Category: Procedural

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UHCWO Files Proposed Class Action Over s.2(d) Violations

Back in August, a Proposed Class Action was filed in Oshawa (Durham). This had to do with health care workers who were forced from their jobs over the injection mandates. The Representative Plaintiff, Lisa Wolfs, had been terminated, despite being medically cleared to work.

UHCWO, or United Health Care Workers of Ontario, is the group behind this case. They posted a draft version of the Statement of Claim, but the filed one is available to read.

The case centers around the idea that the Government interfered with employment relations, by inducing a breach of contract. For Wolf, she is a member of the Ontario Nurses Association, and part of their collective bargaining agreement. It’s a now familiar theme from Umar Sheikh and Angela Wood, which has had some success in Federal Court.

Here, the labour agreement is between: (a) Wolfs, as an employee; (b) the ONA; and (c) London Health Sciences Centre, the employer. This matters as the Ontario Government is not a party to the contract. Hence, they can’t ask the Court to strike the case for lack of jurisdiction.

UHCWO Is Another s.2(d), Freedom Of Association Case

These particular arguments have been made before, with some success.

Tortious Inducement to Breach Contractual Relation
.
37. The Plaintiff and Class Members plead that the Order was issued in bad faith as:
a. The stated objectives of the Order were either known or could reasonable be known to be unachievable and therefore false;
b. The risks of adverse harm as a result of complying with the Order was either known to the CMOH or the CMOH acted with reckless indifference to the harm or willful blindness; and
c. The Order mandated vaccinations that did not prevent transmission of COVID-19 and such fact was either known to the CMOH, or the CMOH acted with reckless indifference or willful blindness resulting in foreseeable harm.

38. The Order introduced new terms and conditions for continued employment which were not negotiated nor contemplated under the Contract.

39. The Plaintiff and Class Members have either refused to share their vaccination status or are otherwise unvaccinated and thus did not conform to the Order and were placed on leave without pay, effectively a suspension, and some were subsequently terminated from employment.

40. The Plaintiff and Class Members allege that the following actions taken by Provincially regulated Healthcare facilities (“the Employers”) were in breach of their contractual employment agreements and induced by the Order:
a. Disclosure of private medical information;
b. Being placed on a leave without pay; and
c. Termination of their employment.

41. Ms. Wolfs pleads that mandating COVID-19 vaccinations and terminating her employment constituted a breach of the ONA Agreement.

42. The Plaintiff and Class Members state that at all material times, their employment contracts were valid and binding upon their Employers. As their Employers have unlawfully purported to suspend or terminate the Plaintiff and Class Members’ contractual agreements and have refused to pay the sums owing to the Plaintiff and Class Members, the Employers are in breach of their contractual employment agreements.

43. As the Chief Medical Officer of Health, the Defendant was aware of the existence of the contractual employment agreements when he decided to issue the Order.

44. The Plaintiff and Class Members allege that the Defendants intended to and caused and/or induced the Employers to breach contractual employment agreements by their actions in relation to: the disclosure of private medical information; imposition of a leave without pay;

Section s.2(d) of the Charter is the freedom of association provision. The argument here is that the Government meddling with employment contracts of other people violated their right to do business together. Presumably, none of these hospitals would have fired anyone, except for this interference.

Currently, Sheikh and Wood have 5 Proposed Class Actions:

  • Payne (Federal)
  • Hill/Free To Fly (Federal)
  • B.C. Public Sector Employees for Freedom
  • United Health Care Workers of B.C
  • United Health Care Workers of Ontario

Payne is under appeal after surviving a Motion to Strike.
Hill survived a Motion to Strike, making minor amendments.
The 2 B.C. cases will have Applications to Strike and Certify heard together.
The Ontario case has just the Statement of Claim.

How These Various Proposed Class Actions Differ

CASE NAMES PAYNE/BCPSEF HILL/UHCWBC/UHCWO
Government Workers? Yes No
Filed Federally? Payne Hill
Filed in B.C.? BCPSEF UHCWBC
Filed in Ontario.? n/a UHCWO
Wrongful Termination by Gov’t? Yes No
Inducement to Breach Contract? No Yes
Breach s.2(d) Charter Rights? Yes Yes
Malfeasance of Public Office? Yes Yes

Despite the similarities, there are 2 important differences.

