Category: Procedural

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The Pham Case: NGOs Pushed For Foreign Criminals Having More Rights Than Canadians

A disturbing trend has been in the news lately. Recently, a series of cases were published where foreigners received unusually low sentences for criminal convictions, in order to avoid deportation. Since the 2013 Supreme Court ruling in Pham, there has been a requirement to view “immigration consequences” when handing down punishment.

What’s even more unsettling is how this came to happen. A foreign drug trafficker received a 2 year sentence on a Joint Submission (agreement), but seemed to have realized after the fact that it would mean deportation.

For context: under the rules at the time, non-citizens who received a jail sentence of 2 years (or more) were excluded from many appeal options to avoid deportation. Removal was pretty much automatic. However, those convicted and receiving lesser punishment still had more prospects of staying. This was later reduced to a 6 month limit.

Hoang Anh Pham was sentenced to 2 years in prison for drug possession, for the purposes of trafficking. On Appeal, he asked that it be reduced by a day, to avoid deportation. The Court of Appeal, in a split decision, rejected it. However, the Supreme Court of Canada granted Leave (permission) to hear the case, and then did allow it.

What likely tipped the scales was that several Intervenors (interested parties) made submissions to the Supreme Court of Canada. These were:

  • British Columbia Civil Liberties Association (Charity Page)
  • Canadian Association of Refugee Lawyers
  • Canadian Civil Liberties Association (Charity Page)
  • Canadian Council for Refugees (Charity Page)
  • Criminal Lawyers’ Association of Ontario

Various groups weighed in, asking the the Supreme Court require that Judges take immigration consequences into account when imposing sentences. How does this benefit actual Canadians? How does special consideration for foreign criminals create a better society?

Hoang Anh Pham Previously Convicted For Drug Trafficking

[2] The facts as disclosed at trial were that the appellant was involved in a three-stage marijuana grow operation consisting of 591 plants at various stages of growth. It was estimated that the value of this crop ranged from $461,718 (if sold by the pound) to $738,750 (if sold by the ounce). An additional 28 grams of marijuana was found in two freezer bags in the freezer compartment to the refrigerator on the main floor.

[3] At the subsequent sentencing hearing, the appellant’s prior criminal record was entered as an exhibit. It disclosed that on December 12, 2000 the appellant had been convicted of one count of failing to attend court (section 145(2)(a) of the Criminal Code), one count of trafficking in a scheduled substance (section 5(1) of the CDSA) and one charge of possession of a scheduled substance for the purpose of trafficking (section 5(2) of the CDSA). At that time, the appellant had received a sentence of one day in gaol on the first count and a three month conditional sentence order, concurrent, on each of the other two charges.

[4] At the sentencing hearing in this case, the appellant’s then counsel and Crown counsel urged upon the sentencing judge, by way of joint submission, a sentence of imprisonment for two years. The Crown cited as aggravating factors that the appellant had benefitted financially and that he had not learned his lesson from his previous encounter with the criminal justice system.

From the Alberta Court of Appeal, we can see that Pham was already a convicted drug trafficker when this sentence was handed down.

Prosecutors Complicit With Sentence Reduction

[32] Returning to the case at bar, the appellant has previously been convicted of three offences. In 2000, he was convicted of failing to attend court, trafficking in a scheduled substance, and possession of a scheduled substance for the purposing of trafficking. For the first offence, he was sentenced to one day in jail; he received a three month conditional sentence for the other two charges. Now there is the more recent drug- related conviction, which resulted in the two year prison term he asks us to reduce. Illegal drugs are a tremendous scourge on our society. The appellant’s repeated contribution to the problem, albeit modest in the large scale of things, would normally disqualify him from leniency. However, as the prosecution has consented to this appeal, I would agree to allow it with the caveat that in future cases, this relief will not be there simply for the asking.

In a dissenting opinion with the ABCA, Justice Martin mentioned that the prosecution had consented to the appeal, which would have reduced the sentence. So, even though he was argued that he “clearly hadn’t learned his lesson”, the Crown is still okay with reducing the sentence to help prevent deportation.

1. B.C. Civil Liberties Association

2. The BCCLA submits that failure to consider the immigration consequences of a sentence would deprive the court of information required to properly consider the relevant sentencing factors, and may result in a sentence which unjustly infringes an offender’s rights and freedoms.

3. Immigration consequences must be taken into account by a sentencing judge in order to ensure that the offender is not punished more than necessary. A permanent resident convicted in Canada and sentenced to two years or more is almost certain to face deportation. For many permanent residents, deportation will be the most punitive impact of their sentence. In order to ensure that sentences are consistent with the principles of proportionality and restraint, the BCCLA submits that immigration consequences are relevant personal circumstances which should be taken into account as part of the individualized sentencing assessment.

2. Canadian Council For Refugees

4. Given that a non-citizen who has been convicted of a criminal offence may face removal from Canada, it is the CCR’s submission that the judge imposing the sentence must take into account the impact that the sentence will have on the availability of remedies for the retention of status in Canada. This is based on the following reasoning:

9. Non-citizens whose human rights will be infringed by removal are entitled to have their interests considered by a competent, independent and impartial decision maker prior to removal. A scheme was created for consideration of such interests under the Immigration and Refugee Protection Act (IRPA). Relevant to this appeal, this obligation is met in the equitable appeal which is available to permanent residents and Convention refugees who face removal because of a criminal conviction but who have received a sentence of less than two years.

17. It is submitted therefore that a judge, exercising a judicial discretion in relation to the imposition of an appropriate sentence for a crime committed, ought to take into account the impact that the sentence will have on the availability to a non-citizen of a hearing which is fully in compliance with the principles of fundamental justice under s. 7 of the Charter in relation to that person’s status in Canada.

Of course, these aren’t anywhere near all of the filed documents. However, they do illustrate what the main concerns being raised are.

The Supreme Court also has the video of the hearing posted on its website, even years later. It’s worth a watch.

