Is this where “The Ferryman’s Toll” really comes from?
Earlier this year, this site covered the Cornell lawsuit, filed in Ottawa. This was to be the big case against the Government and the banks, for how they acted under the guise of a national emergency. Supposedly, this was the comedy of errors that led Ottawa and law enforcement to panic based on publications from online trolls.
But alas, the hype was overblown. Bernie Farber and the Canadian Anti-Hate Network (CAHN) were able to remove themselves from the proceedings by filing an anti-SLAPP Motion. It worked, and they’re off the hook. Plaintiffs tried to litigate the #HateGate scandal, based on the work of Caryma Sa’d and Elisa Hategan. In doing so, the Plaintiffs’ incompetent lawyers screwed up the case by not properly pleading defamation allegations.
CAHN’s lawyers apparently conducted the entire anti-SLAPP Motion for under $50,000, which is far cheaper than what normally happens in Ontario. The Plaintiffs still thought that was too high.
As for Hategan’s background:
She co-authored the “HateGate” report with Caryma Sa’d.
She was involved with a “hate” group called Heritage Front in the 1990’s.
She became an informant for the Ontario Provincial Police (O.P.P.).
She helped gather evidence and intelligence for the police.
She helped take down many “racists” connected to Heritage Front.
She went on to do many talks about the dangers and harms of racism
And, Heritage Front turned out to be co-founded by Grant Bristow, a CSIS agent.
None of the above claims are disputed by Hategan. She has spoken and written about her experiences with the group many times over the years.
As an aside, both Hategan and Sa’d (unsuccessfully) sued Bernie Farber recently.
Parts 1, 2, 3, and 4 of the HateGate scam are available here.
There’s been speculation that Diagolon turned out to be the next iteration of Heritage Front. This is the group run by Jeremy “Raging Dissident” MacKenzie, Derek “Rants” Harrison, and Alex “Ferryman’s Toll” Vriend. And there is a lot of overlap between the two.
But in following up on the Ottawa lawsuit, this gem emerged:
Farber, CAHN Claim Hategan Is Really Elisa Ferryman-Cohen
34. Several other portions of the affidavit contain inadmissible hearsay. Most noteworthy, Mr. Gircys relies heavily on the so-called conclusions of an online post entitled the “HateGate Affair”. It is significant that the authors of that self-published website post, Caryma Sa’d and ‘Elisa Hategan’ (real name Elisa FERRYMAN-COHEN), have previously sued CAHN and Mr. Farber. Ms. Sa’d’s claim against CAHN in Federal Court was dismissed without leave to amend as having no factual or legal basis, and therefore no reasonable prospect of success. Ms. Hategan’s claim against Mr. Farber in this Court was dismissed as frivolous and vexatious and “a waste of the time and resources of the courts.” These are but further angles of the same baseless conspiracy theories levelled at CAHN in this litigation, demonstrating it is a SLAPP.
This is from paragraph 34 of the Defendants’/Moving Parties’ Factum or arguments. Farber and CAHN argued that the lawsuit — as far as they were concerned — was politically motivated.
Vincent Gircys, one of the Plaintiffs, filed an Affidavit in an attempt to ward of the anti-SLAPP Motion brought by Farber and CAHN. He attaches the report from Sa’d and Hategan as an exhibit.
The report is dismissed as “inadmissible hearsay” by Farber’s and CAHN’s lawyers. No surprise there. But what is very interesting is that they claim that Hategan isn’t even a real name. Supposedly, she is really Elisa Ferryman-Cohen.
Note: After looking into it more, and with some help, it appears that it was legally changed years ago. She still goes by Hategan though, at least publicly.
It raises the question how Hategan (or whoever) would be able to sue in Court under a very old name. Was CAHN not aware of it at the time?
Where Did “The Ferryman’s Toll” Really Come From?
We know that Elisa Hategan (or Ferryman-Cohen) worked as a police informant to take down Heritage Front. This was a CSIS operation designed to root out “racists” and “white nationalists”. This has been long established.
Alex Vriend is now a leading figure in “Diagolon” which comes across as little more than a honeypot. Currently, they’re asking for background checks… which would presumably tip off law enforcement about who’s applying. And of all the nicknames he could choose for himself…. he goes with Ferryman.
Why would he name himself after a former police informant from a generation ago?
Keep in mind, that same informant wrote a paper “exonerating” the group recently.
Moreover, this revelation about ‘Hategan’ was completely new. There’s nothing online, her book, or her biography that suggests what CAHN and Farber claim. She admits changing “Elisse” to “Elisa”, but that’s it. No other last name(s) are mentioned. Perhaps it’s a way to separate work life and private life.
Is this all just a bizarre coincidence? Or is the “next Ferryman” about to subvert and destroy nationalism in Canada?
The Federal Court of Canada refused a request to extend time to challenge a November decision. Because of Justice Manson’s ruling, this means that approximately 330 current and former military personnel most likely won’t get a hearing to determine whether their case was prematurely struck.
They’re also on the hook for another $1,080 in costs.
From earlier: The case was thrown out for a variety of reasons, including the poor quality of the pleadings themselves, and the lack of facts included. There was also the concern that the Court had no jurisdiction, given Section 29 of the National Defence Act, which mandates a grievance scheme. Their lawyer, Catherine Christensen, had received a similar ruling in late 2021.
