“Posties” Injection Pass Case Thrown Out For Lack Of Jurisdiction, Shoddy Pleading

The Federal Court has just thrown out a lawsuit from various Canada Post workers, which challenged the 2021 “injection mandates”. This was a change to the job requirements that applied to everyone. The union eventually forced the matter to arbitration, which the workers lost. See the archives here and here for more information.

The Claim originally had 281 Plaintiffs, but 132 of them discontinued prior to the Motion to Strike being heard. That was nearly half of them.

Like most (or all) Government workers and/or unionized workplaces, there are collective bargaining agreements. These agreements allow for grievances to be filed, and that can lead to arbitration. They typically don’t allow for litigation. Canada Post is one such employer.

Now, if the arbitration process was unfair or corrupted, in theory the workers could have gone to the Court and asked for a review. This would be analogous to filing an Appeal. If serious errors were found, the case could be sent back for a new hearing.

Instead, a few hundred of them ended up suing Canada Post, and the Federal Government. They found a lawyer who apparently convinced them that the the arbitration requirement (and result) didn’t matter. And quite predictably, the case was thrown out for lack of jurisdiction.

The lawsuit had many problems, some of which were fatal.

  • Going to Court when collective agreements require other alternatives
  • Suing after arbitration is already completed
  • Not properly pleading facts and particulars
  • Having a Claim that’s difficult to follow
  • Not understanding jurisdiction of Crown Corporations

Surprisingly, this didn’t come from “Mr. Bad Beyond Argument”. It was from a firm called Grey Wowk Spencer, and its lawyer, Leighton Grey.

In fairness, the Claim was written a lot more clearly than what usually gets critiqued here. The pleading was (mostly) coherent, and it wasn’t that difficult to follow along.

However, there were still serious errors throughout the litigation process. These were the kinds of mistakes that senior lawyers should never be making. In matters such as these, no one’s work is above criticism.

Timeline of major events in case

It’s important to remember that this didn’t start with a lawsuit. It began with grievances and then arbitration. This matters as it relates to the lack of jurisdiction of the Federal Court.

September 2021: Canada Post announces that it will change the “vaccination” policy, requiring that all employees (and new hires) take the shots in order to be employed. It’s to take effect on November 26th, 2021.

October 26th, 2021 mandatory injection policy is formally approved.

November 15th, 2021: CUPW, Canadian Union of Postal Workers, files grievance against Canada Post’s new policy of requiring the injections in order to stay employed.

January 18th, 2022: Arbitration hearing is held over Canada Post’s policy requiring the injections of all employees. There would be several sessions over the coming months.

January 24th, 2022: Canada Post’s lawyer serves some 700 pages of material related to the arbitration hearings.

February 12th, 2022: Hearing date for arbitration related to Canada Post. Colin Furness, who works for the University of Toronto, testifies.

March 21st, 2022: Hearing date for arbitration related to Canada Post.

March 22nd, 2022: Hearing date for arbitration related to Canada Post.

April 5th, 2022: Final arguments were to be held for arbitration process.

April 27th, 2022: Arbitrator dismisses the grievance against Canada Post, saying that the injection requirement is “reasonable”.

Note: the following information is posted on the Federal Court of Canada website. These steps are from their notes on how things have been progressing. This lawsuit came AFTER arbitration had taken place. Instead of challenging the validity or fairness of the arbitration, it acts as though it never happened.

July 12th, 2022: Statement of Claim is filed with the Federal Court. It names: (a) Canada Post Corporation; (b) Her Majesty the Queen, as Elizabeth was Queen at the time; and (c) Attorney General of Canada.

July 18th, 2022: A Notice of Intention to Respond is filed.

November 3rd, 2022: Defendants send correspondence asking for case management, and to suspend normal timelines to file a Defence.

November 23rd, 2022: Associate Judge Catherine A. Coughlan is assigned to manage the case.

January 16th, 2023: Plaintiffs provide letter for dates for case management conference.

April 6th, 2023: Case conference is delayed until May 31st.

May 31st, 2023: Plaintiffs directed to file Amended Statement of Claim by June 15th.

June 19th, 2023: Plaintiffs file Amended Statement of Claim.

July 7th, 2023: Dates are set down for Defendants’ Motions to Strike (throw out the case), and the following deadlines were established. Worth mentioning, these kinds of Motions are done in many steps.

  • August 18th: Defendants serve (but not file) Notice of Motion, and any Affidavit evidence
  • September 15th: Plaintiffs serve (but not file) any Affidavit evidence
  • October 27th: Any cross-examinations on Affidavits is to have finished. This is similar to a Court setting, where a person gets asked about evidence that they submit. Failure to attend means evidence won’t be considered.
  • November 17th: Moving Party Defendants are to submit their Motion Records, which is a collection of documents. In Federal Court, it also includes the written arguments, or submissions
  • December 8th: Responding Plaintiffs to serve and file their Motion Record(s)
  • January 23rd-25th, 2024: Court to hear the Motions

July 10th, 2023: Lawyer for Canada Post contacts the Court and advises a lack of availability for the week in January when the hearing is to take place.

September 5, 2023: Even more Plaintiffs discontinue, or voluntarily leave the case. It worth mentioning that the Court history is filled with various Plaintiffs discontinuing. This is especially prevalent after the Motion to Strike is set out. Seems they realize that their case will go nowhere.

March 4th, 2024: Motions are eventually heard.

March 13th, 2024: Court releases reasons for striking the case.

March 15th, 2024: Order striking case is officially issued.

It’s disappointing that neither the lawsuit nor the grievance really challenged the pseudo-science that was going on here. Instead, it’s limited to worker rights, and the declarations of “the experts”.

Now we get to some of the problems that the case had. To be blunt, it was a gong-show, and was never going to reach Trial. And to be frank, NONE of these issues are new or novel. They’ve all been dealt with many times before.

Problems include:

Court has no jurisdiction due to collective bargaining agreement

CUPW is covered by their collective bargaining agreement. See archive. Article 9 is very long, and goes into depth about the grievance process. If disputes cannot be resolved, then the normal course is to go to arbitration. And in fact, that’s exactly what happened here.

Article 9.99 covers “declaratory relief”, which is something that so-called constitutional lawyers almost always try to claim. In fact, it’s claimed in this case. The Arbitrator is given wide range to adjudicate over nearly type of employment dispute.

But instead of challenging the fairness or adequacy of the hearings (i.e. review or appeal), the lawsuit acts as if they never happened. Consequently, this case was doomed to fail.

Federal Court has no jurisdiction over Crown Corporations

[47] As noted at the outset of these Reasons, Canada Post advances two distinct arguments asserting this Court has no jurisdiction to entertain the Claim.

[48] First, it argues that as a Crown Corporation, the Federal Court lacks jurisdiction over Canada Post pursuant to sections 17(1), 17(2) and 17(5) of the FCA. Citing the oft-quoted decision in ITO-Int’l Terminal Operators v Miida Electronics, [1986] 1 SCR 752 (SCC), Canada Post argues that none of the three-part test for jurisdiction is met: There is no statutory grant of jurisdiction by the Federal Parliament; there is no existing body of federal law which is essential to the disposition of the case and which nourishes a statutory grant of jurisdiction; and this is not a case based on the “law of Canada” under section 101 of the Constitution Act, 1867.

[49] Further, Canada Post relies on the recent decision of Associate Judge Horne in Van Sluytman v Canada, 2022 FC 545 at para 56, for the proposition that section 17 of the FCA only applies to the Crown, eo nomine (by its name), and not to statutory corporations acting as agent for the Crown: Committee for Monetary and Economic Reform v Canada, 2014 FC 380 at paras 87-88; affirmed 2015 FCA 20.

[50] In its responding memorandum of fact and law, the Plaintiffs do not address this argument
. Rather, they assert that the Federal Government acting under statutory and constitutional
law effectively controls Canada Post. To bolster their position, they point to section 91(5) of the Constitution Act where the Government of Canada has exclusive authority over postal services. Any arguments that suggest that Canada Post is not an agent of the Federal Government, the Plaintiffs say, amounts to “legal sophistry”.

The requirement to go through the grievance process was addressed in the previous section, but it’s not the only problem that the former workers have to deal with.

Apparently, it’s been settled law for many years that the Federal Court doesn’t have jurisdiction to preside over cases involving Crown Corporations. This applies even though Ottawa does hand down some rules relating to how they can operate.

Of course, even if Canada Post were part of the Federal Government, there still wouldn’t be jurisdiction to sue. Sections 208 and 236 of the FPSLRA, Federal Public Sector Labour Relations Act, allow employees to grieve but not to litigate. In other words, the Court would still lack jurisdiction.

By the way, Committee for Monetary and Economic Reform v Canada (a.k.a. COMER, or the Bank of Canada case), was struck for lack of jurisdiction. It was also struck multiple times for failing to state a cause of action, by “Mr. Bad Beyond Argument”.

The Attorney General of Canada was removed since the directive to mandate injections only went to the Federal Government, not to Crown Corporations. The case against Canada was also struck. However, this comes across as unfair, since Canada Post still implemented the policy anyways.