51:30: Canadian Association of Refugee Lawyers begins, and brings up the possible ineffective assistance of counsel argument.
1:02:00: Criminal Lawyers Association of Ontario begins.
1:08:00: British Columbia Civil Liberties Association begins.
1:13:41: Canadian Council for Refugees begins.
1:19:15: Canadian Civil Liberties Association begins.
1:38:30: Respondent (Government) begins.

While the Government (initially) asked that the case be remitted back to the Court of Appeal, at the hearing, they simply consented to the Appeal being allowed.

This should make Canadians’ blood boil. Registered “charities” are getting significant tax breaks while they try to implement caselaw to give preferential treatment to foreign criminals.

Conservative Bill A Trojan Horse?

At the risk of jumping to conclusions, consider a recent video from Michelle Rempel-Garner. She proposes a Private Member’s Bill to amended the Criminal Code. In her words, Judges “should not” be able to take immigration status into account. It’s at the 2:00 mark.

Should not?

How about cannot? Or must not? Or are prohibited from?

While this may come across as pedantic, this choice of wording would allow Judges to retain discretion as to whether or not they consider immigration status. There would merely be a recommendation against doing so, not an outright ban.

Does she not realize that every lawyer with a foreign convicted criminal for a client will be arguing that their case is exceptional?

We’ll have to see what happens.

COURT RULINGS:
(1) https://www.canlii.org/en/ab/abca/doc/2012/2012abca203/2012abca203.html
(2) https://www.canlii.org/en/ca/scc-l/doc/2012/2012canlii68768/2012canlii68768.html
(3) https://www.canlii.org/en/ca/scc/doc/2013/2013scc15/2013scc15.html

SUPREME COURT OF CANADA:
(1) https://www.scc-csc.ca/cases-dossiers/search-recherche/34897/
(2) Pham Factum Appellants Factum
(3) Pham Factum Respondents
(4) Pham Factum Appellants Reply
(5) Pham Factum BC Civil Liberties Association
(6) Pham Factum Canadian Association Of Refugee Lawyers
(7) Pham Factum Canadian Civil Liberties Association
(8) Pham Factum Canadian Council For Refugees
(9) Pham Factum Criminal Lawyers Association Of Ontario

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Anti-SLAPP Ruling Upheld: When “Recycling” Your Defamation Cases Goes Horribly Wrong

A long awaited Court of Appeal decision has finally been handed down. Justices Zarnett, Young and Favreau have upheld a December 2023 ruling from Justice Chalmers of the Ontario Superior Court. That initial verdict saw a $1.1 million defamation case against CSASPP thrown out under anti-SLAPP laws, with $132,000 in costs awarded. Another $10,000 in costs was ordered in this subsequent ruling.

CSASPP is of course the Canadian Society for the Advancement of Science in Public Policy. In January 2021, it began a Proposed Class Action against Bonnie Henry and the Government of British Columbia. This has been covered elsewhere on this site.

See here, here and here for background information.

That said, a hilarious detail seems to have been overlooked. The case against CSASPP was almost entirely borrowed from an earlier defamation case…. against this website. To clarify, there were 2 separate actions, with overlapping allegations.

[1] This website was sued in September 2021 for detailed criticism of various anti-lockdown cases.

[2] CSASPP and its staff were sued in June 2022 over much, MUCH more mild criticism, and to silence a fomer donor from complaining to the Law Society of Ontario.

Given that this there were 2 different lawsuits, with very different circumstances, one would expect that 2 very different cases would have been prepared. Instead, it seems that the documentation for the first case was simply repackaged and reused for the second case. From the ruling:

[86] …. Finally, because of evidence in the appellant’s own materials of other extremely vitriolic and sustained criticisms of him by others, including the publication “Canuck Law”, he found that if there was damage to the appellant’s reputation, it was not shown to have been caused by the respondents, as opposed to other sources.

[91] The difficulty with the appellant’s submission is the motion judge’s causation finding. The motion judge referred to the evidence from the appellant of a concerted campaign against him by a group known as “Canuck Law” who was not a party to his action. The motion judge stated: “the [appellant] references the group extensively in the material filed on this motion. In articles posted on the Canuck website, the [appellant] was the subject of disparaging and racist comments”. Referring to that and some judicial criticism, he concluded that there was no evidence that any damage to the appellant’s reputation was caused by the respondents, as opposed to other sources.

As an aside, the “racist comments” referred to in the CSASPP case actually came from a site called Overdue Revolutions. It was just misrepresented that they originated here.

Not only are anti-lockdown cases being recycled, but defamation ones are as well. By filing evidence that someone else may have engaged in character assassination, it completely undermines the claims that CSASPP had been responsible.

Whatever happened to taking pride in one’s work?

CSASPP/RG DOCUMENTS (June 2022)
(1) CSASPP RG Statement Of Claim
(2) CSASPP RG Moving Party Motion Record Volume 1
(3) CSASPP RG Moving Party Motion Record Volume 2
(4) CSASPP RG Moving Party Motion Record Volume 3
(5) CSASPP RG Responding Motion Record Volume 1
(6) CSASPP RG Responding Motion Record Volume 2
(7) CSASPP RG Responding Motion Record Volume 3
(8) CSASPP RG Moving Party Supplemental Motion Record
(9) CSASPP RG Moving Party Record Motion To Strike
(10) CSASPP RG Plaintiffs Responding Record Motion To Strike
(11) CSASPP RG Transcript Brief
(12) CSASPP RG Moving Party Factum (Arguments)
(13) CSASPP RG Responding Plaintiff Factum
(14) CSASPP RG Moving Parties Reply Factum
(15) CSASPP RG Reasons For Judgement
(16) CanLII Posting Of Decision

CSASPP/RG APPEAL DOCUMENTS (2024)
(1) CSASPP Defamation Appellant Factum
(2) CSASPP Defamation Respondent Factum
(3) https://www.covidconstitutionalchallengebc.ca/status-updates
(4) https://www.scribd.com/document/768627727/2024-09-12-Notice-of-Merit-Hearing-13-January-2025
(5) https://www.scribd.com/document/758138683/2024-08-06-Defendant-Respondents-Motion-Record-to-Dismiss-for-Delay

1ST LAW SOCIETY OF ONTARIO CLAIM (July 2022)
(1) Law Society Of Ontario Statement Of Claim
(2) Law Society Of Ontario Intent To Defend
(3) Law Society Of Ontario Amended Statement Of Claim
(4) Law Society Of Ontario Requisition For Amended Claim
(5) Law Society Of Ontario Motion Record, To Strike
(6) Law Society Of Ontario Moving Party Factum To Strike
(7) Law Society Of Ontario Plaintiff Responding Factum

2ND LAW SOCIETY OF ONTARIO CLAIM (July 2023)
(1) Law Society Of Ontario Second Statement Of Claim

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A Beginner’s Guide To Pleading Charter Claims (If You Must)

Let’s do something different today.

