Category: Procedural

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Diagolon Gun Grab, Part 5: Carmichael’s 2013 Incident Of Assaulting A Prisoner

The recent focus on this site has been the Gary Schill case, dubbed the “Diagolon Gun Grab”. However, some information about the officer involved, Ernest Carmichael, needs to be shared as well. Back in 2013, the Special Investigations Unit was called over allegations of a police officer committing assault.

On the criminal end of things, Carmichael pleaded guilty to assault and received a conditional discharge. He was placed on probation for a year, meaning that he won’t have a record afterwrds.

As for the administrative side, Carmichael faced a count of “unnecessary force against a prisoner”. Now, this was an internal complaint within the police itself. This means that despite the guilty plea, he didn’t even lose his job. He admitted to kicking a prisoner in the head “2 or 3 times”, but wasn’t fired.

What ultimately happened to him was a 9 month demotion from 1st Class Constable to 2nd Class Constable, and 100 hours of community service.

This demonstrates that Carmichael has shown very poor judgement, but was allowed to keep his job which is considered a “position of trust”. Yes, it was a long time ago, but worth mentioning.

The case doesn’t seem to be cited on CanLII, but the decision is available nonetheless.

The agreed set of facts:

  1. Constable Ernest Carmichael #1950 has been a member of the York Regional Police since April of 2009. He has held the rank of First Class Constable since August of 2012.
  2. On April 21, 2013 at approximately 9:45 p.m., members of York Regional Police attended the public complainant’s residence to investigate an impaired driving complaint regarding her son. Her son had pulled into the driveway a few minutes earlier.
  3. The public complainant’s husband went to his front door and saw two uniformed police officers talking to his son. Mr. Horsak stepped outside and told the officers he wanted them off his property, as he believed they did not have cause to be there.
  4. The officers told Mr. Horsak that his son was under arrest and was going to be charged with impaired driving. Mr. Horsak replied that his son had just come home and was not impaired, and again told the officers to get off his property.
  5. While this conversation was taking place, the son ran inside the house. The two officers followed the public complainant’s son inside the home. The son then ran upstairs and locked himself inside a bathroom. The officers remained just inside the entrance of the house.
  6. Mr. Horsak told the officers to get out of his house and again to get off his property. The police did not leave the home and instead used their portable radios to request the attendance of more officers at the scene.
  7. Four more police officers, including PC Carmichael, arrived at the home a short while later and also entered the residence. Mr. Horsak pushed one of the officers, not PC Carmichael, on the chest to try to keep him from moving further into the house. A struggle ensued and two officers, PC Ron Peever #696 and PC Mark Kowalchuk #1823, took Mr. Horsak to the floor.
  8. Mr. Horsak ended up face-down on the floor in a prone position. One officer attempted to gain control of Mr. Horsak’s left arm while another officer attempted to gain control of his right arm, which were both under his body, in an attempt to handcuff him. According to Mr. Horsak, his arms are chronically susceptible to being dislocated, and he was trying to prevent this from occurring. However, he did not tell this to the police officers.
  9. While the two officers were attempting to subdue Mr. Horsak on the floor, PC Carmichael approached him and kicked him in the head two or three times. The officers were eventually able to place Mr. Horsak in handcuffs, then escorted him out of the house and placed him in the back of a police cruiser.
  10. On May, 20 2014, PC Carmichael appeared before the Honourable Justice Armstrong in the Ontario Court of Justice (Criminal Court). At that time, he entered a plea of guilty to the charge of assault contrary to section 255 of the Criminal Code of Canada. PC Carmichael received a conditional discharge and was placed on probation for a period of 12 months subject to terms, including.

(a) That he not associate or communicate directly or indirectly with Mr. Horsak except as may be required in the course of his duties as a police officer; and
(b) That he perform 100 hours of community service by April 15, 2015

The terms of Carmichael’s probation still allowed him to associate with the victim as long as it was “required in the course of his duties as a police officer”.

Disposition:
.
In light of the seriousness of these allegations and bearing in mind all the evidence placed before me, Constable Ernest Carmichael #1950 will be demoted from his position of First Class Constable to Second Class Constable immediately for a period of nine (9) months and will return to First Class Constable upon the completion of the nine months at the Second Class Constable level pursuant to Section 85 (1) (c) of the Police Services Act.

Further, you will receive remedial training with the Policies of the York Regional Police Service as it relates to Use of Force and any other Policies as required and deemed necessary by your immediate supervisor in consultation with Senior Command of the York Regional Police Service.

In reading through the submissions on sentencing, it appears that these sort of complaints often bring fairly lax consequences.

I have considered the five (5) cases presented to me by Counsel. As I communicated earlier in this disposition the cases presented to me are not on point, however they were instructive for disposition considerations.

In Schofield vs. Metro Toronto Police (1994) the Commission stated:

“Consistency in the discipline process is often the earmark of fairness. The penalty must be consistent with the facts and consistent with similar cases that have been dealt with in earlier occasions. “

It’s rather disturbing to see the Adjudicator go on and on about the public needing to have confidence in law enforcement. But this decision, and the overall pattern, seem to do anything but inspire confidence.

Despite not being convicted of a crime, Carmichael was able to have Schill’s firearms taken away for things he posted online, homemade ammunition crafting, and largely speculative claims about a “militia”. Meanwhile, Carmichael admits to assaulting a prisoner, and gets to keep his service revolver (a restricted weapon), and his job (a position of trust). Interesting standards.

Final fun fact: Carmichael was successful in the Application to get Schill’s gun licence suspended (in large part) because of his association with Jeremy MacKenzie. At his hearing for excessive force, Carmichael’s Defence Counsel was named William MacKenzie. Small world, it seems.

Parts 1, 2, 3 and 4 of the series are available as well.

Thank you to the reader who forwarded this decision. It does give some much needed balance and context for what’s been going on.

SCHILL HEARING:
(1) https://www.canlii.org/en/on/oncj/doc/2024/2024oncj249/2024oncj249.html
(2) Evidence Of Officer Ernest Carmichael, Day 1
(3) Evidence Of Officer Ernest Carmichael, Day 2, Cross Examination

CARMICHAEL ASSAULTING A PRISONER:
(1) Ernest Carmichael Disciplinary Hearing Penalty Decision 25.07.2014
(2) https://toronto.ctvnews.ca/siu-lays-assault-charge-against-york-region-police-officer-1.1392108
(3) https://www.thestar.com/news/gta/york-police-officer-charged-with-assault/article_d1b43f97-a077-59b4-8603-747a94b76170.html

POEC HEARINGS:
(1) https://publicorderemergencycommission.ca/
(2) POEC Report, Volume 1: Overview
(3) Public Order Emergency Report Volume 1 Overview
(4) POEC Report, Volume 2: Analysis (Part 1)
(5) Public Order Emergency Report Volume 2 Analysis Part 1
(6) POEC Report, Volume 3: Analysis (Part 2)
(7) Public Order Emergency Report Volume 3 Analysis Part 2 Recommendations
(8) POEC Report, Volume 4: Process and Appendices
(9) Public Order Emergency Report Volume 4 Process And Appendices
(10) POEC Report, Part 5: Policy Papers
(11) Public Order Emergency Report Volume 5 Policy Papers

MOSLEY DECISION:
(1) https://www.canlii.org/en/ca/fct/doc/2024/2024fc42/2024fc42.html#par41

CASELAW ON REVOKING FIREARMS PERMITS:
(1) R. v. Zeolkowski, 1989 CanLII 72 (SCC), [1989] S.C.J. No. 50, at para 12, 16, 17, 18
(2) British Columbia (Chief Firearms Officer) v. Fahlman, 2004 BCCA 343, at para 25.
(3) R. v. Christiansen, 2006 BCCA 189, at para 7.
(4) R. v. Bokhari, 2009 ONCJ 691, at para 10, relying on R. v. Day, [2006] O.J. No. 3187 (S.C.J.) and R. v. Morgan, [1995] O.J. No. 18 (Ont.Ct.(Prov.Div.)).
(5) R. v. Peacock-McDonald, 2007 ONCA 128, at para 40
(6) R. v. Douglas, 2013 ONCJ 649, at paras 45, 57.
(7) R. v. Mourtzis, 2015 ONCJ 74, at para 25.
(8) R. v. Roman, 2018 ONCJ 344, at para 89.
(9) R. v. Hurrell, 2002 CanLII 45007 (ON CA), [2002] O.J. No. 2819, at para 48.
(10) R. v. Christiansen, supra, at para 7.
(11) Fahlman, supra, at para 25.
(12) R. v. Peacock-Macdonald, supra, at para 40.
(13) R. v. Roman, supra, at para 89.
(14) R. v. Wiles, 2005 SCC 84, at para 9.

