Adam Skelly, Part 2: Swinwood Malpractice Claim

This is the second part on William Adamson Skelly, (a.k.a Adam Skelly). He made national headlines back in 2020, for refusing to capitulate to Doug Ford and Christine Elliott. A restraining order was granted against him in December, but a “come-back Motion” was allowed to go ahead to challenge it in an ad-hoc manner.

For background information on this, see Part 1. It outlines many of the major events that led up to this moment. This is hardly exhaustive of what happened.

Anyhow, his highly anticipated challenge was derailed due to the gross incompetence of then lawyer Michael Swinwood. Despite all of the time, money and effort that had gone into the challenge, it didn’t follow the basics of procedure.

Specifically, the purpose of the come-back Motion was to challenge the December order. Instead, Swinwood filed a Motion for damages, something that wouldn’t have been allowed at this stage anyway. Justice Akbarali ruled that there was no jurisdiction to hear it, but gave permission to refile the papers correctly.

When a litigant wants to make changes to their Notice of Motion, the correct method is to serve an AMENDED Notice of Motion. Instead, a second Notice was issued, and it wasn’t clear which the Court was supposed to consider.

Neither Notice set out that the point of the Motion was to challenge the December order, and any basis for issuing it. That was brought up afterwards. And it’s pretty common knowledge that a Notice has to spell out what is being asked for.

Apparently, there was no Notice placed in the Motion Record (a book of documents), which is a pretty basic oversight.

Despite this being a Motion, Skelly was listed as an Applicant on Court documents. He should have been referred to as a Moving Party. Just because a Notice of Constitutional Question is included, it doesn’t change this reality. Again, this is amateurish.

If damages were sought, then an “originating process” such as a Statement of Claim, or a Notice of Application would have to have been filed. This Motion was not the way to do it. Still Justice Akbarali allowed another attempt to fix things.

However, that never happened. So, what did Skelly do?

He sued his lawyer for negligence and professional malpractice, demanding $200,000. It’s always interesting to hear when such a thing happens. From the Statement of Claim:

22. In late 2020 or early 2021, Mr. Skelly learned about Mr. Swinwood and retained him to pursue a constitutional challenge against the public health measures.

23. Mr. Skelly was under the impression that Mr. Swinwood was not only a reasonably competent lawyer but also one who had significant experience in constitutional and civil matters.

24. Throughout the duration of his retainer, Mr. Swinwood representing Mr. Skelly, acted with complete disregard for the Rules of Civil Procedure and in a manner that can only be described as completely incompetent and negligible.

25. In an Endorsement of the Honourable Justice Myers dated February 26, 2021, His Honour reprimanded Mr. Swinwood for sending an unsolicited letter to Justice Kimmel asking that she remain seized of the matter. Justice Myers highlighted that she was never seized of the matter to begin with and explicitly ordered that “Mr. Swinwood is to comply with Rule 1.09 in any future communication with the Court.”

26. In Her Honour’s Direction dated March 9, 2021, the Honourable Justice Akrabali set out a timetable for the hearing of the constitutional issues raised by Mr. Skelly, with the hearing to take place on June 28 and 29, 2021 (the “June Hearing”).

27. In the Direction, Justice Akrabali made a point to tell Mr. Swinwood to make sure he files his materials with the proper style of cause as the materials he submitted failed to do so. A hearing for the come-back motion contemplated by Justice Kimmel and Mr. Skelly’s constitutional challenge was scheduled for June 28 and 29th, 2021.

31. In her Endorsement dated June 28, 2021, Justice Akrabali pointed out various flaws in the
steps taken by Mr. Swinwood resulting in the court not having the issues properly raised before it
(the “June Endorsement”). These flaws are listed below:
i. Not seeking to vary or set aside the Order of Justice Kimmel based on unconstitutionality in the Notices of Motion making it deficient rendering the proceeding procedurally unfair;
ii. Not properly placing the February Notice of Motion before Her Honour;
iii. Not having the February Notice of Motion initially placed in the respondent’s Motion Record and adding it only after the applicant brought up the issue in an attempt to fix the defect;
iv. The relief in the February Notice of Motion is not based on any Notice of Constitutional Question;
v. Having two Notices of Motion for the same motion instead of amending the document;
vi. Not making it clear to Ontario which Notice of Motion the hearing was to proceed on;
vii. Not giving appropriate notice of the relief sought in the Notice of Motion;
viii. The Notice of Constitutional Question did not raise the issue of setting aside the legislative scheme on the basis of unconstitutionality until its third iteration on June 8, 2021, which was well after the date of cross-examinations and the finalization of the evidentiary record;
ix. Neither Notice of Motion sought an Order setting aside the legislative scheme on the basis of unconstitutionality;
x. Failing to put before Her Honour the Affidavits of Service for Mr. Swinwood’s June 24, 2021, Motion Record; and,
xi. No originating process for the damages or declaration of invalidity sought.

32. At paragraph 44 of Justice Akrabali’s June Endorsement she states the following: “This is not a case where the respondents are self-represented parties. They were represented at the hearing by two counsel, at least one of whom has been practicing for many years. Earlier in the proceedings, when the Notices of Motion were being prepared, the respondents were represented by four counsel. I cannot explain why none of them considered these very basic issues, or if they did, why they did not address the deficiencies in the proceeding which could have been done easily and efficiently in February or March 2021…”

38. In the six months that passed Mr. Skelly obtained new counsel to issue the correct originating process Mr. Swinwood failed to issue and to bring Mr. Skelly’s challenge back for a hearing on the merits.

