Category: Canada

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CSASPP Certification Hearing Approaching For Class Action Suit Against Bonnie Henry

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Are Taxpayer Funded Dinners A Form Of Corporate Welfare?

A serious question to ask: is it considered a form of corporate welfare when taxpayers are forced to subsidize political dinners?

If a $250 dinner only costs a person (approximately) $120, that means that the public has to cover the rest of it. This sort of thing is completely wrong, regardless of which party is doing it. It’s wrong when it’s Trudeau involved, and not any better for others.

True, the public shouldn’t be forced to bailout companies like Bombardier, GM, Chrysler, Air Canada, or many others. That being said, how is this any different? How are laws which compel the public to finance these get togethers better?

This opinion is reflective of donations in general, not just overpriced dinners.

Of course, Bernier and PPC have much deeper structural problems than this:

  • No elected leader/leadership race
  • No policy votes
  • No internal charter or constitution
  • No governing documents
  • No elected national governing council
  • Dozens of EDAs shut down for not filing mandatory financials

These issues have been brought up before, Now, even if a proper structure were to be put in place, what are the chances of any sort of electoral success? Heck, the “leader” can’t even get a seat.

Bernier won reelection in October 2015, with 59% of the vote. In 2019, he lost with 28%, and again in 2021 with just 18%. Keep in mind, he had the riding for 4 terms, and his father for 3 terms before. It’s even more screwy because his signature issue, supply management, arguably cost him Beauce.

When the head of the party lost his own riding, a safe riding, by 30 percentage points, he needs to go.

While this dinner — and similar ones — may be viewed as cash-for-access, it’s rather amusing considering the complete lack of electoral prospects. It seems that an M.P. pension, a Privy Council pension, and $104,000 annually as a salary isn’t enough.

(1) https://twitter.com/MaximeBernier/
(2) https://twitter.com/MaximeBernier/status/1594494740053082112
(3) https://www.canada.ca/en/revenue-agency/services/tax/individuals/topics/about-your-tax-return/tax-return/completing-a-tax-return/deductions-credits-expenses/federal-political-contributions-line-40900-total-contributions-line-41000-tax-credit.html
(4) https://www.peoplespartyofcanada.ca/
(5) https://www.peoplespartyofcanada.ca/supply-management
(6) https://en.wikipedia.org/wiki/Maxime_Bernier
(7) https://canucklaw.ca/4-years-later-no-constitution-votes-or-governing-documents/
(8) https://canucklaw.ca/ending-political-corporate-welfare/
(9) https://canucklaw.ca/elections-canada-fundraising-isnt-okay-when-edas-shut-down-for-no-financials/
(10) https://www.cbc.ca/news/politics/peoples-party-canada-maxime-bernier-1.5695908

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Some Thoughts On The Fine Line Between Awakening And Demoralizing

This piece is going to be different than what’s normally covered.

The above meme is of Yuri Bezmenov, a Soviet defector. He became famous decades ago for his talks on subversion and demoralization. Even when presented with hard evidence, demoralized people can be unable to see reality. Videos are widely available online.

A criticism that often comes up here is that it’s unproductive to expose a problem without proposing an alternative to it. At some point, trying to wake up a group of people devolves into depression and demoralization, where there’s no obvious solution to anything. Even when alternatives exist on paper, they seem completely impractical to implement.

Another comparison may be between “red-pilling” v.s. “black-pilling”.

A common instance where this comes up is with the problem-reaction-solution scenarios, or the Hegelian Dialectic. This is when it seems that the outcomes are prearranged, and to a degree, they are. It’s challenging to accept answers if it looks planned in advance.

What issues are important? Take a look around this site, and see what things are addressed.

There is a valid point to the notion that harsh doses of reality are needed. In order to come to sensible conclusions, it’s important to know just how bad a problem is. Sugar coating the depth of an issue does nothing to properly correct it. Is there any obligation to offer an alternative, or is pointing out the truth enough on its own?

But the flip side is that completely destroying people’s spirits by showing the depth of a situation may not be that helpful. Outlining in vivid detail how hopeless a situation is will be soul crushing. What’s the point of demonstrating the ugly truth if everyone feels powerless to fix it? Doesn’t draining the will to fight effectively lead to their defeat?

Reality and hopium cannot exist separately. At some point, we need both.

So, where do we draw the line?

I don’t have a clear answer to this, and don’t know if anyone does. Being a truther means going down all kinds of rabbit holes, and discovering incredible things. However, there are undeniable consequences for people who get into this. Constantly being suspicious of everything and everyone gets very tiring. It’s extremely time consuming and not a good way to live.

Anyhow, these are just some random thoughts on the subject.

As always, feedback is appreciated.

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Ottawa Files Motion To Strike Federal Vaccine Passport Suit From Galati

Another prediction seems to be playing out.

Late in 2021, Ottawa imposed “vaccine” requirements on nearly all Federal workers. In short, employees needed to have at least 2 shots of the (who-knows-what) injections to keep their jobs. Many retired, others quit, and some forced their bosses to let them go.