Statement of Claim so poorly written many would be blushing

[Paragraph 1] f. A Declaration pursuant to section 217, 217.1 & 219(1) of the Criminal Code, 1985, that the Canada Post Corporation mandatory vaccination practice for covid-19 violates sections 124 & 125 of the Canada Labour Code, specifically sections (q),(s),(w) and (y), wherein the corporation demonstrated criminal negligence causing harm by not providing their employees the necessary “Informed Consent” regarding any of the potential adverse effects or dangers associated with the vaccines they provided their employees as options.

g. A Declaration pursuant to section 217, 217.1 & 219(1) of the Criminal Code, 1985, that the Canada Post Corporation violated sections 124, 125 of the Canada Labour Code, specifically sections z.03, z.04, z.05, z.06, z.11, z.13 & z.19, by failing to capture within each of the national safety minutes, any discussion to either educate, review, or document any of the potential hazards or dangers associated with their vaccination options on any of the national collective bargaining agencies that operate under Canada Post.

h. A Declaration pursuant to section 217, 217.1 & 219(1) of the Criminal Code, 1985, that the Canada Post Corporation violated sections 124, 125 of the Canada Labour Code, specifically sections (t), (v), (w) & (z), by implementing several different covid 19 vaccines as personal protective equipment in the work place. Not only failing to provide their employees with the knowledge and understanding necessary to properly use the corporation’s newly implemented personal protective equipment, the corporation also failed to ensure that said personal protective equipment be deemed safe under “…ALL conditions of their intended use.”

i. A Declaration pursuant to section 217, 217.1 & 219 of the Criminal Code, 1985, that the Canada Post Corporation violated section 127.1(1) & 128 of the Canada Labour Code, by refusing to properly investigate thousands of employee health and safety concerns regarding the vaccine products mandated for use by the Canada Post Corporation, instead, deeming the employees as “non-compliant” in the process by placing them on leave without pay status.

j. A Declaration pursuant to section 217, 217.1 & 219 of the Criminal Code, 1985, that the Canada Post Corporation violated all applicable clauses – (a) through (g) – within section 125.1 of the Canada Labour Code, by failing to review, document and disclose to their employees, the proprietary ingredients recognized as known dangerous goods contained within the vaccines that they were assigning their employees as personal protective equipment, and, by failing to inform their employees of the potential direct exposure to ethylene oxide as it pertains to the nasopharyngeal swabs used at Canada Post rapid testing sites, their employee home testing kits and when requiring their employees to confirm their positive or negative covid status by means of their mandatory PCR test process.

m. A Declaration pursuant to section 265.(1) of the Criminal Code, 1985, that the Canada Post Corporation mandatory vaccination practice for covid-19 violated section 122.(1) & 122.1 of the Canada Labour Code, by not only subjecting their employees to confusing and ineffective work place processes and expectations in relation to their covid 19 protocols, but also by subjecting their unvaccinated employees to regular psychological violence in the form of coercion or ridicule from their peers and management representatives at Canada Post.

n. Damages for violation of the Plaintiffs’ rights pursuant to sections 2, 122, 124, 125, 125.1, 127.1(1), and 128 of the Canada Labour Code as well as section 217(1) of the Criminal Code, in the amount of $500,000.00 per Plaintiff;

This is the kind of nonsense that “Mr. Bad Beyond Argument” is famous for. Here, Grey asks for all kinds of declaratory relief that the Federal Court can’t possibly grant. He’s asking a civil Court to provide criminal remedies. For obvious reasons, there’s no jurisdiction. And it’s not just a brief mention, but is in there many times.

Thankfully, the Amended Statement of Claim removes all of these. However, the fact that they were in at all shows that this lawyer has a very poor grasp of procedure. Did he not read the Action4Canada or Adelberg cases? In both cases, the Judges said that this was improper.

And these weren’t the only problems.

k. A Declaration pursuant to section 3(1) of the Genetic Non-Discrimination Act, 2017, that the Canada Post Corporation Defendants violated clause (b) specifically, by requiring them the Plaintiffs to undergo PCR testing that sampled RNA genetic material (covid-19 virus) to continue their employment at Canada Post, as per the corporation’s Defendants’ mandatory vaccination practice.

Many people cite this Act, but few know what it’s really about.

The intended use of the legislation was to ensure that people with various birth defects wouldn’t be subjected to discrimination. It could also be extended to cover race and ethnicity, which are genetic. It wasn’t designed to mean various “medical” procedures.

This was also removed from the original Claim.

Facts (Rule 174) and particulars (Rule 181) need to be pleaded

The Federal Courts Rules lay out how procedure is supposed to take place in the Court. It’s complimented by the Federal Courts Act. Together, these outline how things are done.

One of the problems with having so many Plaintiffs is that it becomes difficult to plead facts for each one. And in this case, there are no specific facts for anyone. No one is named.

At paragraphs 41 and 42 of the decision, it’s noted that it isn’t clear at all which of the Plaintiffs are even invoking religious belief as a reason to refuse the injections.

At paragraph 44 of the Amended Claim, it’s stated that the “Practice provides for accommodation, “due to a medical, religious or other prohibited ground of discrimination under the Canadian Act.” However, it’s never listed which Plaintiffs are invoking which exemption. In theory, the Claim could be rewritten like this:

Group “A” Plaintiffs refused based on religious beliefs (and list them)
Group “B” Plaintiffs refused based on medical beliefs (and list them)
Group “C” Plaintiffs refused based on conscientious objection (and spell it out)
Group “D” Plaintiffs refused based on other reasons (and list them)

Yes, the Statement of Claim would be much longer, but it least it would be clear who was refusing for what reason. In its current form, the Judge is left to guess. And it continues under “Charter violations”.

Paragraph 88: freedom of conscience under Charter s.2(a) breached
Paragraph 89: freedom of religion under Charter s.2(a) breached
Paragraph 90: right to life under Charter s.7 breached
Paragraph 91: right to liberty under Charter s.7 breached
Paragraph 92: right to security of the person under Charter s.7 breached
Paragraph 93: right to privacy of the person under Charter s.7, 8 breached
Paragraph 94: right to equality under Charter s.15 breached

While all of the “standard” Charter violations are listed, it’s unclear who is invoking which. While there will certainly be a lot of overlap, this needs to be spelled out.

There are several other torts later on, none of them properly pleaded.

Paragraph 100: tortious interference with economic relations
Paragraph 101: intention infliction of mental suffering
Paragraph 102-105: assault and battery
Paragraph 106-107: human rights violations
Paragraph 108-118: Charter violation damages, aggravated, punitive, bad faith

Yes, it’s true that the facts are to be assumed true — or at least capable of being proven — in the initial stages. But there aren’t any facts pled. There are just brief accusations, without specifics, and it’s unclear who is even alleging what. Here, it just seems like the lawyer threw in every tort he could think of, in the hopes that something would stick.

Granted, this isn’t nearly as bad as the Action4Canada or Vaccine Choice Canada pleadings. That would require real effort. But like those cases, there isn’t enough information to respond to.

And to be fair, at least this case doesn’t sue everyone in sight, exponentially driving up costs. Many others do, to their clients’ detriment.

When pleading facts, lawyers are supposed to spell out the who, what, where, when, how, etc… This is to provide enough concrete information for the Defendants to respond to. But like so many cases, there are just accusations without the detail, and they’re typically struck.

Now, if it were just the poor pleading, the Judge could have allowed the Claim to be rewritten. This often happens. In paragraph 15, it’s stated “If a pleading shows a scintilla of a cause of action, it will not be struck out if it can be cured by amendment”. It then goes on to cite Al Omani v Canada, 2017 (one of Mr. Bad Beyond Argument’s cases, which was struck).

However, since there was never any jurisdiction in Federal Court, no amount of editing would fix this problem. There are some things which editing and proofreading will never solve.

Will the lawyers be issuing refund cheques? Seems doubtful.

Note: Of course, this isn’t to justify in any way what has been happening over the last few years. All of it was uncalled for and harmful. This critique is just to outline what went wrong for the “Posties”. Do not interpret it as any sort of justification for Government tyranny.