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Diagolon Gun Grab, Part 3: The Carmichael Testimony (Cont’d)

This continues the testimony of Detective Constable Ernest Carmichael. Both Day 1 and Day 2 of the hearings are available, along with the ruling itself.

Why does this matter? Because police were successful back in May 2024 for an Application to have Gary Schill’s firearms and licence suspended for 5 years. See Part 1 and Part 2 for more background information. It was largely (though not entirely) due to his association with Jeremy MacKenzie and Diagolon.

Schill had faced a charge of assault causing bodily harm against his then wife, Jennifer McNeil. She was also charged with a lesser count against him. Both were eventually dropped. Nonetheless, the police were still able to get a firearms suspension for Schill.

It’s immediately obvious that the standards for an Application to suspend or revoke a gun permit are far lower than when someone faces a criminal charge. Speculation and hearsay are permitted a lot more. Instead of “beyond a reasonable doubt”, the police must only demonstrate “on a balance of probabilities”. The Judge also has wide discretion to deem such a ban to be “in the public interest”.

Carmichael entered into evidence a document which he claims (or speculates) shows a plot to steal fuel during the trucker convoy. He says this is likely to circumvent the fuel shortages that had been intentionally imposed.

As for hearsay being admitted into the hearing, this is noteworthy:

Carmichael testifed that Jennifer McNeil, Schill’s wife at the time, provided other information to law enforcement during her victim statement. Specifically, she said that Schill was part of Diagolon, part of a militia, and targeting military and law enforcement members for recruitment.

Interestingly, McNeil herself didn’t testify at the hearing. Only Carmichael did. In a regular Court proceeding, her statements would have been considered “hearsay” and deemed inadmissible. The Judge allowed this in, and it doesn’t appear to have been challenged.

Carmichael continues (on page 8).

In the very beginning, we weren’t 100 percent sure. The Freedom Convoy was quite organic and it, it began in Western Canada and transitioned across the, the country to Ottawa. As we understood it, there was going to be a convergence of vehicles, large trucks, arriving in Ottawa. I was involved in the project team that monitored the number of vehicles who would be attending, what the dynamic of the crowd would be, and trying to get an intelligence assessment of what the Freedom Convoy would look like once it arrived in Ottawa. Of concern to us was the presence and interest of most of Diagolon. Most members, because our investigation actually started prior to the Freedom Convoy.

We had the benefit of, of monitoring a lot of the individuals we were interested in, leading up to the Freedom Convoy and, subsequently, their travel to Ottawa. Our concern was obviously Diagolon had made their ideology quite well-known, from our perspective. They were preparing for a civil war. They had an appetite to overthrow the government and force the government to change their policies relating to the COVID-19 response. So our concern was that what had the potential to be a peaceful protest in Ottawa could evolve into a violent confrontation because of the extremist elements we knew of that would also be attending.

We had, we had a lot of examples of conversations that was happening leading up to the Freedom Convoy. The organizers themselves stated that they intended to stay in Ottawa until the government changed their position on the COVID-19 response. MacKenzie himself has spoken of civil war and encouraged his members to prepare for it.

They use a phrase often, which is, “Gun or rope.” And this implies that when civil war occurs, it’s going to be a Diagolon versus everybody response. And Diagolon’s – the way they, they would treat their enemies during this uprising or civil war would be – they, they would be afforded the option to be executed by firing squad or hung. So that was what the, the, “Gun or rope,” phrase often referred to. So there was a lot of examples of, of rhetoric like that leading up to the Freedom Convoy that, that indicated to us that these individuals had an appetite to arm themselves, prepare themselves and had an appetite for violent confrontation. In fact, I, I believe I quoted yesterday, one of the Ticker Tape messages on Jeremy MacKenzie’s podcast where he says, “You want blood, come and get it,” and then it was the, “Fuck you, make me.”

Remember all of those edgy podcast jokes and memes? Guess what? They’re being entered into evidence as legitimate threats to public safety. The police are actually doing it, and the Judge is taking it all seriously.

Here’s a thought: maybe rampant fed-posting wasn’t such a good idea.

Carmichael testifies that it wasn’t necessary to conduct direct surveillance on Diagolon itself during the trucker convoy. This was because so many people simply posted photos, videos and details online, police could simply monitor it.

He then references a video which he calls a “Diagolon meet up”, which include Schill, MacKenzie and several others.

Carmichael eventually gets into the arrests at Coutts, Alberta. One of them was Chris Lysak. It was apparently a joke that he was the “Head of Security for Diagolon”, given his size.

One of the ballistic vests seized apparently had 2 Diagolon flags on them.

Carmichael then goes on about the various meet-ups that had been arranged, and how the information was obtained by monitoring Telegram channels. Now this:

In preparation for this hearing, the Crown was required to provide disclosure to Schill. Specifically, Carmichael’s Affidavit was sent to him. For some reason, MacKenzie published portions of it on his Substack. This was used to help establish a direct connection.

Interestingly, Carmichael testifies that the authorities weren’t willing to pay for a subscription to MacKenzie’s Substack, which would have allowed them to view everything. They consider him a public threat, and spend large amounts of money monitoring Diagolon, but wouldn’t pay this nominal fee?

Carmichael also explains that police wanted to know exactly who was posting on Telegram — since most accounts were anonymous. Yes, the servers aren’t located within Canada. However, it doesn’t seem any real effort was put in to try. Or perhaps they did get in, but don’t want to disclose that.

Carmichael concedes that he doesn’t believe that everyone associated with Diagolon is a terrorist or an extremist. He says that there is a broad range of people who are attached in some way.

Carmichael then goes on to speculate at length about how he believes Diagolon has simply “gone underground” given the attention they’ve received. Without really providing evidence or support, he claims that it’s still a threat to the public.

On cross-examination from Schill’s Amicus Counsel (starting at page 25) Carmichael reiterates that he’s been monitoring the Telegram chats constantly. Even on his off days he often listens to podcasts. In his notes, he states that he has listened to at least 38 episodes.

Of course, this doesn’t include what other members of intelligence or law enforcement have been listening to.

It’s fascinating how such a bad spin is put on these things. “Get offline and find your friends” is a legitimate goal, in that the online world doesn’t reflect reality. However, it’s being construed to mean the formation of militias for the purpose of causing violence and civil unrest.

In some sense, Schill’s Amicus Counsel actually seems to have done more harm than good. He gets Carmichael to explain new things — such as cutting down towers to stop 5G — that weren’t previously testified to.

Carmichael then goes on about the risk that “fed posting” causes. He says that Diagolon members fear being entrapped by someone saying overtly illegal things. This, he concludes, has caused them to go offline a lot more, and to be more guarded in their speech.

Carmichael admits that there’s no reference to “military style shooting” in the chats he’s reviewed. This implies that it was simply his interpretation. Nonetheless, this sort of this was allowed into evidence.

