at least according to Paragraph 3 of his Written Submissions.

Feedback: The first line of defence that the Government has is the “explicit ouster” of s.236 of the FPSLRA. Once again, this is the argument that the court lacks jurisdiction to hear (at least part) of the Claims. If this can not be overcome, then the case is dead in the water.

What should have been done here is have several Plaintiffs submit evidence that they tried to exercise their grievance options. True, this will involve collecting Affidavits. True, they can then be questioned, or cross-examined on this. But such evidence would have helped in demonstrating the unworkability of existing options for Federal workers.

Plaintiffs who file Affidavits could certainly attach as exhibits any documents that show they tried other methods. Emails, text messages, letters, transcripts of recordings, etc…. would all have shown that they attempted to resolve this internally. If enough litigants did this, that would be very powerful evidence.

None of the 400+ Government workers had any evidence to submit for the Motion?

Keep in mind, if people are suing for large sums of money, they’d likely have to testify under oath at some point. Therefore, being cross-examined on an Affidavit hardly seems excessive.

Back to Point #1: if facts had been pleaded about this in the SoC, then it would have been a lot easier. Yes, a Motion to Strike would still be likely, but the Plaintiffs would be in a much stronger position.

4. Allegations Need To Be Particularized (Spelled Out) Clearly

There’s a requirement in the Federal Court Rules to “give particulars” when making allegations of, among other things:

(a) Fraud
(b) Misrepresentation
(c) Breach of Trust
(d) Undue influence
(e) Malfeasance of Public Office

What this means is that there’s a duty for the Plaintiffs to spell out with additional clarity what the accusations are. Galati doesn’t do that here, or in any anti-lockdown cases.

Feedback: If litigants are going to be making accusations of this sort, then it needs to be outlined in much more detail. What specific actions were fraudulent or amount to misrepresentation? What specific actions or statements caused that breach of trust? Instead of just making such bare statements, the underlying information needs to be provided.

Remember, everyone is entitled to confront their accusers. This includes Government officials. How can they respond to allegations if there’s not enough information provided?

If there isn’t enough information available to allege such things, then it would probably be better to just leave them out. It doesn’t help the clients to have the case bogged down unnecessarily.

5. Plead Facts In Support Of Claims Charter Rights Were Breached

Setting aside the issues around jurisdiction, the Courts are generally the proper forum to raise allegations that Charter protections have been violated. And a number of them are raised here:

(a) Section 2, Fundamental Freedoms
(b) Section 6, Mobility Rights
(c) Section 7, Security of the Person
(d) Section 15, Equality Rights

The problem is: while these are listed, there’s little to no information in support of this. As a result, the Defendants are left to guess. While many people can imply the reasons, it still has to be written out in the pleadings.

Feedback: If someone is going to allege that their rights have been violated, it would be helpful to lay out the details of what has happened. How are groups of people being treated unequally? How are people unsecure in their bodies? What mobility rights have been taken away?

The Plaintiffs have suffered mental anguish? Loss of dignity? Okay, then we need more information (facts) about what has happened.

6. Remove Argument From Statement Of Claim

The Statement of Claim more closely resembles a Factum than it does a Claim. It tries to argue what the scientific consensus is, and what the motivations of people are. It also draws the same conclusions that the Court is being asked to do.

Feedback: Instead of trying to argue in a Claim, it would be more helpful to to simply plead what information is available. What events? What dates? Who said what? Making it unnecessarily convoluted may impress many, but confusing the Judge is not wise.

Moreover, arguing caselaw and evidence in the initial pleadings isn’t appropriate. That comes much later, and is pretty basic knowledge in civil procedure. This is (partly) why the Government lawyers are saying that there are no facts pled. They’re right, it’s almost entirely argument.

7. Remove Content That’s Inappropriate In A Civil Claim

This is a no brainer. Courts are limited to certain types of cases, and are not allowed to preside over issues outside of their jurisdiction. It was also part of the reason the Action4Canada case was struck.