(1) https://www.cupw.ca/sites/default/files/urb-ja-31-2022-ca-en.pdf
(2) Canada Post Collective Bargaining Agreement 2022
(3) Canada Post Arbitration update, February 2022 (removed)
(4) Wayback Machine Archive
(5) CUPW On Some Updates On Arbitration
(6) Wayback Machine Archive On Arbitration Updates
(7) https://www.cupw.ca/en/last-days-arbitration-vaccination-practice-grievance
(8) Wayback Machine Archive Of April 1st, 2022 Update
(9) https://www.cupw.ca/en/arbitrator-dismisses-grievance-against-canada-post%E2%80%99s-mandatory-vaccination-practice
(10) Arbitration Decision (Removed)
(11) Canada Post Arbitration Ruling, Full Text
(12) Wayback Machine Archive Of Arbitration Decision
(13) https://www.fct-cf.gc.ca/en/court-files-and-decisions/court-files#cont

(1) Canada Post Amended Statement Of Claim June 7 2023
(2) Canada Post Decision Striking Amended Pleading

(1) https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1507/2022bcsc1507.html#par52
(2) https://www.canlii.org/en/ca/fct/doc/2023/2023fc252/2023fc252.html#par51
() https://www.canlii.org/en/ca/fca/doc/2015/2015fca20/2015fca20.html
() https://www.canlii.org/en/ca/fct/doc/2017/2017fc786/2017fc786.html#par32
(3) https://laws-lois.justice.gc.ca/eng/regulations/sor-98-106/index.html
(4) https://laws-lois.justice.gc.ca/eng/acts/F-7/FullText.html
(5) https://laws-lois.justice.gc.ca/eng/acts/P-33.3/

Action4Canada Case Remains In 2024 LSBC Professional Legal Training Course

The Law Society of British Columbia (LSBC) has released the 2024 edition of their Professional Legal Training Course (PLTC). The infamous Action4Canada suit, led by “Mr. Bad Beyond Argument”, makes another appearance. The Notice of Civil Claim, NOCC, had been struck in its entirety. This was in the 2023, and was kept in this edition as an “educational exercise”.

Instead of rewriting the NOCC, as was permitted, the case was appealed. Recently, the B.C. Court of Appeal laughed Action4Canada out of there, stating they didn’t understand what was being challenged.

For more background information, here’s the earlier piece. In short, the LSBC is responsible for licensing lawyers (both new and old) in this Province. One of the requirements is that prospective lawyers — articling students — demonstrate a minimum competency in the law.

There are reasons for doing this. It’s in the public’s benefit that members of a “regulated profession” prove themselves to be intelligent and competent in their field. It hurts clients when they retain lawyers or paralegals who have no clue what’s going on. It also can clog the Courts when countless Appeals are launched on the basis of “ineffective assistance of counsel”.

Here’s a brief timeline of events in the Action4Canada case

(1) Despite fundraising since the Summer of 2020, nothing was actually filed until August 2021, nearly a year later. What finally came was a 391 page convoluted mess.

(2) August 2021: This critique was published. It quoted Rules 3-1, 3-7 and 9-5 of Civil Procedure for British Columbia. In short, it failed to meet even the basic requirements of a pleading. The site was sued a week later over it, after it allegedly caused donations to plummet.

(3) October 2021: The Defendants start issuing responses to the 391 page Claim.

(4) January 2022: Defendants being filing Applications to Strike the Claim, given how incoherent it is, and impossible to follow. This wasn’t a determination on the merits, just the quality of the writing. The reasons cited include many that the Canuck Law article had published.

(5) May 2022: The Application to Strike is finally heard. It’s worth hearing what it was about. The Claim was so long, confusing and convoluted, that it was impossible to respond to it in any meaningful way.

(6) August 2022: The Claim was struck as “bad beyond argument”. It was officially struck for being prolix and confusing, although many errors were outlined. However, Justice Ross did allow it to be rewritten, saying there was a prospect that a valid Claim could be filed.

(7) September 2022: Even though the decision was a humiliation, Gaw took to the alternative media to proclaim that it was “really a win”, and that Justice Ross had accepted the case as valid. This was a gross distortion of reality.

(8) September 2022: Instead of simply rewriting an amended Notice of Civil Claim, the case was appealed. No real explanation of that was ever given.

(9) February 2023: The Law Society of British Columbia includes the Action4Canada pleading in their Professional Legal Training Course (PLTC). This is one of the courses that prospective lawyers are required to take before letting licensed. This case is actually used as a teaching exercise in how not to draft documents.

(10) February 2023: The Federal (Adelberg) case is struck as “bad beyond argument”. Justice Fothergill references the Action4Canada case, and concludes it has many of the same defects.

(11) October 2023: No serious attempt had been made to book the actual hearing, which is why the Appeal became classified as “inactive”. If the date isn’t booked within 12 months after filing the Notice of Appeal, this is done automatically.

(12) October 2023: Just days after bring criticized for the lack of a hearing, A4C books the date for February. It seems that public scrutiny forced them to move ahead. Perhaps the goal was to just let the Appeal get thrown out as “abandoned”.

(13) February 2024: The LSBC posts their latest edition of the Professional Legal Training Course (PLTC), and the Action4Canada case is still in it. The overall text has been updated (from 140 pages to 147), but the editors still thought it was worth keeping in.

(14) February 2024: The Action4Canada Appeal is heard, and promptly dismissed.

(15) February 2024: Despite being laughed out of the Court of Appeal, Action4Canada insists that it was really a win, and that things are moving along.

On their website, Action4Canada called it a victory, being able to rewrite the NOCC. It didn’t seem to matter that the Claim had been struck in its entirety.

The Appeal was also thrown out, which was called a “successful outcome”.

This is some pretty delusional stuff.

What does the Professional Legal Training Course say about this?

If pleadings are inadequate the matter will typically not get as far as trial. In a recent example of wholly inadequate pleadings, the plaintiff filed a 391-page notice of civil claim that was struck (see §2.06(3) below on striking pleadings) as being “prolix” and “bad beyond argument.” In Action4Canada v. British Columbia (Attorney General), 2022 BCSC 1507, the plaintiffs sued a host of politicians and crown corporations over pandemic-related measures they said were not based in science, exceeded the defendants’ authority, and breached Charter rights. The notice of civil claim was struck in its entirety. The judge said (at para. 51) it is counsel’s job to draft pleadings that do not offend the Rules. The judge also said the claim was too prolix for the defendants to be able to respond, and it was not the court’s job to interpret the claim:

To put those points another way, I have indicated above that the prolix nature of the NOCC makes it impossible for the defendants to respond to it. For the same reason, I am not able to parse the 391 pages of the improperly drafted NOCC and indicate whether paragraphs, categories or claims should remain in, or should be struck. That is not the proper role of this court. It is counsel’s obligation to draft pleadings that do not offend the mandatory requirements of the Rules.

On those few pages, starting at #15, the Law Society not only roasts Action4Canada, but goes on to explain how pleadings should be drafted. Again, this is written for articling students working towards a license. It’s not designed for 30+ year veterans of the profession.

Bonnie Henry, John Horgan, David Eby, Adrian Dix, and all the others are not scared by this lawsuit. In fact, if any of them are aware of it, they’re probably having a good laugh. How could anyone be gullible enough to donate, or to be a client?

5. Pleading the Facts
Plead a “concise statement of the material facts giving rise to the claim”: SCCR 3-1(2)(a).

The “material facts” are those facts that are essential to forming a complete cause of action or defence, as the case may be: Young v. Borzoni, 2007 BCCA 16 at para. 20. The evidence that tends to prove those facts should not be pleaded (SCCR3-7(1)). Suppose the issue is whether X has authority to make a certain contract on behalf of the defendant. It is sufficient for the plaintiff to plead that “the defendant employed X as agent to make the contract on his behalf” or that “the defendant held out X as having authority to make the contract on his behalf.” It will be unnecessary and improper to plead that “X has been employed by the defendant for many years to execute contracts of this type on his behalf” or that “the defendant informed the plaintiff that X was the defendant’s agent.”

The material facts part of the pleadings should not include matters of law. However, if a particular statute is relied upon as the foundation of a claim or defence, you must plead the facts necessary to bring the case within the statute.

When pleading the material facts, be clear and brief. There should be no ambiguity in the allegations. Set out each separate allegation of fact in a separate paragraph, so that the defence, in responding to the pleading, will admit or deny each fact separately. The danger in combining facts in a larger paragraph is that defence counsel, in seeking to deny any part of that paragraph, would deny it all. That would put plaintiff’s counsel to the burden of proving facts that might not really be in dispute.

In drafting allegations of fact, avoid colouring them, as that might force the other side to deny what would otherwise be basic facts. For example, in a motor vehicle action, it is good practice for the plaintiff’s counsel to set out the fact of a collision (which likely will be admitted) and then in a separate paragraph set out the allegations of negligence of the defendant (which will be denied). Avoid, for example, combining the facts and allegations of lawful right or fault. If the pleadings state, for example, that the plaintiff was “driving in a lawful manner south on Granville Street,” then defence counsel will deny the entire allegation.

When drafting pleadings, it is often helpful to refer to a precedent as a guideline. However, never follow a precedent blindly. You should know what context it was created for, and how you should adapt or modify it. For example, some plaintiffs’ counsel make it their practice to allege in every case that the defendant driver’s ability to drive was impaired by alcohol or a drug. If the plaintiff is a passenger in the defendant’s motor vehicle, such a pleading opens the door to the defence to plead that the plaintiff was contributory negligent or accepted the risk of riding with an impaired driver. Furthermore, if the defendant was impaired, that fact might affect their insurance coverage. You should consider precedents carefully and modify them as needed.

6. Pleading the Relief Sought
The plaintiff must set out the relief sought against each named defendant: SCCR 3-1(2)(b). Tell the court what your client wants: for example, an injunction, a declaration, or damages.

