Often, defamation lawsuits demand million dollar judgements, though not always.
Plaintiffs can also ask for much less. A broadcast from July 2023 has resulted in a $35,000 lawsuit from Jeremy MacKenzie in Toronto Small Claims Court. That’s the most allowed in Ontario.
Specifically, MacKenzie is suing: (a) Ezra Levant personally; (b) Rebel Media Holdings Inc.; and (c) Rebel News Network Ltd.
Worth noting, Small Claims Courts in general are a very simplified way of resolving disputes over small amounts of money. Cost awards are typically capped as well.This can be a welcome relief to the amount of paperwork that happens in Superior Court cases. The typical steps are involved:
File Plaintiff’s Claim (a.k.a. Statement of Claim)
File Defence (a.k.a. Statement of Defence)
Attend Settlement Conference
Book Trial (if no Settlement reached)
Have the Trial
Steps #1 through #3 are complete, and a Trial needs to be booked.
Since no agreement was reached at the Settlement Conference, MacKenzie is free to request a Trial.
A complication arose, when Levant filed a Motion for Security for Costs. Essentially, he wanted MacKenzie to have to pay a deposit to the Court pending the outcome of the case. part of the issue was that MacKenzie is a Nova Scotia resident, and presumably had no assets in Ontario. An agreement was reached in the amount of $3,500.
At the time of writing this, it doesn’t appear that MacKenzie has either: (a) paid the deposit; or (b) booked a Trial date.
What Is The Nature Of The Defamation Allegations?
The lawsuit seems to focus around a July 25th, 2023 of the Ezra Levant Show. MacKenzie is suing over claims that he was slandered as follows:
a. That Mr. MacKenzie founded an explicitly racist organization;
b. That Mr. MacKenzie is a government agent;
c. That Mr. MacKenzie concocted a social movement to entrap the Coutts Four in a criminal offence.
In fairness, Levant has walked a tightrope before as to whether his comments cross into defamation. We’ll have to see what happens here.
Levant Claims Statements Taken Out Of Context
Levant claims that it’s obvious, or should be obvious, that a lot of what he covers is opinion, or commentary, and shouldn’t be taken as fact. Essentially, he’s setting up a “Fair Comment” Defence.
From page 10 in the Defence: “On the contrary, Levant clearly states during the July 25 Podcast that the Plaintiff started Diagolon as a joke or a prank, and that the Coutts 4 got into trouble because they took the joke seriously and went too far with their role playing.”
Page 9, paragraph 18, Levant says he genuinely believes that Diagolon was set up as an explicitly racist organization, but qualifies it as “I think it was done as a joke”.
From the Exhibits filed, it seems MacKenzie had his social media accounts scoured for evidence. While some was probably trolling, it may not sit well with the Court.
Should the case ever get to Trial, a Judge can make those determinations.
Government Agent (Or “Fed”) Allegations Appear True
In his Defence, Levant filed MacKenzie’s POEC testimony as an Exhibit. This was the infamous time in 2022 when he admitted under oath that he reported “extremist” behaviour, and was willing to have a “continuous relationship” with law enforcement in identifying threats to public safety.
While this may not be enough to prove MacKenzie is a “fed”, it shows, at a minimum, that he was willing to work with them. His “informing” did lead to the arrest of Landon Preik, of the group, Liberate Your Neighbourhood.
It’s also unclear what damages MacKenzie suffered from the “fed” allegations. He’s been labelled one for several years, so it’s hardly new.
Timeline Of Major Events In This Case
October 17th, 2023: MacKenzie files the Plaintiff’s Claim (a.k.a. Statement of Claim) through his lawyer, Frank Wu. The Claim demands $35,000 (the most allowed in Ontario Small Claims), and seeks the maximum costs allowed.
November 20th, 2023: Levant files a Defence, which includes MacKenzie’s testimony before the POEC Committee, and screenshots of some of his comments.
April 22nd, 2024: Levant submits his witness list for the upcoming Settlement Conference, which is just himself.
May 8th, 2024: Deputy Judge Wong certifies that there was no agreement at the Settlement Conference. Defendants are also permitted to bring a Motion for Security for Costs.
August 7th, 2024: The Defence requested the scheduling of a hearing to determine Security for Costs, and whether MacKenzie would need to post before Trial.
November 8th, 2024: Defence files Motion Record for Security for Costs. MacKenzie being an out-of-Province litigant weighed against him.
November 18th, 2024: On consent, it’s agreed MacKenzie must pay $3,500.
The deposit hasn’t yet been paid, and it’s unclear if it ever will be. But should the case ever go to Trial, transcripts will likely be published on Levant’s show.
