Category: Globalism

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The Payne Appeal: What This s.2(d) Challenge Will Look Like

The Federal Government is appealing a shocking ruling from January which allowed a Proposed Class Action to proceed. Despite expectations to the contrary, Justice Richard Southcott (mostly) dismissed a Motion to Strike.

The challenge was organized by the group, Feds For Freedom. It’s comprised of 3 Representative Plaintiffs, all from different areas of the public sector.

  • Department of National Defence (Stacey Helena Payne)
  • Correctional Services Canada (John Harvey)
  • Federal Economic Development Agency for Southern Ontario (Lucas Diaz Molaro)

They had their employment threatened in late 2021 with the introduction of the vaccine passport. Unlike earlier challenges, this one survived, due to the innovative arguments raised.

This lawsuit challenged not the mandates themselves, but the manner in which they were implemented. The case argued that there effectively were no grievance options because of this.

It’s not being hyperbolic to say this will impact employment rights at the Federal level. Either freedom of association is a valid ground to challenge such mandates, or there may not be any option at all.

What Happened With Justice Southcott’s Decision

Right of employee
208 (1) Subject to subsections (2) to (7), an employee is entitled to present an individual grievance if he or she feels aggrieved
.
(a) by the interpretation or application, in respect of the employee, of
(i) a provision of a statute or regulation, or of a direction or other instrument made or issued by the employer, that deals with terms and conditions of employment, or
(ii) a provision of a collective agreement or an arbitral award; or
(b) as a result of any occurrence or matter affecting his or her terms and conditions of employment.

No Right of Action
Marginal note: Disputes relating to employment
.
236 (1) The right of an employee to seek redress by way of grievance for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute.

The initial Motion to Strike was based on s.208 and s.236 of the FPSLRA, or the Public Sector Labour Relations Act. In short, employees have the right to grieve, but not to sue. This is similar to how unionized workplaces function in general.

The Statement of Claim revolved around 2 torts:

  1. Section 2(d) of the Charter, freedom of association, and
  2. Malfeasance of Public Office

First, the s.2(d) argument was that the injection pass was implemented in a heavy handed manner, without due process or meaningful consultation. As such, it circumvented any legitimate grievance process. The result is that it deprived workers of their right to freedom of association, within the context of voluntary employment.

Second, the way in which this was implemented amounted to an abuse of process and malfeasance of office by the politicians involved.

Justice Southcott accepted the first argument, that this was potentially a s.2(d) breach. However, he ruled that malfeasance was an issue that could be grieved. There was one caveat though: because there would likely be more Plaintiffs in this Class Action, it’s possible that one could be found who didn’t have that grievance right, such as a summer student.

The s.2(d) tort was allowed to proceed, while the malfeasance was struck, with Leave to Amend.

The implications are far reaching. If the s.2(d) argument was left standing, there would be precedent to prevent any such future infringements on employee rights. Unsurprisingly, the Crown appealed.

Ottawa Claims Southcott Should Have Refused Jurisdiction

28. The motion judge erred by taking jurisdiction over any aspect of the plaintiffs’ claim. First, he erred in law by failing to apply the correct legal test. Instead of assessing whether the dispute related to a matter that could be grieved under the FPSLRA, he relied on the fact that a similar issue could not be grieved under the labour relations regime that was at issue in Morin. Had the motion judge rendered his decision based on the language of s. 208, he would have found it plain and obvious that the matter could be grieved regardless of whether it was characterized as a dispute over the terms and conditions of employment or a dispute over the process by which terms and conditions were changed.

29. Second, and in any event, the motion judge committed palpable and overriding errors in accepting that the essential nature of the plaintiffs’ s. 2(d) claim related only to process. He wrongly assumed that the essential character of the dispute would be different for each of the two causes of action pled. This approach was contrary to consistent appellate authority holding that a court’s characterization of the essential nature of a dispute must be based on the facts giving rise to the dispute, and not by the legal characterization of the wrong. Since none of the material facts pled related to the process by which the Vaccination Policy was adopted, it was a palpable and overriding error to conclude that that was the essential character of the dispute.

In their filings, the Government lawyers argue that the nature of the case involves changes to the terms and conditions of employment. Section 208 FPSLRA gives everyone grievance rights, so logically, implementing the vaccine mandates should be covered.

Respondents Say Justice Southcott Made No Errors

39. Southcott J. did not err by allowing the plaintiffs’ Charter claim to survive the motion to strike.
Next, Southcott J. did not commit palpable and overriding error in his consideration of the plaintiffs’ Charter claim. Indeed, he did not engage in any such analysis because the sufficiency of the plaintiffs’ s. 2(d) claim was not even challenged by the appellant. The appellant’s motion materials include several references to the insufficiency of the plaintiffs’ misfeasance claim, but includes no such reference to the plaintiffs’ s. 2(d) claim

40. There is a “stringent” test for allowing new arguments on appeal: a new issue should only be considered “where [the Court] is able to do so without procedural prejudice to the opposing party and where the refusal to do so would risk an injustice.” The appellant has failed to identify any “exceptional circumstances” permitting it to challenge this cause of action for the first time on appeal. Nor has it explained how Southcott J. committed palpable and overriding error by not considering an argument that the appellant itself did not raise.

