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.
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.
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.
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.
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.
Canadians were subjected to varying forms of lockdown measures from 2020 through 2022. Some restrictions still exist today in places such as health care settings.
As a result, a topic that’s come up numerous times is the idea of Class Actions. This is based on the concept that a single lawsuit — if carefully prepared — will be much more effective than individual claims. Many more people could potentially benefit. And indeed, such cases have sprung up.
With that in mind, it’s worth asking: how are these cases going?
One such suit filed in Federal Court is Chief Gregory Burke v. His Majesty the King, and the Attorney General of Canada. It commenced back in September 2023. To put it mildly, advancing the case doesn’t appear to be much of a priority.
There’s just the Statement of Claim and an amended version on file, both of which look to be horribly deficient. It will have to be further amended.
No Motion to Strike has (yet) been commenced. There’s no Statement of Defence. It doesn’t look like any steps have been taken to certify the case as a Class Action. The most recent action was in December 2024, advising of potential dates for a case conference. Donations are being sought still.
Counsel’s Recent Record On “Vaccine Passport” Cases
This Proposed Class Action is being conducted by Leighton Grey of the firm Grey Wowk Spencer. He has filed several related lawsuits (not Class Actions) in Federal Court in recent years. However, the trend seems to be to discontinue — drop — them, rather than push through.
A search of other Court records — such as Manitoba — reveal other, related cases which were promptly discontinued. One has to wonder how diligently this one will be pursued.
Nothing Pleaded About Chief Gregory Burke, Representative Plaintiff
Most people are familiar with the more “traditional” lawsuits. In those, the details of each Plaintiff must be spelled out in the Statement of Claim, and then, the Defendants respond. They typically know from the onset exactly who is suing them, and for how much.
For (Proposed) Class Actions, the Claim pleads information about 1 or more “Representative Plaintiffs” only. There are “subgroups” or “classes” listed of prospective litigants. They still have to provide enough detail about their own circumstances. Beyond that, there’s a process to attempt to certify the lawsuit as a Class Action. A Judge may (or may not) certify.
Only a single Representative Plaintiff — sometimes called a “Token Plaintiff” — is required, provided he or she is able to qualify for all classes.
Material facts
174 Every pleading shall contain a concise statement of the material facts on which the party relies, but shall not include evidence by which those facts are to be proved.
Particulars
181 (1) A pleading shall contain particulars of every allegation contained therein, including
(a) particulars of any alleged misrepresentation, fraud, breach of trust, willful default or undue influence; and
(b) particulars of any alleged state of mind of a person, including any alleged mental disorder or disability, malice or fraudulent intention.
Problem here: there’s nothing pleaded about Chief Gregory Burke. Federal Court Rules make it clear what’s required in a Statement of Claim. Neither the original nor the amended version provide any information about him.
Since Burke is the only Representative Plaintiff, he must give sufficient detail to at least theoretically support all of such Claims. True, other Plaintiffs may be added, but only if Certification is successful. It’s probably too late to amend the Style of Cause (names of Parties).
Section 2(a) of the Charter;
Section 6 of the Charter (Mobility)
Section 7 of the Charter (Security of the Person)
Section 8 of the Charter (Unreasonable Search and Seizure)
Section 15 of the Charter (Equality)
Tortious interference of economic relations
Tortious inducement to breach contractual relations
Intentional infliction of mental suffering
Malfeasance of public office
Negligent representation
Human rights violations
These are just some of the torts alleged in the Statement of Claim. Problem is: Grey pleads no information to support any of it. Granted, it may be true, but there’s nothing explained. Many are simply listed, with no facts or particulars to support any of it.
We know Burke’s name, and that’s about it.
Yes, the Statement of Claim can usually be amended. Keep in mind though, the case was filed nearly a year and a half ago. Shouldn’t such information already be included?