A high profile lawsuit filed in Federal Court last September has fizzled out. Emma Briant, an “expert in information warfare and propaganda” sued the Canadian Government for failing to adequately respond to a freedom of information request. She wanted to know what, if anything, the Canadian Forces/Department of National Defence had done with her work. She’s a professor with Monash University in Australia, with a long list of publications.
In her Notice of Application, Briant describes the frustration it has been in trying to get anything at all. It was delayed far longer than what was reasonable.
Specifically, she sought this from Canada:
I am requesting records that contain any references to myself (Dr. Emma Briant), my work or my media engagement, or discussions and analysis of it and responses to it, held by the public affairs branch of the Canadian Forces/Department of National Defence in Ottawa from the period of 24th June 2020 to 30th October 2020. This should include the details of whom any such data was shared with or received from and who holds the data. In case it helps your inquiry, I was formerly Associate Researcher at Bard College in New York State, US currently Associate Professor at Monash University in Melbourne, Australia.
Considering the way this story had been hyped up by media outlets, the conclusion was disappointing. There was no smoking gun to be released.
The released records primarily relate to an article about wolves on the loose. Briant was not the main focus of the publication, though was mentioned in it. Clearly, the story had been shared among the military, but there’s no indication given here that her work was relied on.
Last year Emma Briant, a research associate at Bard College in the U.S. who specializes in examining military propaganda, revealed the Canadian Forces spent more than $1 million in training its public affairs officers on behaviour modification techniques. Those techniques were of the same sort used by the parent firm of Cambridge Analytica, the company implicated in a 2016 data-mining scandal to help Donald Trump’s election campaign.
The records show that the military was aware that she had reported about spending related to behaviour modification.
U.S. Government Aware Of Ottawa Citizen Story
On October 15th, 2020, the United States reached out to the Canadian Forces about the above publication. The response back was that it was normal training stuff, although it could “look bad”.
Of course, there were several pages that were redacted under section 19(1)(b) of the Privacy Act. This is the requirement to refuse to disclose material “obtained on confidence” from an “international organization of states or an institution thereof”.
However, Briant had all of this prior to filing the Application. The response from Ottawa wasn’t surprising.
Attorney General Brings “Mootness” Motion
The Government brought a Motion to throw out the case for mootness, meaning there was no practical reason to continue the proceedings. The rationale was that Briant already got her records, even if it was late, and even if they weren’t what she was looking for.
Procedurally, they also took issue with what laws were used to bring the Application. Lack of disclosure was already covered by s.41 of the Privacy Act, so invoking s.18(1) and (3) of the Federal Courts Act was unnecessary.
In her Responding Motion Record, Briant includes an Affidavit with attachments showing her various attempts to get those records. Exhibit “G” is what she did finally receive, and it consists of media stories being shared. She said it wasn’t responsive, and implied more was being withheld. She did concede the case was now moot, but asked the Court for directions on costs.
Naturally, the Government opposed the request for costs. It was stated that Briant had already gotten her records, so bringing the Application was entirely unnecessary.
Eventually, the Application was struck without the ability to amend. However, Briant did get some of the money back from the Government. The extra effort involved to get any sort of release likely resulted in this happening.
1) The Notice of Application is properly treated as being solely an application pursuant to section 41 of the Privacy Act;
2) The Respondent’s motion to strike the Notice of Application is granted;
3) The Notice of Application is struck out with leave to amend;
4) The application is dismissed; and
5) The Respondent shall pay to the Applicant her costs of the application, assessed in accordance with column III of Tariff B of Rules.
The dollar amount of the cost award doesn’t appear to be made public.
January 7th, 2025: Prothonotary Ring rules on the Motion (but there appear to be multiple Orders involved).
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.
It would be nice to know a lot more about what the Canadian military says and does in terms of “using propaganda” and “behaviour modification techniques”. Hopefully, it will come out. But this case wasn’t it.
Late last month, counsel for hundreds of military veterans appeared on the Talk Truth podcast to talk about her case, among other things. This is, of course, a notorious and high profile injection passport case that was thrown out in late 2024.
Briefly, the case was struck by Associate Judge Coughlan in November 2024 for: (a) not properly being pleaded; and (b) lack of the Federal Court’s jurisdiction, due to the military’s grievance system taking priority. After missing the deadline to appeal, and a comedy of errors, Justice Manson refused an extension of time. A Notice of Appeal has now been filed in the Federal Court of Appeal.
Catherine Christensen, counsel for the Plaintiffs, talks about her Motion Record being deleted, an allegation that makes no sense at all. She suggested that it was done prior to AJ Coughlan’s ruling, implying that the Court is corrupt.