First is the jurisdiction. There are 2 Federal cases, 2 in B.C., and 1 in Ontario. It changes how quickly the cases can be moved along, and has considerable cost consequences for litigants. Given that Ontario is the most expensive, it makes sense to let that proceed last.

Second, there’s a divide in the arguments that are being made. Payne and BCPSEF both involve Government workers. They’re arguing that their employer breached their contracts. By contrast, Free To Fly, UHCWO and UHCWBC argue that the Government induced a breach of contract by third parties, namely their respective employers. This puts the latter group in a stronger position, since union agreements cannot be invoked by non-parties.

Payne is a wild card for another reason. Although the case survived a Motion to Strike, Ottawa has since appealed that decision. It could very easily end up at the Supreme Court of Canada.

UCHWO Sidesteps The Disaster That Dorceus Case Is

Although Wolfs/UHCWO and Dorceus both revolve around vaccine passports, and the medical profession in Ontario, their set up is night-and-day different.

See parts 1, 2, 3 and 4 for background information on Dorceus.

(a) UHCWO sues only the Ontario Government, and Kieran Moore, the Chief Medical Officer of Health. While health care workers are routinely unionized, it’s with a hospital or clinic. Collective bargaining agreements are between: (I) the employee; (II) the union; and (III) the employer. Since the Government presumably isn’t a party to any such contract, they have no standing to assert any arbitration requirement.

(b) UHCWO centers its case around tortious inducement to breach contractual relations, along with malfeasance and Section 2(d) of the Charter, or freedom of association. These are torts that a Civil Court can in fact address. There’s none of the: International Criminal Court; Nuremberg Code; Helsinki Declaration; crimes against humanity, etc… that plagued Dorceus.

(c) UCHWO is quite clearly structured as an employment claim. It’s primary grievance is wrongful termination, albeit, instigated by outside parties. Dorceus is just a toned down version of the Action4Canada suit, struck as “bad beyond argument”.

(d) UHCWO is set up as a Proposed Class Action. This is a much more efficient option when dealing with hundreds — or even thousands — of potential Plaintiffs. And that leads to the next point:

(e) UHCWO pleads facts about its Representative Plaintiff, Lisa Wolfs. While brief, there’s enough background information provided to understand her situation. That doesn’t happen (at all) in Dorceus, for any Plaintiff.

(f) UHCWO provides enough particulars (details) about malfeasance that the case should be okay. However, it doesn’t drift into full conspiracy mode like Dorceus does.

Certification Will Be Next Major Challenge

In order to be certified as a Class Action, a Judge will need to be convinced that this is a viable option. One of the considerations is whether there will be enough money set aside to see it through. That is an open question.

After years of defective cases brought forward by Galati, Grey, Christensen, and others, it may be hard to convince others to participate, or even to donate. No one wants to be involved if they think there’s gross incompetence, or deliberate sabotage. There’s understandably fatigue in all of this.

It would be nice to see at least one case get to Trial.

Yes, this site is endlessly critical of shoddy filings. However, the ones mentioned here are well written, and advance arguments that are capable of being adjudicated. Being Class Actions, there’s potential to get justice for many, many people. CSASPP, still under reserve, gets an honourable mention.

UHCWO GENERAL LINKS:
(1) https://uhcwo.ca/
(2) https://x.com/uhcwo

UHCWO COURT DOCUMENTS:
(1) Wolfs Draft Statement Of Claim
(2) Wolfs Statement Of Claim August 2024

BCPS EMPLOYEES FOR FREEDOM COURT DOCUMENTS:
(1) BCPS Notice Of Civil Claim October 2023
(2) BCPS Amended Notice Of Civil Claim April 2024
(3) BCPS Response To Civil Claim May 2024
(4) BCPS Requisition Case Management August 2024
(5) BCPS Notice Of Application Certification October 2024
(6) BCPS Notice Of Application To Strike October 2024
(7) BCPS Response To Application To Strike November 2024
(8) BCPS Consent Order Scheduling Of Materials January 2025

UHCWBC COURT DOCUMENTS:
(1) UHCWBC Notice Of Civil Claim October 2023
(2) UHCWBC Amended Notice Of Civil Claim April 2024
(3) UHCWBC Response To Notice Of Civil Claim May 2024
(4) UHCWBC Amended Response To Notice Of Civil Claim May 2024
(5) UHCWBC Requisition For Case Management Scheduling August 2024
(6) UHCWBC Notice Of Application For Certification October 2024
(7) UHCWBC Response To Application For Certification October 2024
(8) UHCWBC Notice Of Application To Strike Claim October 2024
(9) UHCWBC Consent Order Scheduling October 2024
(10) UHCWBC Response To Application To Strike November 2024