From earlier: The Plaintiffs missed their deadline to appeal. Because of the nature of the Appeal, there was a 10 day time limit, not 30. Since it was an Associate Judge (and not a Judge) who struck the case, the Federal Rules require a Motion be filed to review. Christensen did eventually file a Motion requesting an extension of time, but it had all kinds of problems with it.
APPEAL RULING FROM
PROTHONOTARY
JUDGE
Appeal Goes Where
Federal Court
Federal Court Of Appeal
Appeal Ruling To
Single Judge (FC)
Panel of Justices (FCA)
Rules of Procedure
Rule 51
Rules 335 to 357
Time Limit For Notice
10 Days
30 Days
Initial Document
Notice Of Motion
Notice Of Appeal
Procedure
Motion
Appeal
New Evidence Allowed?
No
With Leave, Rule 351
Note: Prothonotary and Associate Judge are the same thing.
The original ruling came out on November 13th, 2024. Christensen filed a Motion requesting an extension of time on December 11th, some 29 days later. One has to wonder if she thought she had 30 days to appeal, and simply messed it up. The responding submissions outlined a comical array of errors.
While extensions of time do happen regularly in Court proceedings, this request was so poorly and incoherently done, it was outright refused. Christensen also never explained how such an Appeal would succeed even if the extension of time were granted. The ruling was pretty harsh.
Since the Court has refused an extension of time, this is most likely the end of the road, unless this is successfully challenged at the Federal Court of Appeal.
And if the Plaintiffs want to take this route, perhaps they should get a better lawyer.
Countless times in the last few years, we come across announcements about lawsuits being filed to challenge so-called injection passports. There’s initially plenty of hope and optimism that meaningful results will force Governments to change their ways. And a suit filed against Westjet in the Fall of 2022 was one such example.
The suit named:
His Majesty The King in Right of Canada
Attorney General of Canada
Westjet Group Inc.
Westjet Airlines Ltd.
Westjet Encore
Westjet Vacations Inc.
Swoop Inc.
These announcements are typically followed up with requests for donations, or solicitations for more clients, and more fees. There’s never really “enough” money.
But all too often, there won’t be any new reporting.
This is usually because they’re quietly dropped. And that’s exactly what happened here.
Shoddy Claims Being Recycled In Federal Court
The Westjet lawsuit should look familiar. It was filed by Leighton Grey of the firm Grey Wowk Spencer. It’s one of many filed in recent years that went absolutely nowhere.
Grey has been in the press many times since 2020, often for filing a high profile lawsuit. That said, rarely does anything ever come of it. These cases are typically struck or discontinued (dropped).
And here, “The Discontinuer” is at is again.
Once Again, No Material Facts Or Particulars Pleaded
Material facts
174 Every pleading shall contain a concise statement of the material facts on which the party relies, but shall not include evidence by which those facts are to be proved.
Particulars
181 (1) A pleading shall contain particulars of every allegation contained therein, including
(a) particulars of any alleged misrepresentation, fraud, breach of trust, willful default or undue influence; and
(b) particulars of any alleged state of mind of a person, including any alleged mental disorder or disability, malice or fraudulent intention.
Regular readers will have heard the terms “pleading facts” and “pleading particulars”. While the numbering systems differ, the Rules are the same across Canada. In short, there must be enough detailed information in a lawsuit that the opposing side is able to understand, and respond.
JURISDICTION
PLEAD FACTS
PLEAD PARTICULARS
Federal Court
Rule 174
Rule 181
British Columbia
Rule 3-1(2)(a)
Rule 3-7(17)
Manitoba
Rule 25.06(1)
Rule 25.06(11)
Ontario
Rule 25.06(1)
Rule 25.06(8)
Nova Scotia
Rule 38.02(2) and (3)
Rule 38.03(3)
One of the reasons Grey’s claims are typically so short is that he rarely pleads any facts. Despite having over 100 Plaintiffs, the suit is less than 25 pages. Once again, there’s no specific information about any Plaintiff, other than they are/were employees of Westjet. There’s nothing about:
Who is a current employee v.s. who left?
Who had no shots, 1 shots, 2 shots, or more?
Who worked remotely v.s. who worked in person?
Who got any sort of severance pay?
Who (if anyone) was subject to any bonus or performance contract?
Were there different unions, and any overlapping, or different policies?
Who raised which specific objection to taking the injections?
Who attempted which type of exemption method?
Which specific religious objections (for those who invoked it) applied and how?
Who went to grieve with their union?
What were the results of any internal grievance?
This isn’t to defend the policy at all. However, from a due process perspective, there’s so little information contained that it’s impossible to defend against. Basic information must be pleaded for each Plaintiff. Grey includes none of it.
None of the Charter violations are pleaded properly either. While (initially) the Court is to accept everything as true, there is very specific information that must be alleged to make it possible to advance.
There’s also a lack of particulars. The suit makes all kinds of allegations of malice, bad faith, and malfeasance of public office, but doesn’t spell out any of it.
The Claim and Amended Claim include allegations which a Civil Court doesn’t have jurisdiction over, such as relying on the Criminal Code of Canada.