Worth noting: Christensen doesn’t understand the argument of why Payne succeeded. It wasn’t that “Charter Rights violations cannot be addressed in the grievance system”. It was that unilaterally imposing changes on employment contracts without meaningful consultation circumvents the grievance process.
Hopefully, she isn’t able to get a negative precedent set.
Motion Records Filed, Available To The Public
Anyone can search the case notes on Federal Court cases. It’s freely available. For the Motion to Strike, the Plaintiffs’ Motion Record was Item #68 and #70. Yes, it’s 2 volumes. As for the Motion to extend time, it’s Item #77.
The first volume of the Plaintiffs’ Motion Record contains dozens of Affidavits, and is 6,908 pages in size. It’s full of photographs, and takes up over 1 GB in data. However, a significant portion is irrelevant.
The second volume of the Plaintiff’s Motion Record contains the written submissions, and hundreds of pages of “secondary sources” and “appendices”. It’s 613 pages in length.
Now, it’s possible that she had to send (at least the first volume) more than once, given its size. But she’s implying there’s some conspiracy to rig the case. In reality, the Motion Record was so poorly crafted that it went largely ignored by AJ Coughlan.
For context, what was the Motion to Strike about?
(a) Pleadings not being drafted in a way that can be responded to
(b) Lack of jurisdiction for the Court, given the grievance system in place
To address the lack of jurisdiction, the Plaintiffs needed to focus on providing evidence that the grievance option was corrupted, or otherwise unworkable. There are parts of the evidence that addressed exemptions and grievances, but that should have been the entirety.
At the time of hearing the Motion to Strike, over 100 of the Plaintiffs had filed grievances, and they were in various stages. In fairness to AJ Coughlan, it put her in the awkward spot of being asked to confer jurisdiction to the Court. As for ongoing grievances, it would effectively hijack them.
[67] Indeed, it is noteworthy that over 100 of the Plaintiffs have filed grievances arising from the Directives. At least one grievance was allowed by the MGERC though not supported by the FA. This Court has consistently upheld the CAF grievance system and declined to exercise its exceptional jurisdiction: Veltri v Department of National Defence Canada, dated January 4, 2018, at paras 11-17 (Federal Court file no. T-1400-17); Sandiford v Canada, 2007 FC 225 at para 28‑29; Graham v Canada, 2007 FC 210 at paras 22-23. In the present circumstances, I see no basis upon which I ought to exercise my residual jurisdiction to permit this action to continue.
For reference, Christensen was told back in late 2021 not to try to circumvent the grievance system by going to Federal Court. That was also a vaccine mandate case.
To give Plaintiffs credit, there were sections of the evidence that were quite appropriate. But with these decisions in mind, it was an uphill battle getting any Court to take the case.
***Due to the large amounts of private (and irrelevant) information that was filed, the Motion Record won’t be shared. It would cross into doxing.
Contents Of Motion Record Largely Irrelevant Or Redundant
The first volume of the Motion Record consists of 34 Affidavits, and is 6,908 pages long.
The content which shows various Plaintiffs attempting to seek some alternative or exemption is great. Many refer to grievance systems in place. That’s helpful in trying to establish whether or not there were any alternatives.
There’s a lot of duplication and redundancy in the evidence. Documents such as: (a) CDS Directive 001; (b) Layered Risk Management System; and (c) Government of Canada Policy on Mandatory Vaccination appear in each Affidavit.
The Affidavits also include significant sections of personal information that seem unnecessary to hearing such a Motion.
Part of the problem of having hundreds of Plaintiffs is that filing anything becomes a tedious process. Approximately, just 10% of them gave any evidence at all, and the Motion Record was thousands of pages. A far better option would be a Class Action, something Christensen does actually suggest later.
Some Affidavits Sworn Out BEFORE Proceedings Commence
[17] The Plaintiffs filed 34 affidavits of individual Plaintiffs with their motion materials. Some of these affidavits pre-date the filing of the initial Statement of Claim yet bear the style of cause and action number of the proceeding. Further, not all of the additional affidavits were referenced in the Plaintiffs’ written representations.
There’s a principle in law that evidence cannot be changed once it’s sworn out, but that appears to have happened here. AJ Coughlan mentions that some Affidavits were completed prior to the case being filed, yet have the the number of them. Prior to the Statement of Claim being filed — here it’s June 20th, 2023 — there would be no case number at all.
And that ties back in to the earlier problem. This was just a Motion to Strike, and the focus should have been on asking the Court to “take Jurisdiction”, as there was no effective grievance option. Instead, Christensen seems to have just reused Affidavits compiled earlier. She didn’t create new ones.