May 30, 2022, a lawsuit was filed in Federal Court by a man who supposedly is Canada’s top Constitutional lawyer, Rocco Galati. But you wouldn’t know that from the quality of his work.

The Federal Government has filed a Motion to throw out the Claim brought by 600 former members of the civil service. It alleges a number of serious defects, including: mootness, irrelevant issues, defects in the pleading, lack of jurisdiction, lack of factual basis, an improper filing, among other things.

A source told this site (now confirmed) at the end of 2021 that such a suit was in the works. Allegedly, it would involve 500-600 individual Plaintiffs, with each paying $1,000 towards the proceedings. For that kind of money, one would expect a serious case to go forward.

Unfortunately, this review from September has aged very well. It contained an outline of several errors that would lead to the Statement of Claim getting struck.

The Action4Canada (BC) and Vaccine Choice Canada (ON) suits were covered in detail last year. Both were written without any consideration of the Rules of Civil Procedure in their respective Provinces. This Federal case contains most of the same errors. In many instances, it appears to be a direct cut and paste from the earlier ones.

Note: this isn’t to justify coercing people to take injections. However, it’s pretty much undeniable that this lawsuit never stood a chance. Painful as it is to admit, the Defense does have valid criticisms about the shoddy drafting. Here are some errors cited before:

  • Rule 173: Allegations aren’t set out in clearly numbered and organized paragraphs
  • Rule 174: No concise statement of material facts provided
  • Rule 181(1): Claim lacks the particulars (specifics) needed to go ahead
  • Rule 182: Nature of damages not clearly specified
  • Approximately 100 unidentified “John Does” and “Jane Does”
  • Claim contains issues that cannot be presided over: Nuremberg Code’ Helsinki Declaration; Criminal Code violations; and crimes against humanity

It was also predicted that the Defendants would file a Rule 221 Motion to Strike, for being frivolous, vexatious, and an abuse of process. The Federal Court Rules outline how this is done. And in an unsurprisingly turn of events, that’s what happened.

Ottawa is citing “mootness” as a ground to strike the Claim, and is using the recent decisions against Peckford, Rickards, and the other Applicants. It wouldn’t be fair to blame any Applicant for the Government pulling this stunt, but it comes up again.

There are a few other major issues that need to be addressed in the Motion.

Should This Have Been An Application For Judicial Review?

One of the grounds that the Defendants bring up in their Motion is that these proceedings really should have been done up as an Application for Judicial Review. Sections 18(1) and (3) of the Federal Courts Act are cited, and it seems pretty clear cut.

Extraordinary remedies, federal tribunals
18 (1) Subject to section 28, the Federal Court has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.

Remedies to be obtained on application
(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.

On the surface, this appears to be a valid point. If one is to challenge the decision of Federal bodies — namely, the requirement of the “vaccine” for employment — this might have been the way to go.

Seriously, was the wrong paperwork filled out in order to get this suit started? It seems that this would be pretty basic for expert lawyers.

Granted, there are portions of the Claim that still could proceed as a Claim, such as asking for damages. That said, challenging an order is a different procedure.

Could an extension of time be applied for to fill out the correct forms? Sure, it can be attempted, but what a waste of time this has been.

Not off to a good start.

Are The Plaintiffs Barred From Bringing Legal Action At All?

Is jurisdiction a fatal error in this case?

No Right of Action
Marginal note: 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.

Section 236 of the Federal Public Sector Labour Relations Act states that employees have the right to have their problems dealt with via collective bargaining, in lieu of Court action. If this holds, then presumably it would apply to everyone.

That’s one of the major arguments being advanced: that the hundreds of Plaintiffs have no right to sue at all — regardless of form — since legislation provides for other remedies.

Granted, there are allegations of acting in bad faith. That said, the Defendants argue (correctly) that there’s a lack of factual basis pleaded to support most of the conclusions. This will be a tough sell.

Action4Canada Trainwreck Is Cited In Latest Motion

The written arguments (see page 269) reference the recent Action4Canada case. It has been covered on this site before, and is making a comeback.

In August 2021, this site outlined the serious defects in the 391 page filing in Vancouver. It predicted that the case would be struck in its entirety for failing to meet even the basic requirements of a pleading. Although a rewrite was permitted, that’s exactly what ultimately happened.

In order to ward off criticism, and presumably to keep the donations coming in, a frivolous Appeal was filed. It will go nowhere as well.

The litany of defects in that B.C. case will very likely be used to support striking the Federal one. Thanks to Justice Ross in Vancouver, the precedent has been set.

These Suits Actually Harm Genuine Truth Movements

A common criticism in the Motion to Strike is that the suit makes plenty of bald assertions, without ever laying a factual foundation. In short, it makes accusations, but doesn’t provide enough detail so that a Court can seriously consider them.

Many of the allegations pleaded in the Statement of Claim are in fact true. However, without pleading a factual basis for making these claims, it just makes people look insane.

As awful as the actions of the Federal (and Provincial) Governments are, they do make a valid point: these cases are written so poorly that it’s impossible to know what the cases are that the Defendants are supposed to respond to.