Consider carefully any declarations you may be able to obtain from the court. When a court makes a declaration, it “declares” what the law or a fact is. It is not making an order. Declarations can establish a party’s standing and legal rights, which can significantly determine the outcome of a proceeding.

Having a role in this book both in 2023 and 2024 is hardly something to be proud of. This is an educational book for articling students, who haven’t even passed the bar. It’s not just the the NOCC was bad, it’s that the LSBC thinks it’s worth using as an example.

The Action4Canada case could have been so much better if this section had been observed when drafting the NOCC.

  • There should have been short, concise paragraphs, each alleging a single fact. Instead, many paragraphs were between a half and full page each, containing many unrelated allegations. This made it simpler for Defendants to simply deny everything.
  • By not having clear and concise facts — many of which may have been admitted — the Plaintiffs would now be put through the time and expense of having to prove everything.
  • The allegations weren’t clear and ambiguous at all. The who, what, where, when, why and how were typically missing, or contained in hundreds of footnotes.
  • Counsel didn’t make the allegations plain and neutral. There were all kinds of inflammatory accusations thrown in, but without the specific detail to back them up.
  • Legal arguments should not be made within the facts being pleaded. While it’s true that enough facts have to be alleged to support the law being cited, this is not the place for argument.
  • It wasn’t clear what relief was sought. That section was 45 pages, and very repetitive.
  • Despite being 45 pages, it wasn’t clear which Defendants were being asked to pay what money to which Plaintiffs. People should not be left guessing.

Will Action4Canada Appeal be in the 2025 edition?

The PLTC doesn’t really get into Appeals in great detail. However, there are 2 parts about the A4C Appeal that make it a good contender for another honourable mention.

(1) Page 101 addresses in a fair amount of detail the concept of costs. These are to partially compensate successful parties. They’re also almost entirely discretionary, and an Appellate Court will typically not interfere with them.

(2) Page 99 does briefly address some of the principles in appealing. It’s possible that the LSBC will find it necessary to explain the difference between “orders” and “reasons”. Hopefully, this means that other lawyers don’t waste time filing frivolous Appeals.

Once again, these books are aimed at aspiring lawyers, not established veterans with decades of experience.

It’s comical that at least 2 defamation lawsuits were filed for criticizing the quality of such work. The people responsible for those also make far worse accusations about being “paid agitators”. Will any more of these cases follow?

(1) https://www.lawsociety.bc.ca/becoming-a-lawyer-in-bc/admission-program/professional-legal-training-course/
(2) https://www.lawsociety.bc.ca/becoming-a-lawyer-in-bc/admission-program/professional-legal-training-course/faq-pltc/
(3) LSBC Civil Instruction Manual 2023
(4) LSBC Civil Instruction Manual 2024

(1) A4C Notice Of Appeal September 28 2022
(2) A4C Appeal – Notice Of Appearance – VIHA
(3) A4C Appeal – Notice Of Appearance – BC Defendants
(4) A4C Appeal – Notice Of Appearance – Attorney General of Canada
(5) A4C Appeal – Notice Of Appearance – Peter Kwok, Translink
(6) A4C Appeal – Notice Of Appearance – BC Ferries, Brittney Sylvester
(7) A4C Appeal – Appeal Book – Appellant
(8) A4C Appeal – Appeal Book – Respondent VIH And PHC
(9) A4C Appeal – Appeal Record – Stand Alone Respondents VIHA
(10) A4C Appeal – Appeal Record – Stand Alone
(11) A4C Appeal – Factum – Appellant
(12) A4C Appeal – Factum – Respondent Attorney General Of Canada
(13) A4C Appeal – Factum – Respondent BC Ferries and Brittney Sylvester
(14) A4C Appeal – Factum – Respondent HMK -Provincial Defendants
(15) A4C Appeal – Factum – Respondent Peter Kwok and Translink
(16) A4C Appeal – Factum – Respondent VIHA and Providence Health
(17) A4C Appeal – Consent Order – Factum, Time Limits
(18) A4C Appeal – Change In Representation – BC Defendants
(19) A4C Appeal – Notice Of Hearing February 2024
(20) CanLII Decision In Action4Canada Appeal

(1) A4C BCSC – Notice Of Civil Claim
(2) A4C BCSC – Response to Civil Claim (Health Authority Defendants)
(3) A4C BCSC – Response to Civil Claim (Provincial Defendants)
(4) A4C BCSC – Affidavit No 1 of Rebecca Hill
(5) A4C BCSC – Notice of Application (AG and RCMP applies to strike)
(6) A4C BCSC – Notice of Application (Provincial Defendants applies to strike)
(7) A4C BCSC – Notice of Application (Translink applies to strike)
(8) A4C BCSC – Application Response (Health Authority Defendants consent to strike)
(9) A4C BCSC – Application Response (BC Ferries consents to strike)
(10) A4C BCSC – Application Response (AG and RCMP consent to Prov. strike application)
(11) A4C BCSC – Application Response (Translink consents to HA Defendants strike application)
(12) A4C BCSC – Application Response (Translink consents to Prov. strike application)
(13) A4C BCSC – Affidavit No 2 of Rebecca Hill
(14) A4C BCSC – Application Record (to strike)
(15) A4C BCSC – Application Response (all plaintiffs)
(16) A4C BCSC – Amended Application Response (all plaintiffs)
(17) A4C BCSC – Transcript Application To Strike
(18) A4C BCSC – Reasons For Striking NOCC In Its Entirety
(19) A4C BCSC – Order striking pleadings
(20) A4C BCSC – Order striking pleading in its entirety with costs payable forthwith
(21) A4C BCSC – Appointment to assess bill of costs for Kwok and Translink
(22) A4C BCSC – Notice of Discontinuance (Kimberly Woolman & Estate of Jaqueline Woolman)
(23) A4C BCSC – Notice of Discontinuance (Amy Muranetz)
(24) A4C BCSC – Notice of Discontinuance (Federico Fuoco & Fire Productions Ltd.)

(1) https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1507/2022bcsc1507.html
(2) https://www.lawsociety.bc.ca/Website/media/Shared/docs/becoming/material/civil.pdf
(3) https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/168_2009_01#rule3-1
(4) https://justice.gov.bc.ca/cso/index.do
(5) https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/120_2022a#division_d0e3656
(6) https://www.canlii.org/en/bc/bcca/doc/2022/2022bcca450/2022bcca450.html#par10

Second Anti-SLAPP Motion Commenced In University Of Guelph Lawsuit

Wednesday, February 28th, 2024, Byram Bridle, the high profile professor from the University of Guelph, was back in Court. This was a short hearing to set down another anti-SLAPP Motion to dismiss his December 2022 lawsuit.

Guelph has previously filed a Statement of Defence, on behalf of all their Defendants. But now, their lawyer, Lynn Turnbell, is asking that the case be thrown out altogether. Their stated reason is that the contents of the Claim are covered under Section 137.1 of the Courts of Justice Act, which is the anti-SLAPP provision.

Guelph further states that the subject matter should be tossed for a lack of jurisdiction. Bridle is a university employee, as are most Defendants. It’s argued that the matter should have gone to arbitration instead of litigation. And they’re not wrong.

The initial anti-SLAPP Motion was filed by Kate Costin, the lawyer for David Fisman. Yes, it’s that David Fisman. It’s unclear why his content (Twitter related) is being connected to this. That will be heard on November 19th, 2024.

Counsel for Bridle requested that everything be moved back to 2025. He stated that he will be taking his annual 2 month vacation to Turkey — for medical reasons.

However, Justice Dow refused that request. The Fisman anti-SLAPP Motion will still be heard in November 2024, and the Guelph Motion is now booked for October 16th, 2025.

University of Guelph Faculty covered by collective agreements

The University of Guelph publicly posts their collective bargaining agreements, which include ones with faculty members. This particular one took only seconds to find.

Article 40 of the agreement, beginning on page 131, makes it clear the steps that are to be taken in the event of a serious problem within the university.

  • Informal resolution
  • Formal grievance
  • Arbitration

This wasn’t difficult to find. Not only does Bridle presumably have a copy of this document, but it’s publicly available on the school’s website.

True, there may be the power of a Court to review the findings of an Arbitrator, depending on the rules that are set out. This would be analogous to filing an Appeal. However, what happened here was suing in Court instead of going to arbitration. These are not the same thing.

40.1 The Parties agree to attempt to resolve disputes arising from this Agreement amicably and promptly.

40.2 In order to ensure that Grievances of Members are remedied in a reasonable, just, and equitable manner, the University and the Association mutually agree that the procedure for submitting and dealing with Grievances shall be as indicated in the remainder of this Article.

Informal Resolution
40.9 The University and the Association mutually agree that it is the desire of the Parties that differences in the interpretation, application, administration, and alleged violations of this Agreement shall be dealt with as quickly as is reasonably possible. If a Member has a complaint or dispute that may give rise to a Grievance, they and/or an Association designate shall first discuss the matter at a meeting arranged for this purpose with the Dean, University Librarian, or, in the case of Veterinarians, Director, or designate, within twenty (20) days after the Member would reasonably be expected to have become aware of the circumstances giving rise to the complaint or dispute.