For people who have been wronged by some level of Government, what is your recourse? Well, suing is an option, of course. But what would Statement of Claim or Notice of Application look like? How would it be presented?

While there’s no perfect way to draft documents, it’s important to understand that very specific information needs to be included. This is especially true when making allegations that Charter Rights have been violated.

The goal here is to get people thinking about what they have to submit when making constitutional challenges, as well as what to avoid. This list is not exhaustive, but includes some common torts. Even Ottawa published an interesting guide on the Charter.

***Note: Many have made the argument over the years that the Charter is worthless, especially in light of the Bill of Rights. This is not meant to address that. Instead, it’s to highlight what information is required to provide in order to bring such cases. As usual, this is INFORMATION, not advice.

With that in mind, let’s begin.

Pleading Facts And Providing Particulars Necessary

JURISDICTION PLEAD FACTS PLEAD PARTICULARS
Federal Court Rule 174 Rule 181
Alberta Rule 13.6 Rule 13.7
British Columbia Rule 3-1(2)(a) Rule 3-7(17)
Manitoba Rule 25.06(1) Rule 25.06(11)
Nova Scotia Rule 38.02(2) and (3) Rule 38.03(3)
Ontario Rule 25.06(1) Rule 25.06(8)

Material Facts
25.06(1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.

Nature of Act or Condition of Mind
25.06(8) Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.

Pleading facts: This means laying out the sequence of events, and giving the who, what, where, when, etc… of what happened. Who said what? Who did what? In the case of alleged Charter breaches, it’s not meant to be a legal argument, or to cite case law.

Pleading particulars: Depending on the nature of the allegations, there’s an extra requirement to spell out the bad behaviour. Again, it’s not meant to devolve into argument. Admittedly though, it can be tricky to argue state of mind at the onset, but something needs to be included.

The above quotes are from the Ontario Rules of Civil Procedure. However, it’s virtually identical across jurisdictions. These apply regardless of whether or not there’s a Constitutional challenge.

Beyond that, Courts have explicitly ruled on what needs to be pleaded in order to bring Charter related cases. The necessary information is very specific.

Here are some common Charter torts that are brought up.

Facts Required For Section 2a (Religion) Pleading

In the above section, it’s explained that it’s necessary to plead a “concise statement of material facts”. Sounds great, but what do these facts need to cover? Well, for major Charter issues, the Courts have long ago ruled on what’s required. There’s no excuse for professional lawyers not to know better.

(1) that he or she sincerely believes in a practice or belief that has a nexus with religion, and
(2) that the impugned state conduct interferes, in a manner that is non‑trivial or not insubstantial, with his or her ability to act in accordance with that practice or belief

https://www.canlii.org/en/ca/fct/doc/2017/2017fc1092/2017fc1092.html#22
https://www.canlii.org/en/ca/scc/doc/2017/2017scc54/2017scc54.html#par68

It’s not nearly enough to say “muh religion”, and leave it at that. To bring such a case, litigants must: (a) explain in detail what those beliefs are; and (b) explain how someone else’s actions or demands have imposed on those beliefs in a serious way.

Facts Required For Section 2d (Association) Pleading

This is a complicated one, although a good guide is available. While there’s much caselaw in the context of collective bargaining (unionization), association is protected under a few grounds.

The purpose of the freedom of association encompasses the protection of
(1) individuals joining with others to form associations (the constitutive approach)
(2) collective activity in support of other constitutional rights (the derivative approach), and
(3) collective activity that enables “those who would otherwise be vulnerable and ineffective to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict”.

https://www.canlii.org/en/ca/scc/doc/2015/2015scc1/2015scc1.html#par54

Essentially, litigants would have to plead that their association was somehow obstructed or prevented. It’s worth pointing out that Section 2(d) protects the right of association itself, not necessarily the activities for which people are associated.

Facts Required For Section 6 (Mobility) Pleading

For Section 6(1), Canadian citizens have the right: (a) to enter; (b) remain in; and (c) leave Canada. Litigants would have to prove that at least one of these was violated.

For Section 6(2), citizens and permanent residents have interprovincial mobility rights to obtain a livelihood in any Province they wish. They would have to claim that discrimination comes from where they reside.

(a) The principle: The right to pursue the gaining of a livelihood in any province;
(b) The exception: This right is subject to any laws or practices of a general application in force in that province;
(c) The exception to the exception: Except if these laws discriminate among persons primarily on the basis of the province of residence.

https://www.canlii.org/en/ca/scc/doc/2013/2013scc47/2013scc47.html#par18
https://www.canlii.org/en/ca/scc/doc/1997/1997canlii17020/1997canlii17020.html#par51

Facts Required For Section 7 (Security) Pleading

(1) plaintiff must plead facts to establish a deprivation of their right to life, right to liberty or right to security of the person.
(2)The claim must then set out facts to show that any deprivation of these rights was effected in a manner contrary to the principles of fundamental justice.

https://www.canlii.org/en/on/onsc/doc/2022/2022onsc2732/2022onsc2732.html#par69
https://www.canlii.org/en/on/onsc/doc/2017/2017onsc2312/2017onsc2312.html#par30

Interestingly, Section 7 “does not describe any right of a corporation or the purely economic interest of a natural person, nor does it guarantee the right to unrestrained business activity or to practice a particular profession or occupation.” This was settled decades ago, but lawyers still take clients’ money to argue these cases.

https://www.canlii.org/en/on/onsc/doc/1990/1990canlii6753/1990canlii6753.html

Facts Required For Section 12 (Cruel/Unusual) Pleading

(1) plaintiff must show that the action involves some treatment or punishment by the state, and
(2) that such treatment is cruel and unusual

https://www.canlii.org/en/ca/fct/doc/2005/2005fc442/2005fc442.html#par27

It’s also noted that: “A mere prohibition on certain conduct, even if it results in cruel and unusual effects, does not qualify as treatment under s. 12. Punishment means a sanction imposed by the state as a corrective measure for the commission of a particular offence.”

