Category: Free Speech

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Wilfrid Laurier University Files Anti-SLAPP Motion Against Jordan Peterson

Remember the big stories in 2018 when Lindsay Shepherd and Jordan Peterson each sued Wilfrid Laurier University for millions of dollars? There was strangely little to report on for the next 4 years. That’s about to change.

Laurier recently filed an anti-SLAPP Motion.

SLAPP is an acronym for strategic lawsuit against public participation. These are a specific type of suit, ones that are brought (or alleged to have been brought) for the purpose of shutting down public discourse. Laurier’s Motion Record can be obtained from the Ontario Superior Court, and it’s interesting.

Turns out, there’s more to the story.

Lindsay Shepherd sued Laurier in 2018 for a total of $3.6 million. Among other things, she claimed that her prospective career in academia had been ruined by her experience. The suit named: (a) the school itself; (b) Nathan Rambukkana, a professor of communications studies; (c) Herbert Pimlott, also a professor of communications studies; and (d) Adria Joel, the acting manager of gendered violence prevention and support.

June 18, 2018, Jordan Peterson filed a $1.5 million suit against the same Defendants as Shepherd: (a) Wilfrid Laurier; (b) Rambukkana; (c) Pimlott; and (d) Joel. He announced it online as well, making sure there was public knowledge.

Peterson did something else, which was cited in Court papers: he admitted he brought the suit for purposes other than what was filed. He said that he wanted Wilfrid Laurier to be more careful in how they talk about people, and also, that he didn’t think they learned their lesson. These statements have the potential to haunt him later on.

Given how public the suits from Shepherd and Peterson were, the school felt compelled to respond in the same manner. They announced that they thought these proceedings — in particular, Peterson’s — were being used to stifle discussion.

What the Defendants were doing was setting up a defense under Section 137.1 of the Courts of Justice Act. This has been on the books since 2015.

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

Anti-SLAPP legislation exists in Ontario, and other jurisdictions — to prevent the Courts from being weaponized on issues of public interest. The Defendants were going for the argument that this is exactly what was happening with Peterson.

Peterson then decided to sue Wilfrid Laurier a second time.

Note: there is an error with the Court display. The second lawsuit is actually worth $1,750,000, not the $175,000 that is listed.

There is actually a second lawsuit on file for Jordan Peterson. It was filed September 11, 2018. He claims that Laurier’s defense (claiming he brought the initial suit to silence public discussion) amounts to further defamation. He sued again, but this time, it was only against the school itself.

Statements of Defense have been filed concerning both of Peterson’s lawsuits. The first was on August 31, 2018, and the second was on October 11, 2018.

Apparently, publicly raising an anti-SLAPP defense in a public case amounts to further defamation. It’s unclear what made Peterson think this was a good idea.

Anyhow, the university entered some of their correspondence into evidence, and it’s very interesting. All of this is available in the Motion Record. This anti-SLAPP Motion appears to only address the second lawsuit. A likely reason is that this would be a much easier target to get thrown out.

According to the correspondence submitted in the Motion Record, Laurier’s lawyers have found it strange that Peterson has apparently had prolonged health problems. After all, he has been keeping busy with:

  • Authoring another book
  • Hosting a podcast
  • Participating in media interviews to promote his book
  • Walking several miles a day

It was reasoned that if Peterson is able to do these, then he should be willing to make himself available to be questioned (deposed).

Depositions are routine in major lawsuits. They are also common in anti-SLAPP Motions. Peterson would have to swear out an Affidavit outlining the damages he suffered, and would then be subject to cross-examination. However, this apparently hasn’t happened.

One can speculate as to his motives, but it seems Peterson has bent over backwards to avoid having to testify under oath, or give evidence.

If he were to discontinue the case, it would be a huge blow to his pride. It would be far worse if his cases (either of them) were dismissed as SLAPPs. Having a Judge rule that Peterson commenced litigation to silence public discourse would destroy his reputation as a “free speech champion”.