40.11 Failing informal resolution of the complaint or dispute and within ten (10) days following receipt of notification of the proposed resolution under the informal process, the Association has the right to present the written Formal Grievance to the Provost, or designate, pursuant to this Article.

Formal Grievance Procedure
40.14 Following receipt of a Formal Grievance, the Provost, or designate shall convene a meeting within ten (10) days with the Member and/or the Association designate. With reasonable notice to the other Party prior to the meeting, either Party may have others attend who have information relevant to the specific Grievance. The Provost (or designate) shall reply in writing within fifteen (15) days of that meeting.

40.19 Failing resolution of a Grievance, the University or the Association will provide notification that a matter shall be submitted to Arbitration. Such notification must be made in writing and addressed to the other party within fifteen (15) days of the date of receipt of the Formal Grievance decision.

40.22 The decision of the Arbitrator shall be final and binding upon the Parties.

40.23 All arbitration expenses, including the remuneration of the Arbitrator, shall be shared equally by both Parties, subject to the award of costs by the Arbitrator as part of the remedy.

Looking at Article 40.22, it seems that the Arbitrator’s ruling is meant to be final. There’s no obvious way to challenge it further, unless the process is demonstrated to be corrupted. Since no arbitration took place, that would be difficult to prove.

The process outlined is pretty straightforward: (a) informal resolution; (b) formal grievance; and (c) arbitration, if needed. There’s no mention whatsoever about having an option to pursue litigation. This is typical in unionized and Government workplaces.

But according to the Statement of Claim, that’s not what happened.

After the grievance process went against Bridle, he didn’t pursue arbitration. Instead, he sued everyone involved. This included Nick Duley, and outside HR consultant, who was hired for an investigation. Also named is Laurie Arnott, Vice President of Faculty Relations. It’s alleged that there’s a grand conspiracy against him.

Paragraph 100, it’s stated that Guelph refused to investigate online harassment that happened outside of school grounds. It fell outside the scope of the collective bargaining agreement, and hence, no ability to do anything. This comes across as reasonable.

Paragraph 136 of the Claim says that Bridle refused to participate in Duley’s investigation, calling it a “kangaroo court”. Duley is referred to as a “hired gun”. That won’t sit well without proof.

The content in the Claim comes across as being so over the top, it’s difficult to determine what’s factual, and what’s overblown.

Now, it’s possible that the Court may find that the grievance process was corrupted and unworkable, but that’s for the Plaintiff to establish. This is sometimes referred to as “residual jurisdiction”. While a major conspiracy is alleged, it seems that it would be very difficult to prove.

Contending with the anti-SLAPP Motions

Fisman appears to have nothing to do with the University of Guelph, so including him in this case seems unproductive. Even if he did interact with some of the online content, he’s not involved in essentially what is a workplace dispute at Guelph. Considering how hard it is to prove defamation, and to get damages, this will be a tough sell in November.

The Kulvinder Gill/Ashinder Lamba, Boraks and CSASPP cases are also good examples of how much bad lawyering can impact clients.

Gill v. Maciver, 2022 ONSC 1279
Gill v. Maciver, 2022 ONSC 6169
Gill v. Maciver, 2023 ONCA 776
Boraks v. Hussen, 2023 ONSC 4294
Boraks v. Hussen, 2023 ONSC 6420
Galati v. Toews et al, 2023 ONSC 7508
Galati v. Toews et al, 2024 ONSC 935

There’s also this gem from March 2021, with a Motion scheduled for this Fall.

The trend in recent years is to implement mechanisms designed to screen out cases as abusive. For defamation type cases, these are called anti-SLAPP laws. SLAPP is of course an acronym for a strategic lawsuit against public participation.

Again, it’s hard to tell from this Statement of Claim what’s real, and what’s hype and distortion. Hopefully, more will come out in the pending Motions.

To survive an anti-SLAPP Motion, the Plaintiff is required to prove at least some of the damages. This means submitting Affidavit evidence, and being cross examined on it. The Plaintiff must also establish that there are no reasonable defences that could be relied upon. Will this happen?

How will all of this end?

It’s possible that there will be a negotiated settlement to discontinue the case entirely. Although s.137.1(5) “stays” the case, the parties can always agree to drop it. This sort of thing has happened many times before.

If not, it’s going to be very expensive for Bridle. He’s facing full indemnity (100% of costs) on 2 separate anti-SLAPP Motions. This could set him back $100,000 or more. Courts tend to be very harsh to Plaintiffs who bring lawsuits to silence public speech improperly.

An open question is why this case was even brought. Even a quick read through the collective bargaining agreement would have indicated that this was not the path to take. Should the Guelph Motion not succeed under anti-SLAPP provisions, it will likely still get dismissed due to lack of jurisdiction.

Reading through the Claim, it looks as though large parts of this are simply cut and pasted from earlier lawsuits. The same sorts of allegations come up over and over again. This isn’t original content.

It appears that Bridle was poorly advised both in employment law, and defamation law.

(1) https://www.ontario.ca/page/search-court-cases-online
(2) https://canucklaw.ca/wp-content/uploads/Byram-Bridle-Statement-Of-Claim.pdf
(3) https://canucklaw.ca/wp-content/uploads/Byram-Bridle-Statement-Of-Defence.pdf
(4) https://canucklaw.ca/byram-bridle-lawsuit-unlikely-to-ever-get-anywhere/
(5) https://www.uoguelph.ca/facultyrelations/collective-agreements
(6) https://www.uoguelph.ca/facultyrelations/system/files/UGFA_CA_2022_FinalPrint_Nov20_2023.pdf

Following Anti-SLAPP Appeal, Another $1.85 Million Malpractice Lawsuit In The Works?

Last Friday, a Notice of Action was filed with the Ontario Superior Court, at their Toronto Division. A woman intends to sue her former counsel, “Mr. Bad Beyond Argument”, for: (a) professional negligence; (b) breach of fiduciary duty and/or breach of contract in the amount; and (c) aggravated and/or punitive damages.

A Notice of Action is not the same thing as a Statement of Claim. Instead, this document is occasionally filed when a lawsuit is in the works, but the Statute of Limitations is approaching. Justice Stewart dismissed the Gill/Lamba suit on February 24, 2022, and this Notice was filed February 23, 2024. This came just a day before the 2 year anniversary.

Once filed, a Plaintiff has 30 days under Rule 14.03 to serve all Defendants with this Notice, and the Claim itself. (Pardon the error which previously listed the time as 6 months).

Jeff Saikaley and Albert Brunet are listed as counsel for Kulvinder Gill. They also represented her at the Court of Appeal which ultimately dismissed the Maciver anti-SLAPP Appeal.

What does the Notice of Action say?

1. The Plaintiff, Dr. Kulvinder Gill, claims against the Defendants, Rocco Galati and Rocco Galati Law Firm Professional Corporation as follows:
a. General and special damages for professional negligence, breach of fiduciary duty and/or breach of contract in the amount of $1,500,000;
b. General damages for pain, suffering and loss of reputation in the amount of $250,000;
c. Aggravated and/or punitive damages in the amount of $100,000;
d. Prejudgment and postjudgment interest in accordance with sections 128 and 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended;
e. The costs of this proceeding on a substantial indemnity basis, plus all applicable taxes, and;
f. Such further and other relief as the plaintiff may advise and as this Honourable Court
may seem just.

2. The Defendants acted for the Plaintiff with respect to various litigation matters starting in late 2020, including defamation actions and disciplinary proceedings initiated by the College of Physicians and Surgeons of Ontario. Their representation of the Plaintiff was negligent, constituted a breach of contract and a breach of the fiduciary duties, causing the Plaintiff significant damages.

Of course, this isn’t the entire pleading. The real Statement of Claim is presumably in the works, and it should be interesting to read. Ashvinder Lamba also has a $600,000 malpractice suit pending, alleging many of the same things as Gill.

Brief timeline of some major events

Pre-2020: Gill and Lamba have prior issues with Maciver and Alam. These predate the “pandemic” and the debate over lockdown measures.

Summer/Fall of 2020: Gill’s public opinions, which contradict the “approved” narrative, lands her in trouble with the CPSO, the College of Physicians and Surgeons of Ontario. This is the regulator which is responsible for licensing in that Province. They’re not too happy that her views don’t toe the line.

Summer/Fall of 2020: Gill gets into many trivial arguments on Twitter, leading to some harsh replies. These are screenshotted to use as evidence.

December 2020: Gill and Lamba, sued 23 individuals and organizations for defamation. This was primarily (although not entirely) brought over Twitter spats that Gill had engaged in.

March 2021: Gill sues the University of Ottawa and one of its professors, Amir Attaran, for $7 million. This is over 2 rude comments on Twitter, one where he calls her an “idiot”. This is obviously a frivolous lawsuit, and mere insults aren’t actionable.