Facts Required For Section 15 (Equality) Pleading

Despite common perceptions, the Charter doesn’t really protect equality at all. Instead, it covers a limited number of grounds, and even that is subject to the politics involved.

Enumerated grounds: explicitly stated in the Charter
Analogous grounds: other ones Courts have endorsed over the years.

ENUMERATED GROUND ANALOGOUS GROUND
Explicitly In Charter Recognized By Courts
Race Sexual Orientation
National/Ethnic Origin Marital Status
Colour Off-Reserve Band Member
Religion Citizenship
Sex –
Age –
Mental/Physical Disability –

(1) on its face or in its impact, the state action creates a distinction based on a prohibited ground (either enumerated or analogous); and
(2) the state action imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage

https://www.canlii.org/en/on/onsc/doc/2022/2022onsc2732/2022onsc2732.html#par80
https://www.canlii.org/en/on/onca/doc/2021/2021onca534/2021onca534.html#par133

This is why “vaccination status”, and similar arguments have failed in recent years. It’s not covered under the existing lists, and few have tried to add it as an analogous ground. This is why they fail.

Facts Required For Malfeasance Of Public Office Pleading

(1) the tortfeasor engaged in deliberate and unlawful conduct in his or her capacity as a public official; and,
(2) the tortfeasor knew his or her conduct was unlawful and that their conduct was likely to injure the plaintiff.

https://www.canlii.org/en/ca/fct/doc/2021/2021fc1112/2021fc1112.html#par27
https://www.canlii.org/en/ca/scc/doc/2003/2003scc69/2003scc69.html#par23

Although not a Charter issue, malfeasance is worth mentioning, as it’s commonly argued. The necessary elements are easy enough to find. Of course, particulars would have to be included as well. The elements for other torts such as conspiracy or intimidation are easy enough to look up.

Clients Routinely Screwed Over By Inadequate Pleadings

As has been demonstrated, across jurisdictions, there’s a requirement to “plead material facts” when filing a case. It’s easy enough to find out what those facts must include.

Because so many lawsuits involve malice, breach of trust, malfeasance, or a “conspiracy”, there’s an added burden to spell out what’s been going on.

But what happens when clients pay top dollar for counsel who either doesn’t know this, or who can’t be bothered to do it properly? Here are some recent examples.

The above 7 cases have a total of well over 2,000 Plaintiffs, but comprise just 228 pages. That being said, if the: Style of Cause (party names), service addresses and cover pages are removed, it’s much less than 228. So, how do you adequately plead Charter violations in a single line, or 2?

You don’t.

All of these cases demand money for Charter breaches, but don’t plead facts for any of them, for any client. And while alleging all kinds of conspiracies, none are really spelled out.

It’s disheartening that various Law Societies allow incompetent morons to practice. This is done to detriment of clients, the profession, and to society as a whole. They should all be disbarred, as there’s no benefit to letting them keep their licences.

Should prospective litigants be considering Court action, it’s necessary to think about what must be pleaded in a Statement of Claim, or Notice of Application. The Rules of Civil Procedure are available publicly, requiring facts and particulars. Similarly, specific elements of Charter torts have been established long ago.

These claims are a good way to screen out prospective lawyers. If they think such a filing is “okay”, or is “pretty good”, then you’re about to get taken advantage of. Disgust and shock are the reactions they should have.

Understanding the information above will put self-reps in a better position than many “professionals”.

***Once more, this is INFORMATION, not legal ADVICE. Please take everything here with a grain of salt, and do your own research.

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The Hartman Appeal, Part 1: Looking At The Notice

The Court of Appeal for Ontario will review the case of Dan Hartman, either late this year, or early next year. Back in March, the Ontario Superior Court struck the case without an opportunity to amend the pleadings.

This is a wrongful death suit filed after his son, Sean, passed away shortly after taking the injections. A similar one was filed against Pfizer.

Although there is considerable overlap in the facts pleaded, the case is argued 2 ways:

  1. Malfeasance of public office
  2. Negligence

The first tort implies intentional, while negligence implies carelessness.

However, Justice Antoniani threw the case out completely, despite offers to expand the pleadings. It was ruled that the proposed amendments — while they added more information — it wouldn’t help. The necessary elements for malfeasance weren’t pleaded. Nor was there “sufficient proximity” to establish a private law duty of care.

The Appeal seeks to overturn this ruling.

Malfeasance Of Public Office Explained

The Statement of Claim argues that the Defendants acted with “reckless indifference or willful blindness” when they pushed the vaccines on Canadians.

56. As a department, Health Canada is responsible for administering acts and regulations, and for implemening government-wide regulatory initatives. Health Canada was responsible for discharging the operational role of regulatory approval, monitoring, and compliance of Covid-19 vaccinations for use in Canada.

57. The Plaintiff pleads that Health Canada was recklessly indifferent or willfully blind in discharging its responsibilities of regulatory approval and oversight of the Pfizer-BioNTech COVID- 19 vaccination by, inter alia:

Starting on paragraph 61, it’s specified:

  • Issuing a certificate of compliance to Pfizer
  • Failing maintain oversight and control over Health Canda in relation to their regulatory responsibility for oversight, monitoring, evaluation, and assessment
  • Representing to Canadians in public statements and press releases that the Covid-19 vaccination was safe and effective, despite the Minister and Minister’s Department of Health possessing data to the contrary
  • Failing to revoke the certificate of compliance issued

However, the Judge gave an interesting take on the malfeasance claims, stating that the following details were required:

[81] To prove misfeasance in public office, the Plaintiff must show:
a) Deliberate, unlawful conduct in the exercise of public functions;
b) Awareness that the conduct is unlawful and likely to injure the Plaintiff’s son;
c) Harm;
d) A legal causal link between the tortious conduct and the harm suffered; and
e) An injury that is compensable in tort law.