41. Further, any such arguments would have failed as the plaintiffs’ have pled an arguable Charter claim. The appellant here takes an unduly narrow view of the Claim contrary to the holistic and generous approach required in interpreting pleadings on a motion to strike.

47. As written by Southcott J., the plaintiffs alleged “that the Treasury Board acted with reckless indifference or willful blindness in issuing the Policy in that… it had no basis in fact to justify the Policy as a measure to prevent transmission of the virus.” Specifically, the Claim states that the Treasury Board mandated vaccination for the stated purpose of preventing transmission of COVID-19 but, in so doing, ignored the potential inefficacy of the vaccines, the potentially serious adverse effects, and the significant detriment that could have been suffered by the plaintiffs, among others. The incongruity between the Treasury Board’s knowledge and its stated intention is demonstrative of bad faith and/or dishonesty. Similar pleadings have been found to meet the standard of reasonable pleadings on a motion to strike.

50. Lastly, the appellant argues that leave to amend should not have been and cannot be granted in this case. Once again, the appellant reiterates its argument at the motion stage: the Claim ought to have been grieved. Southcott J. considered and rejected this argument. He found that it was plausible that the Federal Court had jurisdiction, at least over the Charter allegations, such that the Claim could survive this preliminary motion.

The Respondents take the position that Justice Southcott made no major errors with the ruling, and that the case ought to proceed.

Interestingly, the Appellants (Government) are now questioning whether or not the s.2(d) was pleaded with sufficient detail, an argument they didn’t raise at the initial hearing.

Keep in mind, this was just a Motion to Strike. It’s a look at the pleadings themselves. This isn’t meant to be a deep dive into the facts or the evidence.

Brief Timeline Of Major Events In Case

October 6th, 2023: Statement of Claim is filed on behalf of 3 Representative Plaintiffs.

November 9th, 2023: Government responds with their Notice of Intent.

May 31st, 2024: Government sends notice that it intends to bring Motion to have the case struck (thrown out) in its entirety.

June 6th, 2024: Prothonotary Ring gives directions that there be case management.

June 10th, 2024: Chief Justice Crampton directs (a) Justice Southcott and (b) Prothonotary Ring to be assigned manage the proceeding.

July 1st, 2024: Prothonotary Ring issues schedule for documents to be served for Motion to Strike.

August 19th, 2024: Government brings its Motion to Strike.

October 1st, 2024: Plaintiffs file responding arguments as to why case shouldn’t be struck.

December 13th, 2024: Motion to Strike is argued before Justice Southcott.

January 1st, 2025: Justice Southcott partially grants the Motion to Strike. The tort of Malfeasance of Public Office is struck, but with Leave if eligible Plaintiffs are identified. The Section 2(d) claims are allowed to proceed.

January 13th, 2025: Notice of Appeal is filed.

January 21st, 2025: Notice of Appearance is filed.

February 12th, 2025: Parties file their agreement as to what the contents of the Appeal Book will be. This is a requirement unique to the Federal Court of Appeal.

March 14th, 2025: The Appeal Book is filed.

April 14th, 2025: Appellants file their written arguments.

May 14th, 2025: Respondents file their written arguments.

Payne Part Of Series Of s.2(d) Challenges In Canada

CASE NAMES PAYNE/BCPSEF HILL/UHCWBC/UHCWO
Government Workers? Yes No
Filed Federally? Payne Hill
Filed in B.C.? BCPSEF UHCWBC
Filed in Ontario.? n/a UHCWO
Wrongful Termination by Gov’t? Yes No
Inducement to Breach Contract? No Yes
Breach s.2(d) Charter Rights? Yes Yes
Malfeasance of Public Office? Yes Yes

See parts 1, 2, 3, 4, 5 and 6 in this series.

All 5 of these cases (from Ontario, B.C. and the Federal Courts) involve the Section 2(d) tort in some way. How it applies differs somewhat between them.

Payne involves employees of the Federal Government, whereas Hill involves employees of Federally regulated industries, specifically, the airlines. While unionized, WestJet and Air Canada aren’t part of the Government. The airlines don’t use the FPSLRA, and the Government lacks standing to invoke the collective bargaining agreement of other people.

These subtle, but important differences explain why Payne was appealed, but Hill wasn’t.

There’s a similar distinction between the B.C. Government employees case and the health care workers one. Likewise in Ontario, Plaintiffs aren’t directly employed by Government there either.

We’ll have to see how Payne plays out, but this case could easily end up before the Supreme Court. It’s not an exaggeration to say that there will be long lasting implications on employment rights, at least at the Federal level.

PAYNE APPEAL DOCUMENTS:
(1) Payne Notice Of Appeal January 2025
(2) Payne Notice Of Appearance January 2025
(3) Payne Agreement To Contents Of Appeal Book February 2025
(4) Payne Joint Appeal Book March 2025
(5) Payne Appellants Memorandum Of Fact And Law April 2025
(6) Payne Respondents Memorandum Of Fact And Law May 2025

PAYNE FEDERAL COURT DOCUMENTS:
(1) Payne Statement Of Claim October 2023
(2) Payne Notice Of Intent To Defend November 2023
(3) Payne Letter Intent To Strike May 2024
(4) Payne Defendant Motion Record To Strike August 2024
(5) Payne Plaintiff Responding Motion Record October 2024
(6) Payne Transcript Of Southcott Hearing December 2024
(7) https://www.canlii.org/en/ca/fct/doc/2025/2025fc5/2025fc5.pdf
(8) https://www.canlii.org/en/ca/fct/doc/2025/2025fc5/2025fc5.html

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What Max Really Means With “The U.N. Is Dysfunctional” Sales Pitch

With the upcoming Federal election just days away, let’s dig a little bit into an old slogan.