Peterson can’t bring himself to admit what he did. But he knows the consequences of losing. Therefore, the only option may be to drag it out indefinitely. It’s worth noting that Ontario Superior Court typically dismisses cases that haven’t been set down for Trial after 5 years, unless good cause it shown. Both of his suits are well past the 4 year mark.

And what happened when Peterson sued Laurier the first time? This!

This 2018 tweet from Lindsay Shepherd is pretty comical. After suing her university for $3.6 million, Peterson decides to pile on with another $1.5 million claim. It never seemed to dawn on her that the school might try to defend itself.

By “suing her”, what Laurier actually did was file a 3rd Party Claim. This is a form of a defense, where a Defendant states that they are not responsible for alleged damages, but someone else is. In this case, the school takes the stance that Peterson should actually be suing Shepherd. They have a valid point.

She secretly recorded a private conversation, and turned it into an international story. Regardless of the nonsense in that meeting, she chose to make it public.

Shepherd’s $3.6 million lawsuit doesn’t appear to have gone anywhere either.

Free speech absolutism also doesn’t seem to be a factor. Peterson has shown he’s perfectly okay with de-platforming identitarians, who hold views he disapproves of. The above video was of Faith Goldy being disinvited to a free speech panel. It makes a mockery of the principles he claims to hold.

While Rambukkana, Pimlott and Joel acted like clowns in 2017, Peterson shouldn’t be celebrated. He has demonstrated that he’s quite willing to use the legal system as a weapon.

In the Summer of 2021, Peterson advocated for people to suspend judgement on the lockdown measures that were being implemented across the globe. Vaccine passports were implemented shortly afterwards. Gee, it’s almost as if he knew this would happen.

Despite his reputation, he’s hardly a freedom champion.

Peterson was also denounced as a limited hangout years ago for his refusal to address more complex and controversial subjects. Search “I can’t do it” for just one example of that.

But They Compared Me To Hitler….

In various interviews, Peterson never seems to tire pointing this out. Yes, it was unprofessional, and yes, inappropriate. But there comes a point where he needs to move on.

Peterson has admitted becoming extremely wealthy in the last few years. He went from being an unknown to a household name in a very short amount of time. The incident with Shepherd and Wilfrid Laurier helped immensely.

He would be hard pressed to demonstrate how that November 2017 meeting caused him damages. And remember, it was private. It only became public after Shepherd leaked the audio.

One of the things Plaintiffs in anti-SLAPP Motions must do is prove they have suffered meaningful damages as a result of the speech or expression. If they are just nominal or non-existant, such suits are supposed to be dismissed. This is probably the reason he keeps delaying the case.

This development was covered in the National Post, but the Motion Record wasn’t included.

The Motion should be heard in 2023, to dismiss the second Peterson suit.

What will happen to his first lawsuit? If this initial anti-SLAPP Motion prevails, it seems likely that Laurier will file another to get the original case thrown out. Peterson could potentially lose 2 anti-SLAPP rulings when this is over.

That said, Peterson is now a multimillionaire, so the legal fees shouldn’t be a burden.

(1) Wilfrid Laurier University Anti-SLAPP Motion Record
(2) https://www.justiceservices.jus.gov.on.ca/MyAccount/screens/CaseLookup/CSLKUP001.xhtml
(3) https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html#sec137.1_smooth
(4) https://www.youtube.com/watch?v=PkNv4LFpGf4
(5) https://www.youtube.com/watch?v=a8zLcMGCedA
(6) https://www.youtube.com/watch?v=PfjQeLn0hyI
(7) https://www.youtube.com/watch?v=WXYuqrO8LLo
(8) https://nationalpost.com/news/canada/jordan-peterson-lawsuit-wilfrid-laurier?

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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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From the National Post:

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

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

Appeal #1: Dismissal As Strategic Lawsuit Against Public Participation

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

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

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

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

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

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

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

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

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

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

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

Prediction: this Appeal will go nowhere.

Appeal #2: Full Indemnity Costs Against Gill/Lamba

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

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

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

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

It also provides guidance on costs.

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

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

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

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

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

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

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

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

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

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

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

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

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

Defendants Already Going After Their Money

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

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

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

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

When you’re in a hole, stop digging.