FREE TO FLY FEDERAL COURT DOCUMENTS:
(1) Hill Proposed Class Action Statement Of Claim May 2023
(2) Hill Order Case Management June 2023
(3) Hill Amended Statement Of Claim October 2023
(4) Hill Defendant Motion Record To Strike Claim April 2024
(5) Hill Plaintiff Responding Motion Record To Strike Claim May 2024
(6) Hill Plaintiff List Of Proposed Amendments May 2024
(7) https://www.canlii.org/en/ca/fct/doc/2025/2025fc242/2025fc242.html

PAYNE APPEAL DOCUMENTS:
(1) Payne Notice Of Appeal January 2025
(2) Payne Notice Of Appearance January 2025

PAYNE FEDERAL COURT DOCUMENTS:
(1) Payne Statement Of Claim October 2023
(2) Payne Notice Of Intent To Defend November 2023
(3) Payne Letter Intent To Strike May 2024
(4) Payne Defendant Motion Record To Strike August 2024
(5) Payne Plaintiff Responding Motion Record October 2024
(6) https://www.canlii.org/en/ca/fct/doc/2025/2025fc5/2025fc5.pdf
(7) https://www.canlii.org/en/ca/fct/doc/2025/2025fc5/2025fc5.html

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BCPSEF And UHCWBC Certification Hearings To Take Place In April Over s.2(d) Violations

At the end of April, 2 groups are expected to begin their certification hearings at the British Columbia Supreme Court. These are: BCPS Employees for Freedom Society, and UHCWBC, the United Health Care Workers of BC. These are Proposed Class Action lawsuits filed in October 2023 challenging the injection mandates.

The idea behind Class Actions is simple: it can reduce a significant amount of time and expense to “bundle” related litigants into a single challenge.

The lawyers, Umar Sheikh and Angela Wood, are trying to convince the Court that their clients’ Section 2(d) Charter Rights were infringed. This is — of course — freedom of association — and it’s become their signature tort. They’ve had some success so far.

It’s worth mentioning that there’s strong parallels between these suits and the Payne and Hill cases. They were filed by the same lawyers, and make essentially the same arguments. Both of those survived an initial challenge, although Payne is currently under Appeal. All of them are Proposed Class Actions.

CASE NAMES PAYNE/BCPSEF HILL/UHCWBC
Government Workers? Yes No
Filed Federally? Payne Hill
Filed in B.C.? BCPSEF UHCWBC
Wrongful Termination by Gov’t? Yes No
Inducement to Breach Contract? No Yes
Breach s.2(d) Charter Rights? Yes Yes
Malfeasance of Public Office? Yes Yes

Collective bargaining agreements are typically fatal, due to the issue of whether or not the Court has jurisdiction. Usually, Arbitration is called for. But that doesn’t apply when the party being sued isn’t the employer. In the Hill and UHCWBC cases, the respective Governments are accusing of meddling with other people’s employment.

This removes the potentially strongest initial challenge.

BCPS Employees for Freedom Society, Wrongful Termination

54. The Plaintiff’s plead that the Order constitutes an improper and unjustified imposition by the Defendant of a new term and condition of employment absent collective bargaining memoranda of agreement, consideration, or consent to their existing and freely negotiated employment agreements and as such violates their protected right under s. 2d of the Charter.

It’s been a longstanding defence raised by various Governments in wrongful termination cases: there’s a grievance option available, therefore, the Court has no jurisdiction. That said, the argument here is that any grievance process was circumvented by unilaterally imposing changes of employment agreements. If there’s no opportunity for meaningful consultation, how can the internal processes be used?

Up until Payne, various Governments had been entirely successful arguing that there was no way around those agreements. But the logic applied here seems so basic.

Both cases here also argue that the Plaintiffs’ freedom of association rights were violated, and it applies whether or not the Government is the employer.

United Health Care Workers, Inducement To Breach Contract

58. The Plaintiffs and Class Members allege that the Defendants intended to and caused and/or induced the Employers to breach contractual employment agreements by their actions in relation to: the disclosure of private medical information; imposition of a leave without pay; and/or unlawful termination by ordering the Employers to enforce the Orders absent justification. The breaches of contractual employment agreements are therefore a direct result of the unlawful inducement of the breach as herein before particularized and as a result of unlawful interference by the Defendants in the contractual relationship between the Plaintiffs, Class Members and their Employers.