September 2021: Over the course of 3 days, several anti-SLAPP Motions are argued before Justice Stewart in the Superior Court. These are Motions to dismiss, based on Section 137.1 of the Courts of Justice Act. This is a section of the law that allows for rapid screening of lawsuits brought to “stifle public interest speech”.

February 2022: Justice Stewart dismisses the suit was dismissed under Ontario’s anti-SLAPP laws. This wasn’t at all surprising to anyone who understands defamation law. It was an extremely weak case. At this point, costs have yet to be determined.

March 2022: The lawyer for Gill and Lamba files a Notice of Appeal, despite the fact that he doesn’t intend to stick around. It also becomes apparent that counsel doesn’t fully understand the purpose of anti-SLAPP laws, nor the standards applied.

May 2022: Counsel for Gill and Lamba succeeds in getting himself removed from the case for “health reasons”. This come despite him actively being involved in other litigation, and even commencing other lawsuits.

July 2022: Gill and Lamba (with new counsel) try to get new cost submissions filed. They claim that their previous lawyer didn’t do anywhere close to an adequate job.

September 2022: The Appeal is “perfected” meaning all the documents are submitted. Note: there still hasn’t been an award of costs yet for the original decision from February.

October 2022: Gill and Lamba are hit with $1.1 million in legal costs from the Defendants, who were successful in getting the case thrown out. But to be fair, Gill took the bulk of the hit. She had sued all 23 Defendants, while Lamba was only pursuing a case against 2 of them.

October 2023: One of the Respondents, the Pointer Group Inc., argues a Motion that Gill should have to pay her costs up front, given how weak the Appeal is.

November 2023: The Motion for security for costs is denied.

December 2023: After many delays, the Appeal is finally heard, but with only a few Respondents left. Most have cut some sort of deal to accept partial payment.

February 2024: The Court of Appeal for Ontario throws out the Appeal against the few remaining Respondents who hadn’t yet settled over this. (CanLII version available)

February 2024: Ashvinder Lamba, Gill’s then co-Plaintiff, files a $600,000 professional malpractice lawsuit against their former counsel.

Gill’s baseless and abusive defamation suit with Attaran

Anti-SLAPP laws exist for a reason. It’s to stop people from using the legal system as a weapon to silence critics on issues of public interest. And nothing screams frivolous like attempting to bankrupt a person over some name calling. Here’s the background on this one.

SLAPP of course refers to a strategic lawsuit against public participation.

Gill has been before the CPSO several times

While the comical defamation lawsuits have made national news, Gill’s adventures with the CPSO have pretty much flown under the radar. She has attracted several complaints since 2020, over her public stances and comments. Lawsuits were brought in Court to try to resolve it there, largely on the grounds of free speech. Such litigation has been repeatedly thrown out as “premature”.

In fairness, prematurity just means there’s a lack of jurisdiction.

The problem, realistically, is that the CPSO — like many professional organizations — mandates that problems be resolved internally first. Here’s one of Gill’s decisions, from 2021. Starting at paragraph 31, it’s explained that this is a long established policy, going back decades. The rationale is that if this isn’t followed, it leads to fragmentation and splitting of cases, along with overlapping rulings.

This isn’t to justify in any way what the CPSO has been up to. They’ve shown themselves to be a willing accomplice to the Ford regime, and deserve no sympathy.

It’s to recognize that had Gill been competently advised, it seems unlikely she would have pursued this path. In the Notice of Action, she alleges that former counsel was negligent.

There is a parallel between:

  • Doctors suing the CPSO (instead of using the internal disciplinary process first); and
  • Public sector and unionized workers suing their employers (instead of filing grievances)

In both instances, lawsuits are likely to be thrown out. The burden is on the Plaintiff to show that the other remedies are unworkable and/or corrupted. Now, the million dollar question in these cases is whether they were advised of this in advance.

Who will ultimately be on the hook for this?

Doctors, lawyers, and pretty much all professionals are required to have insurance. This protects against lawsuits for negligence, incompetence, malpractice, and more. It’s to ensure that there is money available for successful claims, and that it won’t bankrupt them.

One caveat: insurance providers typically refuse to pay out if there are accusations of dishonesty or misrepresentation. But Gill and Lamba are just alleging negligence and of breach of contract, which should be okay.

We’ll have to see what the Statement of Claim looks like, when it’s eventually filed. But just going off of the Notice, it doesn’t look good.

Why pursue this? One possibility is that Gill really needs the money. Even “settling” with most parties in the case with Lamba, she still owes hundreds of thousands of dollars. Saikaley and Brunet want to get paid as well, and this may be a way to do it. Then there’s that anti-SLAPP Motion pending with Amir Attaran and the University of Ottawa.

Update: On March 25th, 2024, the actual Statement of Claim was filed, and it’s a doozy.

(1) Gill Malpractice Notice of Action
(2) Gill Malpractice Statement Of Claim

(1) Lamba Statement Of Claim

(1) Gill V. Maciver Amended Notice of Motion – 26 Sept 2023
(2) Gill v Maciver – San Grewal’s appeal for support M54554.MPF.PointerGroup – October 2023.PDF
(3) https://drive.google.com/file/d/1PbEewt3dAKqAT5Udp6BIIqrM9Y_AhPHv/view
(4) Ruling: Motion For Security Of Costs – Denied

(1) Gill/Lamba Defamation Lawsuit December 2020
(2) https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html#sec137.1_smooth
(3) Gill/Lamba Factum Of Medical Post Tristan Bronca
(4) Gill/Lamba Case Dismissed As A SLAPP
(5) https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1279/2022onsc1279.html#par17
(6) Gill/Lamba Notice of Appeal and Appellants’ Certificate
(7) Gill/Lamba Appeal – Notice of Intention to Dismiss Appeal for Delay, May 12, 2022
(8) Motion To Recuse – Badly Redacted -2022-06-17 – Notice
(9) Motion To Recuse – Badly Redacted -2022 – Motion Record
(10) Gill/Lamba July 15 Letter To Obtain New Counsel
(11) Gill/Lamba Case Conference Brief July 29, 2022
(12) Gill/Lamba Endorsement New Counsel Cost Submissions August 3, 2022
(13) Gill/Lamba Case $1.1 Million In Costs Ordered October 31, 2022
(14) Gill/Lamba Appeal Dismissed As Baseless By ONCA
(15) https://coadecisions.ontariocourts.ca/coa/coa/en/item/22116/index.do

(1) Gill-Attaran Statement Of Claim
(2) Gill Attaran Affidavit Of Service
(3) Gill-Attaran Notice Of Intent
(4) Gill-Attaran Motice To Recuse
(5) Gill-Ataran Motion To Recuse Motion Record

B.C. Court Of Appeal Confirms “Bad Beyond Argument” Ruling In Action4Canada Case

In August 2022, Action4Canada had their Notice of Civil Claim (or NOCC) struck in its entirety by the B.C. Supreme Court. Justice Ross concluded that the 391 page document was such a convoluted mess, it was impossible to respond to. There were no determinations on the merits, just the quality of the writing. The Court of Appeal has just upheld that ruling

While the Lower Court’s written reasons outlined a number of potentially serious problems, Justice Ross avoided giving a definitive answer as to what content would be allowed. It seems that the Plaintiffs’ lawyer doesn’t understand how to interpret legal findings.

  • Reasons: background information that’s necessary to support findings
  • Order: what the Court actually rules on

And what was the Order?

[74] In summary:
a) I find that the NOCC, in its current form, is prolix and must be struck in its entirety;
b) I grant the plaintiffs liberty to amend the NOCC; and
c) This action is stayed pending the filing of a fresh pleading.

[75] On the issue of costs, I note that each plaintiff is pursuing this action seeking money damages from one or more defendant. In responding to those claims each defendant has been put to the expense of answering (if not filing a response) to the NOCC. In addition, the defendants have all been required to prepare for and conduct this application. None of those steps would have been necessary if the matter was properly pleaded.

[76] On that basis, I find it appropriate to award each defendant the costs for the necessary steps of “defending a proceeding”, and for preparing for and attending an application (opposed). Those costs are payable forthwith in any event of the cause.

For reasons that were never made clear, the decision was appealed. The Plaintiffs could simply have redrafted and refiled an amended version, but didn’t.

The B.C. Court of Appeal has now said exactly that. They couldn’t understand why they were even there. It was agreed that the Claim was prolix (too long) and confusing. Therefore, the obvious answer was to rewrite it, as Justice Ross allowed it.

The other issue in the Appeal was over costs. The argument was that because success was “divided”, there should have been no costs. Apparently, since a rewrite was allowed, this amounts to a partial win. However, costs are considered discretionary, and this was predictably rejected.

Here’s what the B.C. Court of Appeal had to say.

[1] Pleadings play a central role in the conduct of civil litigation and access to justice. Their purpose is to clearly, concisely and precisely define the issues of fact and law to be determined, inform the other side of the case to be met, determine the nature and scope of pre-trial procedures, and guide the trial process: The Owners, Strata Plan LMS3259 v. Sze Hang Holding Inc., 2012 BCCA 196 at para. 1; Sahyoun v. Ho, 2013 BCSC 1143 at paras. 16–19; Supreme Court Civil Rules, B.C. Reg. 168/2009, R. 3-1(2) [Rules].

