This is a follow-up to the military vaccine passport case of some 330 soldiers. See parts 1, 2, 3, 4 and 5 for background on the litigation.
In the last article, Catherine Christensen was scolded by Justice Locke at the Federal Court of Appeal. She pulled the “improper and high handed” stunt of filing a Notice of Discontinuance on behalf of about 50 clients, without their knowledge or consent. Supposedly, this was over unpaid fees. This was instead of the accepted method of filing a Motion to withdraw. One Appellant, Mark Lolacher, filed a Motion on his own behalf for reinstatement, and was successful.
Rather than simply take the loss, Christensen attempted to file a Notice of Appeal to the same Court. There was also a half hearted attempt to file a Motion to withdraw.
Since the Notice of Appeal was never actually filed, it’s impossible for the average citizen to pull it, or the Motion materials. Nonetheless, we can still deduce a lot from the notes, and the ruling.
Instead of simply complaining, let’s explore a practical solution at the end.
True, the overall Appeal is still ongoing. That being said, it’s beyond obvious at this point the case will never get to Trial. Heck, the first Notice of Appeal doesn’t even challenge Justice Manson’s decision to refuse an extension of time.
Christensen Has Been A Trainwreck Since Day One
(1) Associate Justice Coughlan: Struck the case originally because the pleadings fell far, FAR below what was necessary to make out a case. Even worse, the Federal Court had no jurisdiction because s.29 of the National Defence Act mandated a grievance scheme for everyone to follow.
(2) Justice Manson: Refused an extension of time for a Rule 51 Appeal. The 10 day time limit to file was missed, with no explanation of why. The Motion to extend time also failed to explain, or even hint at, what such an Appeal would look like anyway. The rulings states that, “The interests of justice do not justify the Court allowing poorly prosecuted litigation to proceed forward when there is no likelihood of success.”
(3) Justice Rennie: Had to unnecessarily respond to a Motion to determine the contents of the Appeal Book. Christensen tried to improperly include content that the previous Judge (Manson) had not see. This is generally not allowed, and the parties should have been able to agree on their own.
(4) Justice Locke: Chewed out Christensen for unilaterally filing a Notice of Discontinuance with respect to dozens of her (ex?)-clients, rather than following protocol. Normally, counsel is supposed to file a Motion to Withdraw. Worse, she even opposed a subsequent Motion from Mark Lolacher to be reinstated.
(5) Justice Gleason: Refused attempts to both, (a) file a Notice of Appeal within the same Court, and (b) file a Motion to Withdraw that doesn’t name appropriate parties. The materials weren’t served to everyone anyway, which is another violation of procedure.
Christensen knew in advance that this lawsuit would be (or was at least very likely to be) thrown out due to lack of jurisdiction. The Neri ruling of December, 2021 explained the requirement to follow the grievance scheme, and to not simply sue.
Christensen also knew in advance that failure to abide by the Statute of Limitations would likely see the Rule 51 Appeal being time barred. September, 2024, another of her cases, Tondreau, was tossed for commencing an Application well after the deadline.
Justice Gleason Rules NONE Of The Material Can Be Filed
The amended appeal book may be filed and will replace the appeal book originally filed. The appellants’ memorandum of fact and law and proofs of service, submitted May 30, 2025 may also be filed.
The Registry has also sought direction pursuant to Rule 72 of the Federal Courts Rules, S.O.R./98-106 (the Rules) regarding a Notice of Appeal submitted on behalf of the appellants and Ms. Christensen, counsel of record for the appellants, which names the appellant, Mark Andrew Lolacher, as a respondent. This document has not been filed. The Notice of Appeal purports to appeal to this Court the Order of the Court issued by Justice Locke on May 7, 2025. In the Notice of Appeal, the appellants also seek an order removing Ms. Christensen as counsel of record for 51 of the appellants. The Notice of Appeal was signed by another solicitor, Bath-Shéba van den Berg of the firm Ergonomy Law.
The Notice of Appeal may not be filed. It is wholly irregular because this Court has no jurisdiction to sit in appeal from one of its orders. An appeal lies from an order of this Court, with leave, only to the Supreme Court of Canada. The Notice of Appeal is also irregular in that it substitutes someone else as solicitor of record, names one of the appellants, Mark Andrew Lolacher, as a respondent and counsel of record as an appellant without any order from the Court changing the style of cause or replacing counsel of record.