Looking at the: (a) Canada Post; (b) CNR; (c) Purolator; and now (d) Westjet pleadings, it’s clear that it’s the same suit just tweaked a little. Grey merely changes the names in the Style of Cause (the Parties) and refiles elsewhere.
Clients are paying (presumably) good money for recycled garbage.
Westjet Has Collective Bargaining Agreement For Employees
Westjet employees appear to be part of CUPE Local 4070, which is one of many unions. Unsurprisingly, there is a collective bargaining agreement which outlines most of the important things involved.
Article 30 lists the various steps involved, and the people who are involved. Like many unions, Arbitration and not litigation, is considered to be the final one. Article 31 then goes through the process itself.
Grey discontinued the case rather than have the jurisdiction challenged. He has done this with multiple lawsuits now.
Now, Umar Sheikh and Angela Wood showed a way around the grievance requirement in another Federal case. Specifically, they argued that the introduction of the injection pass was a new condition imposed “without meaningful consultation”. Basically, the way mandates were implemented circumvented the grievance process. They successfully stopped a Motion to Strike.
Note: All of the dates listed can be confirmed by searching the respective cases on the Federal Court website. It keeps a detailed listing of all significant events.
And that’s how this Westjet case concluded.
The Government (and the Westjet Defendants) threatened to bring Motions to Strike. The likely reasons were the lack of jurisdiction, and the shoddy nature of the pleadings. Rather than fight, the lawyer dropped the case. He never even tried to fight back.
Before even a single Motion could be argued, the entire lawsuit was discontinued. Plaintiffs are presumably out of luck for any retainer fees they’ve paid.
Back in mid-November, this site covered the 2023 case of some 330 members of the Canadian Forces, which had been struck by Associate Judge Catherine Coughlan.
The case was full of serious problems, including: (a) Statement of Claim not pleaded properly; (b) Evidence not being properly pleaded; and (c) Section 29 of the National Defence Act, or N.D.A.
The N.D.A. specified a grievance process was to be used, as opposed to suing in Court. This is common in most unionized and Government workplaces in Canada. Even though the lawyer was trying to argue around that requirement, over 100 of her clients were concurrently trying to grieve.
Worse, the Plaintiff’s lawyer, Catherine Christensen, had been told by the Federal Court back in late 2021 that clients couldn’t bypass the N.D.A. She knew, or at least should have known, that this problem would come up again.
Since the pleading was struck by an Associate Judge, as opposed to a Judge, there is a Rule which allows a Motion to be filed to ask for a review of the decision. However, counsel’s handling of this was comically bad, and very negligent.
This “Lionel Hutz” episode would be funny, except for the real world consequences.
Christensen Missed The Deadline To File Notice Of Motion
The case notes on the Federal Court website list November 12th as the date of the ruling. CanLII gives it as November 13th. Here, it doesn’t really matter, since there was no notice for a month.
There are actually 2 different types of Appeals within the Federal Courts, and those are addressed below. The one that the Plaintiffs here wanted had a time limit of just 10 days. Counsel took 29 to respond. One has to wonder if she got them mixed up initially, and only realized the error later.
Had she sought an extension of time right away, this headache could have been avoided. Similarly, if a Notice of Motion (for the Appeal) was filed, followed by seeking an extension, it would be okay. But that’s not what ended up happening.
Granted, Courts often will allow for filings beyond the limitations period, if there are good reasons provided. However, this is far from counsel’s only error.
Appealing WITHIN Federal Courts V.S. Appealing BETWEEN Them
APPEAL RULING FROM
PROTHONOTARY
JUDGE
Appeal Goes Where
Federal Court
Federal Court Of Appeal
Appeal Ruling To
Single Judge (FC)
Panel of Justices (FCA)
Rules of Procedure
Rule 51
Rules 335 to 357
Time Limit For Notice
10 Days
30 Days
Initial Document
Notice Of Motion
Notice Of Appeal
Procedure
Motion
Appeal
New Evidence Allowed?
No
With Leave, Rule 351
Note: Prothonotary and Associate Judge are the same thing.
Many will find this nitpicky and boring. But procedurally, there are very different rules to follow depending on who one wants to appeal to. As stated, this would be a Rule 51 Appeal, and the time limit is just 10 days to serve and file a Notice of Motion.
Had the case been struck by a Judge initially, then going to the Federal Court of Appeal would have been the only recourse. Rule 51 doesn’t allow Judges to overturn each other.
Mixing Up “Moving Parties” And “Applicants” Repeatedly
This may seem petty, but is worth mentioning:
Action: This is brought by filing a Statement of Claim. The people who initiate it are called the Plaintiffs, and the people who respond are the Defendants.
Application: This is brought by filing a Notice of Application, seeking Judicial Review of an Order or decision. The people who initiate it are called the Applicants, and the people who respond are called the Respondents.
Appeal: This is brought by filing a Notice of Appeal, seeking to challenge another Court decision. The people who initiate it are the Appellants, and the people who respond are the Respondents.
Motion: This is brought to by filing a Notice of Motion, to initiate steps within, or related to an Action, Application, or Appeal. The people who initiate them are the Moving Parties, and the people who respond are the Respondents.
Since Christensen filed a Motion seeking permission for an extension of time, her clients, at this point, would be considered MOVING PARTIES. But she repeatedly refers to them as “Applicants”, even though they never were. Even calling them “Plaintiffs” would be more accurate.