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

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

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

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

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Kulvinder Gill Hit With $1.1 Million Cost Award For Bringing SLAPP

An Ontario doctor is facing financial ruination over a decision to sue almost 2 dozen parties over pretty harmless comments. Another is looking at a significant amount as well. It’s hard to imagine why they thought taking this on would be a good idea.

On December 11, 2020, Kulvinder Gill and Ashvinder Lamba brought a $12.75 million defamation lawsuit against 23 individuals and organizations. While portions had to do with the CPSO, the bulk related to comments (mostly on Twitter) over “pandemic” measures.

Absurdly, many in the “freedom community” celebrated this lawsuit. Instead of suing, for example, the CPSO. this was aimed primarily at online critics.

Author’s note: originally, Gill and Lamba were represented by Rocco Galati. He left in the Spring of 2022, and the pair obtained new (and separate) lawyers. Jeff G. Saikaley took over for Gill, and Asher Honickman for Lamba. Gill and Lamba are now trying to get money back from their former lawyer, but more on that coming up.

Yes, Twitter is a cesspool, and people are often nasty and rude. However, that doesn’t justify attempting to bankrupt and destroy them. Cooler heads prevailed, and on February 24, 2022, the lawsuit was dismissed as a SLAPP, or a strategic lawsuit against public participation.

Ontario, like many jurisdictions, has laws on the books designed to quickly throw out claims that are brought to shut down speech and expression on issues of public concern.

Gill and Lamba served Notice of Appeal in March of 2022. That is still before the Court of Appeals, and will be addressed later on. In the meantime, there’s still the issue of costs from the Trial Court, specifically fees from the various Defendants’ lawyers.

Costs has been resolved, at least for this portion. Justice Stewart handed down a $1.1 million award, primarily against Gill, the main actor in the suit.

Why was this so high? Partly, because of the number of lawyers involved, but also because of the fairly unique way that SLAPP award are handed out.

For a bit of background on why SLAPP costs are calculated in an unusual manner, consider the sections from 137.1 of the Courts of Justice Act.

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

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

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

From Sections 137.1(7) through (9) we can see full indemnity (100% of costs) is the standard if the Defendants are successful in getting the suit(s) dismissed. Should they fail, the Plaintiffs aren’t automatically entitled to their costs. There’s also a provision to allow for damages if a case is ever brought in bad faith.

Two other provisions worth noting: a case is considered “stayed” until all SLAPP issues are resolved, including appeals. This means that a claim can’t be amended, nor can it be discontinued. It’s “frozen in place”, so to speak.

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

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

One thing to consider, a lawsuit can be dismissed as a SLAPP if any of the defenses are likely to succeed. This is a much lower threshold than what’s used for Summary Judgement.

Given this structure, there really isn’t a reason for Defendants not to at least attempt this procedure, if it’s applicable. Of course, it relates to topics of public interest, not private disputes.

These are the cost submissions from the various Defendants. Keep in mind, full indemnity is the default position, and of course everyone asked for it.

This probably caused panic in Gill and Lamba, with reality setting in about what they’re facing. Given that they attempted to bankrupt people over mean words, it’s unlikely any mercy would be shown.

What did they think would happen?

Obviously, attorney-client communications are confidential, but one has to wonder why Gill and Lamba attempted this lawsuit in the first place. Many people who read it could tell that this would go nowhere, and that a high cost award was very likely. Were they fully informed about the risks ahead of time?

Things would get stranger still.

Shortly after filing the Notice of Appeal, Galati, lawyer for Gill and Lamba, filed a Motion to be removed as counsel of record. He claimed to be too ill to continue. Much of the version publicly available is redacted as it contains privileged information. May 12, 2022, Justice Gillese granted it, leaving them scrambling to retain new counsel.

This came at a time when the pair were still dealing with the cost submissions. They did eventually find someone to take the Appeal, and for the cost submissions. Gill and Lamba then threw Galati under the bus, claiming that his prior cost submissions were entirely inadequate. This is very plausible, considering the $1 million (or more) at stake.