Specifically, it’s the expression that “the United Nations is dysfunctional”. It’s something Maxime Bernier has said many times over the years, although the justifications have changed.

According to Bernier in his 2016/2017 CPC leadership race, this is the reason he stated that the United Nations was dysfunctional:

I won’t aim to please the foreign affairs establishment and the United Nations — a dysfunctional organisation which for years has disproportionately focused its activities on condemning Israel. Instead, I will ensure our country’s foreign policy will be refocused on the security and prosperity of Canadians.

Keep in mind, Bernier was Foreign Affairs Minister from 2007 to 2008. His job was to be up to date on what was happening internationally. Sure, there are many reasons that the U.N. could be viewed as dysfunctional. However, the only one he gave was that it spent too much time criticising Israel.

And why was the United Nations regularly condemning Israel? For continued expansion in the Middle East, and of violating various ceasefire agreements, among other things. The various resolutions are publicly available.

This isn’t a “Canada first” approach to foreign policy. It’s Bernier telling the U.N. to shut up about what’s going on in the region. It’s probably a very popular position in mainstream conservative circles.

Here’s the more recent, cleaned up version from the PPC website:

Over the past several years, Canada has signed many UN treaties, accords and compacts on issues ranging from global warming to migration and sustainable development, that tie us to the globalist agenda. The United Nations is a dysfunctional organisation where non-democratic countries, because of their large numbers, have the most influence. This leads to ridiculous situations. For example, several of the member states on the UN Human Rights Council are among the worst human rights offenders in the world. As one country among almost 200, Canada has no interest in seeing the UN grow into a more powerful, quasi-world government.

It certainly is ridiculous that some of the worst human rights offenders are part of the Human Rights Council. No sensible person would dispute that. That being said, it wasn’t enough of a concern when he ran for the CPC leadership to even put in his platform.

He likely realized it would be too hard to “sell” himself as a populist with the old version, so it needed to be amended.

And as for a quasi-world government, it’s strange that he seemed to have no idea what was happening under his nose in 2007. Again, he was the Foreign Affairs Minister.

His current stance is to rail against “neocons” who see nothing wrong with engineering regime change in places such as Ukraine. On the surface, there’s nothing to disagree with here.

Economic sanctions against Russia were a geopolitical blunder on the West’s part that backfired. They destabilized the global economy, and pushed the Russians into the arms of the Chinese. There is no reason to treat Russia as our enemy. The war did not start with Russia’s invasion of Ukraine in 2022, but when the neoconservatives in the US and their allies in Ottawa and European capitals engineered the regime change in Ukraine in 2014. It could have been avoided if NATO had not tried to encircle Russia and had given Putin assurances that Ukraine would never join it as a member.

However, some consistency would be nice.

Bernier voted to extend Canada’s commitment to war in the Middle East in 2006, and again in 2008. Apparently, he had no issue with prolonging our role in a foreign conflict and regime change. He’s against neocons and warmongers, except when he’s acting as one of them.

He’s extremely vague about what “our values” are as Canadians, and mostly refuses to specify what kinds of groups should be excluded from this country. There is one exception, what he calls “radical Islam”.

There are also some double standards surrounding free speech and political influence. Conservatives railed against Iqra Khalid’s Motion, M-103, which resulted in money being spent to combat Islamophobia. But they were supportive of Bill C-250, which jails people for Holocaust denial. And while Trudeau (rightfully) took flack for his trip to Aga Khan’s island, those same conservatives participate in taxpayer funded trips to Israel. Sure, China is a danger, but it’s hardly the only one.

Then there’s the issue of supporting Bill C-16, compelled speech for gender pronouns.

While Bill C-63 (Online Harms Act) was justifiably criticized, there’s silence on some of the foreign lobbies who are pushing for it. See here and here. If free speech is going to be gutted, there needs to be an honest and frank discussion about where it’s coming from.

Why does all of this matter? Because the whole “populist” narrative comes across as completely fake. It gives off the vibes of someone just going through the motions, for $104,000 per year.

***Edit: Bernier also voted for Tony Clement’s Motion condemning BDS (ban, divest, sanction) actions that would be directed at Israel. This hasn’t happened with any other foreign country.

There are, of course, the usual concerns about the lack of a constitution, or a genuine leadership race. Recently, Max bought a retirement home in Florida, and appears to live there. But even if PPC were a real party, who would be influencing it?