Carmichael also concedes that Schill himself didn’t participate in the conversations about bush craft of firearms tactics. Moreover, he concludes that he didn’t have grounds to support the conclusion that Schill was involved with terrorism or sedition.

Carmichael concedes that there’s no evidence Schill ever went to a so-called “Diagolon meet up”. He admits that no surveillance on Schill’s residence concluded otherwise.

The topic of the arrest for domestic violence is discussed. Again, the charge was dropped at the time of this hearing.

The Crown briefly reexamines Carmichael, who testifies that they found ammunition at Schill’s residence that wasn’t compatible with any of his legally obtained firearms.

Ultimately, Justice Robinson does grant the Application, and issues a 5 year prohibition for Schill. He refuses to allow any exemptions, including for a crossbow for hunting.

He cites the Public Emergency Order Commission (PEOC) Report from Paul Rouleau as well. It states that: “[l]aw enforcement and intelligence agencies view Diagolon as a militia-like extremist organization.”

Unfortunately, too many people post without having any understanding of what’s been going on. The Emergencies Act wasn’t invoked because of a meme, and the “Hate Gate” emails didn’t clear anyone. The PEOC Report was referenced in the decision to take Schill’s firearms and licence.

Even though Diagolon isn’t listed as a terrorist entity, and despite no evidence Schill was involved in terrorism or sedition, Schill’s firearms were taken away anyway. Yes, his assault charge had been dropped, but that wasn’t enough.

The standard for revoking or suspending firearms is actually quite low, and can be done for nearly any reason. This will be addressed in the next part.

SCHILL HEARING:
(1) https://www.canlii.org/en/on/oncj/doc/2024/2024oncj249/2024oncj249.html
(2) Evidence Of Officer Ernest Carmichael, Day 1
(3) Evidence Of Officer Ernest Carmichael, Day 2, Cross Examination

POEC HEARINGS:
(1) https://publicorderemergencycommission.ca/
(2) POEC Report, Volume 1: Overview
(3) Public Order Emergency Report Volume 1 Overview
(4) POEC Report, Volume 2: Analysis (Part 1)
(5) Public Order Emergency Report Volume 2 Analysis Part 1
(6) POEC Report, Volume 3: Analysis (Part 2)
(7) Public Order Emergency Report Volume 3 Analysis Part 2 Recommendations
(8) POEC Report, Volume 4: Process and Appendices
(9) Public Order Emergency Report Volume 4 Process And Appendices
(10) POEC Report, Part 5: Policy Papers
(11) Public Order Emergency Report Volume 5 Policy Papers

MOSLEY DECISION:
(1) https://www.canlii.org/en/ca/fct/doc/2024/2024fc42/2024fc42.html#par41

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Diagolon Gun Grab, Part 2: The Carmichael Testimony

This continues the series on “Diagolon”, and the consequences that have resulted from this group. The last article focused on the ruling of Justice Robinson, who suspended Gary Schill’s firearms licence and weapons for a period of 5 years. Schill was a former administrator of the Diagolon podcast.

This doesn’t just automatically happen. A police officer brings an Application under Section 111 of the Criminal Code to ask a Judge to suspend someone’s rights. This isn’t as formal as a Trial, and the proof standards aren’t anywhere near as high.

Now, what was said during the hearing?

Fortunately, a redacted version of the Day 1 and Day 2 transcripts were published. The redactions appear to have been done to remove the name of Schill’s ex-wife. Yes, it’s from Antihate, but still worth a read.

Schill was represented by an Amicus Curiae. This is someone who isn’t a party, but is allowed to assist and make submissions for parties. Think of them as “duty-counsel”. They can be common for self-represented litigants and accused persons.

Ernest Carmichael is a detective constable with York Regional Police Service. He testified that he had been with the Tactical Intelligence Unit for 5 years. He went on to explain what had he and his group had been doing lately.

He testified that there had been a complaint that a member of the York Regional Police had publicly associated himself with Jeremy MacKenzie and Diagolon. That person is apparently no longer part of the force. It’s implied (though not explicitly stated) that the association cost him his position.

It paints a disturbing picture for many reasons.

First, the standard of proof needed to revoke a firearms licence is surprisingly low. Even though this is based in the Criminal Code, there’s no “proof beyond a reasonable doubt” needed. Far from it. “Balance of probabilities” is what’s important here.

Second, the rules of evidence are also much more lax, including hearsay evidence that should otherwise be prohibited. This included and Affidavit from Detective Constable Dimitri Kritsotakis, submitted, despite him not appearing. Carmichael is given wide latitude to speculate on matters.

Third, it’s explained here just how heavily surveilled podcasts and social media sites are. Without speaking to a single witness, this police officer was able to get a warrant to seize electronic devices.

Fourth, freedom of association — a protected right — seems meaningless when someone can lose their job because of who they interact with. Unfortunately, the circumstances here are not explained. The officer is not named, nor is his exact fate spelled out.

Fifth, it shows just how clueless and out-of-touch MacKenzie’s followers are with reality. They are oblivious to the basic facts. The Emergencies Act wasn’t declared because of a “meme”, and people weren’t exonerated due to some “Hate Gate emails”.

The above is from page 8. No actual interviews had to be conducted. The information obtained online was sufficient, which should really scare people.

Carmichael goes on to testify that he came across a video MacKenzie posted, just before receiving the formal complaint. He describes the “Raging Dissident persona” as this: He sells anger, really, on his podcast. He’s often vehemently anti-government, anti-authority. So by virtue of that, his following tends to be of the same vein.

Carmichael testifies that he had been monitoring “these channels” for the better part of 2 years. While it implies he refers to Diagolon channels, it could mean others as well. Then there’s this on page 14:

Yeah. The majority of the content was – especially considering the time, it was very anti-COVID, anti-vaccine, anti-government material. There was a lot of conspiracy theory material in that. There was a lot of what I would define as White nationalists, White supremacy ideology existing within that space. There was also a lot of what I would define as militia-type discussions. There was a lot of talk of acquiring weaponry, body armour, ammunition, planning meet-ups, organizing community events, and then also articulating the purpose of these events beyond simply….

This is getting to the heart of it. Carmichael alleges that there’s more than just racist and anti-authoritarian posting done here. Conversations also involved firearms, body armour and meet-ups.

“The Day Of The Rope” and “The Turner Diaries” are both cited as well.

Carmichael testifies that not only was he observing and documenting conversations about guns and meetings, but that meetings themselves were surveilled.

Carmichael does go on about the backstory of the name “Diagolon”. Specifically, that it was based on the idea of a fictional country made up of the more sane and stable Provinces and U.S. States. That detail is agreed on by everyone.

However, Carmichael states (or opines?) that it became more of a separatist movement.

Carmichael also explains how he identified Schill, and it’s pretty stupid. He used his real name, real photo, and dropped details about the region he was living in. From there, a simple background check from a prior arrest revealed everything else.

Yes. So Mr. Schill made a number of statements that caused concern for us. With these statements, he was also promoting the fact that he was a firearms fanatic; he was involved in reloading within his garage, which means taking – basically, building bullets himself rather than commercially purchasing them…

…and producing a large amount of ammunition in his private residence. So this, like, compounded with the rhetoric, plus what we already understood about Diagolon raised our concerns related to public safety.

So I’ll, I’ll expand on some of the conversation pieces that we observed, but as an example, for – some of the messaging that Jeremy MacKenzie provided his, his members, I can read some of the messaging that was included on his podcast that would have been re-shared in the Telegram channels. He stated – during a podcast, there was a ticker tape, similar to what you would see on maybe CP24 that would scroll across the screen. And the banner stated:

Mentally prepare yourself for the hardest decade of your life. Your children need you to reject the system in its entirety. It isn’t for you. It is for your enemy, and it seeks to subvert, subjugate, and destroy you. You either pro-human freedom or you are not. One of those choices makes you our mortal enemy. Death to Circulon. We all just wanted to be left alone. You want blood. We got what you want. Come and get it. Fuck you, make me.

