February 14th, 2024, Action4Canada finally had their day at the British Columbia Court of Appeal. While there was a large attendance in Vancouver, observers could also attend via Zoom.
It never made sense to file here. This Appeal was to challenge the ruling of Justice Ross to strike the 391 page Notice of Civil Claim (NOCC) in its entirety, but with leave to amend. In other words, the Plaintiffs were allowed to refile, they just had to follow the Rules of Civil Procedure. They weren’t shut off from seeking remedies in the Courts.
Why appeal, when the NOCC could have simply have been rewritten?
STATUS: As of now, the decision is under reserve (deferred until later). The parties agree that the NOCC should have been rewritten. Consequently, the main issue left to determine is whether costs should have been awarded, and if so, should they have been done at the end. The whole Appeal turned out to be a giant nothing-burger.
The Action4Canada case, and its legal representation, can best be described as embarrassing. It’s a clown show that never ends.
As bad as the May 2022 hearing at the B.C. Supreme Court was, the one at the Court of Appeal was even worse. The Justices actually stated that they didn’t understand what was being appealed. They couldn’t figure out why they were there, and asked for clarification. That’s something that no lawyer ever wants to hear about their case.
Since it was agreed that the Claim was “prolix”, or too long and confusing, the logical step would have been to file a new one. Instead, the Court of Appeal Justices appeared baffled at why an Appeal was lodged.
It also seemed that the Plaintiff’s lawyer didn’t understand the difference between a Court making a ruling on something, as opposed to commenting, or making “obiter remarks”. Pretty sad that after 35 years, a person doesn’t know how to read and interpret a Court decision.
The Appellants’ lawyer needed to have it explained to him that Justice Ross gave feedback so that an amended NOCC would be more compliant with the Rules. The panel stated that it was typical for litigants to get a chance to fix their case, so that it would be heard on the merits. This was quite painful to watch. Once again, after 35 years, lawyers should know what they’re doing.
Yes, Justice Ross gave plenty of background information about how he came to his conclusion. He outlined many several problems, but never ruled on any of them.
First, it took nearly a year to file a NOCC in the first place, in August 2021. Action4Canada had been fundraising since the Summer of 2020 — if not sooner — but never produced anything. When the document is finally revealed, it’s a convoluted mess with no prospect of getting to Trial.
Second, in September 2021, Action4Canada instigates a defamation lawsuit against this site for criticizing the obvious and glaring flaws with the NOCC. Yes, other cases had been picked apart as well, but this appears to have been the final straw.
Third, a year later, the NOCC was struck as “bad beyond argument” for not even following the basics of Civil Procedure. Although Justice Ross only struck the NOCC as “prolix”, he outlined an almost endless amount of errors and defects contained within. The Canuck Law criticisms of the NOCC have aged very well.
Fourth, instead of swiftly filing a amended version, it was appealed in September 2022. A coherent explanation of why that happened has never been offered. Again, the NOCC could have simply been rewritten. Nor is it explicitly stated that remedies Justice Ross (apprently) improperly disallowed.
Fifth, the Law Society of British Columbia included this case in its February 2023 version of the Professional Legal Training Course for new lawyers. See page 15. It’s now to be used as an example of how not to draft pleadings. The LSBC refers to the case as “an example of a wholly inadequate pleading”. As such, the case is now the laughing stock of the legal profession in B.C.
Sixth, Action4Canada attempts to delay and defer the Appeal indefinitely. It’s only after getting called out on that is a hearing date booked.
The decision from Justice Ross was very lengthy, but the order itself wasn’t.
[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.
- The Claim is prolix (too long), confusing and incomprehensible
- The Claim is struck, but with permission to amend (refile)
- The case is stayed (on hold) until a new filing is sent
- The Defendants are awarded costs for their success
Yes, Justice Ross outlined a litany of defects that the NOCC would likely have, but he made no actual determinations on any of them. He only ordered that it must be struck for being prolix.
The hearing started off with the Appellant (Plaintiff) lawyer stating that he agreed the case was prolix, and that filing an amended version was fine. That should have been the end of it, which is why the decision to appeal never made any sense.
Not only did Justice Ross not rule on those things, but it appears to misrepresent what he actually said. He never stated that scientific evidence couldn’t be introduced in a Court. He did however, state that determining the scientific consensus was an improper claim. See paragraph 52 (b) and (f).
Paragraph 52 also listed other things that aren’t permitted in a Civil Court, such as making finding on criminal allegations, international criminal law, the Nuremberg Code, or the Helsinki Declaration. Although Ross mentioned these things, he didn’t explicitly rule on them.
The other part of the Appeal was that Justice Ross shouldn’t have granted the Defendants costs because success had been “divided”. Supposedly, since leave to amend was granted, it was a partial win for the Plaintiffs. By this logic, there shouldn’t have been any. Or at least, costs should have been reserved until the end.
Considering that cost awards are typically at the Judge’s discretion, it’s unclear what the error was. Successful parties typically get some sort of costs. Whether this award comes immediately, or at the end of the proceedings is again, up to the Judge.
For reference, the Plaintiffs ended up paying out approximately $13,000 total for the Applications to Strike. It could easily have been a lot worse.
What’s the point of appealing a $13,000 cost award, considering everything else that’s at stake? This is small potatoes in the big picture. Again, embarrassing is the best way to describe this.
The Plaintiffs could have easily filed an amended NOCC, and gone ahead with the case. Justice Ross specifically granted permission to do this. It’s not like the case was struck without leave.
The only finding Justice Ross made was that the case was prolix. Yes, there were many problems outlined, but he never made any determinations on them. All sides agreed it was prolix, and even the Plaintiffs agreed a new NOCC should be filed?
Cost awards are typically discretionary, and no error of law has been pointed out. What then is the issue with this? It was only $13,000.
The hearing ended rather abruptly. All sides agreed that the original NOCC was prolix, and needed to be rewritten. It was further agreed that all of the comments about the quality of the pleading, including the types of relief sought, weren’t adjudicated back in August 2022.
The only live issue was over costs. With that, the panel adjourned, with the promise to get a written decision back quickly.
We’ll have to see how well this piece ages.
Both Action4Canada and Vaccine Choice Canada have been fundraising for nearly 4 years. In the meantime, neither of them have filed a coherent Claim, despite the urgency of the issues. It’s beyond obvious that none of these cases will ever get to Trial.
ACTION4CANADA APPEAL DOCUMENTS:
(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
ACTION4CANADA BCSC DOCUMENTS:
(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.)
OTHER:
(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
ACTION4CANADA FINANCIAL DOCS:
(A) A4C Docs Profits And Losses 2021-2022
(B) A4C Docs Balance Sheet 2021-2022
(C) A4C-Docs-General-Ledger-2021-2022