She also cites the “Federal Courts Act” at times when she really means the “Federal Court Rules”. Those are 2 completely different things. Still, the Court will know what the references are.
Motion Brought Under Wrong Rule (Should Be Rule 8, Not 51)
TAKE NOTICE THAT the Applicants will make a motion to the Court in writing under Rule 51(1) of the Federal Courts Rules.
Extension or abridgement
8(1) On motion, the Court may extend or abridge a period provided by these Rules or fixed by an order.
When motion may be brought
8(2) A motion for an extension of time may be brought before or after the end of the period sought to be extended.
This is already wrong. While the ultimate goal is to appeal the decision of Associate Judge Coughlan, first, an extension of time needs to be granted. In reality, this Motion should state Rule 8. True, the Court would still understand what she’s trying to do, but missing the deadline now means filing another Motion.
The written submissions make clear the extension is sought under Rule 8, but the Notice of Motion still needed to be fixed.
Christensen explains that the delay was caused by the difficulties of corresponding with over 300 clients. The Government responded that that the Notice of Motion could have been filed anyway, with the option to discontinue, or even just a Notice to ask for an extension. It would have cost just $20.
Motion Asks For Written Representations…. In Court Of Appeal?
leave for the Motion to be heard with written representations under Federal Courts Act Section 369.2(1);
Written representations only — Federal Court of Appeal
369.2 (1) Unless otherwise ordered by the Court and subject to subsection (2), all motions brought in the Federal Court of Appeal shall be decided on the basis of written representations.
Christensen asks that the Judge determine the Motion with written representations, as opposed to having an oral hearing. This is common for simple Motions, and by itself, is not unreasonable.
However, Rule 369.2(1) applies to the Federal Court of Appeal. If she intends to appeal the decision of an Associate Judge, it remains within the Federal Court.
Unnecessarily Asking For Leave To Appeal?
2. leave for an extension of time to apply for Appeal of a prothonotary order;
3. leave to commence an application for Appeal under Federal Courts Act Section 51(1);
Appeals of Prothonotaries’ Orders
51 (1) An order of a prothonotary may be appealed by a motion to a judge of the Federal Court.
Service of appeal
(2) Notice of the motion shall be served and filed within 10 days after the day on which the order under appeal was made and at least four days before the day fixed for the hearing of the motion.
Items #2 and #3 don’t make any sense. Rule 51 is very short, and there’s no Leave (permission) needed to appeal a decision of a Prothonotary or Associate Judge. You just file a Notice of Motion. It’s also unclear what “apply for an appeal” means, but perhaps it’s a reference to Leave, which isn’t required.
And again, Christensen mixed up “Motion” with “Application”.
Christensen Improperly Swears Her Own Evidence
Use of solicitor’s affidavit
82 Except with leave of the Court, a solicitor shall not both depose to an affidavit and present argument to the Court based on that affidavit.
There’s a practice that lawyers aren’t suppose to argue their own evidence, as it tends to blur the lines between witness and counsel. Typically, an associate, clerk or client will swear it out. A Judge “may” allow it, but there are no guarantees.
Missing the deadline was bad enough. This is just a procedural Motion, seeking an extension of time, and it’s full of very basic mistakes.
Did Plaintiffs Always Intend To Appeal?
One thing the Government brought up is that the Motion says that the parties agreed to appeal, but not that they always intended to do so. This seemingly trivial choice in wording may sink the Motion, depending on how lenient the Judge is.
Motion Doesn’t Specify How Appeal May Be Successful
On paragraph 20 of their submissions, the Government lawyer states that the Plaintiffs offer no insight as to how an Appeal would theoretically be successful, assuming they were granted a time extension.
Paragraphs 7 through 16 of the Notice of Motion very broadly list a series of errors, but none of it is specified. Perhaps a better idea would have been to attach a draft version of the submissions they intended to use — except they weren’t done.
This could have been avoided if a request for a time extension had been filed right away. Seriously, it would have cost just $20, and their position would be a lot better.
Timeline Of Major Events In This Lawsuit
June 20th, 2023 – Statement of Claim is filed in Federal Court on behalf of 330 Plaintiffs.
July 28th 2023 – Amended Statement of Claim is filed.
August 7th, 2023 – Notice of Intention to Respond is filed by the Government.
September 11th, 2023 – Statement of Defence is filed by the Government.
September 22nd, 2023 – Reply to the Statement of Defence is filed.
January 30th, 2024 – Court compels Defence to file their Affidavit of Documents.
March 3rd, 2024 – Court orders case management for the lawsuit.
April 29th, 2024 – Court gives a schedule of events to unfold.
Defendants shall serve and file their motion to strike by July 12th, 2024.
The Plaintiffs shall serve and file their motion in response by August 9th, 2024.
Hearing of motion to strike to be in-person at the Federal Court August 20th, 2024.
June 26th, 2024 – Plaintiffs contact Court, ask for hybrid setup so that Plaintiffs can attend the proceedings remotely.
July 11th, 2024 – Government files Motion to Strike the case.
August 12th, 2024 – Court contacted to request permission to file materials.
August 14th, 2024 – Court allows Plaintiff Motion materials to be filed, despite them not complying with the rules and procedure laid out.