Looking through the filings of Galati and the Constitutional Rights Centre (see below), none of them are good. They aren’t even decent. Instead, the quality of the drafting ranges from mediocre to downright comical.

Kulvinder Gill and Ashvinder Lamba are out at least $1.1 million for a failed $12.75 million defamation suit against 23 individuals and organizations. Their case was predictably dismissed as a SLAPP.

Gill and Lamba bizarrely decided to appeal that dismissal. Given how baseless the original defamation suit was, this will just lead to much larger cost awards when it’s finally thrown out. There had been talk of a second Appeal, one specific to the cost Order.

Gill has another $7 million suit pending against the University of Ottawa, and one of its professors, Amir Attaran. This is even weaker, and vulnerable to another SLAPP Motion.

Action4Canada is currently appealing an August decision to strike the 391 page Notice of Civil Claim in its entirety. Instead of simply drafting it properly, this will waste time and money.

Vaccine Choice Canada’s high profile suit from July 2020 has sat idle since the filing. It’s nearly 200 pages, and contains plenty of irrelevant information that would lead to it getting struck. It’s unclear at this point who has even been served.

Vaccine Choice Canada has an earlier lawsuit from October 2019. The last activity was March 2020, when the pleadings closed. That was 2 1/2 years ago.

Police On Guard arranged for an Application, which was filed on April 20, 2021, more than 18 months ago. It sits dormant, with no activity whatsoever. It’s disjointed and nearly impossible to understand.

Children’s Health Defense (Canada), also has an Application from April 20, 2021. It’s essentially a cut and paste of the Police of Guard version. It too has sat dormant.

These are all his cases. This is what the last 2 1/2 years or so of “fighting” in the Courts has led to.

None of these cases have gone anywhere. Either:

  • They remain idle for months or years, or
  • They are thrown out in preliminary stages

To address a concern that comes up: these are public matters.

If a person wishes to sue someone else in their private life, that is their business. However, the moment donations are asked for, it becomes a reportable case. This is especially true, given the public nature of the issues.

This site has been heavily criticized — and even sued — for reporting the truth about these “anti-lockdown” cases. They’re garbage, and none of them have any chance of getting to Trial. It’s not a matter of cheerleading for a certain side, but giving honest reviews.

On a positive note — if it can be called that — the Federal Government is only asking for $5,000 for costs to have this Claim thrown out. Certainly, it’s far cheaper than in Ontario or British Columbia.

Considering that people actually have paid money for this type of representation, it comes across as a rip off. Victims should be demanding refunds and/or talking to the Law Society of Ontario.

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) https://www.laws-lois.justice.gc.ca/eng/acts/F-7/page-3.html#docCont
(9) https://www.laws-lois.justice.gc.ca/eng/acts/P-33.3/page-13.html#h-406405

ACTION4CANADA COURT DOCUMENTS:
(1) A4C Notice of Civil Claim
(2) A4C Response October 14
(3) A4C Legal Action Update, October 14th 2021 Action4Canada
(4) A4C Notice of Application January 12
(5) A4C Notice of Application January 17
(6) A4C Affidavit Of Rebecca Hill
(7) A4C Response VIH-Providence January 17
(8) A4C Response to Application BC Ferries January 19
(9) https://action4canada.com/wp-content/uploads/Application-Record-VLC-S-S217586.pdf
(10) https://drive.google.com/file/d/1BfS_MyxA9J11WeYZmk8256G7GsWEFZ62/view
(11) Notice_of_Discontinuance_Federico_Fuoco_Fire_Productions
(12) Notice_of_Discontinuance__Amy_Muranetz_
(13) A4C Notice Of Appeal September 28 2022
(14) A4C Dismissal Order As Entered By BCSC

VACCINE CHOICE CANADA COURT DOCUMENTS:
(1) VCC – Statement Of Claim Unredacted
(2) VCC – Discontinuance Against CBC
(3) VCC – Mercer Statement Of Defense
(4) VCC – Mercer Affidavit Of Service

VACCINE CHOICE CANADA LAWSUIT (2019):
(1) VCC – Statement Of Claim, October 2019 Lawsuit

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

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

POLICE ON GUARD/OFFICERS:
(1) Notice Of Application — April 20, 2021

ONTARIO STUDENTS/CHDC:
(1) Notice Of Application — April 20, 2021, Masks On Students
(2) Schools – Rule 2.1.01 Decision
(3) Schools — Notice Of Appearance Robert Kyle
(4) Schools — Notice Of Appearance Halton Durham

CHD CANADA CORPORATE DOCUMENTS:
(1) Childrens Health Defense Canada Registered Office
(2) Childrens Health Defense Canada Incorporation
(3) Childrens Health Defense Registered office & Directors
(4) Childrens Health Defense Canada Annual Return

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[76] The appeal is dismissed.

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

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

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

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

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

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

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

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

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

Overall, it’s a “meh” kind of ruling.

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

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

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

There was dissent on the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SOME THOUGHTS ON THIS

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

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

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

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

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

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

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

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

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

Guess we’ll see what happens next.

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