(1) Wayback Machine Link To Bernier’s Website
(2) https://www.peoplespartyofcanada.ca/issues/foreign-policy
(3) https://www.ourcommons.ca/Members/en/votes/39/1/9
(4) https://www.ourcommons.ca/Members/en/votes/39/2/76
(5) https://www.ourcommons.ca/Members/en/votes/42/1/237
(6) https://www.ourcommons.ca/Members/en/votes/42/1/126
(7) https://ciec-ccie.parl.gc.ca/en/publications/Pages/SponsoredTravel-DeplParraines.aspx
(8) https://lobbycanada.gc.ca/app/secure/ocl/lrs/do/cmmLgPblcVw?comlogId=610896
(9) https://lobbycanada.gc.ca/app/secure/ocl/lrs/do/cmmLgPblcVw?comlogId=607729
(10) https://www.cbc.ca/news/politics/peoples-party-canada-maxime-bernier-1.5695908
(11) https://www.ourcommons.ca/members/en/votes/42/1/14

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TikTok Ban In Canada: Not Even All-Party Lobbying Could Prevent It

Recently, it was announced that the last 2 Canadian offices of TikTok — the social media platform — would be shut down. This comes after an outright ban in the United States. The reason stated was that there were safety concerns, such as gathering intelligence, and that it was a threat to national security. The app would still be available for use, for now, but the physical presence had to be removed.

It’s unclear why the app can still be used if the offices had to be closed.

Of course, context matters. It would have been nice to know if any group or organization had publicly lobbied to have the company shut down. A quick search through the Federal Lobbying Registry has flagged some interesting results.

There weren’t public efforts by lobbyists to silence TikTok. But there were several prominent names who were advocating on its behalf. And it cut across party lines: (a) Conservative; (b) Liberal; (c) NDP; and (d) Bloc Québécois.

The stated goals of these meetings were:

  • Engage federal officials on legislation related to privacy and online safety
  • Engage federal officials on policies, legislation and regulations relevant to digital media and user-generated online content, including privacy, data security, and copyright
  • Engage federal officials on policies to support digital first content creators and foster the creation, discoverability, and exportability of Canadian cultural content online, including Indigenous and French-language content

Among recent Government initiatives were taxing and otherwise regulating social media content. This was hardly limited to just TikTok. Other platforms were getting squeezed as well. But they all had connected “strategists” to meet with political figures, and smooth things over.

However, TikTok was still deemed to be a national security threat.

Even the “Lavalin Guy” couldn’t stop it.

Who Is This All-Star Cast Of Political Lobbyists?

  • Éric Lamoureux – From December 2003 until June 2004, he was a Policy Advisor in the Ministry of Health. From then until January 2006, he was Director of Parliamentary Affairs, Foreign Affairs and International Trade, all under Liberal Prime Minister Paul Martin. He also helped secure the DPA (or Deferred Prosecution Agreement) for SNC Lavalin.
  • Louis-Alexandre Lanthier – From June 2007 until May 2011, he was the Campaign Manager for Liberal Justin Trudeau, now sitting Prime Minister.
  • Julie Groleau – From November 2015 until November 2019, she was Parliamentary Assistant, in the Office of Simon Marcil, M.P. for the Bloc Québécois.
  • Maryanne Sheehy – From August 2010 until November 2015, she worked in the Office of the Prime Minister, who at the time, was Conservative Stephen Harper.
  • Michael von Herff – Founder & Managing Partner at PAA Advisory. His firm has “political strategists” for all different parties.
  • Matthew Larventz – From November 2015 until November 2017, he was a Legislative Assistant to Liberal M.P. Randeep Sarai.
  • James Anderson – Former Policy Director in Health, and later Foreign Affairs when Paul Martin was Prime Minister. From November 2007 until March 2009 he was Senior Director, Organization and Outreach for the Federal Liberal Party of Canada
  • Nate Little – From March 2021 until October 2021, he was a Legislative Assistant in the House of Commons for Mumilaaq Qaqqaq, New Democrat M.P. from Nunavut. He was then a Press Secretary until January 2022.
  • Stephen Yardy – From June 2008 until May 2022, he was Campaign Organizer for the New Democratic Party of Canada, and claims to have worked on over 25 political campaigns across the country.

Éric Lamoureux worked deeply in the Federal Government going back to the Paul Martin era. But perhaps his greatest achievement is securing the deferred prosecution for SNC Lavalin, allowing it to continue bidding on contracts. He did this by leaning on François Legault in Quebec, to apply pressure Federally. He’s basically the “Lavalin Guy”.

Louis-Alexandre Lanthier is another influential person who relatively few have ever heard of. He got Trudeau his start in politics as his Campaign Manager. His more recent adventures include helping to flood canada with temporary foreign workers, particularly at places like Tim Hortons.

Of course, the records from the Lobbying Registry are just what’s available publicly. There are most likely far more communications that aren’t documented here.

It’s been publicly speculated that TikTok’s ban in the United States was driven by what’s been called an “anti-Israel” bias. The counter-argument is that TikTok is actually providing more balanced coverage of Middle East issues. The concerns over security from the Chinese could just be a red herring.

One has to wonder, when Canada’s top influence peddlers, including the “Lavalin Guy”, weren’t able to prevent the forced closure of domestic offices.