(a) Allegations of criminal conduct
(b) Allegations of crimes against humanity
(c) Allegations of violations of the Nuremberg Code
(d) Allegations of violations of the Helsinki Declaration
(e) Allegations of involvement in eugenics schemes
(f) Seeking declarations about what the “scientific consensus” is

Feedback: Drop all of this, and related content from this — and other lawsuits. All it does is lead to Motions to Strike over jurisdiction. If the case is about workers having to take injections to keep their jobs, then don’t lose focus.

8. Name All Plaintiffs Instead Of “John Doe” And “Jane Doe”

Dozens of Plaintiffs in the Style of Cause (front pages) are simply listed as either “John Doe” or as “Jane Doe”, along with their employer.

Feedback: If the lawsuit were actually intended to go ahead, this would be pointless, as they’d all have to be identified at some point. It just wastes everyone’s time. Supposedly, this was done to prevent harassment and intimidation, but their identities could still be found out.

Considering that Government lawyers — supposedly — tried to find out who were anyway, it’s unclear what the point is. Despite what people think about Trudeau and his people, they still are entitled to know who is making the allegations. Think about it: how can one confront their accusers in Court, without knowing who they are?

9. Don’t Suggest Lower Court Judge Was Biased

The Notice of Appeal implies that Justice Fothergill was biased in how he wrote up the February 2023 Order which saw the SoC struck. This isn’t a good idea. The Judge correctly outlined many serious defects in the pleading.

Feedback: This is a dumb idea. Don’t do it. To even imply such a thing, there’d have to be some strong basis for it, or it could be considered contempt of Court.

Also, the comparison to Action4Canada was quite fitting. While the Federal suit was much shorter, it had essentially the same flaws and defects. There was the additional problem of the “explicit ouster” of s.236 FPSLRA.

Would the case have survived if the above recommendations had been implemented? It’s impossible to say for sure, but it would have been a lot more likely.

Again, this article is not meant to provide legal advice. This site in general does not provide advice. If you have questions in your own case, please seek professional input.

Pretty pathetic that this case has taken in over $1.2 million in fees and donations. How is this number arrived at?

(a) the donations solicited on the Constitutional Rights Centre website
(b) the Retainer Agreement demanded $1,000 from each Plaintiff (or $600,000+)
(c) the email to clients demanding another $1,000 from each (or $600,000+)

A lot of money has been wasted, and all for a lawsuit that never stood a chance. Now, hundreds of Plaintiffs — with valid problems — are going to find that they’re barred by the Statute of Limitations from trying again.

Meanwhile, a “moronic troll” online can break this case apart with little effort. Have to wonder what’s really going on here.

This article will likely lead to Galati suing the site again. Oh well. It’s not like the last one was well written, or even coherent.

FEDERAL VAXX PASS CHALLENGE (APPEAL)
(1) FCA Adelberg V. HMTK A-67-23 Notice Of Appeal
(2) FCA Adelberg V. HMTK A-67-23 Appeal Book
(3) FCA Adelberg V. HMTK A-67-23 Appellants MFL
(4) FCA Adelberg V. HMTK A-67-23 Respondents MFL

FEDERAL VAXX PASS CHALLENGE
(1) https://policeonguard.ca/wp-content/uploads/2022/06/Filed-SOC.pdf
(2) Federal Court Vaccine Mandate Challenge
(3) Federal Vaccine Passport Challenge Retainer Agreement
(4) Federal Court Vaccine Mandate Challenge Motion To Strike
(5) Federal Court Vaccine Mandate Challenge Affidavit Of Service
(6) Federal Court Vaccine Mandate Challenge Responding Motion Record
(7) Federal Court Of Canada Rules
(8) Federal Court Decision On Motion To Strike (Archive)
(9) https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/522970/index.do
(10) https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1507/2022bcsc1507.html
(11) https://laws-lois.justice.gc.ca/eng/regulations/sor-98-106/page-9.html#h-1013947
(12) https://www.laws-lois.justice.gc.ca/eng/acts/P-33.3/page-13.html#h-406405

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

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

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Former Windsor City Workers To See If Injection Passport Case Can Proceed

A group of former city workers in Windsor, Ontario, is waiting to see if their lawsuit will be thrown out in the preliminary stages, or whether it will be able to proceed to Trial.

This is another case of people taking legal action as a result of being forced out of their employment in 2021 and 2022 due to so-called “vaccine passports”.