August 14th, 2024 – Motion Record with 35 Affidavits filed by Plaintiffs
August 20th, 2024 – Court adjourns Motion to Strike hearing until September 19th.
September 19th, 2024 – Motion to Strike heard in Court.
November 12th, 2024 – Statement of Claim is struck without Leave to Amend. $5,040 in costs ordered.
December 12th, 2024 – Plaintiffs serve Notice Of Motion to extend time limits
December 17th, 2024 – Government responds, saying time extension shouldn’t be granted.
Now, the Court may very well grant an extension to file the Rule 51 Motion papers. There has been a longstanding aim of not using procedural rules unjustly to hinder litigation.
That being said, the Plaintiffs are far from guaranteed any success with this Appeal, even if it were heard. The Statement of Claim had many defects, as outlined in the last article. It’s unclear how any of it could be fixed.
For just a $20 fee, Christensen could have asked for an extension right away. She could have explained that some clients wanted to appeal, while others had not yet responded. Such a request would have been difficult to refuse.
A word of advice: when a party to a lawsuit dies, it’s best to have their name removed. It can look pretty silly when this isn’t done, as is the case with former B.C. Premier, John Horgan.
Action4Canada has (surprisingly) filed their Amended Notice of Civil Claim, or NOCC. They, and their counsel, have decided to keeping spamming the Courts by resubmitting content similar to what’s been struck as “bad beyond argument”.
And “spamming” is how one can describe this.
It’s hard to imagine at this point that it’s being done in good faith. There’s only so many times the Courts — and online trolls — can explain the same points to “Canada’s top Constitutional lawyer”. 5 separate Courts have struck similar pleadings, yet the new one here is more of the same.
To be somewhat balanced, there are genuine improvements. The length has been cut from 391 pages down to 54. The claims about Bill Gates, Klaus Schwab, GAVI, the World Economic Forum, etc… have been removed. The allegations pleaded by the various Plaintiffs are better organized, and more readable. And since this is older content being refiled, the Statute of Limitations shouldn’t be much of a factor. Overall, this version is far easier to follow.
Briefly, here are the positions as alleged.
Action4Canada: An advocacy group, with an interest in the rule of law
“Jane Doe”: Mistreatment by the hospital for not honouring mask exemption
Ilona Zink: Lost her business in 2020 due to forced shutdowns
Valerie Ann Foley: Forced from Vancouver public transit, assaulted, over no mask
Linda Morken: Refused service over no mask, arrested for refusing to leave
Gary Morken: Fined over no mask, had to pick up Linda
Pastor Randy Beatty: Church services disrupted over lockdown measures
Brittany Wilson: Nurse, forced from her career over mask and vaccine requirements
Hard to believe, but there *might* be valid Causes of Action. That said, this is hardly the groundbreaking Claim we were all led to believe was coming.
True, there were initially other Plaintiffs, but they left in 2022, following the comically bad performance of Galati and the “bad beyond argument” decision.
That being said, the newer version goes considerably downhill in many ways, compared to the original. It introduces new errors that weren’t present in 2021, and leaves many older problems unfixed. The new errors were likely the result of copying portions of more recent claims.
One of the most comical screwups is that Action4Canada and the other Plaintiffs are still suing John Horgan. He died of cancer a month ago, and the story was national news. While other parties were removed from the Style of Cause (names at the top), Horgan is still there. It’s not his estate that’s being sued, it’s him personally, which is now impossible.
But don’t worry, it gets much, MUCH worse.
Galati Content Previously Struck By 5 Different Courts
For some additional context, here’s the recent Dorceus review, which outlined the frustration the Courts are feeling about Galati refiling the same cases.
5 separate Courts: (a) 2 Federal Courts; (b) 2 British Columbia Courts; and (c) the Ontario Superior Court have all thrown out similar pleadings. Justice Chalmers, also in Ontario, took a hardline as well.
This is “Bank of Canada” level bad.
Now, what’s wrong with the current Action4Canada NOCC?
1. Galati STILL Seeks Relief Outside Civil Court Jurisdiction
Galati has been told REPEATEDLY by various Courts to seek only Relief that is within the jurisdiction of the Court. Different types of Courts have different roles, and they need to respect each other. This is obvious, and shouldn’t need explaining.
Except Galati does need to have this explained again and again. Once more, he seeks Relief surrounding: (a) Nuremberg Code; (b) Helsinki Declaration; (c) Criminal Code of Canada, (d) Convention on the Rights of the Child, and more. One has to suspect he simply doesn’t read decisions in his own cases.
2. “Relief Sought” Section Runs Nearly 13 Pages, Is Unworkable
Galati pleads the the section on Relief Sought from paragraph 96 (page 35) to paragraph 121 (page 47). This amounts to nearly 13 pages. Keep in mind, this isn’t 13 items he’s asking for. It’s 13 pages. It’s based largely on facts that aren’t pleaded, and expert evidence improperly listed.
Worth mentioning, the original A4C Claim had 44 pages of Relief Sought, and covered the same sorts of non-justiciable issues. While shorter, it hasn’t really improved in terms of quality.