There was “case management” during the summer, with the issue of costs at the forefront. Gill and Lamba now had separate lawyers. This made sense since their interests now diverged. Lamba, a relatively minor player in this, seemed to think that a split on costs with Gill was unfair to her financially.

Keep in mind, all of this was still going on while there was an active challenge to the SLAPP ruling. It must have been stressful.

Going to the Court of Appeals might be seen as a Hail Mary, in an attempt to ward off financially crippling costs. But in the end, it will just dig them in deeper. It seems extremely unlikely the C.O.A. will help them at all. We will get to that further on.

Now, Gill is faced with a cost award of over $1 million.

Kulvinder Gill has other suit pending against University of Ottawa

On March 15, 2021, Gill filed a $7 million lawsuit against the University of Ottawa, and Amir Attaran, one of its professors. The Claim lists 2 (two) rude and insulting tweets that Attaran had made. Apparently, the University is vicariously liable, being his employer.

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.

Are these comments worth $7 million in damages?

July 13, 2021, a Notice of Intent to Defend was filed on behalf of Attaran and the school. It doesn’t appear that anything has happened since then.

If Gill were wise, she would discontinue that case before she’s faced with another anti-SLAPP Motion. She’d presumably be on the hook for a further $50,000 to $100,000.

Gill/Lamba are taking Galati and Coomara to Court now

In an interesting turn of events, Gill and Lamba are asking a Brampton Court for nearly $5,700 from their (now former) attorneys. Given the small amount, this seems likely to be a refund for disbursements. Samantha Coomara works at the same firm, and is a junior associate.

Gill/Lamba Appeal pending, but has zero chance of success

Gill and Lamba did file a Notice of Appeal, along with their Certificate Respecting Evidence within the 30 day time limit.

Then things started happening. Or rather, not happening.

It really doesn’t help when the Appellant’s counsel suggests that the Trial Judge may have been biased in making determinations. It was raised a few times in the Notice.

Nor does it help when the Appeal itself is baseless. Anti-SLAPP laws exist to throw out suits that clearly have little to no merit. The issue isn’t who is the better expert, but whether the Defendants have the right to express themselves on certain topics. Name calling or insults alone are not actionable.

May 12, 2022, the Court of Appeals issued a notice that it was considering dismissed the Appeal for delay. Timelines are very short, and this can happen, unless proper permission to extend time is obtained. It seems that no material had been submitted by this point.

Counsel for Gill and Lamba bailed from the Appeal, claiming to have a prolonged illness, making it impossible to continue the work. In spite of that, the following happened:

  • May 25, 2022, he filed a suit in Federal Court over workers who were fired
  • May 31, 2022, he attended an Application to Strike (Action4Canada case)
  • June 28, 2022, he sued an anti-lockdown group in BC
  • July 12, 2022, he sued the Law Society of Ontario
  • August 28, 2022, he filed a Notice of Appeal in BC (Action4Canada)
  • October 12, 2022, he attended hearings for 2 Ontario cases

This is in addition to several ongoing fundraisers with groups like Action4Canada and Vaccine Choice Canada. There’s still money to be made in this.

He just wanted off the Gill case — for whatever reason — and illness was a pretext.

Gill and Lamba have new counsel for their Appeal, but the problems remain. Specifically, that they sued many parties over content that isn’t actionable. When the Appeal is eventually thrown out, they’ll be on the hook for those costs as well.

The Appeal deadlines have been extended (yet again), and it’s unclear when the materials will ever be submitted. A wise move at this point would be to discontinue, but that’s a decision the Appellants have to make. They’re digging themselves in deeper. True, they have new lawyers, but that doesn’t make the Appeal any less frivolous.

While Section 137.1(7) typically allows for full indemnity (100% costs) for successful anti-SLAPP Motions, this would apply to the Appeals of those decisions. It’s not too farfetched to see Gill and Lamba — or, primarily Gill — hit with another $200,000 to $400,000. This would be in addition to the $1.1 million that they’re already on the hook for.

As for the Defendants, who still have to deal with an Appeal: they want their pound of flesh. There won’t be any sympathy. There’s already talk about getting liens, and having garnishment done. Unless Gill has significant assets to sell, she’s looking at bankruptcy.