39. During this time, neither Mr. Skelly nor his new counsel received any correspondence regarding the desire of Ontario to receive the December Costs

It’s hard to imagine that a veteran lawyer could repeatedly make such basic errors unless done intentionally. Not only did Swinwood mess up, he never went ahead with another attempt. He effectively let the case die. Even with the trouble and expense of having 6 expert witnesses, Swinwood didn’t try again.

The Notice of Constitutional Question (all iterations of it) were also very poorly written. Instead of briefly outlining the issues, Swinwood appears to try to turn it into a Factum and make full arguments. 27+ pages was excessive.

All sorts of theories were floated, including that Swinwood had been bribed and/or threatened. However, without proof, those are just theories.

To date, there has been no activity in this malpractice suit other than the Claim itself being issued.

Now, there is a new Application scheduled to go ahead in October 2024. The 1st, 2nd and 7th are set aside for it. The Concerned Constituents of Canada, or CCOC, is putting that together. Mootness may be an issue — or at least the Province will argue it — given how much time has passed, but we’ll have to see. The R.O.A. hasn’t been formally rescinded.

(1) Skelly – Restraining Order Deferred Matter
(2) Skelly – Restraining Order Decision, December 2020
(3) Skelly – Criminal Court Limits What He Can Post Online
(4) Skelly – Judge Lacks Jurisdiction To Hear Case, June 2021
(5) Skelly – Costs Of $15,000 Ordered For Failed Motion
(6) Skelly – Costs From 2020 Kimmel Decision, Previously Deferred
(7) Skelly – Motion For Security For Costs Decision, September 2023

(1) Skelly – Application Record Restraining Order (Michael Swinwood)
(2) Skelly – Notice of Constitutional Question (February)
(3) Skelly – Amended Notice Of Constitutional Question (June)
(4) Skelly – Book of Transcripts – Respondents (Applicants)
(5) Skelly – Book of Transcripts – Respondent on Motion – HMTQ
(6) Skelly – 2021 Motion Factum
(7) Skelly – 2021 Motion Amended Factum – Respondents (Applicants)
(8) Skelly – 2021 Motion Responding Factum
(9) Skelly – 2021 Motion Reply Factum

(1) Skelly – RBC Default Judgement Order

(1) Skelly – Swinwood Malpractice Statement Of Claim

(1) Skelly – Notice Of Application (Ian Perry)
(2) Skelly – Costs – Notice of Motion – Moving Party (Respondent) HMTK
(3) Skelly – Costs – Motion Record-Moving Party (Respondent)
(4) Skelly – Costs – Applicant Responding Motion Record Security For Costs
(5) Skelly – Costs – Factum – Moving Party – HMK
(6) Skelly – Costs – Responding Factum Applicants Skelly et al

(1A) Skelly – Byram Bridle Resume
(1B) Skelly – Byram Bridle Expert Report
(1C) Skelly – Byram Bridle Expert Reply Report

(2A) Skelly – Douglas Allen Resume
(2B) Skelly – Douglas Allen Expert Report
(2C) Skelly – Douglas Allen Expert Report

(3A) Skelly – Gilbert Berdine Resume
(3B) Skelly – Gilbert Berdine Expert Report
(3C) Skelly – Gilbert Berdine Expert Reply Report

(4A) Skelly – Harvey Risch Affidavit
(4B) Skelly – Harvey Risch Expert Report

(5A) Skelly – Joel Kettner Resume
(5B) Skelly – Joel Kettner Expert Report
(5C) Skelly – Joel Kettner Expert Reply Report

(6A) Skelly – William Briggs Resume
(6B) Skelly – William Briggs Expert Report
(6C) Skelly – William Briggs Expert Reply Report

Egale Canada, Registered Charity Getting Public Money

This is a follow up on Egale Canada. For the earlier critique of their work, see this piece. This time, we get a bit heavier into the financial side of things, and see how big things really are. Remember, your tax dollars are helping to finance this, regardless of personal views.

As an aside, Egale received $513,801 from CEWS, the Canada Emergency Wage Subsidy, back in 2020. It got another $35,779 in 2021. Interesting priorities.

From its publicly available filings, it’s clear that after 2012, Canadian taxpayers are financing this organization to a great degree. And that doesn’t even factor in the rebates that private donors receive from Revenue Canada.

2006 $40,123 $2,507 $37,616 6.2 % $15,193
2007 $24,644 $0 $24,644 0.0 % $18,777
2008 $53,154 $6,578 $46,576 12.4 % $61,661
2009 $106,471 $0 $106,471 0.0 % $104,518
2010 $259,365 $0 $259,365 0.0 % $209,962
2011 $464,975 $0 $464,975 0.0 % $408,782
2012 $707,761 $345,963 $361,798 48.9% $690,912
2013 $1,801,607 $1,290,184 $511,423 71.6 % $1,808,589
2014 $1,704,083 $910,500 $793,583 46.6 % $1,728,727
2015 $2,014,901 $887,075 $1,127,826 44.0 % $2,013,484
2016 $2,798,237 $1,154,301 $1,643,936 41.3 % $2,311,837
2017 $3,851,872 $1,132,350 $2,719,522 29.4 % $3,578,714
2018 $3,704,557 $3,524,832 $179,725 95.1 % $3,916,554
2019 $4,095,433 $3,831,557 $263,876 93.6 % $4,043,359
2020 $2,833,582 $2,637,412 $196,170 93.1 % $2,754,446
2021 $3,635,394 $1,891,479 $1,743,915 52.0 % $3,595,380
2022 $4,763,496 $3,163,263 $1,600193 66.4 % $4,615,041

There are some discrepancies with the data copied from the C.R.A. website, as it appears that not all of the same categories are listed in the “short version”. Notably, CEWS isn’t included. The categories also aren’t consistent across the years, so we’ll do our best.