3. Galati Again Using Pseudo-Legal Concepts To Argue Case
A problem that regularly creeps into his cases is that he cites authorities that don’t have a place in modern Canadian jurisprudence, such as the English Bill of Rights. From the CSASPP defamation case, Justice Chalmers had this to say:
[75] In the e-mail to Mr. Dicks, Mr. Gandhi states that lawyers who reviewed the Ontario claim, “said it was very poorly drafted” and “will most likely get struck”. I am of the view that there is justification for this comment. The Ontario pleading is prolix and argumentative. The claim advances pseudo-legal concepts and conspiracy theories that the pandemic was pre-planned and executed by the WHO, Bill Gates, the World Economic Forum and unnamed billionaires and oligarchs. The similarly drafted A4C claim was struck by Justice Ross. In doing so, he described the pleading as “bad beyond argument”.
Another of his favourites is the Magna Carta. While it’s recognized as a historical document, it simply isn’t used in modern times as a basis for law.
4. Relief Sought Over Torts No Plaintiff Pleaded
A common problem with the Amended NOCC is that it seeks Relief based on facts that no Plaintiff actually pleaded. This problem is persistent. While too numerous to list them all, here’s one:
Paragraph 107 seeks Declaratory Relief about the so-called “vaccine passports” being imposed by the Government. The issue here is that no Plaintiff pleads anything about it. Keep in mind, the original NOCC was filed in August 2021, before these were a thing.
The closest is Brittany Wilson saying that she needed vaccination to work in health care. However, that came from her employer, not the Government — at the time.
There’s also Declaratory Relief sought that vaccine passports breach Section 6 (Mobility) Charter Rights. This was probably cut-and-pasted from the travel mandates cases. No Plaintiff pleads that they were citizens prevented from entering, remaining in, or leaving Canada. Nor do any plead that they were refused the right to move between Provinces, or to earn a livelihood elsewhere.
5. Relief Sought For NON-EXISTENT Minor Plaintiffs
Galati seeks Declaratory Relief regarding 12-17 year olds being offered vaccines. Problem is: NONE of the Plaintiffs are minors, nor are any seeking remedies for any children in their care or custody. For this to apply, at least one Plaintiff would have to be in this situation.
6. Relief Against NON-EXISTENT Municipal Defendants
In this section, Galati seeks various forms of Declaratory Relief against “Provincial and Municipal Defendants”. Problem is, there aren’t any Municipal Defendants. Perhaps this was just cut-and-pasted from another Claim.
7. Relief Sought Against NON-EXISTENT Curfews
In paragraph 97(e), Galati seeks relief surrounding various stay-at-home orders, curfews, and other lockdown measures. Thing is, these didn’t happen in B.C., where this Claim is filed. True, things were far worse in Ontario and Quebec, but this simply doesn’t apply in B.C.
8. Action4Canada Isn’t A Proper Party To This Lawsuit
The only information Action4Canada pleads is that it was co-founded in 2019 and that it “steps up” to advocate on behalf of the rule of law, the Constitution, and democratic governance. It specifically cites what happened starting in 2020.
The group seeks Charter damages pursuant to s.2 (fundamental freedoms),s.6 (mobility), s.7 (security of the person) and s.15 (equality). However, there’s no information pleaded that — even if true — would address any of these torts. There are no material facts at all. A4C clearly lacks Private Interest Standing.
(a) Serious Justiciable Issue
(b) The Nature of the Plaintiff’s Interest
(c) Reasonable and Effective Means of Bringing the Issue Before the Court
In theory, A4C could argue this, but there would be serious problems, especially given that their style of litigation isn’t exactly “reasonable and effective”.
9. “Jane Doe” Isn’t A Proper Party To This Lawsuit
Something Galati routinely does is sue on behalf of anonymous Plaintiffs. This is obviously not allowed, as one has the right to confront their accusers in Court. While one may wish to not be associated with litigation, having an “open Court principle” makes this difficult.
In fact, the Dorceus ruling addressed exactly that. Justice Koehnen struck 2 “John Does” and 1 “Jane Doe” for refusing to use their real names in Court. No reason had been provided for any of them doing this. The Plaintiff in this case will meet the same fate.
10. Plaintiffs Plead No Facts About Federal Defendants (Except RCMP)
In the NOCC, it’s required for Plaintiffs to plead material facts (Rule 3-1(2)(a)), and plead particulars (Rule 3-7(17)). This is redundant, and covered many times before.
Problem is, the Plaintiffs don’t plead any facts whatsoever related to the Federal Defendants, with the exception of the RCMP. This includes:
Justin Trudeau, current Prime Minister of Canada
Theresa Tam, Canada’s Chief Public Health Officer
His Majesty the King in Right of Canada
Attorney General of Canada
Omar Alghabra, Federal Minister of Transport
While it’s true that details in a Claim are to be assumed true, at least initially, there’s nothing in the NOCC that suggested the Plaintiffs were harmed by any of them. Their grievances now are primarily with the Provincial Defendants. A Judge will almost certainly strike the above named.
Yes, the originally NOCC contained loads of irrelevant information, but at least that version pleaded some facts about the above Parties. That’s all gone now.
11. Pleading Evidence Instead Of Pleading Facts
Rule 3-7 — Pleadings Generally
Content of Pleadings
. Pleading must not contain evidence
(1) A pleading must not contain the evidence by which the facts alleged in it are to be proved.