One has to wonder what kind of legal advice Gill and Lamba have received since 2020. Anyone with a working knowledge of anti-SLAPP legislation could have foreseen this outcome.

It would be interesting to see if a Law Society complaint gets filed, or already has been. With so much money at stake, things are going to be messy.

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

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

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

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

CHILDREN’S HEALTH DEFENSE CANADA/ONTARIO STUDENTS:
(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

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

FEDERAL VACCINE PASSPORT CHALLENGE:
(1) Statement Of Claim, Federal Workers Forced Out

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Private Member’s Bill C-261: Red Flag Laws In Canada For Hate Speech?

Bill C-261 is a piece of legislation that will allow individual members of the public to get Court orders against other people. This can be done if they have “reasonable grounds for fearing” that someone is, or will engage in hate speech, promote hate or violence, or commit an offence that is motivated by hate.

Hate motivated crimes are already illegal, and subject to serious consequences. That being said, this Bill would permit people to seek Court orders based on what someone might do. There’s no requirement that an offense have already been committed.

And what is “hate propaganda” for these purposes? It’s unclear. Would saying that men are men and that women are women qualify?

To address the obvious: yes, this is a Private Member’s Bill. They rarely become law.

However, it’s worth covering as it gives an insight into the kinds of activities our elected officials are talking about. Moreover, the content of a Private Bill may one day be slipped into a larger Bill, receiving little to no scrutiny.

Appearances
(2) The provincial court judge who receives an information under subsection (1) may cause the parties to appear before a provincial court judge.

Adjudication
(3) If the provincial court judge before whom the parties appear is satisfied by the evidence adduced that the informant has reasonable grounds for the fear, the judge may order that the defendant enter into a recognizance to keep the peace and be of good behaviour for a period of not more than 12 months.

Duration extended
(4) However, if the provincial court judge is also satisfied that the defendant was convicted previously of any offence referred to in subsection (1), the judge may order that the defendant enter into the recognizance for a period of not more than two years.

Refusal to enter into recognizance
(5) The provincial court judge may commit the defendant to prison for a term of not more than 12 months if the defendant fails or refuses to enter into the recognizance.

Here’s where the enforcement comes in. If the person refuses to enter into the recognizance (court order) that person can be incarcerated for a year.

It’s unclear what threshold would be required for the Judge to conclude that someone has a reasonable fear. This comes across as being entirely subjective.

Conditions in recognizance
Start of inserted block
(6) The provincial court judge may add any reasonable conditions to the recognizance that the judge considers desirable to secure the good conduct of the defendant, including conditions that
.
(a) require the defendant to wear an electronic monitoring device, if the Attorney General makes that request;
.
(b) require the defendant to return to and remain at their place of residence at specified times;
.
(c) require the defendant to abstain from the consumption of drugs, except in accordance with a medical prescription, of alcohol or of any other intoxicating substance;
.
(d) require the defendant to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, a probation officer or someone designated under paragraph 810.‍3(2)‍(a) to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to believe that the defendant has breached a condition of the recognizance that requires them to abstain from the consumption of drugs, alcohol or any other intoxicating substance;
.
(e) require the defendant to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified, in a notice in Form 51 served on the defendant, by a probation officer or a person designated under paragraph 810.‍3(2)‍(b) to specify them, if a condition of the recognizance requires the defendant to abstain from the consumption of drugs, alcohol or any other intoxicating substance; or
.
(f) prohibit the defendant from communicating, directly or indirectly, with any person identified in the recognizance, or refrain from going to any place specified in the recognizance, except in accordance with the conditions specified in the recognizance that the judge considers necessary.

Without having been charged or convicted of any offence, a Judge has the power to impose:
(a) electronic monitoring
(b) house arrest or a curfew
(c) an alcohol prohibition
(d) demands to provide samples for testing
(e) no contact orders, or orders to stay away from places

And it doesn’t stop there.

Conditions — firearms
(7) The provincial court judge shall consider whether it is desirable, in the interests of the defendant’s safety or that of any other person, to prohibit the defendant from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all of those things. If the judge decides that it is desirable to do so, the judge shall add that condition to the recognizance and specify the period during which it applies.