Note: the form for 2007 is incomplete. However, the assets listed in 2006 were totaled at $50,783. In 2007, it was given at $56,650. From that, we will assume that the change will be the difference in revenue and expenses for that year.

Equity (worth) = assets – liabilities
$56,650 – $50,783 = new revenue – $18,777
From this, assume 2007 revenue was ~ $24,644

For the years 2018 and 2019, the itemized lists lump various Government and private funding grants together, in terms of the source. However, the overall totals are the same.

Egale is raising in revenue about 100 times that rate it did less than 20 years ago. In fairness, increases in Government (or taxpayer) money has helped a lot. Assuming these records are fairly accurate, this organization has certainly been growing.

Although it would be nice to blame this on Trudeau, the growth long predates him. And the majority of Government funding appears to have been from Ontario (which is Provincial) anyway.

While Government funding costs a straight 100%, donations from private groups and individuals aren’t free either. Specifically, they are eligible for rebates from the C.R.A. of around 40 to 45 cents on the dollar.

Considering the kinds of causes that Egale takes on, is this a prudent use of public money?

(2) Egale 2006 Tax Information Redacted
(3) Egale 2007 Tax Information Redacted
(4) Egale 2008 Tax Information Redacted
(5) Egale 2009 Tax Information Redacted
(6) Egale 2010 Tax Information Redacted
(7) Egale 2011 Tax Information Redacted
(8) Egale 2012 Tax Information Redacted
(9) Egale 2013 Tax Information Redacted
(10) Egale 2014 Tax Information Redacted
(11) Egale 2015 Tax Information Redacted
(12) Egale 2016 Tax Information Redacted
(13) Egale 2017 Tax Information Redacted
(14) Egale 2018 Tax Information Redacted
(15) Egale 2019 Tax Information Redacted
(16) Egale 2020 Tax Information Redacted
(17) Egale 2021 Tax Information Redacted
(18) Egale 2022 Tax Information Redacted

PARLIAMENTARY TESTIMONY, BILL C-22: (Raising Age Of Consent From 14 To 16)
(5) Egale Canada Opposes Raising Age Of Consent

PARLIAMENTARY TESTIMONY, BILL C-75: (Reduced Penalties For Child Sex Crimes)
(5) Egale Canada Human Rights Trust Bill C-75


HIV NON-DISCLOSURE: (Hiding Positive Status From Partners)

ONLINE HATE: (Censorship)






Action4Canada Case Remains In 2024 LSBC Professional Legal Training Course

The Law Society of British Columbia (LSBC) has released the 2024 edition of their Professional Legal Training Course (PLTC). The infamous Action4Canada suit, led by “Mr. Bad Beyond Argument”, makes another appearance. The Notice of Civil Claim, NOCC, had been struck in its entirety. This was in the 2023, and was kept in this edition as an “educational exercise”.

Instead of rewriting the NOCC, as was permitted, the case was appealed. Recently, the B.C. Court of Appeal laughed Action4Canada out of there, stating they didn’t understand what was being challenged.

For more background information, here’s the earlier piece. In short, the LSBC is responsible for licensing lawyers (both new and old) in this Province. One of the requirements is that prospective lawyers — articling students — demonstrate a minimum competency in the law.

There are reasons for doing this. It’s in the public’s benefit that members of a “regulated profession” prove themselves to be intelligent and competent in their field. It hurts clients when they retain lawyers or paralegals who have no clue what’s going on. It also can clog the Courts when countless Appeals are launched on the basis of “ineffective assistance of counsel”.

Here’s a brief timeline of events in the Action4Canada case

(1) Despite fundraising since the Summer of 2020, nothing was actually filed until August 2021, nearly a year later. What finally came was a 391 page convoluted mess.

(2) August 2021: This critique was published. It quoted Rules 3-1, 3-7 and 9-5 of Civil Procedure for British Columbia. In short, it failed to meet even the basic requirements of a pleading. The site was sued a week later over it, after it allegedly caused donations to plummet.

(3) October 2021: The Defendants start issuing responses to the 391 page Claim.

(4) January 2022: Defendants being filing Applications to Strike the Claim, given how incoherent it is, and impossible to follow. This wasn’t a determination on the merits, just the quality of the writing. The reasons cited include many that the Canuck Law article had published.

(5) May 2022: The Application to Strike is finally heard. It’s worth hearing what it was about. The Claim was so long, confusing and convoluted, that it was impossible to respond to it in any meaningful way.

(6) August 2022: The Claim was struck as “bad beyond argument”. It was officially struck for being prolix and confusing, although many errors were outlined. However, Justice Ross did allow it to be rewritten, saying there was a prospect that a valid Claim could be filed.

(7) September 2022: Even though the decision was a humiliation, Gaw took to the alternative media to proclaim that it was “really a win”, and that Justice Ross had accepted the case as valid. This was a gross distortion of reality.

(8) September 2022: Instead of simply rewriting an amended Notice of Civil Claim, the case was appealed. No real explanation of that was ever given.

(9) February 2023: The Law Society of British Columbia includes the Action4Canada pleading in their Professional Legal Training Course (PLTC). This is one of the courses that prospective lawyers are required to take before letting licensed. This case is actually used as a teaching exercise in how not to draft documents.

(10) February 2023: The Federal (Adelberg) case is struck as “bad beyond argument”. Justice Fothergill references the Action4Canada case, and concludes it has many of the same defects.