As was noted in the Reasons for this Court’s Order of May 7, 2025, the proper procedure when counsel wishes to get off the record is for the solicitor to bring a motion under Rule 125 of the Rules. Counsel other than the counsel of record may act on behalf of the counsel of record in such a motion. Indeed, Rule 82 of the Rules provides that a solicitor shall not depose an affidavit and present arguments to the Court in respect of their affidavit, except with leave. Thus, if Ms. Christensen wishes to bring a motion under Rule 125 and files an affidavit in support of the motion, she should either be represented by another solicitor, such as Bath-Shéba van den Berg, or seek leave of the Court under Rule 82 to file the affidavit and present the motion. Her motion record in support of any such motion must be served on all parties for whom she formerly acted, as provided in Rule 125(2). In addition, in accordance with Rule 369.2(1), such motion should be brought in writing or request an oral hearing in accordance with Rule 369.2(2).
As also noted in the Reasons for this Court’s Order of May 7, 2025, Mr. Lolacher, on his own volition, may take steps to no longer be represented in this appeal by Ms. Christensen. He may either file a notice under Rule 124 to appoint a new solicitor (using Form 124A) if he hires new counsel or a notice to act in person (using Form 124C). These steps may also be taken by any of the appellants.
The Registry has also sought direction regarding several documents submitted subsequent to the Notice of Appeal, none of which have been filed.
The first of these is a motion record submitted on behalf of Ms. Christensen by Bath-Shéba van den Berg to remove Ms. Christensen as counsel of record on behalf of 51 of the appellants, to set aside and stay this Court’s Order of May 7, 2025, and to “sever” the appellant, Mark Andrew Lolacher, from the other appellants. It is unclear who the respondents and appellants are on this motion as the style of cause in the Notice of Motion lists only one appellant and respondent and then uses “et al.”. It appears from the affidavit of service that this motion record was served only on counsel from the Department of Justice (who appeared on behalf of the governmental respondents) and Mr. Lolacher, but not on the other 50 appellants for whom Ms. Christensen no longer acts. This motion record may not be filed as it is wholly irregular. To the extent it seeks to appeal this Court’s Order of May 7, 2025, as noted, this Court has no jurisdiction to hear an appeal from one of its orders. To the extent it seeks an order removing Ms. Christensen as counsel of record for Mr. Lolacher and 51 other respondents, the motion record has not been properly served. The stay application appears to be ancillary to the other relief sought.
The remaining documents in respect of which the Registry seeks direction were submitted in response to the foregoing motion or in reply to the responding motion records. None of them may be filed as there is nothing to respond or reply to given that the motion record discussed in the preceding paragraph cannot be filed.
So long as this appeal is outstanding, unless and until a motion is properly brought under Rule 125 and the Court removes Ms. Christensen as counsel of record for some of the appellants or until, one, some or all of them file notice(s) under Rule 124, Ms. Christensen continues to be the solicitor of record for all the above listed appellants unless she or they die, she is appointed to public office, incompatible with the solicitor’s profession, or is suspended or disbarred as a solicitor. To the extent that Mr. Lolacher wishes to make a complaint about Ms. Christensen, his remedy lies with the Law Society of Alberta and not with this Court. Indeed, all the foregoing should have been abundantly clear from the Reasons for this Court’s Order of May 7, 2025.
***Note: one exception is that the Court did permit an amended Appeal Book, for the overall proceeding, to be filed. Everything else was disallowed.
According to Justice Gleason, the Notice of Appeal cannot be filed because it lacks jurisdiction. The Federal Court of Appeal cannot hear an Appeal from one of its own decisions. The only path forward is the Supreme Court of Canada, and Leave (permission) is needed for that. It’s stunning that neither Christensen, nor her “counsel” know this.
The Notice of Appeal also names new counsel, and has new parties, and the Court has signed off on NONE of this.
Christensen has apparently tried to file a Motion to withdraw as counsel for some 50 or so clients. However, she needed to include everyone as named parties, and had to serve everyone. Again, shocking that these basics are not followed.