August 2022, former employees City (or Corporation) of Windsor — 20, at the time — brought their Statement of Claim. It alleges that all Plaintiffs were either fired or forced to resign for refusing to take the injections.

Now for the bad news….

The City of Windsor is bringing a Motion to throw out the lawsuit on a number of grounds. Foremost, Windsor claims that all of the Plaintiffs are unionized, or subject to some sort of collective bargaining agreement, which mandates alternative dispute measures. This is the grievance process, which often ends in arbitration.

The Motion also states that all of the major issues here have been litigated and decided before, and thus, there’s nothing new to look at.

February 2023, their Motion Record — collection of documents was sent.

March 2023, the Responding Motion Record was filed.

May 2023, an Amended Statement of Claim was filed. It both added new Plaintiffs, and expanded on the information laid out in the original Claim. However, that may be an issue considering the Claim was changed after the Motion was filed.

The Motion won’t be heard until July of 2024, which is several months away. In the meantime, there are still other procedural steps to be done, and other documents to be filed.

This is hardly the first such case to be filed. Unfortunately, there has been little success so far in convincing the Courts that the unions are not acting in good faith, or that the collective bargaining process is corrupted. We’ll have to see what becomes of this case.

Expect a follow-up as things develop.

ABOUT THE GROUP
(1) https://www.em-power.ca/
(2) https://twitter.com/em_POWER_on
(3) Empower – Press Release

COURT DOCUMENTS
(1) Empower – Statement Of Claim
(2) Empower – Amended Statement Of Claim
(3) Empower – Moving Party Motion Record
(4) Empower – Respondents Motion Record

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Litigants Accused Of Filing Defamation Appeal As “Leverage” Against $1.1 Million Cost Order

The long anticipated Appeal of Kulvinder Gill and Ashvinder Lamba is scheduled to be heard on December 12th, 2023. This comes nearly 2 years after a Judge threw out their defamation case as frivolous. For some background, see here and here.

A brief timeline of events:

December 2020, Kulvinder Gill and Ashvinder Lamba filed a $12.75 million defamation lawsuit against 23 individuals and media outlets, largely over a series of spats on Twitter. This was in the Toronto Branch of Ontario Superior Court.

September 2021, over the course of 3 days, several anti-SLAPP Motions were argued. The primary basis for these Motions was Section 137.1 of the Courts of Justice Act, which is designed to screen out litigation designed for “libel chill” or “gag proceedings”.

February 2022, Justice Stewart dismissed the claims against all proceedings, on the grounds that the lawsuit was exactly the type of case that anti-SLAPP laws were designed to weed out.

March 2022, the Decision was appealed to the Ontario Court of Appeals.

May 2022, despite filing the Notice of Appeal and Evidence Certificate (a list of evidence to be used), Gill and Lamba find themselves without counsel. It appears from the badly redacted filings that they are rather upset about the mess that they’re now in. If only someone had advised them that filing frivolous defamation claims in Ontario — which has strong anti-SLAPP laws — was a very dangerous and risky idea. Clearly, they got poor advice. (See Record)

July 2022, both Gill and Lamba retained new counsel, who tried to ward off the coming costs awards. In total, they were looking at over $1 million in costs. While this sounds excessive, they sued 23 Parties, which works out to an average of about $55,000 each.

October 2022, although the case had been appealed, the issue of costs hadn’t been resolved. It finally was at the end of October, with Gill and Lamba (but mostly just Gill) owing over $1.1 million in Court fees. It must be pointed out that s.137.1(7) of the Courts of Justice Act sets “full indemnity”, or 100% of costs, as the baseline. True, Judges don’t have to award it, but that’s considered the starting point.

Gill (and Lamba) accused of bringing Appeal in bad faith

Now we get to November 2023.

One of the Respondents/Defendants, The Pointer Group Inc., has caused an interesting complication. In a Motion seeking costs up front, it’s accusing the Appellants of filing the Appeal in bad faith, in order to circumvent the cost award. There was a hearing before Justice Roberts on Wednesday November 1st.