(1) https://www.cbc.ca/news/politics/tiktok-canada-review-1.7375965
(2) https://www.npr.org/2024/09/16/g-s1-23194/tiktok-us-ban-appeals-court
(3) https://lobbycanada.gc.ca/app/secure/ocl/lrs/do/advSrch
(4) https://lobbycanada.gc.ca/app/secure/ocl/lrs/do/advSrch?searchCommand=navigate&time=1731230030029
(5) https://lobbycanada.gc.ca/app/secure/ocl/lrs/do/vwRg?cno=371137&regId=956914
(6) https://paainc.ca/
(7) https://paainc.ca/team/
(8) https://www.linkedin.com/in/ericlamoureux/
(9) https://www.linkedin.com/in/louis-alexandre-lanthier-75517b3b/details/experience/
(10) https://www.linkedin.com/in/juliegroleau/
(11) https://www.linkedin.com/in/maryanne-sheehy/
(12) https://www.linkedin.com/in/michael-von-herff-2aab2411/
(13) https://www.linkedin.com/in/mlarventz/details/experience/
(14) https://www.linkedin.com/in/jamescharlesanderson/details/experience/
(15) https://www.linkedin.com/in/nate-little-297590133/
(16) https://www.linkedin.com/in/stephen-yardy-b0a4a326/

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EA Lawsuit: Incompetently Pleaded Claim Leads To Anti-SLAPP Win For Farber, CAHN

Last week, an Ottawa Judge threw out that a defamation case brought against Bernie Farber and the Canadian Anti-Hate Network (CAHN). Justice Bell found that it was a “strategic lawsuit against public participation”, which isn’t allowed under Ontario’s Courts of Justice Act.

Here’s the context.

On February 14th, 2024, a Notice of Action was filed in Ottawa. It named Farber, CAHN, various MPs, members of the police, and banks for what had happened when the Emergencies Act was invoked. Filing this bought them — the Plaintiffs thought — another 30 days to file their Statement of Claim.

How this relates to Farber and CAHN is that their postings are blamed for getting the EA invoked. Remember the infamous “Hate Gate” hoax? Well, this lawsuit may have come as a result of it.

However, because the Plaintiffs’ lawyers apparently know nothing about defamation law, or anti-SLAPP laws, Farber and CAHN are off the hook. CAHN posted about this, and accurately stated the problem: the Claim never identified any specific statements or articles. It just made bald assertions.

While the lawsuit can still proceed with regards to the other Defendants, Plaintiffs should seriously consider retaining new counsel.

There will be the typical rumblings about the system being corrupt, or the Judge being bought off. Those concerns have been made many times before.

Alternatively, it’s worth noting that the Statement of Claim was so poorly and incompetently drafted, that this outcome was easily foreseeable. The firm handling this case is Loberg Ector LLP, which boasts about it on their website

“We Do Commercial Litigation”

Just not very well, it seems.

The contact page on their website lists their address as being in Alberta. That Province doesn’t have anti-SLAPP laws, so it’s possible they didn’t know that Ontario did. Anyhow, let’s get into it.

Claim Failed To Specify A Single Defamatory Statement

Here are the passages which related to CAHN.

207. Leading up to the Unlawful Enactments during the Ottawa Protests, several Defendants, acting together, or acting individually, as the case may be:
a. Made public and widely publicized denigrating and derogatory comments falsely characterizing the nature, scope, beliefs, and motives of the persons participating in the Ottawa Protests including some of the Plaintiffs;
b. Published and widely distributed written material including defamatory comments about the Ottawa Protests knowingly containing false and misleading information about the Ottawa Protests;
c. Conspired with or influenced major Canadian media outlets to publish false reports about the activities of the protestors present at the Ottawa Protests;
d. Made false reports regarding the activities of the protestors present at the Ottawa Protests to Crown officials and made false statements to Crown officials in such a way that promoted the Unlawful Enactments;
e. Sought to harm, injure, or otherwise denigrate the reputations of the Plaintiffs with malicious intent; and
f. Made such further and other public statements and publications which denigrated and harmed the reputations of the Plaintiffs as will be discovered at the trial of this action.

208. The conduct of the Defendants, and the false information which was disseminated by several Defendants to the Canadian media, the Financial Institution Defendants, the Crown and the citizens of Canada influenced and enabled the decision to invoke the impugned Unlawful Enactments.

209. The decisions taken by the individual Defendants, the Police Defendants, the Crown Defendants, the Financial Institution Defendants, and the CAHN Defendants were done cynically, politically, and selfishly without the appropriate consideration for the bests interest of Canada and its citizens and with wanton disregard for the wellbeing of the Plaintiffs.

210. Intelligence reports at the time of the Ottawa Protests from the RCMP, OPS, Police Defendants, and CSIS did not show that the Ottawa Protests were a threat to national security, and indeed consistently corroborated the overall peaceful nature of the Ottawa Protests.

211. While deliberately knowing that the Ottawa Protests was largely a peaceful protest, the Crown Defendants, and in particular Ms. Jody Thomas given her role as the National Security and Intelligence Advisor took it upon themselves to create their own open source intelligence operation to create a new flow of intelligence to the Crown Defendants (the “Thomas Open Source Intelligence Reporting”) which influenced their decision to invoke the Emergencies Act and Unlawful Enactments.

212. The Thomas Open Source Intelligence Reporting was an unsanctioned, and politically motivated open source intelligence operation which reflected the intentionally biased view of the narrative that Ms. Thomas and the Crown Defendants wanted, rather than the truth about the overall peaceful nature of the Ottawa Protests. This included relying heavily upon false or otherwise one-sided open source information and giving undue emphasis or weight to misleading or otherwise biased narratives including those from the CAHN Defendants or their proxies on social media.