So that was some of the rhetoric that Jeremy MacKenzie was, was pumping out to his followers, who would then re-share it on the Telegram channel. So on the heels of a statement like that his members would then begin organizing in-person meetings. They would discuss what the purpose of these meetings would be. It was almost always around planning. I can quote, “bush craft, survival training, firearms training.” In fact, I can recall a conversation that involved Mr. Schill where they were discussing shooting and firearm training, but then Mr. Schill had stated something to the effect of, “Well, I don’t want to just go shoot. I’d like smaller groups. And I want to shoot with a purpose.” I interpreted that to mean they didn’t want to just go target shooting on a range. They wanted to apply practical skills to their shooting, similar to what you’d see the military or law enforcement trained to do.

It would be interesting to know — though it’s not expanded on — is whether this is just conversations being recorded, or whether the police (or CSIS) have actually gone to these meets.

Carmichael goes on (page 29) about conversations that happened about body armour, and what some good choices were. This is largely opinion, but he implies that it was directed for non-civilian use.

Because when compounded with the information we’d already had, and now it was quite clear that they were starting to develop their in-person meetings to include shooting and what we had interpreted as militia-type training, our concern was strictly public safety and whether we had a private militia forming within the region.

Keep in mind, this is a hearing over a gun licence, not a criminal trial. While most of this testimony wouldn’t have been permitted in other settings, it is here.

Carmichael then gets into the topic of Schill’s arrest for assault causing bodily harm, along with the arrest of his (now) ex-wife. Electronic devices were seized during a search. Schill had 3 guns, all legally owned and safely stored. However, he had ammunition which didn’t appear to fit any of them.

The hearing continued the next day, and more on that.

If there is one takeaway here, it’s that the police are arguing that Diagolon is more than just edgy podcasting, racism, and memes. Carmichael is trying to convince the Judge that it’s an actual group and a threat to the public. He’s trying to show that this is an extremist group with a violent agenda.

People reading this transcript may — reasonably — think that it’s full of speculation, innuendo and hearsay. And they’d be right. However, this isn’t a criminal charge, and the standard is much, MUCH lower.

The Public Emergency Order Commission (PEOC) Report and Mosley decision have laid the groundwork for what’s coming. Followers of “Diagolon” really have no clue what’s been going on. This case is the first of what will likely be many gun seizures.

SCHILL HEARING:
(1) https://www.canlii.org/en/on/oncj/doc/2024/2024oncj249/2024oncj249.html
(2) Evidence Of Officer Ernest Carmichael, Day 1
(3) Evidence Of Officer Ernest Carmichael, Day 2, Cross Examination

POEC HEARINGS:
(1) https://publicorderemergencycommission.ca/
(2) POEC Report, Volume 1: Overview
(3) Public Order Emergency Report Volume 1 Overview
(4) POEC Report, Volume 2: Analysis (Part 1)
(5) Public Order Emergency Report Volume 2 Analysis Part 1
(6) POEC Report, Volume 3: Analysis (Part 2)
(7) Public Order Emergency Report Volume 3 Analysis Part 2 Recommendations
(8) POEC Report, Volume 4: Process and Appendices
(9) Public Order Emergency Report Volume 4 Process And Appendices
(10) POEC Report, Part 5: Policy Papers
(11) Public Order Emergency Report Volume 5 Policy Papers

MOSLEY DECISION:
(1) https://www.canlii.org/en/ca/fct/doc/2024/2024fc42/2024fc42.html#par41

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18 Reasons Massive Healthcare Workers Claim Is Defective

Here we go again.

On August 13th, 2024, a Motion to Strike will be heard in the Civil Branch of the Ontario Superior Court in Toronto. This was over injection mandates dating back to 2021. Approximately 300 healthcare workers — working in many different settings — will see if their case is thrown out.

The original Claim was filed in 2022, and an amended one in 2023.

The main reason for this Motion is that the vast majority of Plaintiffs are likely ineligible to sue. Being part of a union typically means that there’s no right to go to Court. Collective agreements usually have a grievance process that ends with arbitration, but doesn’t allow for litigation.

Beyond that, the Statement of Claim is so poorly and incoherently written that it’s likely to be struck anyway. It doesn’t plead any of the necessary information required, and most of what it does include is irrelevant. It appears to have been written by someone with no understanding at all of Civil Procedure.

All that’s missing is a tirade about Bill Gates and microchipping.

This isn’t Vaccine Choice Canada or Action4Canada or Take Action Canada. Nor is it the mess, Adelberg. This is yet another “bad beyond argument” pleading. The main defects are:

  1. Failure To establish Jurisdiction of the Court
  2. Failure to seek Relief within Jurisdiction of the Court
  3. Failure to plead concise set of material facts
  4. Failure to keep evidence out of Claim
  5. Failure to remove argument from Claim
  6. Failure to plead facts which would support conclusions of law
  7. Failure to give Claim particulars
  8. Failure to specify who should pay damages
  9. Failure to properly plead s.2 (fundamental freedoms) Charter breaches
  10. Failure to properly plead s.6 (mobility rights) Charter breaches
  11. Failure to properly plead s.7 (security of the person) Charter breaches
  12. Failure to properly plead s.15 (equality) Charter breaches
  13. Failure to properly plead tort of intimidation
  14. Failure to properly plead tort of conspiracy
  15. Failure to properly plead tort of malfeasance
  16. Failure to state a Cause of Action
  17. Failure to appreciate Statute of Limitations
  18. Claim just a duplicate of other cases

This is just a brief critique, but let’s get into it.

1. Failure To Establish Jurisdiction Of The Court

RULE 21 DETERMINATION OF AN ISSUE BEFORE TRIAL
Where Available
To Any Party on a Question of Law
21.01
To Defendant
(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,
.
Jurisdiction
(a) the court has no jurisdiction over the subject matter of the action;

Rule 21.01(3)(a) of Civil Procedure states that a Defendant may move to to have a case stayed or dismissed if there’s no jurisdiction. Why does that matter here? Because the bulk of the Plaintiffs here are from unionized workplaces. Union workers are typically governed by a collective bargaining agreement, and it usually mandates arbitration as a means of settling disputes.

Plenty of cases have already been thrown out for this.

To even (theoretically) overcome this burden, Plaintiffs would have to plead details about what steps they took to resolve this internally. They would have to demonstrate that the process was corrupt or unworkable.

2. Failure To Seek Relief Within Jurisdiction Of The Court

The Relief sought section is downright goofy, and it’s startling to see that an experienced lawyer is including content such as this. It would be bad enough to see an articling student draft such garbage. And it’s not the first time.

  • Allegations of criminal conduct
  • Allegations of crimes against humanity
  • Allegations of eugenics (which would be criminal)
  • Allegations of violations of Nuremberg Code
  • Allegations of violations of the Helsinki Declaration

Both the Action4Canada and Adelberg (Federal) cases were struck — in part — because they demanded remedies that a Civil Court had no jurisdiction over. Despite being criticized by multiple Courts over this, the same allegations appear here. Mostly likely, this is because this lawyer uses a template and simply cut and pastes from one case to the next.

3. Failure To Plead Concise Set Of Material Facts

Rules of Pleading — Applicable to all Pleadings
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.

In every jurisdiction, Plaintiffs are required to plead the facts. This refers to the: who, what, where, when, and how that things occurred. It is describing a series of events in enough detail that the opposing side — and the Judge — can understand what’s going on.

But that hasn’t happened here. Not a single Plaintiff is described with any detail. Only 8 are even identified in the Claim.