From paragraph 28 of the Factum asking for costs:

Given the potentially extensive costs awards payable by Dr. Gill for the Action, her abandonment of her appeal as against 11 of the 22 respondents, her failure to identify any error made by Justice Stewart in granting The Pointer’s SLAPP Motion, the delay in pursuing this appeal and The Pointer’s limited resources, it is apparent that Dr. Gill has brought this appeal for the purpose of obtaining leverage in negotiations with The Pointer to avoid paying some or all of the costs awarded to The Pointer.

To summarize: The Pointer Group is alleging Gill and Lamba brought the Appeal as a tactical maneuver in order to avoid paying the full costs that are owed. It’s stated that approximately half of the Defendants have already settled in return for abandoning the Appeal against them.

Put bluntly, this is claiming contempt of Court on their part, by attempting to do an end run around the October 2022 costs ruling.

The Pointer says that the Appeal doesn’t address them in any meaningful way, and thus, there’s no basis for the Appellate Court to overturn those findings.

It’s interesting that this is the only party that’s sought security for costs to date. Besides, it’s strange to wait until so close to the main hearing date.

Updates will be posted closer to the December date. The Appeal will likely be dismissed, as anti-SLAPP laws were correctly applied here. The legislation is designed to prevent people from being able to bankrupt others on the basis of trivial matters. Additionally, the Appeal costs will likely be “full indemnity” as well This means Gill and Lamba could easily end up owing another $100,000 to $200,000, or more.

Gill has a separate anti-SLAPP Motion to be heard next October. It’s with Amir Attaran and the University of Ottawa. Gill demanded $7 million because he called her an “idiot” online. That could easily cost another $25,000 to $50,000 that she doesn’t have.

Side note: the Court of Appeals has been contacted for more documents, and they will be uploaded when they arrive. Both The Pointer and Gill’s new counsel haven’t responded for comment.

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

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

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U.N. Sendai Framework Introduced Domestically Via B.C. Bill 31 (Emergency & Disaster Management Act)

A few weeks ago, British Columbia Bill 31, the Emergency and Disaster Management Act, made ripples because of the embedded language which seemed to be a threat to property rights. Under the pretense of emergencies, rights could be suspended in a manner that heavily paralleled the Public Health Act.

However, it’s noteworthy that the B.C. Government isn’t actually responsible for this legislation. It’s domestic implementation of the United Nations Sendai Framework, signed in Japan in 2015.

Introduction and
First Reading of Bills
.
BILL 31 — EMERGENCY AND DISASTER MANAGEMENT ACT
.
Hon. B. Ma presented a message from Her Honour the Lieutenant-Governor: a bill intituled Emergency and Disaster Management Act.
.
Hon. B. Ma: I move that Bill 31 be introduced and read a first time now.
.
Mr. Speaker, I’m pleased to introduce the Emergency and Disaster Management Act. This bill delivers on government’s pledge to introduce modernized emergency management legislation that aligns with the United Nations Sendai framework for disaster risk reduction, the international best practices for how we make our communities safer and more resilient.
.
This legislation formally recognizes the rights of First Nations as decision-makers in emergency management, which is an important step in aligning B.C.’s approach with the declaration on the rights of Indigenous peoples.
.
The Emergency and Disaster Management Act moves towards a holistic four-phase approach of mitigation, preparation, response and recovery. It embraces disaster risk reduction and will require that climate risk be assessed so that entities can better mitigate the impacts of climate-related emergencies before they happen.
.
This bill updates the concept of what constitutes an emergency to reflect modern realities and risks and provides improved tools for response and recovery. I look forward to debate on this bill and, ultimately, to the improvements it will bring for the safety of people across British Columbia.
.
Mr. Speaker: Members, the question is the first reading of the bill.
.
Motion approved.

It’s also explicitly stated that it will be used to “mitigate the risks” of climate change, but without specifying what those risks are.

Bill 31 is quite long, but here are a few notable parts. Section 76 allows the Minister to suspend property rights under the guise of mitigating an emergency. It also allows for warrantless entry under that same pretense.

Furthermore, the Minister is able to order that property be destroyed …. including crops. By this logic, food supply would not be secure either.