213. For greater certainty, in her role as National Security and Intelligence Advisor, Ms. Thomas had the entire intelligence and security information assets at her disposal to draw upon, including military and defence. Ms. Thomas and her office were authorized to draw upon information and intelligence from at least five different secretariat level sources. These include Emergency Preparedness, Intelligence Assessment, Foreign Policy, Defence Policy, and the National Security Council. In addition to the secretariat level information and intelligence sources, Ms. Jody Thomas had several agencies providing intelligence flows which includes but is not limited to CSIS, the RCMP, the Department of National Defence, the Canadian Armed Forces, and the Communications Security Establishment Canada.

214. None of the intelligence reports or flows of intelligence from the plethora of integrated government-wide perspectives and sources that Ms. Thomas had available to her could be used to justify the invocation of the Emergencies Act, nor did they suggest that the Ottawa Protests were a threat to national security.

215. The Thomas Open Source Intelligence Reporting was a deliberate attempt to bypass the secretariat level intelligence and the intelligence flows from the numerous agencies that Ms. Thomas and her office had at their disposal. The Thomas Open Source Intelligence Reporting reflected the views and narratives that she wanted to advance, and it was not the integrated government-wide intelligence perspective that was required.

216. The Crown Defendants, members of Cabinet both named and not named as Defendants in this action, accepted the information contained in the Thomas Open Source Reporting and misinformation from the CAHN Defendants or their proxies either negligently or with malicious intent when they knew or ought to have known that such information was misleading, grossly exaggerated, defamatory, and harmful.

217. Essentially, when all or some of the Crown Defendants were unable to obtain the intelligence required to justify invoking the Emergencies Act or demonstrate that the Ottawa Protests were a threat to national security, they embarked on their own unsanctioned open source intelligence operation by way of the Thomas Open Source Intelligence Reporting to create a new flow of intelligence to the Prime Minister’s Office and to Cabinet while negligently or intentionally relying upon information that they knew or ought to have known was untrue, exaggerated, misleading, defamatory, and biased.

218. The Court ought to give weight to the above paragraphs as an aggravating factor in the course of this litigation when assessing the appropriate level of damages and financial compensation for the Plaintiffs.

252. The CAHN Defendants in particular, provided false information to several other Defendants and media organizations designed to harm the Plaintiffs. Falsified or otherwise highly exaggerated information was supplied by the CAHN Defendants or their proxies to the Crown Defendants and the Police Defendants in support of the Unlawful Enactments.

253. The statements made by the CAHN Defendants and their proxies defamed the Plaintiffs and influenced the decision to invoke the Emergencies Act.

254. The statements were false and were made with malice to advance the political agenda of the CAHN Defendants. The CAHN Defendants at one point were recipients of funding and financial support from the Government of Canada. The CAHN Defendants as recently as August 2023, have requested further financial funding for themselves and their causes from the Government of Canada requesting taxpayer money in excess of $130 million over the next 5 years. The true extent of the historical and ongoing financial funding of the CAHN Defendants by the Government of Canada is not fully known but will be discovered during this action.

255. The Plaintiffs, any or each of them, suffered damages as a result of the defamatory statements by the CAHN Defendants which were dishonest, deceitful, and exaggerated while done with malicious intent to cause harm including labelling the Ottawa Protestors, including the Plaintiffs, as being racist, accelerationist, far right extremists, falsely accusing supporters of the Ottawa Protestors as being Nazi’s, misogynistic, and disseminating other hateful and defamatory false accusations about the Plaintiffs some of whom are Indigenous peoples, racialized minorities, persons of colour, women, senior citizens, and disabled individuals.

256. The CAHN Defendants have themselves knowingly propagated hatred, sowed division within Canada, fomented distrust, spread misinformation, and have defamed the Plaintiffs with malevolent intent and for cynical purposes to advance a political agenda which has in the past been paid for and funded by the Canadian taxpayers.

257. Furthermore, the Crown Defendants in relying upon the Thomas Open Source Intelligence Reporting defamed the Plaintiffs when public statements were made repeating the same false information and narratives. In many instances, the Thomas Open Source Intelligence Reporting relied upon the false information from the Government of Canada funded CAHN Defendants and their proxies in a closed loop as a means to improperly justify the illegal invocation of the Emergencies Act.

258. The Plaintiffs seek compensable damages against the CAHN Defendants and the
Crown Defendants for their injurious falsehoods and defamation.

All of this is from the Statement of Claim.

But do you see the problem? At no point, is there any specific quote of any defamatory statement. Nor are there any specific articles or videos referenced. It should have looked something like this:

On February 6th, 2022, Farber stated: “…. [insert quote]….”

On February 8th, 2022, CAHN published an article which stated: “…. [insert quote]….”

On February 10th, 2022, Farber stated: “…. [insert quote]….”

On February 12th, 2022, Farber stated: “…. [insert quote]….”

On February 14th, 2022, CAHN published an article which stated: “…. [insert quote]….”

On February 16th, 2022, CAHN published an article which stated: “…. [insert quote]….”