(11) October 2023: No serious attempt had been made to book the actual hearing, which is why the Appeal became classified as “inactive”. If the date isn’t booked within 12 months after filing the Notice of Appeal, this is done automatically.

(12) October 2023: Just days after bring criticized for the lack of a hearing, A4C books the date for February. It seems that public scrutiny forced them to move ahead. Perhaps the goal was to just let the Appeal get thrown out as “abandoned”.

(13) February 2024: The LSBC posts their latest edition of the Professional Legal Training Course (PLTC), and the Action4Canada case is still in it. The overall text has been updated (from 140 pages to 147), but the editors still thought it was worth keeping in.

(14) February 2024: The Action4Canada Appeal is heard, and promptly dismissed.

(15) February 2024: Despite being laughed out of the Court of Appeal, Action4Canada insists that it was really a win, and that things are moving along.

On their website, Action4Canada called it a victory, being able to rewrite the NOCC. It didn’t seem to matter that the Claim had been struck in its entirety.

The Appeal was also thrown out, which was called a “successful outcome”.

This is some pretty delusional stuff.

What does the Professional Legal Training Course say about this?

If pleadings are inadequate the matter will typically not get as far as trial. In a recent example of wholly inadequate pleadings, the plaintiff filed a 391-page notice of civil claim that was struck (see §2.06(3) below on striking pleadings) as being “prolix” and “bad beyond argument.” In Action4Canada v. British Columbia (Attorney General), 2022 BCSC 1507, the plaintiffs sued a host of politicians and crown corporations over pandemic-related measures they said were not based in science, exceeded the defendants’ authority, and breached Charter rights. The notice of civil claim was struck in its entirety. The judge said (at para. 51) it is counsel’s job to draft pleadings that do not offend the Rules. The judge also said the claim was too prolix for the defendants to be able to respond, and it was not the court’s job to interpret the claim:

To put those points another way, I have indicated above that the prolix nature of the NOCC makes it impossible for the defendants to respond to it. For the same reason, I am not able to parse the 391 pages of the improperly drafted NOCC and indicate whether paragraphs, categories or claims should remain in, or should be struck. That is not the proper role of this court. It is counsel’s obligation to draft pleadings that do not offend the mandatory requirements of the Rules.

On those few pages, starting at #15, the Law Society not only roasts Action4Canada, but goes on to explain how pleadings should be drafted. Again, this is written for articling students working towards a license. It’s not designed for 30+ year veterans of the profession.

Bonnie Henry, John Horgan, David Eby, Adrian Dix, and all the others are not scared by this lawsuit. In fact, if any of them are aware of it, they’re probably having a good laugh. How could anyone be gullible enough to donate, or to be a client?

5. Pleading the Facts
Plead a “concise statement of the material facts giving rise to the claim”: SCCR 3-1(2)(a).

The “material facts” are those facts that are essential to forming a complete cause of action or defence, as the case may be: Young v. Borzoni, 2007 BCCA 16 at para. 20. The evidence that tends to prove those facts should not be pleaded (SCCR3-7(1)). Suppose the issue is whether X has authority to make a certain contract on behalf of the defendant. It is sufficient for the plaintiff to plead that “the defendant employed X as agent to make the contract on his behalf” or that “the defendant held out X as having authority to make the contract on his behalf.” It will be unnecessary and improper to plead that “X has been employed by the defendant for many years to execute contracts of this type on his behalf” or that “the defendant informed the plaintiff that X was the defendant’s agent.”

The material facts part of the pleadings should not include matters of law. However, if a particular statute is relied upon as the foundation of a claim or defence, you must plead the facts necessary to bring the case within the statute.

When pleading the material facts, be clear and brief. There should be no ambiguity in the allegations. Set out each separate allegation of fact in a separate paragraph, so that the defence, in responding to the pleading, will admit or deny each fact separately. The danger in combining facts in a larger paragraph is that defence counsel, in seeking to deny any part of that paragraph, would deny it all. That would put plaintiff’s counsel to the burden of proving facts that might not really be in dispute.

In drafting allegations of fact, avoid colouring them, as that might force the other side to deny what would otherwise be basic facts. For example, in a motor vehicle action, it is good practice for the plaintiff’s counsel to set out the fact of a collision (which likely will be admitted) and then in a separate paragraph set out the allegations of negligence of the defendant (which will be denied). Avoid, for example, combining the facts and allegations of lawful right or fault. If the pleadings state, for example, that the plaintiff was “driving in a lawful manner south on Granville Street,” then defence counsel will deny the entire allegation.

When drafting pleadings, it is often helpful to refer to a precedent as a guideline. However, never follow a precedent blindly. You should know what context it was created for, and how you should adapt or modify it. For example, some plaintiffs’ counsel make it their practice to allege in every case that the defendant driver’s ability to drive was impaired by alcohol or a drug. If the plaintiff is a passenger in the defendant’s motor vehicle, such a pleading opens the door to the defence to plead that the plaintiff was contributory negligent or accepted the risk of riding with an impaired driver. Furthermore, if the defendant was impaired, that fact might affect their insurance coverage. You should consider precedents carefully and modify them as needed.

6. Pleading the Relief Sought
The plaintiff must set out the relief sought against each named defendant: SCCR 3-1(2)(b). Tell the court what your client wants: for example, an injunction, a declaration, or damages.

Consider carefully any declarations you may be able to obtain from the court. When a court makes a declaration, it “declares” what the law or a fact is. It is not making an order. Declarations can establish a party’s standing and legal rights, which can significantly determine the outcome of a proceeding.