Land and other property
76 (1) The minister may, by order, do one or more of the following:
(a) appropriate, use or control the use of any personal property;
(b) use or control the use of any land;
(c) authorize the entry without warrant into any structure or onto any land by any person for the purpose of taking emergency measures;
(d) prohibit the entry into any structure or onto any land by any person;
(e) authorize or require the alteration, removal or demolition of any trees, crops, structures or landscapes;
(f) authorize or require the construction, alteration, removal or demolition of works;
(g) require the owner of a structure to
(i) have any damage to the structure assessed, and
(ii) give the results of the assessment to the minister or a person in a class of persons specified by the minister.
(2) The power under subsection (1) (b) to use or control the use of land does not apply to specified land.

Section 78 would give the Government the power to restrict travel and movement, shut down businesses, and various events. This greatly parallels what happened from 2020 to 2022. The difference here is that the excuse isn’t a disease.

General restrictions
78 (1) The minister may, by order, control or prohibit one or more of the following:
(a) travel to or from any area;
(b) the carrying on of a business or a type of business;
(c) an event or a type of event.
(2) The minister may, by order, do one or more of the following:
(a) require a person to stop doing an activity, including an activity that a person is licensed, permitted or otherwise authorized to do under an enactment;
(b) put limits or conditions on doing an activity, including limits or conditions that have the effect of modifying a licence, permit or other authorization issued under an enactment.

Section 82 says that the Lieutenant Governor in Council can make retroactive orders. This would presumably legalize actions that would previously have been illegal.

Section 139 makes it clear that compliance is mandatory.

Section 140 gives provincial administrators the power to ask for police enforcement

Section 141 outlines judicial remedies to obtain injunction.

Section 154 provides protection from legal proceedings for pretty much anyone involved in implementing emergency management orders.

There is much more to this Bill, and that will be covered in a follow-up.

Now, what does this have to do with the United Nations?

Turns out, that the Sendai Framework was agreed to in 2015, and this is just B.C. implementing their version of it. This is also the third conference, with the first being Yokohama in 1994, and the second in Hyogo in 2005. The specific agency is the UNDDR, the United Nations Office for Disaster Risk Reduction.

The full text of the Sendai Framework for Disaster Risk Reduction (see archive) is available online. As should be apparent, Bill 31 heavily copies this content.

And the Emergency & Disaster Management Act heavily mirrors the Provincial Public Health Acts, which strip away property rights under the cloak of disease prevent. Those have been covered here and here.

More to come!

(1) https://www.leg.bc.ca/parliamentary-business/legislation-debates-proceedings/42nd-parliament/4th-session/bills/bills-with-hansard-debate
(2) https://www.leg.bc.ca/documents-data/debate-transcripts/42nd-parliament/4th-session/20231003am-Hansard-n331#bill31-1R
(3) https://www.preventionweb.net/publication/sendai-framework-disaster-risk-reduction-2015-2030
(4) https://www.preventionweb.net/files/43291_sendaiframeworkfordrren.pdf
(5) https://www.preventionweb.net/files/44983_sendaiframeworkchart.pdf
(6) Sendai Framework 2015 Full Text English
(7) https://en.wikipedia.org/wiki/World_Conference_on_Disaster_Risk_Reduction

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Date Set For Federal Injection Pass Appeal, Pleadings Were “Bad Beyond Argument”

February 2023, a lawsuit by over 600 Federal workers, and workers of Federally regulated industries, was struck in its entirety by Justice Fothergill. November 8th, the Federal Court of Appeals will review the case. Spoiler: the Appeal will be dismissed.

To describe briefly, the Statement of Claim was struck without leave (or permission) to amend against 400 Plaintiffs on the grounds that they were barred by Section 236 of the Federal Public Sector Labour Relations Act, or FPSLRA. Government workers, for the most part, don’t have the right to sue their employer.

This didn’t apply to non-Government workers, such as in banking or aviation. However, the Claim was drafted so poorly that it was struck anyway, but with leave to amend.

The Appeal is baseless, and will go nowhere.