On February 18th, 2022, CAHN published an article which stated: “…. [insert quote]….”

And so on.

This is how defamation allegations are supposed to be pleaded in a Statement of Claim. The specific words need to be included, along with information about who spoke or wrote them, when and where. Considering the case against Farber and CAHN was only expression, these needed to be listed.

Instead of this, the Claim goes on about vague and nondescript allegations. This is not how it should be done, and the Claim would have to be rewritten anyway.

But since Ontario has anti-SLAPP laws, there are no rewrites.

Section 137.1 Courts Of Justice Act (Anti-SLAPP)

Order to dismiss
(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

No dismissal
(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,
(a) there are grounds to believe that,
(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the proceeding; and
.
(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

The Courts of Justice Act for Ontario has been quoted many times. But here’s a quick overview as to how it works, and what needs to happen.

(1) Defendants, one or multiple, bring a Motion to dismiss under this provision. A lot of papers are exchanged in the meantime.

(2) Defendant(s) must convince the Court that their expression is “of a public interest concern”. This isn’t to say that it’s good or bad, just that it’s something a segment of the public would be interested in. By design, it’s a very low burden.

(3) If the Defendant(s) are able to do this, the burden then shifts to the Plaintiff(s), and they face a 3-part test. If even one part is failed, the anti-SLAPP Motion is granted, and the case dismissed.

(a) The Plaintiff(s) must persuade that there is “substantial merit” to the Claim.

(b) The Plaintiff(s) must persuade that there “are no reasonable defences available”.

(c) The Plaintiff(s) must persuade that there is a greater public interest in allowing the proceeding to continue, as opposed to protecting the expression.

If the Judge decides the expression “isn’t of a public concern”, the Motion is to be dismissed, and the case allowed to proceed. Likewise, if the Plaintiff is convincing on all 3 parts of the test, the Motion should fail.

Otherwise, the case is to be dismissed.

How The Anti-SLAPP Motion Played Out In Court

Starting at paragraph 19, Justice Bell explains his reasons.

The expression itself had to do with the invocation of the Emergencies Act, which impacted all Canadians. While not taking sides on the issue, he found that it was a concern to a large segment of the population. As a result, he found that Farber and CAHN met the “public interest threshold”.

Now, the burden shifted to the Plaintiffs, and they had that test to meet. And here’s where the lawyers’ sheer cluelessness about anti-SLAPP laws really showed.

No further steps in proceeding
137.1(5) Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of.

No amendment to pleadings
137.1(6) Unless a judge orders otherwise, the responding party shall not be permitted to amend his or her pleadings in the proceeding,
(a) in order to prevent or avoid an order under this section dismissing the proceeding; or
(b) if the proceeding is dismissed under this section, in order to continue the proceeding

This is part of what makes anti-SLAPP laws in Ontario so powerful. Part (5) “stays” the case, meaning nothing else can happen until this is resolved (and all Appeals).

Part (6) states that a pleading cannot be amended in order to avoid a dismissal, nor can it be after a case is dismissed.

Because the idiot lawyers never specified any defamatory statements here, there is no next time. As a result, Justice Bell found that there was “no substantial merit” to the Claim. (The civil conspiracy allegation also wasn’t pleaded properly.)

Since there’s no “substantial merit”, that should be the end right there.

There was also the open question as to whether the requirement to serve Notice of Libel was met, and whether the 2 year limitation had lapsed anyway. It wasn’t resolved, but still a possibly valid defence.

For the final part, the Judge found there was no evidence of harm to any Plaintiff from Farber or CAHN. Only Vincent Gircys submitted an Affidavit, but the freezing of his bank accounts couldn’t be tied to them.

Farber and CAHN had asked for $20,000 and $10,000 respectively for damages, which was denied.

The Motion was granted, and the case was dismissed (for Farber and CAHN).

Successful Motions Typically Get Full Indemnity (100%) Costs

Costs on dismissal
137.1(7) If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances.

In most circumstances, successful parties only get a portion of their costs back. In Ontario, anti-SLAPP laws refer to “full indemnity” as the default position if the case is dismissed.

This means that Plaintiffs have to pay their lawyers’ costs, and ALL of the Defendants’ lawyers costs. Cost awards typically are well over $100,000.

During the Motion, the Plaintiffs’ lawyers had tried to argue that the suit against Farber and CAHN could be added to and “particularized”. Again, this showed their ignorance about defamation and anti-SLAPP laws.

Now, the case can theoretically still proceed — minus Farber and CAHN — but the Claim will still have to be redrafted anyway. What a waste of time and money.

However, because there are other serious problems with the pleading, it’s possible, and likely, that Motions to Strike will be coming soon.

The Plaintiffs need better lawyers.

Perhaps the Law Societies of Ontario and/or Alberta can assist them in connecting with more competent and experienced help.