This differs from the above case since the health care workers aren’t directly for the Government. Instead, they had their employment terminated by their employers such as hospitals, because of the injection mandates that were handed down. This is a subtle, but important distinction.

Certification Hearings To Determine Viability Of Class Action(s)

A common misconception is that these hearings are to determine the merits of the Plaintiffs’ respective cases. That’s not really accurate.

Instead, the purpose is to determine whether or not there’s an overall interest in proceeding with such a case. Essentially, the lawyers have to “sell” the idea that they have the ability and plan to see it through. It’s more about the nuts and bolts of such an undertaking, rather than trying the matter. The ability to finance and sustain a prolonged lawsuit will also be an issue.

The Representative Plaintiffs (a.k.a. Token Plaintiffs) are taking a significant risk as well. Should a Claim not be certified, they can be held personally responsible for Court costs. Those can be expensive.

Should either case be certified, it would pretty much close off opportunities to bring related claims for similar classes of people. This is partly why the Court needs to ensure these ones are serious.

Applications to Strike have also been filed in both cases, which is not a surprise. Those presumably will be heard at the same time.

BCPSEF and UHCWBC have both brought forward their Notices, and more documents are expected to be filed.

Hopefully, it goes more efficiently than the CSASPP hearings. Decisions on Certification, and an Application to Strike have been under reserve for nearly 2 years now.

BCPS EMPLOYEES FOR FREEDOM COURT DOCUMENTS:
(1) BCPS Notice Of Civil Claim October 2023
(2) BCPS Amended Notice Of Civil Claim April 2024
(3) BCPS Response To Civil Claim May 2024
(4) BCPS Requisition Case Management August 2024
(5) BCPS Notice Of Application Certification October 2024
(6) BCPS Notice Of Application To Strike October 2024
(7) BCPS Response To Application To Strike November 2024
(8) BCPS Consent Order Scheduling Of Materials January 2025

UHCWBC COURT DOCUMENTS:
(1) UHCWBC Notice Of Civil Claim October 2023
(2) UHCWBC Amended Notice Of Civil Claim April 2024
(3) UHCWBC Response To Notice Of Civil Claim May 2024
(4) UHCWBC Amended Response To Notice Of Civil Claim May 2024
(5) UHCWBC Requisition For Case Management Scheduling August 2024
(6) UHCWBC Notice Of Application For Certification October 2024
(7) UHCWBC Response To Application For Certification October 2024
(8) UHCWBC Notice Of Application To Strike Claim October 2024
(9) UHCWBC Consent Order Scheduling October 2024
(10) UHCWBC Response To Application To Strike November 2024

GENERAL LINKS:
(1) https://bcpsforfreedom.com/
(2) https://bcpsforfreedom.com/media-release-plaintiff-launches-class-action-lawsuit/
(3) https://x.com/bcpsef
(4) https://unitedtogether.ca/
(5) https://unitedtogether.ca/faq-classaction/
(6) https://x.com/UHCWBC

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Free To Fly Case Survives: How This s.2(d) Challenge Differs From Payne

Earlier this month, a Proposed Class Action lawsuit from 3 airline employees survived a Motion to Strike. They argue that the Government interfered with their employment by imposing the injection mandates (a.k.a. vaccine passports). The group running it is called Free To Fly. (See Twitter/X).

This follows on the heels of another case (Payne), from Umar Sheikh and Angela Wood. Both cases: (a) are Proposed Class Actions; (b) sue the Federal Government; (c) involve injection mandates; (d) involve Plaintiffs who were employed, and (e) refused the shots. Despite these similarities, there are important differences, especially around who the employers actually are.

The Plaintiffs here have decided to voluntarily remove portions of their own suit, in order to focus on the stronger ones.

What The Further Amended Claim Will Include

Originally, there were 9 separate torts pleaded. Rather than continue that way, the Plaintiffs decided that 6 of them will no longer be pursued, and the focus will be on the remaining 3. Given that there is some overlap and redundancy as well, this makes sense.

Torts that will be pursued in the Amended Claim:

  • Inducement of breach of contract
  • Malfeasance in public office
  • Violation of subsection 2(d) of the Charter

Torts that will not be pursued in the Amended Claim:

  • Negligence
  • Interfering with contractual relations
  • Breach of privacy
  • Violation of subsection 2(a) of the Charter
  • Violation of subsection 7 of the Charter
  • Violation of subsection 15 of the Charter

Additionally, several pages of proposed amendments were included by the Plaintiffs for the remaining torts. They helped persuade the Judge.