[2] Prolix pleadings are improper. They lead to confusion, unfairness, delay and expense, and impede the litigation they are intended to facilitate: see e.g., Mercantile Office Systems Private Limited v. Worldwide Warranty Life Services Inc., 2021 BCCA 362 at paras. 22–23, 44, 58. They also occupy inordinate court resources, preventing other litigants from accessing the court services they require and deserve.

[3] Here, the appellants’ notice of civil claim is 391 pages long. Part 1 (“Statement of Facts”) is over 300 pages long, contains more than 1,000 paragraphs and sub-paragraphs, and includes hundreds of footnotes, some of which contain hyperlinks to various websites. Part 2 (“Relief Sought”) is over 40 pages long and seeks, among other things, over 200 declarations. Part 3 (“Legal Basis”) is almost 30 pages long.

[4] The notice of civil claim includes wide-ranging allegations of a global conspiracy, and challenges the scientific and constitutional foundation of the federal and provincial responses to the COVID-19 pandemic. To give a sense of the breadth and nature of the allegations, the appellants’ “summary” of the factual basis of their claims includes (at 310–311, para. 283(d) of the notice of civil claim) the allegation that the federal and provincial responses to the COVID-19 pandemic violated the appellants’ “statutory and constitutional rights” because:
… the “COVID-pandemic” was pre-planned, and executed, as a false pandemic, through the [World Health Organization], by Billionaire, Corporate, and Organizational Oligarchs the likes of Bill Gates, [Global Alliance for Vaccines and Immunization, now Gavi, the Vaccine Alliance], the [World Health Organization], and their former and current associates such as Theresa Tam and Bonnie Henry, the [World Economic Forum], and others, in order to install a New World (Economic) Order with:
(i) De facto elimination of small businesses;
(ii) Concentration of wealth and the power to control economic activity in large global corporations;
(iii) To disguise a massive bank and corporate bail-out;
(iv) To effect global, mandatory vaccination with chip technology, to effect total surveillance and testing of any and all citizens, including the Plaintiffs;
(v) To shift society, in all aspects into a virtual[] world at the control of these vaccine, pharmaceutical, technological, globalized oligarchs, whereby the Plaintiffs, and all others, cannot organize [or] congregate[; and]
(vi) To effectively immobilize resistance to the agenda by neutering Parliaments and the Courts, and by extension the Constitution and Constitutional Democracy and Sovereignty, in short to obtain “global governance”.
[Emphasis in original.]

[5] In reasons indexed at 2022 BCSC 1507 (“RFJ”), the chambers judge sensibly concluded that the notice of civil claim is prolix and cannot be properly answered: RFJ at paras. 45, 74. He also concluded that it is “bad beyond argument” and “cannot be mended”: RFJ at paras. 45, 47–48. He, therefore, granted the respondents’ applications to strike the pleading in its entirety: RFJ at paras. 48, 74.

[6] Next, the chambers judge considered whether to dismiss the appellants’ claim or grant them leave to amend it. He concluded that “there may be legitimate claims that a plaintiff could advance against one or more of the defendants”: RFJ at para. 50. He, therefore, granted the appellants leave to amend and stayed the action pending the filing of a fresh pleading: RFJ at para. 74.

[7] On the issue of costs, the judge noted that “each plaintiff is seeking money damages from one or more defendant”: RFJ at para. 75. Having put the defendants to the expense of unnecessarily answering an improper pleading, the judge awarded each defendant costs “payable forthwith in any event of the cause”: RFJ at paras. 75–76.

[8] In oral submissions, the appellants conceded that the notice of civil claim is prolix and must be redrafted. Although aware of the trite principle that appeals are taken from orders and not reasons, the appellants nevertheless advance the appeal to address various statements made by the judge regarding the propriety of various of their pleadings. In particular, the appellants take issue with the judge’s statements at paras. 52–58 of the reasons for judgment that certain claims “are improper in a civil action”, including claims seeking declarations relating to alleged criminal conduct and matters of science.

[9] The appellants point to para. 73 of the reasons for judgment where, after rejecting the defendants’ arguments that the entire action be dismissed as “an abuse of process or clearly frivolous and vexatious”, the judge held that “if the next iteration of [the notice of civil claim] contains the same, or similar, problems, then the defendants’ arguments on these issues will be strengthened.” The appellants contend that, in making these statements, the judge exceeded his jurisdiction and has effectively hamstrung them from advancing what they consider to be justiciable claims.

[10] I agree entirely with the respondents that the appellants have not identified a reviewable error. The passages at issue are clearly obiter. As I read the judge’s reasons, he transparently and helpfully identified a number of areas of concern within the notice of civil claim. He did not make binding determinations. In the absence of a proper pleading, how could he?

[11] It is up to the appellants to redraft their notice of civil claim within the well-known boundaries of proper pleadings established by the Rules and authorities. If they choose to pursue claims the judge identified as problematic and are faced with an application to strike or dismiss, they will have to satisfy the front-line decision-maker that they have pleaded justiciable claims. If they do not, they have had fair warning of the possible consequences.

[12] The appellants also appeal the judge’s costs order. They submit that success was divided in the sense that the judge declined to dismiss their claim. They also submit that costs are often not awarded in cases like this, which they assert to be a form of public interest litigation. In the alternative, they submit that costs should be awarded in the cause.

[13] Respectfully, the appellants have not identified a reviewable error in the judge’s handling of costs. Rather, they ask this Court to substitute its discretion for that of the chambers judge. This we cannot and will not do.

[14] For all of these reasons, I would dismiss the appeal.

This critique was published on the Canuck Law website on August 31, 2021. It outlined some of the ways that the Notice of Civil Claim failed to meet the basics of Civil Procedure in British Columbia.

Vaccine Choice was similarly criticized for their filing.

A week later, Gaw and Kuntz instigated a $7 million defamation lawsuit. They dispatched their “thug” to attempt to destroy this website. And for what? For truthfully pointing out that various anti-lockdown cases — including Vaccine Choice — weren’t properly written? For accurately predicting that none of these cases would ever get to Trial? For calling it all a waste of time and money? For suggesting that these shoddy cases can’t just be the result of sloppiness?

What has happened since then?

(1) The B.C. Supreme Court ruled that it was “bad beyond argument”, and drafted so poorly that it was impossible to respond to. Although leave (permission) was granted to amend, the Claim was never accepted as valid.

(2) The Law Society of B.C. put it in their training manual for new lawyers. This case is now a teaching exercise of “wholly inadequate pleadings”, and how to avoid them. See page 15. That’s right, the LSBC is using it to train new lawyers on how not to draft lawsuits.

(3) Now, the B.C. Court of Appeal ruled that the original Claim wasn’t drafted in accordance with the Rules of Civil Procedure. It was too long, confusing, and difficult to follow. They didn’t address the litany of other errors contained within.

Let’s not forget that both Vaccine Choice cases, from 2019 and 2020, have been allowed to sit idly for years. There’s no urgency whatsoever to advance either case.

Despite the Appeal being dismissed, it’s still being promoted as a “win”. Not surprising, considering the August 2022 striking of the Claim was also said to be a “win”. These people are delusional.

And for people who are so touchy about defamation, it seems that the new response is to refer to critics as “paid agitators”. See the February 7th and 21st Rumble videos. During the Zoom version on the 7th, moderators were apparently deleting comments from people asking questions about the cases.

Supposedly, an amended NOCC is ready to be filed for Action4Canada. The obvious question is why that wasn’t done back in 2022. Additionally, why was the original so poorly drafted? And if there really are all these Affidavits of evidence, why mess around for years with shoddy pleadings?

The Court of Appeal has found that the original NOCC wasn’t properly written, and that it has been a waste of time and money. Moreover, wasting judicial resources like this prevents litigants with valid claims from getting their day in Court.