Presumably, the Defendants know few, if any of the people who were harmed by these injections. This seems unreasonably narrow in scope.

Negligence Claim Explained: No Private Duty Of Care

While arguing intent can be tricky, the Statement of Claim also pushed variations of “negligence” as alternative torts.

77. The Plaintiff pleads that the Defendants breached the standard of care and negligently misrepresented the safety of the vaccine and did not disclose the risks associated with the vaccine which include but not limited to myocarditis and pericarditis. The particulars include:
.
(a) Failed to disclose that individuals under 40 had an increased risk of myocarditis after receiving the mRNA COVID-19 vaccine;
(b) Failed to disclose that rates of myocarditis were higher in adolescent males;
(c) Inadequate testing was performed to ensure the safety and efficacy of the vaccine;
(d) The Defendants failed to complete post market surveillance and inform the public of the results;
(e) The Defendants failed to accurately, candidly, promptly and truthfully disclose the issues with the COVID-19 vaccine;
(f) The Defendants failed to identify, implement, and verify that the procedures in place to address post market surveillance risks were in place to address issues, complaints, and timely notification of concerns; and,
(g) The Defendant failed to change the public recommendations of the COVID-19 vaccine being that it was safe and effective.

The Judge ruled that the duties of the Defendants are to the public at large, and not to individual members of the public. But really, who is the public, if not a collection of individuals?

[91] The necessary elements to ground an action in negligence are not present. The duties of the Defendants under the legislative scheme are to the Canadian public. Sufficient proximity is not established and there is no private law duty of care. Other policy considerations militate against finding such a duty. As such, it is plain and obvious that the claim cannot succeed.

One would think that when public officials make decisions, especially coercive ones, that there would be some duty of care to the people impacted. But it seems not.

Looking At The Notice Of Appeal

The Notice of Appeal alleges a number of serious errors made. Keep in mind, at this stage, the Court is to assume that all facts pleaded are true, or capable or being proven.

  • The misapplied the “plain and obvious” test applicable on a motion to strike. In particular, the judge failed to read the pleading generously and assume the facts pleaded to be true, as required.
  • The Appellant submits that this analysis was flawed. The Statement of Claim pleaded that the Respondents knew of specific risks (e.g. heightened myocarditis risk in adolescent males) and nonetheless targeted the youth population (including Sean) with assurances of safety. Facts, if proven, could establish a relationship of proximity despite the broad public context.
  • Misfeasance in public office is an intentional tort aimed at wrongful exercises of public power by officials who either intend to harm or act with knowledge that they are exceeding their lawful authority and that their conduct will likely harm the plaintiff.
  • On a Rule 21 motion, the court must assume the truth of the facts pleaded. Here, the facts pleaded (e.g. that the Minister knew of specific dangers and knowingly misled the public or ignored legal duties) should have been taken as true for the purposes of the motion. If so assumed, the misfeasance claim is legally tenable.
  • Error in Denying Leave to Amend the Pleading: The judge erred in law by denying the Appellant leave to amend the Statement of Claim.

What will happen at the Court of Appeal? It’s unclear, but there’s a chance to get this claim restored.

***Note: follow-up both with this case, and with Pfizer, are coming. This isn’t anywhere near the complete record as far as the documents go.

AGC COURT DOCUMENTS:
(1) Hartman AGC Statement Of Claim (September, 2023)
(2) Hartman AGC Reasons For Decision (March, 2025)
(3) Hartman AGC Notice Of Appeal (April, 2025)

PFIZER COURT DOCUMENTS:
(1) Hartman Pfizer Statement Of Claim (September, 2023)
(2) Hartman Pfizer Fresh As Amended Statement Of Claim (March, 2025)

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Ottawa Protest Class Action: Defendants Fail In Attempt To Move Case

This is an update to the Proposed Class Action filed in Ottawa in February 2022, against protesters demanding an end to lockdown measures. While the case has dragged on, there has been no shortage of activity.

The lawsuit was filed alleging Defendants had been involved in nuisance activity, including:

  • blocking streets and sidewalks
  • incessant honking of horns
  • flooding neighbourhoods with diesel fumes

***There is, of course, the absurd irony of the Plaintiffs filing a Class Action against others who were protesting in favour of freedom — and theirs included. Perhaps they would have preferred that martial law measures continue indefinitely.

After more than 3 years, it seems that certification hearings may soon be coming. Despite numerous attempts to get the case thrown out, it has survived so far.

Anti-SLAPP Laws Not Meant For This Type Of Case

Previously, the Defendants had attempted to strike the claim, arguing that it wasn’t something that (assuming that even if the facts were true) could proceed to Trial. The Judge rejected attempt.

Afterwards, an anti-SLAPP Motion was brought, on the basis that the protests amounted to “public expression”. If granted, it would allow the Court to dismiss the case if it was brought to silence that expression. However, that effort failed as well. The Defendants weren’t being sued for their expression, but for alleging committing a nuisance while exercising that expression.

[62] Yet, by bringing a s. 137.1 motion against the background of the Rouleau Report and taking the position that their interactions over several weeks could not amount to concerted action, the appellants (several of whom filed no evidence) are trying to use a light-touch screening mechanism to get rid of a case for which any determination on the merits patently will require a deep dive into the evidence and the making of extensive findings of credibility. In sum, the appellants are trying to use their s. 137.1 motion for purposes for which it is not designed or appropriate.

The Court of Appeal upheld to decision to allow the case to proceed. This isn’t to justify the Class Action filed, but the Court did make a valid point: anti-SLAPP laws weren’t designed for this type of case.