Written Submissions Only Reference “Some” Affidavits
[16] The form of motion materials is precisely prescribed by the Rules. Rule 363 provides that any facts to be relied upon by a party on motion should be set out in an affidavit. Rule 365(2) provides that appropriate sources may be referenced, attached to the affidavit, and included as part of the motion record. However, only affidavits and sources that are referred to in written submissions are to be included in the motion record.
[17] The Plaintiffs filed 34 affidavits of individual Plaintiffs with their motion materials. Some of these affidavits pre-date the filing of the initial Statement of Claim yet bear the style of cause and action number of the proceeding. Further, not all of the additional affidavits were referenced in the Plaintiffs’ written representations.
This is pretty straightforward. If you want to rely on Affidavit Evidence, it needs to be referenced in the written arguments. However, only some of them were.
Motion Record Contains “Secondary Sources” And “Appendices”
[18] The Plaintiffs also attached secondary sources to their motion record. The secondary sources were styled as “Appendices” and were not attached to affidavits. Again, only some of the secondary sources included in the motion record were referenced in argument. At the hearing of this matter, Plaintiffs’ counsel conceded that this is unacceptable under Rules 363 and 365.
[19] Because of the breach of Rules 363 and 365, I conclude that the affidavits and secondary sources were not properly before the Court on this motion. Accordingly, I did not consider them in my analysis.
AJ Coughlan clearly had (and read) the Motion Record prior to making a ruling. But the Rules of Civil Procedure were flaunted to such a degree that she refused to consider the evidence within.
Keep in mind, this is just a Motion to Strike. Again, the only evidence that really mattered was evidence that showed the grievance process was unworkable.
Despite suggesting the Judge was corrupt (or at least Court officials), the Motion Record was disregarded since Christensen couldn’t be bothered to follow the Federal Court Rules. This is an ongoing problem.
Christensen Sought To Convert Into Class Action, Or Individual Cases
Interestingly, in trying to ward off a Motion to Strike, Christensen proposed that AJ Coughlan allow the case to be refiled as a Class Action, or on an individual basis.
Of course, one has to wonder why it wasn’t in the first place. She laments the burden and hassle of having to contact and consult with over 300 clients. By contrast, a Proposed Class Action could have been initiated with a few (or even a single) Representative Plaintiff.
Christensen Screwed Up First Appeal (Rule 51)
The case was originally struck by Associate Justice Coughlan. Christensen filed a Motion under Federal Court Rule 51 to have it reviewed. Or at least, she was supposed to. She missed the deadline by nearly 3 weeks, and bungled an attempt to ask for an extension of time. And to clarify:
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
Because an Associate Judge (Prothonotary) struck the case initially, it could be reviewed by filing a Motion. Challenging a Judge’s decision would have required going to the Federal Court of Appeal. But Christensen screwed up the Appeal big time. Not only was she late, but:
The reason for prolonged inaction wasn’t really convincing
Christensen invoked the wrong Rule (51, instead of 8) asking for extension
Christensen asked for a Motion “in writing” but cited a Rule that applied to the Federal Court of Appeal
Christensen asked for “Leave” to appeal when it wasn’t required
Christensen improperly swore out her own Affidavit (breaks Rule 82)
Christensen didn’t clarify Plaintiffs “always intended” to appeal
Christensen didn’t explain how an Appeal may be successful
That Appeal was addressed in detail here and here.
Christensen Appears To Have Already Screwed Up Second Appeal
Christensen missed the deadline to appeal the first time around, and then botched a Motion to extend time. She then files a Notice of Appeal with the Federal Court of Appeal. Already, it’s obvious that she has no idea what she’s doing.
First, Leave (permission) to Appeal to this Court is not required for a Final Order.
Second, Christensen asks for Leave “to file the Notice of Appeal”. Problem is, that “is” the Notice of Appeal. It’s already filed, and can’t be unfiled. It would have made far more sense to bring a Motion asking to file the Notice of Appeal. And again, Leave isn’t required.
Third, she doesn’t seem to be challenging the Decision of Justice Manson not to extend time to file the Rule 51 Appeal. She says that it was an error…. but doesn’t ask that it be reversed.
Fourth, she requested permission to convert the lawsuit into a Class Action when the Motion to Strike was heard, and that would have solved a lot of logistical problems. However, there’s no mention of it here.
Fifth, on a lesser note, she requests costs on a full indemnity basis, which would be 100% of the costs. Outside of successful anti-SLAPP Motions for defamation suits, it’s almost unheard of. The Federal Courts have their own scales for lawyers to use.
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.
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.