(1) A4C Notice Of Appeal September 28 2022
(2) A4C Appeal – Notice Of Appearance – VIHA
(3) A4C Appeal – Notice Of Appearance – BC Defendants
(4) A4C Appeal – Notice Of Appearance – Attorney General of Canada
(5) A4C Appeal – Notice Of Appearance – Peter Kwok, Translink
(6) A4C Appeal – Notice Of Appearance – BC Ferries, Brittney Sylvester
(7) A4C Appeal – Appeal Book – Appellant
(8) A4C Appeal – Appeal Book – Respondent VIH And PHC
(9) A4C Appeal – Appeal Record – Stand Alone Respondents VIHA
(10) A4C Appeal – Appeal Record – Stand Alone
(11) A4C Appeal – Factum – Appellant
(12) A4C Appeal – Factum – Respondent Attorney General Of Canada
(13) A4C Appeal – Factum – Respondent BC Ferries and Brittney Sylvester
(14) A4C Appeal – Factum – Respondent HMK -Provincial Defendants
(15) A4C Appeal – Factum – Respondent Peter Kwok and Translink
(16) A4C Appeal – Factum – Respondent VIHA and Providence Health
(17) A4C Appeal – Consent Order – Factum, Time Limits
(18) A4C Appeal – Change In Representation – BC Defendants
(19) A4C Appeal – Notice Of Hearing February 2024
(20) CanLII Decision In Action4Canada Appeal

(1) A4C BCSC – Notice Of Civil Claim
(2) A4C BCSC – Response to Civil Claim (Health Authority Defendants)
(3) A4C BCSC – Response to Civil Claim (Provincial Defendants)
(4) A4C BCSC – Affidavit No 1 of Rebecca Hill
(5) A4C BCSC – Notice of Application (AG and RCMP applies to strike)
(6) A4C BCSC – Notice of Application (Provincial Defendants applies to strike)
(7) A4C BCSC – Notice of Application (Translink applies to strike)
(8) A4C BCSC – Application Response (Health Authority Defendants consent to strike)
(9) A4C BCSC – Application Response (BC Ferries consents to strike)
(10) A4C BCSC – Application Response (AG and RCMP consent to Prov. strike application)
(11) A4C BCSC – Application Response (Translink consents to HA Defendants strike application)
(12) A4C BCSC – Application Response (Translink consents to Prov. strike application)
(13) A4C BCSC – Affidavit No 2 of Rebecca Hill
(14) A4C BCSC – Application Record (to strike)
(15) A4C BCSC – Application Response (all plaintiffs)
(16) A4C BCSC – Amended Application Response (all plaintiffs)
(17) A4C BCSC – Transcript Application To Strike
(18) A4C BCSC – Reasons For Striking NOCC In Its Entirety
(19) A4C BCSC – Order striking pleadings
(20) A4C BCSC – Order striking pleading in its entirety with costs payable forthwith
(21) A4C BCSC – Appointment to assess bill of costs for Kwok and Translink
(22) A4C BCSC – Notice of Discontinuance (Kimberly Woolman & Estate of Jaqueline Woolman)
(23) A4C BCSC – Notice of Discontinuance (Amy Muranetz)
(24) A4C BCSC – Notice of Discontinuance (Federico Fuoco & Fire Productions Ltd.)

(1) https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1507/2022bcsc1507.html
(2) https://www.lawsociety.bc.ca/Website/media/Shared/docs/becoming/material/civil.pdf
(3) https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/168_2009_01#rule3-1
(4) https://justice.gov.bc.ca/cso/index.do
(5) https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/120_2022a#division_d0e3656
(6) https://www.canlii.org/en/bc/bcca/doc/2022/2022bcca450/2022bcca450.html#par10

(A) A4C Docs Profits And Losses 2021-2022
(B) A4C Docs Balance Sheet 2021-2022
(C) A4C-Docs-General-Ledger-2021-2022

Another Site Taken Down? “Privacy Is Your Right” No Longer Operational

On March 27th, 2023 a group called Privacy Is Your Right appeared seemingly out of nowhere to promote a legal challenge at the Divisional Court of Ontario. There was a press conference held over Zoom. They were to appear on the 30th. The thing was: there was also a lot of begging going on for money. They were already talking about going to the Ontario Court of Appeal if this didn’t work out.

The cause seemed worthwhile enough: patients and a Dr. Sonja Kustka were taking the CPSO to Court in order to prevent them from looking at medical records during an investigation. How did things transpire?

The case was thrown out on the spot, with the reasons coming a few weeks later.

This raises some eyebrows in light of recent events.

Another site, https://fre4justice.ca/, was completely shut down shortly after the attention it received from here. Perhaps there was backlash after pointing out that it would be just a rehash of the other “bad beyond argument” Federal case.

Now, the privacy site hasn’t completely disappeared, at least not yet. However, the site isn’t working, and none of the original links seem to either. It’s been that way for at least a few weeks.

A check on the site https://privacyisyourright.ca/ shows that it was created January 19th, 2023, and that 2 years was paid for. Apparently, the last time the site was updated (in any capacity), was December 22nd, 2023.

The main site, Motion Record, and Factum are only available now via the Wayback Machine, unless they’ve been saved elsewhere. The last time it appears to have been functional — while saved — was January 19th, 2024.

Now, why was it so odd that this group was asking for money, even though they openly conceded they’d probably be appealing it? Turns out that this case, the Kustka, case, was almost identical to the Dr. Rochagné Kilian case which had been rejected for the same reasons. At the time of this fundraising, the Ontario Superior Court had already refused patients standing. See the procedural history, and this review for more information.

That’s right. The big case (Kustka) that Privacy Is Your Right was soliciting money for was a clone of the earlier (Kilian) one.

However, that wasn’t disclosed at the virtual press conference. Going through the website, or at least the archived pages of it, there’s no mention of Dr. Kilian either.

Note: This isn’t to justify what the CPSO has been doing in recent years, but to point out the futility that was obvious from the start.

How many donors would have refused to hand over any money if there had been transparency about this? Probably most of them.

Looking at the ruling, it’s obvious. The Kustka case was a complete rehash of the Kilian case, with only superficial differences. This should have been made apparent prior to soliciting donations.

[10] The issue of public and private interest standing was recently examined in detail by this Court in Kilian v. College of Physicians and Surgeons, 2022 ONSC 5931 (Div. Ct.). The Patient Applicants’ applications for judicial review in this case are analogous to the patients’ applications for judicial review in Kilian. We see no basis to depart from this court’s decision in Kilian, which we find to be persuasive.

[13] In Kilian, at para. 44, this Court confirmed that patients have no private interest standing in the circumstances where the CPSO has initiated an investigation into a member’s conduct, stating as follows:
The Patient Applicants do not have a personal legal interest in the ICRC’s decisions to authorize an investigation of Dr. Kilian’s conduct or to place restrictions on her certificate. They have concerns that their medical records will be disclosed to College investigators, but that does not justify a grant of private interest standing, given the purpose of the regulatory regime and the subject matter of the judicial review proceeding.

[14] In Kilian, at para. 45, this Court held that a finding of private interest standing would be contrary to the statutory purpose, which is to regulate physicians’ conduct in the public interest. A finding of private interest standing would “disrupt” professional regulation because it would entitle thousands of patients to standing at the investigation stage: Kilian, at para. 47. This Court also noted that the Code grants patients standing in certain limited circumstances, further demonstrating the legislature’s intention to circumscribe patient participation in the regulatory process.

[15] Moreover, in Kilian, this Court went on to find that the patients have no direct interest in the decisions under review, which involve the regulator and the member. Similarly, the restrictions on the physician’s certificate in that case did not affect the patients’ legal interests: Kilian, at paras. 49-50. We see no reason to depart from the thorough and persuasive analysis conducted by this Court in Kilian.

[16] The Patient Applicants distinguish their applications for judicial review from those brought by the patients in Kilian on the basis that in this case, they seek to challenge s. 76 of the Code, while Kilian was limited to considering an investigation under s. 75 of the Code. In our view, this is a distinction without a difference. In Kilian, the CPSO had brought a parallel application in the Superior Court pursuant to s. 87 of the Code to compel the production of records under s. 76. While, in the circumstances, this Court did not specifically address s. 76, the underlying factual scenario was the same as in this case. The patients in Kilian argued that they had standing to bring an application for judicial review because their private medical records would be disclosed to CPSO investigators.

[17] The production of private medical records pursuant to s. 87 was subsequently addressed by Chalmers J. of the Superior Court in Kilian v. College of Physicians and Surgeons of Ontario, 2023 ONSC 1654 (Sup. Ct.) [Kilian SCJ]. In that case, Chalmers J., relying on College of Physicians and Surgeons of British Columbia v. Bishop (1989), 1989 CanLII 2674 (BC SC), 34 B.C.L.R. (2d) 175, held that the expectation of privacy in medical records is subject to the higher need to maintain appropriate standards in the profession: at para. 34. In addition, patient records are protected by the requirement that the CPSO maintain their confidentiality under s. 36 of the RHPA. As a result, courts have rejected the argument that patient-physician privilege precludes an order requiring the production of patient records: Kilian SCJ, at paras. 36 and 51.

The Court denied the patients private standing. Later in the ruling, they are denied public interest standing, again, for the same reasons outlined in the Kilian case.

Again, the group asking for money never disclosed this.

The follow up on the Dr. Kilian case isn’t encouraging either. July 2023, Court of Appeal for Ontario handed down a $16,000 cost award against Dr. Kilian, stating that adding the patient intervenors was a ploy designed to stall the original investigation.

May 8th, 2023, Dr. Kilian was finally ordered to produce the medical records the CPSO demanded. That was upheld by the Court of Appeal in January 2024. Absent a challenge to the Supreme Court of Canada, this case appears to be over.

So, why did Privacy Is Your Right gut their website? One possibility is that they’ve milked the donations for all they can. Now that the ruling is out — and everyone can see that it’s just a rehash — that one will dry up as well.

But just like those anti-lockdown and union cases, the CPSO ones are recycled as well.