While there are many errors in the original case, here are 3 big ones:

1. Federal Workers Barred From Litigation, Must Grieve Instead

Right of employee
208 (1) Subject to subsections (2) to (7), an employee is entitled to present an individual grievance if he or she feels aggrieved (a) by the interpretation or application, in respect of the employee, of
(i) a provision of a statute or regulation, or of a direction or other instrument made or issued by the employer, that deals with terms and conditions of employment, or
(ii) a provision of a collective agreement or an arbitral award; or
(b) as a result of any occurrence or matter affecting his or her terms and conditions of employment.

No Right of Action
Disputes relating to employment
236(1) The right of an employee to seek redress by way of grievance for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute.

Application
236(2) Subsection (1) applies whether or not the employee avails himself or herself of the right to present a grievance in any particular case and whether or not the grievance could be referred to adjudication.

Taken together, Sections 208 and 236 of the FPSLRA give Federal employees the right to grieve, something that often ends in arbitration. However, they don’t necessarily have a right to sue in Court.

Now, there is (somewhat) of a way around this. If Litigants can demonstrate that the grievance process is seriously flawed or corrupted, they may get a Court to hear this. However, that didn’t happen, nor does it appear to have been attempted.

Not only was this case not beneficial to the public, but it was used as precedent in at least 3 more rulings, denying litigants access to the Courts:

(A) Davis v. Canada (Royal Mounted Police), 2023 FC 280
(B) Horsman v. Canada (Fisheries, Oceans and Coast Guard), 2023 FC 929
(C) Doe v Canada (Attorney General), 2023 BCSC 1701

The Appellants allege that Justice Fothergill failed to give reasons for denying their Claim, but he did. It’s in Paragraphs 10-36 of the ruling. Granted, it’s not one that will satisfy them, but it is addressed.

2. Claim Fails To Follow Basics Of Civil Procedure

This comes from Paragraph 39 of the ruling, and lists some of the more obvious problems that came up with this lawsuit. The Federal Court Rules should be known to anyone who brings a case, as they outline the process for doing so.

As stated previously, lawsuits must be written well enough so that the opposing sides (and the Judge) are able to understand what’s going on. This isn’t optional.

173 (1) Pleadings shall be divided into consecutively numbered paragraphs.
Allegations set out separately
(2) Every allegation in a pleading shall, as far as is practicable, be set out in a separate paragraph.

Material facts
174 Every pleading shall contain a concise statement of the material facts on which the party relies, but shall not include evidence by which those facts are to be proved.

Particulars
181 (1) A pleading shall contain particulars of every allegation contained therein, including
(a) particulars of any alleged misrepresentation, fraud, breach of trust, willful default or undue influence; and
(b) particulars of any alleged state of mind of a person, including any alleged mental disorder or disability, malice or fraudulent intention.

When it’s stated that “particulars” are required, this means specific information. There’s an extra burden on the Party making the claims to ensure that they are spelled out. That wasn’t done here, nor was it done in several related anti-lockdown suits.

The case was struck as “bad beyond argument“, and rightfully so. While the non-Government Plaintiffs have the right to refile, they may wish to retain better counsel.

The Claim was struck — in part — as the basics of drafting weren’t followed. The Claim heavily mirrored the Action4Canada case, also struck as “bad beyond argument“.

The Appeal (bizarrely) criticizes Justice Fothergill for relying on the Action4Canada case as a precedent. It’s unclear why, unless this is deliberate obfuscation. The parallels are striking. Although the Federal Claim is much shorter, it has substantially the same defects.

3. Large Portions Of Claim Outside Jurisdiction Of Federal Court

[Para 53] Justice Ross granted leave to the plaintiffs in Action4Canada to amend their pleading. However, he specified that numerous claims, some of which are also advanced in the present proceeding, are improper in a civil action (Action4Canada at paras 52-53). These include allegations of criminal behaviour, broad declarations respecting the current state of medical and scientific knowledge, and a declaration that administering medical treatment without informed consent is a crime against humanity.

This should be obvious. If someone is going to commence litigation, it must be over issues that a Court can at least theoretically preside over. Yes, the merits of the case will need to be determined. However, if there are jurisdiction problems, then everything comes to a stop immediately.