They objected to the injections? What was each one’s specific one?
Who was fired, and who was simply suspended?
Who was required to take the shots, and who was allowed to take the testing?
All Plaintiffs were ineligible for EI? Who applied for it?

None of this is described, nor is the conduct of any Defendant. There are no facts pleaded at all which could possibly be responded to.

4. Failure To Keep Evidence Out Of Claim

The other part of Rule 25.06(1) is that evidence shouldn’t be in a Statement of Claim. The facts are. The facts are simply the sequence of events that each Plaintiff can attest to.

All of the “facts” about the validity of testing and expert views should really be considered expert evidence. That has a place later, but not in the initial pleading.

5. Failure To Remove Argument From Claim

Not only should evidence not be in a Claim, but argument shouldn’t either. The pleading is ripe full of argument, complete with various case citations. However, this is not a Factum, nor a final submission. The original pleading is just supposed to lay out the (alleged) series of events.

How does an experienced lawyer not know this?

6. Failure To Plead Facts To Support Conclusions Of Law

Rules of Pleading — Applicable to all Pleadings
Pleading Law
.
25.06(2) A party may raise any point of law in a pleading, but conclusions of law may be pleaded only if the material facts supporting them are pleaded.

Rule 25.06(2) of Civil Procedure requires that the necessary facts be pleaded in order to support any conclusions of draw that are raised. This makes sense, as there has to be enough meat on the bones to theoretically have the Judge rule favourably. However, there are no facts pleaded about individual Plaintiffs or Defendants, just sweeping declarations without background information.

7. Failure To Give Claim Particulars

Rules of Pleading — Applicable to all Pleadings
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.

Rule 25.06(8) of Civil Procedure states that all pleadings shall have “full particulars”, which is also known as “particularizing a claim”. This is when fraud, misrepresentation, breach of trust, malice or intent is alleged. What this means is that such accusations are made, Plaintiffs have the extra burden to spell out what has happened. All major details must be added.

Quite reasonably, Defendants cannot be left guessing what they have to respond to.

8. Failure To Specify Who Should Pay Damages

Starting on page 33, the money sought is outlined.

  • $50,000 for each Plaintiff for “intimidation”
  • $100,000 for each Plaintiff for “conspiracy”
  • $100,000 for each Plaintiff, by the Government Defendants, for Charter violations
  • $200,000 for each Plaintiff for infliction of mental distress and anguish
  • $100,000 for each Plaintiff for “punitive damages”

This amounts to $550,000 per Plaintiff, but who exactly is supposed to pay it? It’s specified that the Province is to pay for the Charter violations, but that’s it. If money is to be sought, what is the proposed division? Never mind that none of the torts are properly pleaded, or pleaded at all.

9. Failure To Properly Plead S.2 (Fund. Freedoms) Charter Breaches

However, the Claim doesn’t plead any facts (Rule 25.06(1)) or particulars (Rule 25.06(8)) that would support this. The Claim doesn’t describe how any Plaintiff’s rights to freedom of conscience or belief were violated, nor does it specify which grounds apply to which person.

10. Failure To Properly Plead S.6 (Mobility Rights) Charter Breaches

There are a few mentions — although not properly pleaded — that Plaintiffs had their mobility rights infringed. But there isn’t a single instance of this described. Nor would this be relevant since the travel mandates were Federal, and this case is exclusively Provincial. Most likely, it was cut and pasted from the Adelberg case, which is Federal.

11. Failure To Properly Plead S.7 (Security Of Person) Charter Breaches

Similar to the Section 2 breaches, here, there are no facts (Rule 25.06(1)) or particulars (Rule 25.06(8)) pleaded which would support such allegations. Not a single Plaintiff describes their circumstances. Yes, we assume it to be true initially, but there’s nothing to work with.

12. Failure To Properly Plead S.15 (Equality) Charter Breaches

Section 15 of the Charter isn’t the savior that many think it is. Specifically, “equality” is limited to a fairly small number of groups. None of which apply here, as disappointing as that is.

Enumerated grounds, which are explicitly stated in the Charter, include: race, national or ethnic origin, colour, religion, age or sex.

Analogous grounds, which are additional ones the Courts have endorsed, include: sexual orientation, marital status, off-reserve Aboriginal status and income.

Even if remaining injection-free were an enumerated or analogous ground, there are no facts pleaded which would support the Charter violations anyway. Again, not a single Plaintiff’s circumstances are described in any detail.

13. Failure To Properly Plead Tort Of Intimidation

Because this tort would cover “nature of act or condition of mind”, Rule 25.06(8) requires that full particulars be given, in addition to pleading facts that would support it.

Instead, the Statement of Claim simply states the test, then attempts to argue caselaw in support of it. There are no facts or particulars given — even assuming them to be true — that would support this. Argument is not permitted in this document, anyway.

14. Failure To Properly Plead Tort Of Conspiracy

As with the “intimidation” tort, there are no facts (Rule 26.06(1)) or particulars (Rule 25.06(8)) provided that would support the claim. The document simply states the test and tries to argue.

15. Failure To Properly Plead Tort Of Malfeasance Of Public Office

There are broad, sweeping declarations that the Government Defendants have acted in ways which are contrary to holding public office. But without any facts or particulars, this tort will go nowhere.

The tort of “infliction of mental anguish” isn’t pleaded properly either.

16. Failure To State A Cause Of Action

RULE 21 DETERMINATION OF AN ISSUE BEFORE TRIAL
Where Available
To Any Party on a Question of Law
21.01 (1) A party may move before a judge,
.
(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or
.
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

Rule 21.01(1)(b) of Civil Procedure allows Judges to strike a Claim if it discloses no reasonable cause of action. What this means, if there isn’t anything that can realistically be sought, the Court has the power to throw the case out completely, or to allow a rewrite (called granting Leave to Amend).

Here, there are no facts or particulars pleaded to support any of the allegations. The body of the text is argumentative and tries to plead evidence. None of the torts are properly pleaded. A Judge could reasonably conclude that there’s no case to try.

Of course, they tend to allow rewrites, no matter how poorly drafted a case is. Action4Canada was struck with Leave to Amend, which was quite surprising.

17. Failure To Appreciate Statute of Limitations

As many people know, there’s a time limit to file cases. This is commonly referred to as the Statute of Limitations. In Ontario, it’s 2 years for most things, although a number of exceptions exist. See the Ontario Limitations Act.

Even if these Plaintiffs were to hire a competent lawyer (and not withstanding the arbitration requirement), they’d likely be time barred. Since more than 2 years has passed, they wouldn’t be able to include additional claims beyond what’s already there.

18. Claim Just A Duplicate Of Other Cases

A major indicator that clients and donors are being ripped off is that they aren’t getting original work. Instead, it appears that counsel is using a “template” and simply duplicating cases.

Now, if these cases were successful, then it would be a good way to save time and money. But that isn’t at all the situation here.

They all kind of look the same, don’t they?
None of them properly pleaded, and none have ever gone anywhere.

How Many Victims Have Been Ripped Off?

A question that comes up often is how many victims there are of these scam lawsuits. For a partial answer, consider the following:

  • 600 – Adelberg (Federal)
  • 600 – Federal workers vaccine injury (apparently never filed)
  • 300 – Dorceus (this case)
  • 100 – Katanik (Take Action Canada’s “First Responders” suit)

These 4 cases alone amount to over 1,600 litigants who have gotten shoddy and mediocre representation. And all from the same lawyer. If one includes all of the donors, it’s no exaggeration to say that there have been several thousand victims who were taken advantage of.

Keep in mind, many, MANY cases have been filed since 2020.

What’s been disappointing is just how little the “independent” media has been speaking up about this. It’s not enough to simply be against lockdowns. Genuine reporters and journalists should be speaking up on behalf of victims who have been taken advantage of with these shoddy lawsuits. There are thousands of clients and donors whose goodwill and desperation have been exploited. They needed a voice.