[26] At the outset of these reasons, I stated that a motion to strike is not an exercise in critiquing inelegantly drafted pleadings. Nonetheless, where as here, a party is willing to amend a pleading and has proposed specific amendments that would assist in clarifying, confirming or defining the issues for the benefit of the opposing party and the Court, such amendments should be permitted and encouraged.

[27] On this motion, I am satisfied that the currently pleaded facts in the amended statement of claim show more than a scintilla of a cause of action in respect of each of the grounds remaining in issue after the concession by the plaintiffs. However, the pleadings can be improved by some of the plaintiffs’ proposed amendments. Thus, the plaintiffs shall further amend the amended statement of claim to incorporate those paragraphs set out in Appendix A of the plaintiffs’ motion record that relate to the claims of inducement of breach of contract, misfeasance in public office and violation of subsection 2(d) of the Charter and the remedies arising therefrom.

Associate Justice Crinson agreed that at least some of the proposed changes would be beneficial in helping to redraft the case.

Subtle Differences Between Hill And Payne Cases

Both Hill and Payne are Proposed Class Actions against the Federal Government. They are consequences of imposing injection mandates throughout Canada. They invoke Section 2(d) of the Charter, which is Freedom of Association. On the surface, they appear identical. However, they’re not, and Hill is actually in a stronger position.

Just after the New Year, Justice Southcott of the Federal Court handed down a decision which (mostly) left intact a Proposed Class Action for Federal workers. They had been forced from their employment for refusing to take the injections.

Up until this point, such challenges had failed. The reason is that sections 208 and 236 of the Federal Public Sector Labour Relations Act (FPSLRA) gave the right to grieve, but not to sue. This resulted in a lack of jurisdiction for the Court. Payne succeed — so far — by arguing that the way injection mandates were implemented circumvented any legitimate grievance or collective bargaining process.

Hill and Warren worked for Air Canada, and Lewis worked for WestJet. Both airlines are unionized employers, which on the surface, one would suspect similar questions around jurisdiction.

But here, the employers are not the Defendants. The Government is. Ottawa is being sued for interfering with other parties’ business relationships, namely the airlines and their workers. Instead of wrongful termination, the case is over an inducement to breach a contract. The allegation is that the mandates interfered with the free association of other people.

With this difference in mind, the typical defence raised — lack of jurisdiction — doesn’t apply in Hill. The Federal Government can’t rely on their go-to response.

Sure, they’ll likely argue that any inducement to breach a contract, or interference with business relations was necessary and justified. But that will be a lot harder to sell. For that reason, the Hill case seems to stand in a better position, for now.

Brief Timeline Of Major Events In Case

May 15th, 2023: Statement of Claim is filed in Federal Court.

June 1st, 2023: It’s determined that there’s to be case management for the remainder of the proceedings, with Associate Judge Crinson and Justice Aylen assigned.

October 11th, 2023: Amended Statement of Claim is filed.

December 10th, 2023: Government requests that requirement to file a Statement of Defence be deferred until after the issue of certification is dealt with.

April 1st, 2024: Government brings its Motion to Strike the case.

May 3rd, 2024: Plaintiffs responding with their own Motion Record, asking that the case be allowed to proceed to the next stages. It also gives several pages of proposed amendments.

May 22nd, 2024: Motion is heard orally, but with the decision reserved.

February 7th, 2025: The Motion is (mostly) dismissed, and amendments are allowed for the remaining torts.

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.

Payne is currently being appealed which is no surprise. However, given the different relationships with that one, Hill should be okay regardless of whether or not it’s overturned. The FPSLRA simply doesn’t apply in Hill.

If Ottawa wants this one tossed, completely new arguments are needed.

Of course, this is nowhere near the end of the road. Certifying the case as a Class Action is the next major hurdle, assuming this ruling is not appealed. Still, an important hurdle has been crossed.

It’s nice to report a success for once.