Virtually everything from paragraph 37 (page 17) until about paragraph 94 (page 34) should be struck. It gets into expert evidence, which is not the role of the NOCC. That comes much later. Galati has been told this many times before, and refuses to listen. It also mentions many people: (a) Peter McCullough; (b) Peter Hotez; (c) Michael Yeadon; (d) William Haseltine, etc… who aren’t parties, and whom the Defendants likely don’t know.
12. Arguing Caselaw In A Notice Of Civil Claim
Once more, Galati tries to argue caselaw throughout the NOCC. This is likely done in order to appear smart, but is a serious mistake. The initial pleadings are not the place to dive into the law, and it’s not supposed to look like a Factum. All of those areas should properly be struck.
Will There Be Leave (Permission) To Further Amend?
That’s actually tricky to answer. Despite the Amended NOCC being full of deficiencies, it is considerably cleaned up. Courts tend to prefer to give “that extra chance”. There are allegations raised which *potentially* would be valid Causes of Action. As such, as least some of the Plaintiffs could proceed.
On the other hand, Galati is (to a large degree) simply recycling his pleadings yet again. He seems to have mostly ignored the guidance of Justice Ross, and appealed for no real reason. This pleading has many of the same defects, and adds in new ones. The B.C. Supreme Court could simply decide to end it all at the next Application to Strike.
Action4Canada has stated on countless occasions that they have tens of thousands of pages of expert reports and evidence ready to go. It’s that true, then why mess around with screwed up pleadings? Why repeatedly sabotage your own cases?
In any event, this lawsuit will never get to Trial.
Remember: the best way to control the opposition is to lead it ourselves!
[53] I have the distinct impression from reading the Amended Claim as a whole that its object is not to vindicate the employment rights of the plaintiffs so much as it is to mount a political crusade in which the court will be used as a grandstand to conduct an inquiry into the effectiveness of vaccines and the effectiveness of government measures in response to the Covid-19 pandemic by opponents of those measures.
[154] …. If this was not clear from the outset, it should have become clear by the time the British Columbia Supreme Court, the British Columbia Court of Appeal, the Federal Court, and the Federal Court of Appeal struck out similarly drafted statements of claim prepared by the same lawyer. While the interests of a free and democratic society may warrant leeway with respect to the pursuit of unconventional claims at the outset, when such claims continue to be pursued after being struck out by four courts, they amount to an abuse of public resources.
[157] …. Plaintiffs’ counsel is a sole practitioner with a different cost structure than that of counsel for the Non-Governmental Defendants and that this is the fifth time that Plaintiffs’ counsel has litigated a motion to strike with respect to a claim of this nature. I expect having done this four times before, that there were significant cost efficiencies for Plaintiffs’ counsel, especially with respect to the factum.
-Justice Koehnen, Ontario Superior Court Judge
This week, 473 Plaintiffs, who are current and former health care workers, saw their Statement of Claim struck completely. This was partly because it was so poorly crafted, but also because most had collective bargaining agreements which prohibited lawsuits. Of those litigants, 395 belonged to some sort of union, while the other 78 did not. They had been employed all across Ontario.
If this sounds familiar, it should. It’s yet another scam lawsuit that has come crashing down on duped litigants. And this will cost them $190,000 for doing so.
Interestingly, one Plaintiff decided to retain a real lawyer and have a proper Claim drafted. That person was given permission to file. More on that later.
Previous Critique On Galati Case Aged Very, Very Well
Back in July, this review was posted about the numerous defects in the Statement of Claim. And as predicted, jurisdiction was a fatal law, at least for the unionized Plaintiffs.
While the Statute of Limitations wasn’t really a concern of the Court here, it may be if Plaintiffs decide to try their luck elsewhere. However, every other item on this list made its way into Justice Koehnen’s ruling in some form.
Failure To establish Jurisdiction of the Court
Failure to seek Relief within Jurisdiction of the Court
Failure to plead concise set of material facts
Failure to keep evidence out of Claim
Failure to remove argument from Claim
Failure to plead facts which would support conclusions of law
Failure to give Claim particulars
Failure to specify who should pay damages
Failure to properly plead s.2 (fundamental freedoms) Charter breaches
Failure to properly plead s.6 (mobility rights) Charter breaches
Failure to properly plead s.7 (security of the person) Charter breaches
Failure to properly plead s.15 (equality) Charter breaches
Failure to properly plead tort of intimidation
Failure to properly plead tort of conspiracy
Failure to properly plead tort of malfeasance
Failure to state a Cause of Action
Failure to appreciate Statute of Limitations
Claim just a duplicate of other cases
Perhaps most notably, the Court finally called Galati out for recycling his earlier cases. It’s long overdue for this to happen.
Galati Called Out For REPEATEDLY Wasting Court Resources
Worth noting: Justice Chalmers of the Ontario Superior Court weighed in a year ago when CSASPP was sued for defamation. He dismissed that case under anti-SLAPP laws, and awarded $132,000 in costs. He was scathing in his decision.
[75] In the e-mail to Mr. Dicks, Mr. Gandhi states that lawyers who reviewed the Ontario claim, “said it was very poorly drafted” and “will most likely get struck”. I am of the view that there is justification for this comment. The Ontario pleading is prolix and argumentative. The claim advances pseudo-legal concepts and conspiracy theories that the pandemic was pre-planned and executed by the WHO, Bill Gates, the World Economic Forum and unnamed billionaires and oligarchs. The similarly drafted A4C claim was struck by Justice Ross. In doing so, he described the pleading as “bad beyond argument”.