Then of course, some asshole tried in June 2022 to bankrupt a former donor who simply wanted her money back. If this isn’t cause for concern, then what is?

True, it’s a little better now, but more should have been expected. While it’s great to support public interest litigation (overall), we shouldn’t lose track of the people who are really impacted by it.

As for Liberty Talk, perhaps the 25% commission in 2020 clouded her judgement.

(1) Grifters Main Page
(2) https://www.canlii.org/en/on/laws/regu/rro-1990-reg-194/latest
(3) https://www.ontario.ca/page/search-court-cases-online
(4) Dorceus Statement Of Claim
(5) Dorceus Amended Statement Of Claim

Posted on

Federal Court Of Appeal Partially Overturns “Bad Beyond Argument” Injection Mandate Case

The Federal Court of Appeal partially overturned a 2023 ruling on injection mandates for over 600 Plaintiffs who had sued back in May 2022. This suit covered a broad range of employers, both part of the Government, and others regulated by Ottawa.

There were additional claims pleaded related to loss of mobility rights and freedom of travel. However, these seemed to be almost an afterthought. Primarily, this was a lawsuit over workers refusing to take the injections in the Fall of 2021.

Back in February 2023, Justice Fothergill struck the Claim for most (about 400) of the Plaintiffs without leave to amend. This meant that they wouldn’t be allowed to submit a new version. The other 200 or so saw their claims struck with permission to refile. A lump sum of $5,000 in costs was also awarded.

To explain this a little better: the Court created Schedules “A” and “B”, and lumped various employers into each. The “A” employers were part of the Federal Government. By contrast, The “B” employers weren’t part of the Government, but part of Federally regulated industries. The reason for this is that there’s a distinction in how their respective claims were to be handled.

Employees who fell into Group “A” were prohibited from going to Court at all over employment. The reason is that sections 208 and 236 of the Federal Public Sector Labour Relations Act allow the right to grieve, but not to sue.

Employees who fell into Group “B” were not necessarily restricted from going to going to Court. However, the pleadings were so horribly written that a new version would need to be created. The Court referred to it as “bad beyond argument”, and for “substantially the same reasons” as the Action4Canada case, it had to be struck. As with the Vaccine Choice Canada case, this one failed to follow the basics of civil procedure — once again.

That said, with this Appellate ruling, all Plaintiffs will be allowed to file something.

What this means is that everyone will be able to make claims for restrictions on their movements. That can still go ahead. However, the employment claims for all Schedule “A” litigants are still barred, with the possible exception of those employed by the RCMP. They’re governed by different provisions in the FPSLRA.

One of the problems with having so many Plaintiffs is that there’s no information pleaded about any of them specifically. Instead, generalizations are made, without reference to who it applies to. As for the travel restrictions, it’s unclear which litigants are alleging it.

Hopefully, these people will retain a competent lawyer this time.

Alternatively, maybe counsel will take a remedial refresher course on how to plead documents.

SCHEDULE “A”: PLAINTIFFS WHO ARE MEMBERS OF THE CORE PUBLIC ADMINISTRATION

  • Canada Opportunities Agency
  • Canada Border Services Agency
  • Canada Revenue Agency
  • Canada School of Public Service
  • Canadian Coast Guard (Department of Fisheries and Oceans)
  • Canadian Food Inspection Agency*
  • Canadian Forestry Service (Department of Natural Resources)
  • Canadian Institutes of Health Research*
  • Canadian Nuclear Safety Commission*
  • Canadian Radio-television and Telecommunications Commission
  • Canada Revenue Agency*
  • Canadian Security Intelligence Service*
  • Core Public Service
  • Canadian Space Agency
  • Correctional Service of Canada
  • Courts Administration Service
  • Department of Agriculture and Agri-Food
  • Department of Canadian Heritage
  • Department of Employment and Social Development
  • Department of Fisheries and Oceans
  • Department of Justice
  • Department of National Defence
  • Department of Natural Resources
  • Department of Transport
  • Department of Veterans Affairs
  • Elections Canada (“Office of the Chief Electoral Officer” and “The portion of the federal public administration in the Office of the Chief Electoral Officer in which the employees referred to in section 509.3 of the Canada Elections Act occupy their positions”)
  • Environment and Climate Change Canada (Department of the Environment)
  • Federal Economic Development Agency for Southern Ontario
  • Global Affairs Canada (Department of Foreign Affairs, Trade and Development)
  • Government of Canada
  • Immigration, Refugees and Citizenship Canada (Department of Citizenship and Immigration)
  • Indigenous and Northern Affairs Canada (Department of Crown-Indigenous Relations and Northern Affairs)
  • Indigenous Services Canada (Department of Indigenous Services)
  • Innovation, Science and Economic Development Canada
  • National Film Board of Canada (National Film Board)*
  • National Research Council Canada*
  • National Security and Intelligence Review Agency (National Security and Intelligence Review Agency Secretariat)*
  • Office of the Auditor General of Canada*
  • Parks Canada*
  • Polar Knowledge Canada (Canadian High Arctic Research Station)*
  • Public Health Agency of Canada
  • Public Safety Canada (Department of Public Safety and Emergency Preparedness)
  • Public Services and Procurement Canada
  • Royal Canadian Mounted Police**
  • Service Canada (Department of Employment and Social Development)
  • Shared Services Canada
  • Staff of the Supreme Court
  • Statistics Canada
  • Treasury Board

NOTES:

All organizations are part of the core public administration as defined at s 11(1) of the Financial Administration Act (Schedules I and IV), except as noted.

  • Organizations that are portions of the federal public administration listed in Schedule V (Separate Agencies of the Financial Administration Act, whose employees have rights to grieve under the Federal Public Sector Labour Relations Act).

** The RCMP is part of the core public administration and is listed in Schedule IV of the Financial Administration Act; RCMP members have limited rights to grieve under s 238.24 the Federal Public Sector Labour Relations Act, but have other grievance rights under the Royal Canadian Mounted Police Act.

SCHEDULE “B”: PLAINTIFFS WHO ARE NOT MEMBERS OF THE CORE PUBLIC ADMINISTRATION

  • Air Canada
  • Air Canada Jazz
  • Air Inuit
  • Bank of Canada
  • Bank of Montreal
  • BC Coast Pilots Ltd
  • BC Ferries
  • British Columbia Maritime Employers Association
  • Brookfield Global Integrated Solutions
  • Canada Mortgage and Housing Corporation
  • Canada Pension Plan
  • Canada Post
  • Canadian National Railway
  • Canadian Pacific Railway
  • City of Ottawa Garage Fed Regulated
  • DP World
  • Export Development Canada
  • Farm Credit Canada
  • G4S Airport Screening
  • Garda Security Screening Inc
  • Geotech Aviation
  • Global Container Terminals Canada
  • Greater Toronto Airports Authority
  • House of Commons
  • Human Resources Branch, Innovation
  • Kelowna Airport Fire Fighters
  • National Arts Centre
  • NAV Canada
  • Ontario Northland Transportation Commission
  • Ontario Power Generation
  • Pacific Pilotage Authority
  • Parliamentary Protection Service
  • Public Sector Pension Investment Board
  • Purolator Inc
  • Questral Helicopters
  • RBC Royal Bank
  • Rise Air
  • Rogers Communications Inc
  • Royal Canadian Mint
  • Sasktel
  • Scotiabank
  • Seaspan Victoria Docks
  • Shaw
  • Skynorth Air Ltd
  • Telesat Canada
  • Via Rail Canada
  • Wasaya Airways
  • Waterfront Employers of British Columbia
  • Westjet
  • Westshore Terminals
  1. Did the Federal Court err in determining that the plaintiffs employed by the RCMP were subject to the bar in section 236 of the FPSLRA?
  2. Did the Federal Court err in determining that the bar in section 236 of the FPSLRA forecloses the right of action for claims in respect of the Interim Order and other travel related restrictions?
  3. Did the Federal Court err in striking, without leave to amend, the claims related to the TB Policy made by the plaintiffs who were employed by the organizations listed in Schedule “A” to the Federal Court’s Reasons?
  4. Did the Federal Court err in finding certain other claims to be non-justiciable?
  5. Did the Federal Court err in striking the Statement of Claim due its being generally improper and failing to plead necessary material facts?