FREE TO FLY FEDERAL COURT DOCUMENTS:
(1) Hill Proposed Class Action Statement Of Claim May 2023
(2) Hill Order Case Management June 2023
(3) Hill Amended Statement Of Claim October 2023
(4) Hill Defendant Motion Record To Strike Claim April 2024
(5) Hill Plaintiff Responding Motion Record To Strike Claim May 2024
(6) Hill Plaintiff List Of Proposed Amendments May 2024
(7) https://www.canlii.org/en/ca/fct/doc/2025/2025fc242/2025fc242.html

PAYNE APPEAL DOCUMENTS:
(1) Payne Notice Of Appeal January 2025
(2) Payne Notice Of Appearance January 2025

PAYNE FEDERAL COURT DOCUMENTS:
(1) Payne Statement Of Claim October 2023
(2) Payne Notice Of Intent To Defend November 2023
(3) Payne Letter Intent To Strike May 2024
(4) Payne Defendant Motion Record To Strike August 2024
(5) Payne Plaintiff Responding Motion Record October 2024
(6) https://www.canlii.org/en/ca/fct/doc/2025/2025fc5/2025fc5.pdf
(7) https://www.canlii.org/en/ca/fct/doc/2025/2025fc5/2025fc5.html

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MacKenzie/Levant Defamation Suit: $3,500 For Security Needed, No Trial Yet

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:

  1. File Plaintiff’s Claim (a.k.a. Statement of Claim)
  2. File Defence (a.k.a. Statement of Defence)
  3. Attend Settlement Conference
  4. Book Trial (if no Settlement reached)
  5. 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 3rd, 2024: Wu submits Affidavits from witnesses Jason Lavigne and Kira Decoste.

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.

(1) MacKenzie Plaintiffs Claim October 2023
(2) MacKenzie Defence November 2023
(3) MacKenzie Defence Affidavit Of Service November 2023
(4) MacKenzie Defence List Of Proposed Witnesses April 2024
(5) MacKenzie Defence Witnesses Affidavit Of Service April 2024
(6) MacKenzie Affidavit Of Jason Lavigne May 2024
(7) MacKenzie Affidavit Of Kira Decoste 2024
(8) MacKenzie Endorsement Of No Settlement May 2024
(9) MacKenzie Defence Request To Clerk August 2024
(10) MacKenzie Defence Motion For Security For Costs November 2024
(11) MacKenzie Defence Motion Record Affidavit Of Service November 2024
(12) MacKenzie Endorsement For Security For Costs November 2024

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“Military Propaganda” Lawsuit Thrown Out For Mootness

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.

Timeline Of Major Events In Case

September 17th, 2024: Notice of Application filed.

September 25th, 2024: Government files Notice of Appearance.

October 2nd, 2024: Applicant files Affidavit of Service.

October 2nd, 2024: Consent is filed to accept service electronically.

October 30th, 2024: Attorney General files Affidavit of Service.

November 19th, 2024: Attorney General brings Motion to strike for mootness.

December 1st, 2024: Applicant brings a Motion Record in response.

December 8th, 2024: Attorney General files Reply Submissions.

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.

(1) T-2436-24 Briant Notice Of Application
(2) T-2436-24 Briant Electronic Service
(3) T-2436-24 Briant Motion Record Mootness
(4) T-2436-24 Briant Applicant Responding Motion Record Mootness
(5) T-2436-24 Briant Exhibit G Affidavit
(6) T-2436-24 Briant Reply Submissions
(7) T-2436-24 Briant Order From Prothonotary Ring
(8) https://ottawacitizen.com/news/national/defence-watch/legal-action-under-way-to-force-canadian-forces-to-release-propaganda-documents

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Crown Appeals Payne: Class Action Under s.2(d), Which Survived Motion To Strike

No one should be surprised that a decision from earlier this month is being appealed. This is the ruling from Justice Southcott, which (mostly) dismissed a Motion to Strike. See the earlier piece for more background information.

This is one of the Proposed Class Actions from Umar Sheikh and Angela Wood. The main thrust is that unilaterally imposing the “vaccine pass” on workers — even if unionized — amounts to imposing a new term or condition of employment without the opportunity for “meaningful consultation”. In short, it does an end run around any sort of collective bargaining agreement. As such, it violates people’s Section 2(d) Charter Rights of freedom of association.

How this Appeal ends will have significant impact on their other cases, including BCPSEF and FreeToFly. Those are based on substantially the same arguments.

As an aside, counsel for the Qualizza Plaintiff/Appellants has gotten wind of this. That was the clown show of a suit involving 330 current and former military personnel. That Notice of Appeal references the Payne case.