[88] Here, the action commenced in Ontario by the Plaintiff is prolix and contains bizarre conspiracy theories. The action he commenced in British Columbia is similar. I am of the view that “what is really going on” in this case is an attempt by the Plaintiff to stifle public criticism about a class action claim that is not properly pleaded and improperly asserts bizarre conspiracy theories that are ineffective and have little or no chance of success.
Factoring in Justice Chalmers, 10 different Judges in 6 separate Court hearings have made determinations that this type of litigation is frivolous, an abuse of the Court system, improperly pleaded, and has little to no chance of success.
[13] The plaintiffs’ core complaint is that their employment was suspended or terminated as a result of their employer’s COVID-19 vaccination policy. Suspension and termination are core elements within the jurisdiction of labour arbitrators under the labour relations regime. The fact that the plaintiffs also go on to characterize their claims as ones for conspiracy, intimidation, intentional infliction of mental anguish and breach of the Charter does not change the analysis. All of those complaints remain rooted in the employment relationship and its suspension and termination.
Despite attempts to frame this (Dorceus) as conspiracy, intimidation, and a variety of other torts, Justice Koehnen stated that this is really about litigants having their employment conditions altered to require these vaccines. This was essentially constructive dismissal.
This finding was fatal to the unionized Plaintiffs, who were barred from the Courts.
Once Again, No Material Facts Or Particulars Pleaded
Rules of Pleading — Applicable to all Pleadings
Material Facts
.
25.06 (1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.
Rules of Pleading — Applicable to all Pleadings
Nature of Act or Condition of Mind
.
25.06(8) Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.
Regular readers will have heard the terms “pleading facts” and “pleading particulars”. While the numbering systems differ, the Rules are the same across Canada.
[49] The Amended Statement of Claim is, at best, unusually drafted. A statement of claim is supposed to contain material facts on which the action is based. The Amended Statement of Claim contains few material facts about the employment of any of the 473 plaintiffs or the circumstances of their suspension or termination. Mr. Galati explained in oral argument that if the claim contained such facts, it would run into the hundreds of pages and would be challenged as unwieldly. That perhaps speaks to the advisability of pleading this as a consolidated claim.
Galati sued on behalf of nearly 500 people. He was required to plead facts about each Plaintiff that would establish a case for everyone. He had to plead facts about all the (alleged) Charter violations for each Plaintiff. A proper suit for so many people would have been several hundred pages in length. Other than naming their specific employers, he provided no detail about any of them.
Instead, it was the Defendants who compiled a 13,000 page, 23 volume Motion Record in preparing their Motion to Strike.
Even if this was a Class Action — which it wasn’t — sufficient facts would still have to be pleaded for every Representative Plaintiff.
Another missing part was particulars. When alleging malice, bad faith, malfeasance, or a host of other torts, they must be spelled out in detail. Procedurally, Defendants cannot be left guessing what the case against them is.
Plaintiff Beth Ann Dick Goes Her Own Way
[146] The plaintiff Beth Ann Dick provides an example of the sorts of considerations at issue here when determining whether leave to amend should be granted. Ms. Dick was initially represented by Mr. Galati. She says that she was not informed about the specific claims that Mr. Galati made on her behalf, did not speak with him, and did not meet him to discuss the individual circumstances of her claim, nor was she aware of the types of legal argument that would be made on her behalf.
[147] She has since retained Mr. R. P. O’Connor who has delivered a more conventional fresh as amended statement of claim. It narrows the claim to solely that of Ms. Dick against her former employer, removes the allegations of Charter breaches, removes outlandish allegations of false pandemics and crimes against humanity, and clearly pleads the necessary facts underlying causes of action in tort, contract, and breach of statute that she advances.
[148] Mr. O’Connor’s proposed amended statement of claim is an example of a pleading that survives a challenge under Rule 21. I grant leave to Ms. Dick to file the amended pleading she proposes.
Beth Ann Dick was a Plaintiff in the original case, but bailed out and retained a real lawyer. Her new counsel, R.P. O’Connor sent in a proposed Amended Statement of Claim that actually pleaded valid Causes of Action. It is (more or less) straight breach of contract.
If other Plaintiffs had been represented by a competent lawyer, things could very well have ended differently for them.
While the non-unionized Plaintiffs were granted Leave to Amend, any who want to will likely need to hire a better lawyer.
Missed Opportunity: Bill Galati For The $190,000 In Costs
While the Plaintiffs were hit with $190,000 in Court costs, this could have ended differently. If Justice Koehnen was serious about lawyers not abusing the Court process with duplicate Claims, he could have ordered Galati himself to pay. Rest assured, such baseless litigation would virtually disappear if lawyers were personally responsible for what they file.
Instead, it’s always the clients who have to pay, regardless of how badly (or how often) their counsel screws up.
And on a final note, Action4Canada eventually submitted their Amended Notice of Civil Claim (NOCC), nearly a year after the Court of Appeal laughed them out of Court. While much shorter, it contains many of the same defects that Justice Ross mentioned, and adds new ones in. Expect another Application to Strike.