1. Did the Federal Court err in determining that the plaintiffs employed by the RCMP were subject to the bar in section 236 of the FPSLRA? YES

[42] On the first issue, I conclude that the Federal Court erred in finding that the bar in section 236 of the FPSLRA applies to the plaintiffs who were members of the RCMP.

[43] It will be recalled that subsection 236(1) of the FPSLRA provides that the “right of an employee to seek redress by way of grievance for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute”.

[44] To recall, the relevant definition of what constitutes a grievance is set out in subsection 206(1) of the FPSLRA. That section states that a grievance is one that may be filed under either section 208 or 238.4 of the FPSLRA. Thus, the bar in section 236 applies only to those who could seek redress via a grievance under section 208 or 238.4 of the FPSLRA.

[45] Yet, section 238.4 of the FPSLRA applies only to grievances arising under a collective agreement applicable to RCMP members who meet the statutory definition of “employee” in the FPSLRA. Based on the materials that were before the Federal Court and that are now before this Court, it is impossible to ascertain whether any collective agreement has been negotiated for RCMP members. The National Police Federation was certified as the bargaining agent for RCMP members in 2019 by the FPSLREB in National Police Federation v. Treasury Board, 2019 FPSLREB 74. However, it is unclear if a collective agreement has been achieved and, if so, whether a challenge to the TB Policy could be the subject of a grievance under any such agreement. Given this lack of information, it is not plain and obvious that the plaintiffs who were members of the RCMP possessed rights to grieve the TB Policy under a grievance to which section 238.24 of the FPSLRA pertains.

The RCMP Plaintiffs may still have their employment claims struck at some point. However, with the information available on this Motion, they couldn’t be now.

2. Did the Federal Court err in determining that the bar in section 236 of the FPSLRA forecloses the right of action for claims in respect of the Interim Order and other travel related restrictions? YES

[53] The Federal Court therefore erred in finding that the plaintiffs’ claims related to the Interim Order and other travel-related measures could have been grieved or were subject to section 236 of the FPSLRA. While these claims suffer from the lack of proper pleadings and a failure to plead the necessary material facts that characterize the Statement of Claim generally, they should not have been struck without leave to amend. If properly pleaded, it may perhaps be possible for the plaintiffs to raise a claim that could come within the jurisdiction of the Federal Court. Without seeing an amended pleading, however, it is impossible to discern whether or not a valid claim might be advanced. The plaintiffs therefore should have been granted leave to amend the claims related to the Interim Order and other travel-related measures on the same basis as the Federal Court allowed other claims to be amended.

All Plaintiffs should be given the right to have their travel-related claims heard.

In fairness to Justice Fothergill, it was unclear who exactly was pleading that their travel related rights were infringed. The Statement of Claim was so lacking in detail that it was impossible to tell.

3. Did the Federal Court err in striking, without leave to amend, the claims related to the TB Policy made by the plaintiffs who were employed by the organizations listed in Schedule “A” to the Federal Court’s Reasons? NO

[54] On the third issue, I conclude that the Federal Court did not err in striking, without leave to amend, the claims related to the TB Policy made by the plaintiffs who were employed by the organizations listed in Schedule “A” to the Federal Court’s Reasons, other than the RCMP. However, the Federal Court erred in striking the claims of RCMP members related to the TB Policy.

[55] It is not disputed that the plaintiffs who were employed by organizations other than the RCMP could have filed grievances under section 208 of the FPSLRA challenging the TB Policy or its application to them. As noted, the TB Policy was a term and condition of employment and thus subject to grievance under section 208 of the FPSLRA, which allows the employees of the organizations listed in Schedule “A” to the Federal Court’s Reasons other than the RCMP to file grievances relating to their terms and conditions of employment. That said, the FPSLREB recently held in Rehibi v. Deputy Head (Department of Employment and Social Development, 2024 FPSLREB 47, that a grievance challenging the application of the TB Policy could not be referred to adjudication due to the fact that only a subset of matters that may be grieved under the FPSLRA may be referred to adjudication under subsection 209(1) of the FPSLRA.

[64] Since the defendants sought to strike the Statement of Claim based on the fact that a grievance process was available, it was incumbent on the defendants to establish that the TB Policy could have been grieved by RCMP members. However, no evidence was tendered on this issue and the statutory scheme is not sufficiently clear to definitively establish that the TB Policy could have been grieved by RCMP members. I therefore conclude that the Federal Court erred in striking the claims of RCMP members related to the TB Policy without leave to amend. The plaintiffs who were members of the RCMP should have been granted leave to amend their claims related to the TB Policy on the same basis as the plaintiffs who were employed by organizations other than those listed in Schedule “A” to the Federal Court’s Reasons were granted leave to amend.

Since the RCMP are governed by a different part of the FPSLRA, the Federal Court of Appeal concluded that their employment claims shouldn’t have been struck under s.236. That’s not to say that it may not happen anyway. That said, all other Schedule “A” Plaintiffs are out of luck.

This is a pattern that’s become more obvious: lawyers bringing cases to Court that involve Government and/or union workers. There’s almost always some legislation or collective bargaining agreement that gets these thrown out.

See below, under the “precedents” section. Since the 2023 decision, 5 more cases have been thrown out (4 in Federal Court, and 1 in B.C. Supreme Court) citing this Adelberg ruling as precedent.

4. Did the Federal Court err in finding certain other claims to be non-justiciable? NO

[65] I see no error in the Federal Court’s determination that allegations of criminal behaviour, broad declarations respecting the current state of medical and scientific knowledge, and a declaration that administering medical treatment without informed consent is a crime against humanity, are not justiciable in a civil action.

[66] As for the validity of the TB Policy and the Interim Order, it would appear that those issues may now well be moot. In addition, while it might have been possible to argue that the policies at issue were invalid in the context of a justiciable claim for relief on some other basis in accordance with the decision of the Supreme Court of Canada in Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, the Federal Court did not err in holding that an order setting aside the TB Policy and the Interim Order could only be obtained by way of an application for judicial review.

[67] I accordingly see no basis for setting aside any of the foregoing rulings made by the Federal Court.

This is comical and goofy. Experienced lawyers should know what Courts can and cannot adjudicate over. It reeks of incompetence that this keeps happening over and over again.

Bad beyond argument.

5. Did the Federal Court err in striking the Statement of Claim due its being generally improper and failing to plead necessary material facts? NO

[68] Finally, I see no error in the Federal Court’s finding that the Statement of Claim was improperly pleaded and lacked the necessary material facts. As noted in Mancuso v. Canada (National Health and Welfare) 2015 FCA 227, [2015] F.C.J. No. 1245 at para. 16, a plaintiff must plead, in summary form, but with sufficient detail, the constituent facts to support the relief sought. As the Federal Court rightly noted in this case, for the claims in respect of which leave to amend is granted, the plaintiffs must set out with sufficient particularity the facts they rely on in support of their claim, including details of how they were specifically impacted by the policies they impugn and the bases for and all material facts necessary to ground the claims advanced. The Statement of Claim, as drafted, is entirely devoid of these necessary material facts.

[69] I therefore see no reviewable error in the decision to strike the Statement of Claim in its entirety. However, leave to amend it should be granted to all the plaintiffs in accordance with these reasons.