Having a role in this book both in 2023 and 2024 is hardly something to be proud of. This is an educational book for articling students, who haven’t even passed the bar. It’s not just the the NOCC was bad, it’s that the LSBC thinks it’s worth using as an example.

The Action4Canada case could have been so much better if this section had been observed when drafting the NOCC.

  • There should have been short, concise paragraphs, each alleging a single fact. Instead, many paragraphs were between a half and full page each, containing many unrelated allegations. This made it simpler for Defendants to simply deny everything.
  • By not having clear and concise facts — many of which may have been admitted — the Plaintiffs would now be put through the time and expense of having to prove everything.
  • The allegations weren’t clear and ambiguous at all. The who, what, where, when, why and how were typically missing, or contained in hundreds of footnotes.
  • Counsel didn’t make the allegations plain and neutral. There were all kinds of inflammatory accusations thrown in, but without the specific detail to back them up.
  • Legal arguments should not be made within the facts being pleaded. While it’s true that enough facts have to be alleged to support the law being cited, this is not the place for argument.
  • It wasn’t clear what relief was sought. That section was 45 pages, and very repetitive.
  • Despite being 45 pages, it wasn’t clear which Defendants were being asked to pay what money to which Plaintiffs. People should not be left guessing.

Will Action4Canada Appeal be in the 2025 edition?

The PLTC doesn’t really get into Appeals in great detail. However, there are 2 parts about the A4C Appeal that make it a good contender for another honourable mention.

(1) Page 101 addresses in a fair amount of detail the concept of costs. These are to partially compensate successful parties. They’re also almost entirely discretionary, and an Appellate Court will typically not interfere with them.

(2) Page 99 does briefly address some of the principles in appealing. It’s possible that the LSBC will find it necessary to explain the difference between “orders” and “reasons”. Hopefully, this means that other lawyers don’t waste time filing frivolous Appeals.

Once again, these books are aimed at aspiring lawyers, not established veterans with decades of experience.

It’s comical that at least 2 defamation lawsuits were filed for criticizing the quality of such work. The people responsible for those also make far worse accusations about being “paid agitators”. Will any more of these cases follow?

(3) LSBC Civil Instruction Manual 2023
(4) LSBC Civil Instruction Manual 2024

(1) A4C Notice Of Appeal September 28 2022
(2) A4C Appeal – Notice Of Appearance – VIHA
(3) A4C Appeal – Notice Of Appearance – BC Defendants
(4) A4C Appeal – Notice Of Appearance – Attorney General of Canada
(5) A4C Appeal – Notice Of Appearance – Peter Kwok, Translink
(6) A4C Appeal – Notice Of Appearance – BC Ferries, Brittney Sylvester
(7) A4C Appeal – Appeal Book – Appellant
(8) A4C Appeal – Appeal Book – Respondent VIH And PHC
(9) A4C Appeal – Appeal Record – Stand Alone Respondents VIHA
(10) A4C Appeal – Appeal Record – Stand Alone
(11) A4C Appeal – Factum – Appellant
(12) A4C Appeal – Factum – Respondent Attorney General Of Canada
(13) A4C Appeal – Factum – Respondent BC Ferries and Brittney Sylvester
(14) A4C Appeal – Factum – Respondent HMK -Provincial Defendants
(15) A4C Appeal – Factum – Respondent Peter Kwok and Translink
(16) A4C Appeal – Factum – Respondent VIHA and Providence Health
(17) A4C Appeal – Consent Order – Factum, Time Limits
(18) A4C Appeal – Change In Representation – BC Defendants
(19) A4C Appeal – Notice Of Hearing February 2024
(20) CanLII Decision In Action4Canada Appeal

(1) A4C BCSC – Notice Of Civil Claim
(2) A4C BCSC – Response to Civil Claim (Health Authority Defendants)
(3) A4C BCSC – Response to Civil Claim (Provincial Defendants)
(4) A4C BCSC – Affidavit No 1 of Rebecca Hill
(5) A4C BCSC – Notice of Application (AG and RCMP applies to strike)
(6) A4C BCSC – Notice of Application (Provincial Defendants applies to strike)
(7) A4C BCSC – Notice of Application (Translink applies to strike)
(8) A4C BCSC – Application Response (Health Authority Defendants consent to strike)
(9) A4C BCSC – Application Response (BC Ferries consents to strike)
(10) A4C BCSC – Application Response (AG and RCMP consent to Prov. strike application)
(11) A4C BCSC – Application Response (Translink consents to HA Defendants strike application)
(12) A4C BCSC – Application Response (Translink consents to Prov. strike application)
(13) A4C BCSC – Affidavit No 2 of Rebecca Hill
(14) A4C BCSC – Application Record (to strike)
(15) A4C BCSC – Application Response (all plaintiffs)
(16) A4C BCSC – Amended Application Response (all plaintiffs)
(17) A4C BCSC – Transcript Application To Strike
(18) A4C BCSC – Reasons For Striking NOCC In Its Entirety
(19) A4C BCSC – Order striking pleadings
(20) A4C BCSC – Order striking pleading in its entirety with costs payable forthwith
(21) A4C BCSC – Appointment to assess bill of costs for Kwok and Translink
(22) A4C BCSC – Notice of Discontinuance (Kimberly Woolman & Estate of Jaqueline Woolman)
(23) A4C BCSC – Notice of Discontinuance (Amy Muranetz)
(24) A4C BCSC – Notice of Discontinuance (Federico Fuoco & Fire Productions Ltd.)


Second Anti-SLAPP Motion Commenced In University Of Guelph Lawsuit

Wednesday, February 28th, 2024, Byram Bridle, the high profile professor from the University of Guelph, was back in Court. This was a short hearing to set down another anti-SLAPP Motion to dismiss his December 2022 lawsuit.