Interestingly, the Defendants also seemed to be denying that they were involved in causing these specific nuisances, while simultaneously justifying them as “expression”.

The Court of Appeal rejected several arguments about how the Superior Court had erred in applying the anti-SLAPP test. Bottom line: laws meant to protect expression didn’t apply to the tort of nuisance.

Motion For Change Of Venue Denied

The Defendants requested that the case be moved, arguing that it would be difficult, if not impossible, to get a fair Trial. Unsurprisingly, Plaintiffs filed a Motion Record and Factum in opposition to it.That Motion was dismissed as well.

Justice Glustein commented that this should have been brought much sooner, not the 3 years that it has been. Since the case began, the Defendants have filed: (a) filed a Motion to Strike; (b) filed an Anti-SLAPP Motion; and (c) appealed the Anti-SLAPP decision.

The judge also noted the defendants could have brought a change of venue application much earlier given that the lawsuit is now more than three years old. The court has already issued more than a dozen pre-certification decisions in the case, Glustein said, including rulings on Mareva orders, escrow funds and dismissal motions.

This was reported by the Ottawa Citizen as well. While not on CanLII, the decision is publicly available.

Brief Timeline Of Major Events In Case

It’s worth noting that there was been no movement in terms of hearing the case on the merits. The vast amounts of paperwork all have to do with administrative steps within the case.

February 4th, 2022: Statement of Claim (original version) is filed.

February 17th, 2022: The Court hears a request for a Mareva Injunction ex parte, meaning that the opposing side was not given notice, and not able to present a case on their own behalf. The purpose was to put convoy funds under control of the Court until a final outcome could be determined.

February 22nd, 2022: The Court granted the Injunction.

March 10th, 2022: The Court extends the Mareva Injunction until March 31st, 2022.

April 1st, 2022: The Court adjourns competing Motions until May 2nd. The Plaintiffs wanted to continue the Mareva Injunction, while the Defendants wanted it dissolved.

November 7th, 2022: The Motion to amend the Statement of Claim was supposed to have been heard. However, due to scheduling conflicts, it’s adjourned until January 2023.

November 15th, 2022: The Court hears a Motion from Chris Garrah and Benjamin Dichter, attempting to access $200,000 from the frozen funds. The stated purpose was to be able to finance a defence to this lawsuit.

December 6th, 2022: The Court denies the Motion to free up the money, but allows for the possibility to revisit the issue if circumstances change. Parties are told to try to settle the issue of costs themselves.

January 24, 2023: The Court hears arguments on 2 overlapping Motions. The Plaintiffs wanted to further amend the pleadings, while the Defendants wanted them struck for not having a Cause of Action. The decision is reserved until later.

March 13, 2023: The Court rules on the January 2023 Motions. In the end, it was about the same thing: is the pleading acceptable? It’s decided that the Statement of Claim may be changed to accommodate deficiencies.

June 9th, 2023: Court refuses to award any costs at all over 2 competing Motions. This stems from the earlier March 13th, 2023 ruling.

July 27th, 2023: The Ottawa Court sets dates for various steps within the proposed anti-SLAPP Motion. This is Section 137.1 of the Courts of Justice Act.

August 25th, 2023: Moving Party Motion Record (document collection) is served.

September 15, 2023: Cross-Examinations of various parties happened.

November 30th, 2023: Defendants file volumes I and II of their supplementary evidence.

November 30th, 2023: Defendants file their anti-SLAPP Factum (arguments).

December 7th, 2023: Responding Factum (Plaintiffs) is filed.

December 14th, 2023: Anti-SLAPP Motion is heard.

February 5th, 2024: The Ottawa Court refuses to dismiss the case under “anti-SLAPP” laws. Rather than accept the ruling, the Defendants chose to appeal it.

April 3rd, 2024: Appellants’ arguments are submitted to the ONCA.

October 15th, 2024: Respondents’ arguments are submitted.

October 28th, 2024: Ontario Court of Appeal hearing takes place, with Justices Lauwers, Brown and Coroza presiding. Defendants argue that the Superior Court should have dismissed the case under anti-SLAPP laws. The Plaintiffs counter that the correct decision was made.

March 6th, 2025: Ontario Court of Appeal dismisses anti-SLAPP Appeal.

March 18th, 2025: Court of Appeal issues a cost order of $20,000.

June 22nd, 2025: Motion for a change of venue is denied.

While Pat King was initially noted in default, that was set aside on consent. Since then, he and Joseph Janzen have filed their Statement of Defence.

This Class Action differs from most because it has yet to identify all of the Defendants who would be named, not just the Plaintiffs. After all this time, it would seem a daunting task.

It’s worth mentioning that the Plaintiffs here have put more effort into their lawsuit than virtually any of the “freedom lawyers” so far. They seem committed to see this through. Now, if only they valued their individual liberties that much.

COURT DECISIONS:
(1) Li et al. v. Barber et. al., 2022 ONSC 1176 (CanLII)
(2) Li et al. v. Barber et. al., 2022 ONSC 1543 (CanLII)
(3) Li et al. v. Barber et al., 2022 ONSC 2038 (CanLII)
(4) Li et al. v. Barber et al., 2022 ONSC 6304 (CanLII)
(5) Li et al. v. Barber et al., 2022 ONSC 6899 (CanLII)
(6) Li et al. v. Barber et al., 2023 ONSC 1679 (CanLII)
(7) Li et al. v Barber et al., 2023 ONSC 3477 (CanLII)
(8) Li et al. v. Barber et al., 2023 CanLII 67728 (ON SC)
(9) Li et al. v. Barber et al., 2024 ONSC 775 (CanLII)
(10) Li et al. v. Barber et. al., 2025 ONCA 169 (CanLII)
(11) Li et al. v. Barber et. al., 2025 ONCA 216 (CanLII)
(12) Zexi Li Reasons For Decision Change Of Venue