This is common sense, or at least it should be. If you want to sue someone, you have to spell out the allegations with enough specific detail that they can respond to it.

Here’s he TL, DR (too long, didn’t read) version of things:

(1) Members and former members of the RCMP may still be able to bring employment related claims around their refusal to take the injections.

(2) All Plaintiffs — both Schedules “A” and “B” — can make travel related claims

(3) Other than RCMP, all other Schedule “A” Plaintiffs have their employment claims barred

(4) The Statement of Claim is filled with issues a Civil Court can’t preside over

(5) The Statement of Claim fails to comply with the Rules of Civil Procedure, and doesn’t plead the facts necessary to be properly responded to.

(6) The $5,000 cost award is set aside, and no costs were awarded here.

The “bad beyond argument” findings of Justice Fothergill (here), and Justice Ross (Action4Canada) have been upheld. Neither case was pleaded in a coherent manner. And both needed to be redone. It’s still mind boggling that veteran lawyers don’t understand how to draft documents.

While all Plaintiffs can now go ahead with something, a few questions:

(a) Since the Schedule “A” employment claims are still prohibited, will there be an attempt to appeal to the Supreme Court of Canada? That was promised after all.

(b) Since so much time has passed, will any new allegations be barred by the Statute of Limitations? For most things, there’s a 2 year time limit.

(c) Will any more of the litigants discontinue their case? Will others try to proceed, but with more “effective” counsel?

(d) Considering that Action4Canada never bothered to file an amended Notice of Civil Claim, even 4 months after “winning” their Appeal, will this happen here too? Will these Plaintiffs call their critics “paid agitators“?

FEDERAL VAXX PASS CHALLENGE (APPEAL)
(1) FCA Adelberg V. HMTK A-67-23 Notice Of Appeal
(2) FCA Adelberg V. HMTK A-67-23 Appeal Book
(3) FCA Adelberg V. HMTK A-67-23 Appellants MFL
(4) FCA Adelberg V. HMTK A-67-23 Respondents MFL

FEDERAL VAXX PASS CHALLENGE
(1) https://policeonguard.ca/wp-content/uploads/2022/06/Filed-SOC.pdf
(2) Federal Court Vaccine Mandate Challenge
(3) Federal Vaccine Passport Challenge Retainer Agreement
(4) Federal Court Vaccine Mandate Challenge Motion To Strike
(5) Federal Court Vaccine Mandate Challenge Affidavit Of Service
(6) Federal Court Vaccine Mandate Challenge Responding Motion Record
(7) Federal Court Of Canada Rules
(8) Federal Court Decision On Motion To Strike (Archive)
(9) https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/522970/index.do
(10) https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1507/2022bcsc1507.html
(11) https://laws-lois.justice.gc.ca/eng/regulations/sor-98-106/page-9.html#h-1013947
(12) https://www.laws-lois.justice.gc.ca/eng/acts/P-33.3/page-13.html#h-406405

PRECEDENTS CREATED
(1) https://www.canlii.org/en/ca/fct/doc/2023/2023fc280/2023fc280.html#par85
(2) https://www.canlii.org/en/ca/fct/doc/2023/2023fc929/2023fc929.html#par17
(3) https://www.canlii.org/en/bc/bcsc/doc/2023/2023bcsc1701/2023bcsc1701.html#par30
(4) https://www.canlii.org/en/ca/fct/doc/2023/2023fc1752/2023fc1752.html#par24
(5) https://www.canlii.org/en/ca/fct/doc/2024/2024fc137/2024fc137.html#par44

MONEY
(1) Letter to Federal Worker Plaintiffs
(2) Federal Workers Action Donation Link For PayPal
(3) Ontario First Responders Action Donation Link For PayPal
(4) School Action Donation Link For PayPal
(5) Police Officer Action Donation Link For PayPal
(6) https://www.web.archive.org/web/20220526170932/https://www.constitutionalrightscentre.ca/
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B.C. Bill 21: Legal Professions Act, Gets Royal Assent, And Law Society Sues Over It

The Province of British Columbia recently passed Bill 12, the Legal Professions Act. In short, it would take away the ability of the Law Society of B.C., or the LSBC, to self-regulate, and put it under Government control.

Many professions in Canada are “self regulated”. These include: teachers, doctors, nurses, engineers, social workers, to name a few. They typically report to some sort of college, which oversees their licencing and professional development. Bill 12 would reverse this, at least for B.C. lawyers.

The LSBC responded by suing the Government in Supreme Court. And this was fast. The Bill received Royal Assent on May 16th, 2024, and the Notice of Civil Claim was filed the following day.

In short, the LSBC argues that its independence will be damaged, and the public harmed, if lawyers are not allowed to regulate themselves. Furthermore, if Government has the power to issue and revoke licences, it will result it an unwillingness to bring lawsuits for deserving clients.

The LSBC also complains that they never had any meaningful consultation before Bill 12 was brought. However, they had known for more than 2 years that this was going to happen at some point.

In addition to losing their independence, it’s argued that Bill 12 will have an impact on the health and well being of lawyers. Brook Greenberg authored a piece critical of Bill 12, and it’s quite the attention grabber. Below are sections from it.

However, the most visceral objection I have to Bill 21 is the government’s decision to include stigmatizing and discriminatory provisions to compel legal professionals to undergo forced medical treatment.

Within the 317 sections of this poorly thought-out and badly drafted bill, are harmful provisions about “health,” including in the definition of what it means for a legal professional to behave “incompetently.”

Section 68 initially defines “incompetently” with a focus on conduct that fails to meet standards. However, it goes on to define competence with specific reference to “health conditions.”

In doing so, Bill 21 makes unwarranted assumptions and creates false and stigmatizing connections between lawyers experiencing health conditions and their competency. We know from the national study on the psychological health of Canadian legal professionals that up to 50 per cent of legal professionals in Canada experience moderate-to-severe mental-health and substance use issues, at times.

That means roughly 7,000 lawyers in B.C. have had such experiences. However, only single-digit numbers of lawyers have their competency called into question in a given year.

Making and emphasizing a connection between competency and health conditions, as the government has done, is unwarranted and will inflict great harm both on individuals, and systemically.

It’s a bizarre argument to make: lawyers should be allowed to control their own profession. Otherwise health issues that can legitimately impact their ability to practice will lead to them not being able to.

We know from the national study on the psychological health of Canadian legal professionals that up to 50 per cent of legal professionals in Canada experience moderate-to-severe mental-health and substance use issues

From this, are we to determine that a significant minority — almost half — of B.C. lawyers have substance abuse and mental health issues? Should we really be letting the alcoholics, drug addicts and mentally ill be regulating themselves? If anything, Greenberg’s article makes a strong argument in favour of not letting lawyers police themselves.

We’ll have to see what becomes of this.

Other recent B.C. specific legislation includes:

  • Bill 12, the Online Harms Act
  • Bill 23, the (Anti-White) Anti-Racism Act
  • Bill 31, domestic implementation of U.N. Sendai Framework

(1) https://www.leg.bc.ca/parliamentary-business/legislation-debates-proceedings/42nd-parliament/5th-session/bills/progress-of-bills
(2) https://www.lawsociety.bc.ca/news-and-publications/news/law-society-of-bc-announces-legal-action-to-challenge-legal-professions-act/
(3) https://www.lawsociety.bc.ca/news-and-publications/news/updates-and-timeline-single-legal-regulator-legislation/
(4) https://www.lawsociety.bc.ca/news-and-publications/news/law-society-of-bc-announces-legal-action-to-challenge-legal-professions-act/
(5) https://www.timescolonist.com/opinion/comment-bc-embeds-mental-health-stigma-and-discrimination-in-legal-regulation-8719567#google_vignette
(6) LSBC v HMTK and AG Notice of Civil Claim