Guelph has previously filed a Statement of Defence, on behalf of all their Defendants. But now, their lawyer, Lynn Turnbell, is asking that the case be thrown out altogether. Their stated reason is that the contents of the Claim are covered under Section 137.1 of the Courts of Justice Act, which is the anti-SLAPP provision.

Guelph further states that the subject matter should be tossed for a lack of jurisdiction. Bridle is a university employee, as are most Defendants. It’s argued that the matter should have gone to arbitration instead of litigation. And they’re not wrong.

The initial anti-SLAPP Motion was filed by Kate Costin, the lawyer for David Fisman. Yes, it’s that David Fisman. It’s unclear why his content (Twitter related) is being connected to this. That will be heard on November 19th, 2024.

Counsel for Bridle requested that everything be moved back to 2025. He stated that he will be taking his annual 2 month vacation to Turkey — for medical reasons.

However, Justice Dow refused that request. The Fisman anti-SLAPP Motion will still be heard in November 2024, and the Guelph Motion is now booked for October 16th, 2025.

University of Guelph Faculty covered by collective agreements

The University of Guelph publicly posts their collective bargaining agreements, which include ones with faculty members. This particular one took only seconds to find.

Article 40 of the agreement, beginning on page 131, makes it clear the steps that are to be taken in the event of a serious problem within the university.

  • Informal resolution
  • Formal grievance
  • Arbitration

This wasn’t difficult to find. Not only does Bridle presumably have a copy of this document, but it’s publicly available on the school’s website.

True, there may be the power of a Court to review the findings of an Arbitrator, depending on the rules that are set out. This would be analogous to filing an Appeal. However, what happened here was suing in Court instead of going to arbitration. These are not the same thing.

40.1 The Parties agree to attempt to resolve disputes arising from this Agreement amicably and promptly.

40.2 In order to ensure that Grievances of Members are remedied in a reasonable, just, and equitable manner, the University and the Association mutually agree that the procedure for submitting and dealing with Grievances shall be as indicated in the remainder of this Article.

Informal Resolution
40.9 The University and the Association mutually agree that it is the desire of the Parties that differences in the interpretation, application, administration, and alleged violations of this Agreement shall be dealt with as quickly as is reasonably possible. If a Member has a complaint or dispute that may give rise to a Grievance, they and/or an Association designate shall first discuss the matter at a meeting arranged for this purpose with the Dean, University Librarian, or, in the case of Veterinarians, Director, or designate, within twenty (20) days after the Member would reasonably be expected to have become aware of the circumstances giving rise to the complaint or dispute.

40.11 Failing informal resolution of the complaint or dispute and within ten (10) days following receipt of notification of the proposed resolution under the informal process, the Association has the right to present the written Formal Grievance to the Provost, or designate, pursuant to this Article.

Formal Grievance Procedure
40.14 Following receipt of a Formal Grievance, the Provost, or designate shall convene a meeting within ten (10) days with the Member and/or the Association designate. With reasonable notice to the other Party prior to the meeting, either Party may have others attend who have information relevant to the specific Grievance. The Provost (or designate) shall reply in writing within fifteen (15) days of that meeting.

40.19 Failing resolution of a Grievance, the University or the Association will provide notification that a matter shall be submitted to Arbitration. Such notification must be made in writing and addressed to the other party within fifteen (15) days of the date of receipt of the Formal Grievance decision.

40.22 The decision of the Arbitrator shall be final and binding upon the Parties.

40.23 All arbitration expenses, including the remuneration of the Arbitrator, shall be shared equally by both Parties, subject to the award of costs by the Arbitrator as part of the remedy.

Looking at Article 40.22, it seems that the Arbitrator’s ruling is meant to be final. There’s no obvious way to challenge it further, unless the process is demonstrated to be corrupted. Since no arbitration took place, that would be difficult to prove.

The process outlined is pretty straightforward: (a) informal resolution; (b) formal grievance; and (c) arbitration, if needed. There’s no mention whatsoever about having an option to pursue litigation. This is typical in unionized and Government workplaces.

But according to the Statement of Claim, that’s not what happened.

After the grievance process went against Bridle, he didn’t pursue arbitration. Instead, he sued everyone involved. This included Nick Duley, and outside HR consultant, who was hired for an investigation. Also named is Laurie Arnott, Vice President of Faculty Relations. It’s alleged that there’s a grand conspiracy against him.

Paragraph 100, it’s stated that Guelph refused to investigate online harassment that happened outside of school grounds. It fell outside the scope of the collective bargaining agreement, and hence, no ability to do anything. This comes across as reasonable.

Paragraph 136 of the Claim says that Bridle refused to participate in Duley’s investigation, calling it a “kangaroo court”. Duley is referred to as a “hired gun”. That won’t sit well without proof.

The content in the Claim comes across as being so over the top, it’s difficult to determine what’s factual, and what’s overblown.

Now, it’s possible that the Court may find that the grievance process was corrupted and unworkable, but that’s for the Plaintiff to establish. This is sometimes referred to as “residual jurisdiction”. While a major conspiracy is alleged, it seems that it would be very difficult to prove.

Contending with the anti-SLAPP Motions

Fisman appears to have nothing to do with the University of Guelph, so including him in this case seems unproductive. Even if he did interact with some of the online content, he’s not involved in essentially what is a workplace dispute at Guelph. Considering how hard it is to prove defamation, and to get damages, this will be a tough sell in November.

The Kulvinder Gill/Ashinder Lamba, Boraks and CSASPP cases are also good examples of how much bad lawyering can impact clients.