The same problems occurred with the Action4Canada case, with Justice Ross saying:

[52] The defendants submit that the NOCC pleads to a number of claims that are improper in a civil action. In part, the defendants point to the following elements of the NOCC as inappropriate:

a) alleging criminal conduct;
b) seeking a declaration that the preponderance of the scientific community is of the view that masks are ineffective in preventing transmission;
c) seeking a declaration that the motive and execution of the COVID-19 prevention measures by the World Health Organization are not related to a bona fide “pandemic”;
d) seeking a declaration that administering medical treatment without informed consent constitutes experimental medical treatment which is contrary to the Nuremberg Code, the Helsinki Declaration and is a crime against humanity under the Criminal Code of Canada;
e) seeking a declaration that the unjustified, irrational, and arbitrary decisions of which businesses would remain open, and which would close, as being “essential”, or not, was designed and implemented to favour mega-corporations and to de facto put most small businesses out of business; and
f) seeking a declaration that the measures of masking, social distancing, PCR testing, and lockdowns are not scientifically based, and are based on a false and fraudulent use of the PCR test.

[53] I agree with the defendants that these are improper claims.

This shows why the Action4Canada case was used to help with striking the Federal one. Not only are both poorly written — and don’t follow the Rules of Civil Procedure — but both make demands that Civil Courts can’t realistically grant.

In other news:

Action4Canada then appealed the findings that the B.C. Supreme Court couldn’t preside over such matters, but then let the case sit. It went “inactive” until called out.

Vaccine Choice Canada’s July 2020 case is also facing a Motion to Strike in Ontario in the new year. It will be thrown out for much the same reasons. The case was idle from 2020 until January 2023, when the Motion was finally brought.

Vaccine Choice Canada’s October 2019 lawsuit challenging regulations around immunizing Ontario students hasn’t had a single Court appearance, despite being filed over 4 years ago.

Take Action Canada arranged for a mass filing in Ontario, and the Statement of Claim is a virtual clone of the Federal one. It contains the same challenges which a Civil Court can’t grant. It’s sat dormant since. Because the Plaintiffs (police, fire fighters, paramedics, etc…) are mainly unionized, jurisdiction will be an issue for them as well.

An April 2021 Application organized by Police On Guard, and another from Children’s Health Defense (Canada), aren’t being pursued. Despite being filed nearly 3 years ago, neither have had a single Court appearance.

Also, after the Federal case was struck, there was an email sent out to all 600 or so Plaintiffs, asking for more money. The “freedom business” has turned out to be quite lucrative. Apparently, the $1,000 per head retainer didn’t cover this Appeal, and was only meant to cover Trial costs.

But of course, we all know none of these claims will ever get to Trial.

How much money has been pumped into these nothing-burger lawsuits?

FEDERAL VAXX PASS CHALLENGE (APPEAL)
(1) FCA Adelberg V. HMTK A-67-23 Notice Of Appeal
(2) FCA Adelberg V. HMTK A-67-23 Appeal Book
(3) FCA Adelberg V. HMTK A-67-23 Appellants MFL
(4) FCA Adelberg V. HMTK A-67-23 Respondents MFL

FEDERAL VAXX PASS CHALLENGE
(1) https://policeonguard.ca/wp-content/uploads/2022/06/Filed-SOC.pdf
(2) Federal Court Vaccine Mandate Challenge
(3) Federal Vaccine Passport Challenge Retainer Agreement
(4) Federal Court Vaccine Mandate Challenge Motion To Strike
(5) Federal Court Vaccine Mandate Challenge Affidavit Of Service
(6) Federal Court Vaccine Mandate Challenge Responding Motion Record
(7) Federal Court Of Canada Rules
(8) Federal Court Decision On Motion To Strike (Archive)
(9) https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/522970/index.do
(10) https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1507/2022bcsc1507.html
(11) https://laws-lois.justice.gc.ca/eng/regulations/sor-98-106/page-9.html#h-1013947
(12) https://www.laws-lois.justice.gc.ca/eng/acts/P-33.3/page-13.html#h-406405

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

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

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University Of Ottawa Files Anti-SLAPP Motion In $7 Million Defamation Suit

This is a follow-up to an August 2022 piece that outlined a defamation claim between Kulvinder Gill, the University of Ottawa, and a professor named Amir Attaran. Attaran and the University were sued for $7 million back in March 2021 over 2 insulting tweets.