The Representative Plaintiff is Chief Gregory Burke. He is a senior who lives in Nova Scotia. He was chosen for a number of reasons, including his resistance to lockdown tyranny, which is being prosecuted there. He is also a Metis hereditary Chief who fits into both of the subclasses described in the class action.
Heck, there’s more information listed on counsel’s website than there is in the Statement of Claim.
Other Nonsense Included In Statement Of Claim
The Claim bizarrely pleads product liability and breach of implied warranty. This doesn’t make any sense. If Burke were fighting lockdown tyranny, he wouldn’t have taken any of the injections. And in paragraph 5, it’s stated that the Plaintiffs hadn’t. This would only apply if someone had taken the shot(s) and been harmed. Beyond that, it would be the manufacturers who’d be potentially liable.
Starting around paragraph 57, there are allegations that the Government had breached its duty of care to the Plaintiffs. It goes on and on about the dangers posed by “experimental vaccines”. But once again, the Plaintiffs plead that none of them took the shots.
Grey pleads the Nuremberg Code among other remedies that have no jurisdiction in a Canadian Civil Court. This is a Galati favourite, and part of the reason his cases are typically struck early on.
As for the Genetic Non-Discrimination Act, the purpose of that legislation had to do with race, ethnicity, and genetic disorders a person might have. It doesn’t apply here, yet lawyers routinely include it.
There are also allegations of interference with economic relations. For this tort to work, the Defendants would have to have done something improper or illegal to a third party that harmed the Plaintiffs. None of that is specified here. The employers would need to be identified, and the circumstances laid out.
The entire Claim reads as if Grey had simply cut and pasted from various other lawsuits, without paying much attention to how logical it all was.
Pleading Names The Subclasses (Groups of Plaintiffs)
Typically, a Class Action will name various “subclasses” of Plaintiffs. These are people who will still be part of the litigation, but whom have been impacted in different ways. Quote:
“Employment Subclass“: members who have experienced job loss or adverse employment effects as a result of the Defendants’ actions. This subclass includes those who have been terminated, denied promotions, experienced decreased working hours or suffered any other professional hardship
“Travel Subclass“: individuals who were prevented or prohibited from travelling due to their vaccination status. Members of this subclass have been adversely affected by the Defendants’ conduct and policies that either implicitly or explicitly restricted the mobility rights of unvaccinated individuals, thus causing significant disruption to both their personal and professional lives.
“Dual Impact Subclass“: is unique in that it encapsulates members who fall within both the aforementioned subclasses.
As stated before, there’s no information pleaded about Burke. He may very well have valid claims both regarding employment and travel, but there’s nothing provided.
October 5th, 2023: Government sends notice that it will respond and defend.
November 1st, 2023: Associate Judge Michael D. Crinson and Justice Mandy Aylen are assigned to be case management Judges for the suit.
December 10, 2023: Defendants contact Court, asking that any Statement of Defence be deferred until after Certification Motion has been heard and determined.
June 3, 2024: Statement of Claim (Plaintiff Class) filed with the Court.
December 19th, 2024: Letter from Plaintiff’s lawyer about case management dates.
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.
That’s where things currently stand. No Statement of Defence has been filed. There’s no Motion to Strike (yet), though presumably one is coming. And the process for a Certification Motion hasn’t even been started.
“2024-10-07
Current Status: The Statement of Claim was filed on 25 September 2023. A Federal Court action with a similar fact pattern recently faced a Motion to Strike Application to amend the Statement of Claim. We await online production of the Amended Statement of Claim to better assess whether further refinements are required in our action. In the interim a Case Management Conference has been requested. Scheduling of same is pending.”
An October 2024 status update may shed some light on things. The current plan is apparently wait to see what happens in some similar case, and then further amend this suit. So… to just wait and see, and piggyback off of someone else. Shouldn’t clients be talking to that lawyer then?
The case is nearly a year and a half old, and there’s just the Statement of Claim. Could such a case be certified and advanced? Maybe, but it doesn’t seem very urgent.
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.