COURT DOCUMENTS:
(1) Zexi Li Statement Of Claim (February, 2022)
(2) Zexi Li Horn Injection (February, 2022)
(3) Zexi Li Horn Injection (February, 2022)
(4) Zexi Li Amended Statement Of Claim (February, 2022)
(5) Zexi Li Motion To Strike Defendants Factum (January, 2023)
(6) Zexi Li Fresh As Amended Statement Of Claim (March, 2023)
(7) Zexi Li Anti-SLAPP Defendants Sup. Motion Record Vol I (November, 2023)
(8) Zexi Li Anti-SLAPP Defendants Sup. Motion Record Vol II (November, 2023)
(9) Zexi Li Anti-SLAPP Moving Parties Factum (November, 2023)
(10) Zexi Li Anti-SLAPP Responding Factum (December, 2023)
(11) Zexi Li Anti-SLAPP Defendants Book Of Authorities (December, 2023)
(12) Zexi Li Anti-SLAPP Plaintiffs Book Of Authorities (December, 2023)
(13) Zexi Li Anti-SLAPP Signed Order Dismissing (March, 2024)
(14) Zexi Li APPEAL Anti-SLAPP Appellants Factum (March, 2024)
(15) Zexi Li APPEAL Anti-SLAPP Respondents Factum (October, 2024)
(16) Zexi Li Responding Motion Record Change Venue (May, 2025)
(17) Zexi Li Change Of Venue Respondents Factum (April, 2025)
(18) Zexi Li Consent Set Aside Default Judgement (June, 2025)
(19) Zexi Li Statement Of Defence King Janzen (June, 2025)

Note: this is by no means all the Court documents, just a handful of them. There’s also a website supporting the lawsuit that posts more of them.

Posted on

Universal Ostrich Farms, Part 7: CFIA Responds To Motion To Delay Culling

Ever heard the expression that there’s no cure for stupidity?

At this point, it would seem that the most intelligent beings at Universal Ostrich Farms in Edgewood, B.C. are the birds themselves. Unfortunately, this isn’t entirely sarcasm.

See Parts 1, 2, 3, 4, 5 and 6 in the series for more information.

In this specific Motion, the farm owners are asking the Federal Court of Appeal to stay (defer) culling their animals until the overall Appeal can be ruled on. They say there’s strong grounds for appeal against the Canada Food Inspection Agency (CFIA). They state that aside from the financial costs, the proceedings become “moot”, since the animals would be dead anyway. Sounds reasonable, doesn’t it?

Part of their plea is based on the claim that they can manage and quarantine the animals effectively, and at their own cost. In essence, they take the matter seriously, and won’t endanger the public. Now, if they want the Justice (whoever decides) to be sympathetic, it stands to reason that they would act responsibly.

But the Affidavit of Cathy Furness changes things. And the arguments are harsh. See parts 1 and 2 of the full Record.

The CFIA has been putting their social media postings into evidence.

Espersen Apparently Sleeps In A Truck In Quarantined Area

121. In addition to the above, I have viewed social media posts shared by the owners of UOF indicating that Karen Espersen has been sleeping in a vehicle within the quarantined premises, which contravenes the quarantine requirements. Members of the public have also posted images on social media platforms which demonstrate that they are in very close proximity to ostriches and within the quarantined area. Attached as Exhibit “PP” is a May 14, 2025 Facebook post from Karen Esperson.

One could argue that there’s nothing inherently wrong with farmers spending time with their animals, even on this scale. That may be true in general. But when the owners are trying to convince the Federal Courts that they’re serious about respecting quarantine rules, this is moronic.

Photos Of Farm Visitors Went Into Evidence

[para 121 continued] … Attached as Exhibit “QQ” are three photographs posted to Facebook by a member of the public on May 25, 2025 showing supporters of UOF, including Karen Esperson’s daughter Katie Pasitney, standing in close proximity to the ostriches inside the quarantined area.

Thanks to Colin Bigbear’s Facebook page, the CFIA now has photographs that visitors (including children) routinely visit the farm. Again, all of this went into evidence for the Motion. It’s to show that quarantine isn’t being taken seriously.

Pasitney’s Interviews Were Downloaded By CFIA

149. Finally, although the risk of transmission of HPAI to humans is generally considered low, the information described above suggests that the farm owners are not taking the necessary precautions to prevent transmission of the virus to people. Katie Pasitney has also publicly stated that she and others have tested positive for H5N1 antibodies. I have reviewed an episode of the “Shadoe Davis Show” posted to Save Our Ostriches’ website on May 12, 2025, in which Katie Pasitney states at 00:25:16 that “we’ve all had our blood tested … and I came back positive for our strain of H5N1 … So we have antibodies”. Katie Pasitney goes on to state that “we have not fallen ill, we’re not sick, but we need to start dispelling the fear mongering because people get hospitalized all the time from just the regular flu, right?” This episode is available online https://saveourostriches.com/podcasts/25-05-12-katie-pasitney-shadoe-davis-show/. Also attached as Exhibit “VV” is an article from the Western Standard reporting that Katie Pasitney and her family tested positive for H5N1 after exposure to the UOF flock.

In Furness’ Affidavit, she states that Katie Pasitney has stated at least twice to testing positive for antibodies. Once was on the Shadoe Davis Show, and another was with Western Standard.

This is dumb for another reason. Instead of trying to challenge the validity of the tests, they just claim that they’re protected. It shuts down a potential defence.

Farm Music Festival Coming Up In July?

Farm Aid Canada? When this was first forwarded, it seemed to be a joke. This wasn’t included with the Furness Affidavit, likely because the site just went up. Still, it’s inevitable that the CFIA will bring it up with the Court at some point.

Additionally, if this Facebook post is to be believed, there’s going to be some camping in the area to help raise money for their legal costs.

While this may help raise money, it won’t help where it really matters: Court. Events such as these make everyone look clownish and unserious.