Gill v. Maciver, 2022 ONSC 1279
Gill v. Maciver, 2022 ONSC 6169
Gill v. Maciver, 2023 ONCA 776
Boraks v. Hussen, 2023 ONSC 4294
Boraks v. Hussen, 2023 ONSC 6420
Galati v. Toews et al, 2023 ONSC 7508
Galati v. Toews et al, 2024 ONSC 935

There’s also this gem from March 2021, with a Motion scheduled for this Fall.

The trend in recent years is to implement mechanisms designed to screen out cases as abusive. For defamation type cases, these are called anti-SLAPP laws. SLAPP is of course an acronym for a strategic lawsuit against public participation.

Again, it’s hard to tell from this Statement of Claim what’s real, and what’s hype and distortion. Hopefully, more will come out in the pending Motions.

To survive an anti-SLAPP Motion, the Plaintiff is required to prove at least some of the damages. This means submitting Affidavit evidence, and being cross examined on it. The Plaintiff must also establish that there are no reasonable defences that could be relied upon. Will this happen?

How will all of this end?

It’s possible that there will be a negotiated settlement to discontinue the case entirely. Although s.137.1(5) “stays” the case, the parties can always agree to drop it. This sort of thing has happened many times before.

If not, it’s going to be very expensive for Bridle. He’s facing full indemnity (100% of costs) on 2 separate anti-SLAPP Motions. This could set him back $100,000 or more. Courts tend to be very harsh to Plaintiffs who bring lawsuits to silence public speech improperly.

An open question is why this case was even brought. Even a quick read through the collective bargaining agreement would have indicated that this was not the path to take. Should the Guelph Motion not succeed under anti-SLAPP provisions, it will likely still get dismissed due to lack of jurisdiction.

Reading through the Claim, it looks as though large parts of this are simply cut and pasted from earlier lawsuits. The same sorts of allegations come up over and over again. This isn’t original content.

It appears that Bridle was poorly advised both in employment law, and defamation law.


Bill C-63 (Online Harms Act): Who’s Really Pushing This Agenda?

Bill C-63, the Online Harms Act, has been introduced in Parliament by Arif Virani, the Justice Minister. First Reading happened on February 26th, 2024. There’s a lot of it to go through

To begin with, there are actually some worthwhile provisions in the Bill, such as the mandatory reporting of child pornography. No sensible reason would reject that. And there are instances where being able to quickly remove certain content would be in the best interests of society.

Ottawa gives its own summary of the Bill.

However, Bill C-63 seems to blend together straightforward and legitimate issues with ones that are much more vague and impractical. Consequently, it’s harder to simply accept or reject.

There’s also the question of who has been influencing the drafting of this content. That will be addressed a bit later.

The Bill would create a Digital Safety Office of Canada, and an Ombudsman to oversee it. In essence, it would add a new layer of bureaucracy to specifically monitor “digital safety”.

Content that foments hatred is “defined” in this Bill, but is still vague. Additionally, it seeks to be able to attribute specific motivations to expression. What may be valid discourse to some will be considered hate speech to others.

There is a disclaimer that this wouldn’t apply to content solely because it expresses “disdain or dislike or it discredits, humiliates, hurts or offends”. Sounds great, but that also is subjective as well, depending on the views of whoever is interpreting it.

Harmful content in fact lists 7 different categories, and all of them at least somewhat open to interpretation. What can easily happen is that these new laws will be selectively applied, depending on the politics of the people involved.

The Bill would create a new section of the Criminal Code. This is one which a person could lay an information on another, and with the Attorney General’s consent, it could be brought before a Judge. If ordered by that Judge a person may be forced to enter into a recognizance, if a Judge is convinced that hate crime may be committed.

Fear of hate propaganda offence or hate crime
810.‍012 (1) A person may, with the Attorney General’s consent, lay an information before a provincial court judge if the person fears on reasonable grounds that another person will commit
(a) an offence under section 318 or any of subsections 319(1) to (2.‍1); or
(b) an offence under section 320.‍1001.

A person could be forced into this recognizance for up to 2 years, or would face 12 months in prison if they refuse. This is similar to being out on bail or on a peace bond, but with no actual crime committed.

Terms of the “recognizance” could include:

(a) Wearing an electronic monitoring device
(b) Return to and remain at their place of residence at specified times, a.k.a. a curfew
(c) Abstaining from drugs and alcohol
(d) Submitting to drug and alcohol testing
(e) No contact orders
(f) Weapons prohibitions

The topper on this one is that a Judge isn’t required to give reasons for this, but is supposed to say why written reasons aren’t included. Again, this is for when some is suspected that they may commit a crime. No actual charges are necessary.

Other changes to the Criminal Code involve Section 318 and 319, which raise the potential imprisonment for incitement to hatred from 2 years to 5 years.

Advocating genocide will also expose a person to a potential life sentence.

The Canadian Human Rights Act would also be amended to include “communication of hate speech”, which is defined as: to communicate or cause to be communicated hate speech by means of the Internet or any other means of telecommunication in a context in which the hate speech is likely to foment detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination.

But it also is poorly defined, which will likely lead to it being applied in an uneven manner, depending on the politics of those involved.

Section 140 of the Online Harms Act is the “Regulations” part. This is where unnamed and unelected bureaucrats are able to change or interpret provisions of the legislation without any real oversight. Nearly all Acts have such a backdoor, which allows changes to be done behind the scenes.

There is more to Bill C-63, but those are some of the major points.

Now, where did this come from?