Surrender, etc.
(8) If the provincial court judge adds a condition described in subsection (7) to a recognizance, the judge shall specify in the recognizance how the things referred to in that subsection that are in the defendant’s possession shall be surrendered, disposed of, detained, stored or dealt with and how the authorizations, licences and registration certificates that are held by the defendant shall be surrendered.

Reasons
(9) If the provincial court judge does not add a condition described in subsection (7) to a recognizance, the judge shall include in the record a statement of the reasons for not adding it.

A Judge can also order that a person be prohibited from possessing any weapons, and be ordered to surrender any that they do have. Again, a person doesn’t have to be criminally charged for any of this to take place.

Interestingly, the Judge would be required to provide an explanation if there is no provision to prohibit that person from owning or using firearms or other weapons.

The language here is quite similar to Bill C-21, which would allow private citizens to have guns removed if a Judge viewed someone as a threat. There was a lot wrong with that Bill, but C-261 would water down the requirement so that the target didn’t even have to be a threat.

There is the safeguard that the Attorney General has to approve such an application. But that raises the question of to what degree this process will be open to political interference. Worse, the vague wording on what qualifies leaves a lot open to interpretation.

While this particular piece may not go anywhere, it’s entirely possible that the content will be stuffed into another Bill at some point in the future. Vigilance is needed.

(1) https://www.parl.ca/DocumentViewer/en/44-1/bill/C-261/first-reading
(2) https://www.parl.ca/DocumentViewer/en/44-1/bill/C-21/first-reading
(3) https://canucklaw.ca/bill-c-21-reintroduced-legislation-to-whittle-away-gun-rights/

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Bill C-75: Removing Prohibition On “Misinformation” From Criminal Code (Reminder)

Bill C-75 has been covered a few times before. There was the watering down of penalties for terrorism offences, child sex offences, and the NGOs who were pushing this degeneracy. That said, this piece of work isn’t finished revealing all of its dirty secrets.

Supposedly, this was in response to a 1992 Supreme Court of Canada ruling. Seems pretty strange to deal with it nearly 30 years later.

At the time of this Bill, Jody Wilson-Raybould was the Minister of Justice. Absurdly, she hailed as a “hero” for standing up to Trudeau on SNC Lavalin, despite advancing all kinds of horrible legislation he was responsible for. Seems that her entire profile didn’t matter.

But thanks to a provision slipped into that Bill, it will no longer be a criminal offence to knowingly spread lies with the intent of causing harm or mischief. While this “appears” to be a win for free speech advocates, the timing is suspicious, considering what would come in 2020.

This is what Section 181 of the criminal code used to say. It has since been repealed, and taken off the books, at least for the time being.

Spreading false news
181 Every one who wilfully publishes a statement, tale or news that he knows is false and that causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
R.S., c. C-34, s. 177

While Bill C-75 did go through Parliamentary study, it doesn’t appear as if this single line was examined at all. Perhaps people were more concerned with reduced penalties for terrorists.

This is not the only time this sort of thing has been buried in larger Bills. Another recent example was pulling Government oversight with the Human Pathogens and Toxins Act, Quarantine Act. This was done by embedding it into a budget.

Of course, in early 2020, Ottawa proposed its own version of “misinformation” laws. Thankfully, those seem to have gone nowhere.

(1) https://www.parl.ca/legisinfo/en/bill/42-1/c-75
(2) https://www.parl.ca/DocumentViewer/en/42-1/bill/C-75/royal-assent
(3) https://www.ourcommons.ca/Members/en/jody-wilson-raybould(89494)
(4) https://www.justice.gc.ca/eng/csj-sjc/pl/cuol-mgnl/c-39.html
(5) https://www.laws-lois.justice.gc.ca/eng/acts/C-46/page-25.html#h-118691
(6) http://www.criminalnotebook.ca/index.php/List_of_Criminal_Code_Amendments_
(7) https://www.ourcommons.ca/Committees/en/JUST/StudyActivity?studyActivityId=10210275
(8) https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/904/index.do?