CFIA Tells Court They’ve Received Threats

100. No in person site visits have occurred since February 26, 2025 due to the risks to staff associated with entering an infected premises where robust disease control and biosecurity measures are not in place, and due to safety concerns associated with the presence of protesters. The basis for these safety concerns include numerous threats against CFIA employees made by members of the public on social media who oppose the presence of CFIA oversight at the premises and the destruction of the ostriches, including protesters currently residing on the premises. I have also reviewed emails, text messages and voice mails received by me and other CFIA employees containing threats and/or suggested threats of violence, including against CFIA employees in the Western region that have previously conducted site visits. Attached as Exhibit “KK” is a May 26, 2025 CBC News article regarding safety concerns raised by the union that represents CFIA workers, including because of online death threats.

Even worse, it makes everyone seem disingenuous. The inspectors state that they cannot return because of threats against staff. Meanwhile, members of the public come and go freely. Now, none of the threats are included, just a CBC article about it. Again, this is from Furness’ Affidavit.

Why Are They Still Asking For Donations?

Universal Ostrich Pharm – the real story – THIS IS ALL ABOUT MONEY – NO MATTER THE COST TO PEOPLE OR BIRDS.

500 Million JPY ($4.7 million CDN) to be paid to Tsukamoto in April 2024 by Struthio Bio… but now they need a GoFundMe to save the birds…

Where did all the investors go?
Surely, Dr. Lyle Oberg and his $3 billion investment company could pitch in to save his golden egg.

What happened to the 60 MILLION COVID MASKS (at $0.30 a mask)?

And what about the COVID nasal sprays?

What really happened to the Ostrich COVID vaccine before Immune Bio changed hands?

Where did they get antigens from?
We have seen so many places that they are saying the ‘DEAD’ COVID virus was obtained…

And Universal Ostrich Pharm had a contract to sell the eggs for $500 to Struthio – SO THAT WAS ALL THEY COULD BE WORTH TO THEM.

Yet Universal Ostrich Pharm’s expert, who had reviewed all the material, said each egg could be worth $48K to the farm… Not according to the EXCLUSIVE contract they had with Struthio Bio.

LINKED HERE:
https://canucklaw.ca/wp-content/uploads/UOF-APPEAL-Bilinski-Affidavit-To-Stay-Culling.pdf

Remember to donate and attend the Concert at the Bio Lab to save the lab animals.

Source: David Dickson

Some Final Thoughts

Questions posed in the previous section are worth asking. What has happened to the numerous business ventures that Universal Ostrich Farms was connected to? Why can’t those investors put up the money here?

The CFIA argues here that while Justice Battista did stay the cull order back in January, the circumstances are not the same. In particular, they were forced to respond to a Motion on less than a full day’s notice. However, they can now answer more fully.

Even if they succeed in getting another stay of the culling (which is possible) this is far from the end. Although Appeals typically don’t allow new evidence, the CFIA may try to add the social media posts anyway. It’s hard to underscore just how damaging this can be.

The responding arguments mention that the issue of “financial conflict of interest” of former counsel isn’t expanded upon in this Motion. There’s an allegation, but without details or evidence attached. It would be nice to know exactly what that was about.

There comes a point where it’s impossible to feel sympathy for someone. Keep in mind: while they have regular visitors, and shrug off supposed “infection”, these people are telling the Courts that they are serious about their animals and public safety.

And this happens all while they ask for donations.

Perhaps, once Dan returns from Bilderberg, Liberty Talk and Press For Truth can follow up.

COURT OF APPEAL (CHALLENGING JUSTICE ZINN’S ORDER)
(1) Ostrich APPEAL Notice Of Appeal (May, 2025)
(2) UOF APPEAL Notice Of Appearance (May, 2025)

COURT OF APPEAL (MOTION TO STAY CULL ORDER)
(1) UOF APPEAL Motion Record To Stay Culling (June, 2025)
(2) UOF APPEAL Notice Of Motion To Stay Culling (June, 2025)
(3) UOF APPEAL Bilinski Affidavit To Stay Culling (June, 2025)
(4) UOF APPEAL Bilinski Affidavit Exhibit E June, 2025)
(5) UOF APPEAL Espersen Affidavit To Stay Culling (June, 2025)
(6) UOF APPEAL Moving Party Submissions To Stay Culling (June, 2025)
(7) UOF APPEAL Responding Motion Record Volume 1
(8) UOF APPEAL Responding Motion Record Volume 2 (June, 2025)
(9) UOF APPEAL Responding Submissions To Stay Culling (June, 2025)

COURT OF APPEAL (JUSTICE BATTISTA STAYING CULL ORDER):
(1) UOF Order To Stay Culling (January, 2025)
(2) UOF Notice Of Appeal (February, 2025)
(3) UOF Notice Of Appearance (February, 2025)
(4) UOF Agreement Appeal Book Contents (March, 2025)
(5) UOF Joint Appeal Book (April, 2025)
(6) UOF Consent To Extend Time (May, 2025)
(7) UOF Notice Of Discontinuance (May, 2025)

FEDERAL COURT DOCUMENTS (CFIA):
(1) Ostrich Notice Of Application Certified (January, 2025)
(2) Ostrich Notice Of Application (January, 2025)
(3) Ostrich Notice Of Motion (January, 2025)
(4) Ostrich Bilinski Affidavit (January, 2025)
(5) Ostrich Espersen Affidavit (January, 2025)
(6) Ostrich Pelech Affidavit (January, 2025)
(7) Ostrich Jones Affidavit (January, 2025)
(8) Ostrich Responding Motion Record (January, 2025)
(9) Ostrich Responding Motion Record Expedited (February, 2025)
(10) Ostrich Motion Record Ex-Parte (February, 2025)
(11) Ostrich Exemption Notice Of Application (February, 2025)
(12) Ostrich Exemption Motion Record (February, 2025)
(13) Ostrich Ruling Of Justice Zinn (May, 2025)

MONEY:
(1) https://bcrising.ca/save-our-ostriches/
(2) https://www.gofundme.com/f/help-ostrich-farmers-fight-to-save-herd-from-avian-flu?attribution_id=sl%3A80e09934-7413-429b-acfb-2f7015cc19d3&lang=en_CA
(3) https://www.givesendgo.com/save-our-ostriches
(4) https://www.kinexus.ca/

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