Finally, there seems to be some movement. The Defendants have initiated an anti-SLAPP Motion to get the lawsuit thrown out as “gag proceedings”, or as an attempt to shut down public discourse. The hearing is set for October of 2024, a year from now.

Attaran himself responded to an inquiry, and confirmed that it’s a SLAPP Motion. He said that his demands for a public apology had been refused, and now he wants his day in Court.

Ontario has an online search tool, which makes it easy to track how cases are progressing. Court documents are also considered public records, and are open to anyone, with limited exceptions.

A Notice of Intent was filed back in June 2021, although not an actual Statement of Defence. Then the case sat idly for over 2 years. Looking at the content in the Statement of Claim, it’s not hard to see why. The quotes are from page 9.

As an aside, the date in Paragraph 34 is wrong. It references a July 28th, 2021 article, which would have been after this suit was filed.

This idiot is a doctor in Ontario. Sort of a female version of Dr. Scott Atlas.

Looks like the flying monkeys are out today for Dr. Gill.
Research shows the Russian military intelligence (the GRU) are behind the anti-science COVID conspiracy social media.
So with love from Canada.

The suit is frivolous, to put it mildly. Gill is suing for millions over a Twitter spat, which included the above statements. Anti-SLAPP laws (Section 137.1 of the Courts of Justice Act for Ontario) are meant to protect against this sort of thing.

The first tweet is insulting, but is unlikely to be considered defamation. The second one appears to be Attaran just trolling Gill.

Even if Attaran genuinely views Gill as an idiot, these remarks — while distasteful — would probably be viewed as opinion, and protected as fair comment.

An additional problem is that Gill will most likely be unable to prove that she suffered any damages as a result of these comments. Twitter is known as a cesspool, where people say rude and insulting things.

She’ll also find it difficult to convince a Judge that shutting down discourse like this will be in the public interest. Understandably, the the Courts tend to lean towards protecting speech and expression.

It’s worth pointing out there’s no requirement that speech or expression be beneficial or helpful in order to be protected as public expression. As long as it’s on a subject that a segment of the population might care about, then s.137.1 applies. The above comments were in the context of arguing over lockdown measures.

With these things in mind, the anti-SLAPP Motion is certain to prevail.

Posting these kinds of comments online won’t damage Gill’s reputation or her work prospects. However, suing over them just makes her look unhinged or vindictive.

Gill was also abandoned by previous counsel. It’s unclear, at least from what’s available here, who will be representing her at this Motion. As the 2024 date draws near, expect an update, along with more filings.

In other news:

This also isn’t Gill’s first attempt at silencing critics. February 2024, a $12.75 million suit was thrown out as a SLAPP. In October 2022, she and Ashvinder Lamba — but mostly just Gill — were ordered to pay over $1.1 million in fees to the Defendants’ lawyers. Back in December 2020, she and Lamba sued 23 people and organizations over essentially the same type of comments as this.

Instead of paying costs — as they likely can’t afford to — the ruling was appealed. It has just dragged on. At least 1 of the Respondents has made accusations that the Appeal is an attempt to circumvent the costs Order. A hearing is scheduled next week to determine whether costs must be put up in advance by Gill. More on that later.

It’s bizarre that Gill had been embraced by the “freedom movement” over the last few years. She’s done more to attempt to chill free speech in Canada than just about anyone.

DOCUMENTS
(1) Gill-Attaran Statement Of Claim
(2) Gill Attaran Affidavit Of Service
(3) Gill-Attaran Notice Of Intent
(4) Gill-Attaran Counsel Abandons Plaintiff

OTHER
(1) https://www.ontario.ca/page/search-court-cases-online
(2) https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/#sec137.1_smooth
(3) https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1279/2022onsc1279.html
(4) https://www.canlii.org/en/on/onsc/doc/2022/2022onsc6169/2022onsc6169.html
(5) https://www.canlii.org/en/on/laws/stat/rso-1990-c-l12/latest/rso-1990-c-l12.html
(6) https://canucklaw.ca/wp-content/uploads/Notice-of-Appeal-and-Appellants-Certificate-Gill-2.pdf

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