Lobbying is a reality in politics. Special interests groups lobby money to get certain agendas pushed, and to get money for their causes. This is hardly news. Searching the Federal Lobbyist Registry, the following names come up:

  • Centre for Israel and Jewish Affairs (CIJA)
  • National Council of Canadian Muslims (NCCM)
  • Women’s Legal Education & Action Fund (LEAF)
  • YWCA Canada
  • Friends of Canadian Broadcasting

Are there others involved in this? Probably, but these are the names that come up, which appear to be relevant to regulating speech and expression.

The Centre for Israel and Jewish Affairs, CIJA, has been prolific in lobbying Ottawa for changes to the Human Rights Act, and to the Criminal Code. This group has pushed for stricter definitions around so-called hate crimes and antisemitism. Their recent efforts include making Holocaust denial punishable by prison time, and removing religious protections. See here and here.

The National Council of Canadian Muslims, NCCM, specifically lists Section 13 of the Canadian Rights Act. They want laws against Islamophobia, and condemn “white supremacy”. Other efforts include anti-racism initiatives, such as Diversity, Equity and Inclusion.

Women’s Legal Education & Action Fund, LEAF, had pressured Ottawa to take action against online harassment and gendered violence. The recent lobbying specifically relates to new technologies used to do this.

YWCA Canada supports regulations against online hate, which is taken from a feminist and “gendered violence” perspective.

Friends of Canadian Broadcasting is a bit of an outlier. It wants more financial support for smaller, independent media, while opposing the funding of the CBC. It also pushes for regulations around online hate. Presumably, this would lead to many (much smaller) anti-racist outlets.

And to search online hate more generally, click on this link.

While it’s always important to read upcoming legislation, this piece often gets left out. The groups pushing for changes need to be considered as well. This is especially true if our interests don’t align.


Private Member Bills In Current Session:
(A) Bill C-206: Decriminalizing Self Maiming To Avoid Military Service
(B) Bill C-207: Creating The “Right” To Affordable Housing
(C) Bill C-219: Creating Environmental Bill Of Rights
(D) Bill C-226: Creating A Strategy For Environmental Racism/Justice
(E) Bill C-229: Banning Symbols Of Hate, Without Defining Them
(F) Bill C-235: Building Of A Green Economy In The Prairies
(G) Bill C-245: Entrenching Climate Change Into Canada Infrastructure Bank
(H) Bill C-250: Imposing Prison Time For Holocaust Denial
(I) Bill C-261: Red Flag Laws For “Hate Speech”
(J) Bill C-293: Domestic Implementation Of Int’l Pandemic Treaty
(K) Bill C-312: Development Of National Renewable Energy Strategy
(L) Bill C-315: Amending CPPIB Act Over “Human, Labour, Environmental Rights”
(M) Bill C-367: Removing Religious Exemptions Protecting Against Antisemitism
(N) Bill S-215: Protecting Financial Stability Of Post-Secondary Institutions
(O) Bill S-243: Climate Related Finance Act, Banking Acts
(P) Bill S-248: Removing Final Consent For Euthanasia
(Q) Bill S-257: Protecting Political Belief Or Activity As Human Rights

Parliament Revisiting Amendments For Sweeping Bans On Rifles And Shotguns

Hearings are ongoing in Parliament over another gun grab, but first, some backstory:

Bill C-21 was reintroduced in November 2021. To a large extent, it was a rehash of its predecessor (also called Bill C-21), which died when the 2021 Federal election was called.

The new iteration of Bill C-21 would still create red-flag and yellow-flag laws, among other restrictions. It would go further, and ban transfers and sales of handguns outright.

Apparently, the Federal Government didn’t want to wait for Bill C-21 to pass, or take the chance it wouldn’t, so handgun transfers were banned by regulatory change back in October 2022. This was O.I.C. 2022-1144.

Keep in mind, this wasn’t the first gun grab in recent history. O.I.C. 2020-0298 banned over 1,500 models of firearms on May 1, 2020. That was done without any debate, nor regard to logic or consistency as to which types would qualify. It’s currently being challenged in Federal Court.

But this Bill didn’t go far enough. In late 2022, amendments to Bill C-21 were added on, without any real debate as they were done at the conclusion of Parliament’s hearings. From the Manitoba Lodges & Outfitters Association:

Amendment G-4 would change physical requirements of non-prohibited guns so that many more would qualify, including:

  • Projectiles (bullets) discharged with 10,000 Joules of energy or more
  • Bores with a diameter of 20 mm or greater
  • Rifles/shotguns capable of accepting magazines greater than 5 bullets, regardless of what the firearms were actually designed for

Amendment G-46 would have converted many more specific models of rifles and shotguns into “prohibited weapons”, meaning that they could never be sold or transferred again.

This didn’t sit well with the public. Both the wide range of models, and underhanded nature of doing this last minute seemed to circumvent the legislative process.

The amendments were dropped — at least for the time being — but the story doesn’t end there.

A group of 7 members of that Committee requested wanted to rehear witnesses over the G-4 amendments. The Committee sat on December 13, 2022.

Now we get to the current state of affairs.

Hearings continued in February and March of 2023. If the Government had wanted these changes, then they should have been debated in the Fall of 2022.

As of the time of writing this, no decision has been made about the fate of the G-4 and G-46 amendments.

Even if the amendments were to be reinstated, there is no guarantee that Bill C-21 would pass Third Reading in the House of Commons. This is especially true given recent election speculation. Beyond that, no one knows for sure what would happen in the Senate.

To restate the obvious: none of this does anything to prevent gun crime, which politicians constantly rail against. It just makes it harder for people to legally own firearms, and maybe disarmament is the goal.