Justice Gleason was also critical of Mark Lolacher for continuing to complain about Christensen’s conduct. She says that the proper venue about misconduct is the Law Society of Alberta. While true, the LSA isn’t going to handle a complaint when the underlying litigation is still open.
A Practical Solution: Look Into Malpractice Lawsuits
While it may seem daunting, suing former counsel for professional malpractice is an option. It’s not necessary to establish any malice or dishonesty, which makes it easier. This site covered recent examples, here and here, including a Class Action. Here are a few ideas.
TORT OF NEGLIGENCE:
- Establish duty of care exists between the parties
- Establish that the duty of care has been breached
- Establish that the breach of the duty of care resulted in damages
TORT OF BREACH OF FIDUCIARY DUTY:
- Establish a fiduciary duty (obligation) exists between the parties
- Establish that the fiduciary duty has been breached
- Establish that the breach of fiduciary duty resulted in damages
TORT OF BREACH OF CONTRACT:
- Establish the existence of a valid contract
- Establish that the contract has been breached
- Establish that the breach of contract resulted in damages
As is pretty obvious, although these torts are framed differently, the requirements are much the same. The first element can be established by filing the retainer agreements, or other contracts. The second element can be proven with the assistance of the various rulings, showing unprofessional conduct. Lastly, Plaintiffs would have to give some evidence of damages, whether financial, or otherwise.
Neri and Tondreau happened prior to the mistakes here, meaning that Christensen should have been well aware of what was going on. Whether this is intentional, or just incompetence and negligence, Plaintiffs have been let down every step of the way.
Lawyers are required to have insurance to practice. However, that doesn’t mean that the money is there to pay out victims. Commonly, money is used to hire lawyers to fight against justice. Still, it can be overcome, if there is a strong enough case.
If there is a path to justice, it’s through Christensen’s insurance money.
FEDERAL COURT/CLAIM STRUCK:
(1) Qualizza Statement Of Claim (June 2023)
(2) Qualizza Amended Statement Of Claim (July 2023)
(3) Qualizza Statement Of Defence (September 2023
(4) Qualizza Reply To Statement Of Defence (September 2023)
(5) Qualizza Defendants Motion To Dismiss Claim (July 2024)
(6) Qualizza Plaintiff Motion To Strike Written Submissions (August 2024)
(7) Qualizza Order Striking Statement Of Claim Without Leave (November 2024)
FEDERAL COURT/RULE 8 MOTION TO EXTEND TIME/RULE 51 APPEAL:
(1) Qualizza Plaintiffs Motion To Extend Time To Appeal (December 2024)
(2) Qualizza Defendants Respond To Motion To Extend Time To Appeal (December 2024)
(3) Qualizza Order Denying Extension Of Time (January 2025)
(4) Qualizza Federal Court Notes
FEDERAL COURT OF APPEAL/CONTENTS OF APPEAL BOOK:
(1) Qualizza Notice Of Appeal (January 2025)
(2) Qualizza Motion Record Contents Of Appeal Book (February 2025)
(3) Qualizza Responding Motion Record Contents Of Appeal Book (March 2025)
(4) Qualizza Order Contents Of Appeal Book (April 2025)
FEDERAL COURT OF APPEAL/MARK LOLACHER REINSTATEMENT:
(1) Qualizza Notice Of Discontinuance (January 2025)
(2) Qualizza Lolacher Motion Record (March 2025)
(3) Qualizza Lolacher A.G. Responding Motion Record (March 2025)
(4) Qualizza Lolacher Christensen Responding Motion Record (March 2025)
(5) Qualizza Lolacher Order For Reinstatement (May 2025)
(6) Qualizza Lolacher Reasons For Reinstatement (May 2025)
FEDERAL COURT OF APPEAL/VENDETTA AGAINST LOLACHER:
(1) Qualizza Lolacher Letter To Court (May 2025)
(2) Qualizza Federal Court Notes FCA
(3) Qualizza Order Justice Gleason Refusing Filing Of Materials (June, 2025)
SUPREME COURT OF CANADA, APPLICATION FOR LEAVE:
(1) Qualizza SCC Notice Of Application For Leave To Appeal
(2) Qualizza SCC Application For Leave To Appeal
(3) Qualizza SCC Certificate File Access
(4) Qualizza SCC Response From AG Opposing Application
(5) Qualizza SCC Responding Certificate
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