Government Says Case Should Have Been Struck Anyway

In their Notice of Appeal, counsel claims that the case should have been thrown out, as have so many others, under Sections 208 and 236 of the FPSLRA, or Federal Public Sector Labour Relations Act. For reference, s.208 states that all Federal workers have the right to grieve, while s.236 denies the right to sue in Court.

4. The Motion Judge erred in law in taking jurisdiction over this matter and not striking the action in accordance with s. 236 of the Federal Public Sector Labour Relations Act

However, the Plaintiffs had successfully convinced Justice Southcott that s.236 didn’t completely bar all claims for everyone, despite the case history.

(a) misunderstanding and misapplying Federal Court of Appeal jurisprudence, such as Adelberg v Canada, 2024 FCA 106, which determined that the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police, (COVID-19 policy) was an employment policy related to terms and conditions of employment and emphasized that it matters not the way the claim is characterized, whether as a Charter breach or tort;

The Attorney General references Adelberg, which was: (a) struck for Federal workers; (b) allowed with respect to travel claims; and (c) ultimately denied Leave by the Supreme Court. This was Galati’s infamous “bad beyond argument” Federal case. But as bad as it was, the FPSLRA didn’t completely shut the door on some claims, a point made at the Payne hearing.

One interesting part of the Notice is paragraph 7.

7. The Motion Judge erred in finding that the Statement of Claim disclosed a reasonable cause of action in tort for casual workers, students and RCMP members as there were no representative plaintiffs for any of these categories, nor had material facts necessary been pled and was based on a misapplication of the Federal Court of Appeal decision in McMillan v Canada, 2024 FCA 199.

Justice Southcott struck the malfeasance of public office tort. This was on the basis that it was covered by s.236 FPSLRA, and could have been potentially grieved, at least with regard to the 3 Representative Plaintiffs. The possibility was left open to find new Plaintiffs that it wouldn’t apply to.

On that note, the Attorney General argues that there shouldn’t be an opportunity to amend, given that none of the current Plaintiffs qualify, and no facts are included. The Court can respond to that in several ways.

The Respondents have served their Notice of Appearance.

Brief Timeline Of Major Events In Case

October 6th, 2023: Statement of Claim is filed on behalf of 3 Representative Plaintiffs.

November 9th, 2023: Government responds with their Notice of Intent.

May 31st, 2024: Government sends notice that it intends to bring Motion to have the case struck (thrown out) in its entirety.

June 6th, 2024: Prothonotary Ring gives directions that there be case management.

June 10th, 2024: Chief Justice Crampton directs (a) Justice Southcott and (b) Prothonotary Ring to be assigned manage the proceeding.

July 1st, 2024: Prothonotary Ring issues schedule for documents to be served for Motion to Strike.

August 19th, 2024: Government brings its Motion to Strike.

October 1st, 2024: Plaintiffs file responding arguments as to why case shouldn’t be struck.

December 13th, 2024: Motion to Strike is argued before Justice Southcott.

January 1st, 2025: Justice Southcott partially grants the Motion to Strike. The tort of Malfeasance of Public Office is struck, but with Leave if eligible Plaintiffs are identified. The Section 2(d) claims are allowed to proceed.

January 13th, 2025: Government files Notice of Appeal.

January 20th, 2025: Plaintiffs (Respondents) file Notice of Appearance.

Note: All of the dates cited can be confirmed by searching the respective cases on the Federal Court website. It keeps a detailed listing of all significant events.

The Appeal should be heard later this year.

Should s.2(d) be upheld as a way around grievance requirements, this will have enormous influence on injection pass cases, at least at the Federal level. This is why they want Justice Southcott’s decision overturned. Of course, the Statutes of Limitation will make it hard to bring any new cases.

PAYNE APPEAL DOCUMENTS:
(1) Payne Notice Of Appeal January 2025
(2) Payne Notice Of Appearance January 2025

PAYNE FEDERAL COURT DOCUMENTS:
(1) Payne Statement Of Claim October 2023
(2) Payne Notice Of Intent To Defend November 2023
(3) Payne Letter Intent To Strike May 2024
(4) Payne Defendant Motion Record To Strike August 2024
(5) Payne Plaintiff Responding Motion Record October 2024
(6) https://www.canlii.org/en/ca/fct/doc/2025/2025fc5/2025fc5.pdf
(7) https://www.canlii.org/en/ca/fct/doc/2025/2025fc5/2025fc5.html