(1) https://lobergector.com/
(2) https://lobergector.com/emergencies-act
(3) https://lobergector.com/contact-us
(4) Cornell Notice Of Action
(5) Cornell Statement Of Claim
(6) Cornell Farber CAHN Notice Of Motion Anti-SLAPP
(7) Cornell Farber CAHN Motion Record Anti-SLAPP
(8) Cornell Richard Warman Affidavit Anti-SLAPP
(10) Cornell Vincent Gircys Affidavit Anti-SLAPP
(11) Cornell Factum Of Farber CAHN Anti-SLAPP
(12) Cornell Defendant Cost Submissions Anti-SLAPP
(13) Cornell Plaintiff Cost Submissions Anti-SLAPP
(14) https://www.canlii.org/en/on/onsc/doc/2024/2024onsc5343/2024onsc5343.html
(15) https://www.antihate.ca/freedom_convoy_conspiracy_theory_kicked_out_of_court
(16) https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html#sec137.1_smooth

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Adam Skelly, Part 4: October Hearing To Be Postponed Into 2025

The long anticipated hearing of Adam Skelly challenging the Reopening Ontario Act (R.O.A.) has been delayed again, this time, until 2025. It was supposed to begin next week, and last for 3 days. See parts 1, 2 and 3 for background information.

The prime reason seems to be that one of the expert witnesses has withdrawn, leaving Skelly scrambling to find a replacement.

Justice Akazaki vacated the dates, while questioning whether or not the hearings could be squeezed into a single day, or 2.

ENDORSEMENT

[1] This is a request to adjourn and reschedule a three-day hearing of a constitutional challenge to a provincial offence arising from the alleged breach of the Ontario Covid-19 lockdown order.

[2] The OCJ has stayed the provincial offence trial. The applicant / accused has waived his s. 11(b) rights. Nevertheless, I am cognizant of the need to avoid further delay. The OCJ proceeding largely entails an agreed statement of fact.

[3] The adjournment was necessitated by the withdrawal of one of the applicant’s expert witnesses. There are also additional steps to be undertaken.

[4] The main impediment to scheduling the return date was the dispute over the length of the hearing. The applicant maintained the case requires three days. The respondents both stated the hearing can be completed in one day.

[5] There is an advantage to having the duration of the hearing settled by a case conference judge, once counsel have organized the completion of the next steps. If the hearing can take place during one day or two instead of three, the hearing can be scheduled earlier and without taking up unnecessary hearing dates.

[6] Therefore, I hereby order:
1. The October 1, 2, and 7, 2024, hearing dates are hereby vacated.
2. The parties shall request a case conference at the earliest opportunity, once the next steps have been agreed, to reschedule the hearing

Why does all of this still matter? For starters, the R.O.A. is still on the books, even if there are no orders in effect from it. This means that in theory, a new “crisis” could lead to future dictates.

COURT DECISIONS:
(1) Skelly – Restraining Order Deferred Matter
(2) Skelly – Restraining Order Decision, December 2020
(3) Skelly – Criminal Court Limits What He Can Post Online
(4) Skelly – Judge Lacks Jurisdiction To Hear Case, June 2021
(5) Skelly – Costs Of $15,000 Ordered For Failed Motion
(6) Skelly – Costs From 2020 Kimmel Decision, Previously Deferred
(7) Skelly – Motion For Security For Costs Decision, September 2023

2020/2021 COURT DOCUMENTS:
(1) Skelly – Application Record Restraining Order (Michael Swinwood)
(2) Skelly – Notice of Constitutional Question (February)
(3) Skelly – Amended Notice Of Constitutional Question (June)
(4) Skelly – Book of Transcripts – Respondents (Applicants)
(5) Skelly – Book of Transcripts – Respondent on Motion – HMTQ
(6) Skelly – 2021 Motion Factum
(7) Skelly – 2021 Motion Amended Factum – Respondents (Applicants)
(8) Skelly – 2021 Motion Responding Factum
(9) Skelly – 2021 Motion Reply Factum

(1) Skelly – RBC Default Judgement Order

MALPRACTICE SUIT AGAINST MICHAEL SWINWOOD:
(1) Skelly – Swinwood Malpractice Statement Of Claim

NEW APPLICATION DOCUMENTS:
(1) Skelly – Notice Of Application (Ian Perry)
(2) Skelly – Costs – Notice of Motion – Moving Party (Respondent) HMTK
(3) Skelly – Costs – Motion Record-Moving Party (Respondent)
(4) Skelly – Costs – Applicant Responding Motion Record Security For Costs
(5) Skelly – Costs – Factum – Moving Party – HMK
(6) Skelly – Costs – Responding Factum Applicants Skelly et al
(7) Skelly – Justice Akazaki Deferral Of Case

EXPERT REPORTS:
(1A) Skelly – Byram Bridle Resume
(1B) Skelly – Byram Bridle Expert Report
(1C) Skelly – Byram Bridle Expert Reply Report

(2A) Skelly – Douglas Allen Resume
(2B) Skelly – Douglas Allen Expert Report
(2C) Skelly – Douglas Allen Expert Report

(3A) Skelly – Gilbert Berdine Resume
(3B) Skelly – Gilbert Berdine Expert Report
(3C) Skelly – Gilbert Berdine Expert Reply Report

(4A) Skelly – Harvey Risch Affidavit
(4B) Skelly – Harvey Risch Expert Report

(5A) Skelly – Joel Kettner Resume
(5B) Skelly – Joel Kettner Expert Report
(5C) Skelly – Joel Kettner Expert Reply Report

(6A) Skelly – William Briggs Resume
(6B) Skelly – William Briggs Expert Report
(6C) Skelly – William Briggs Expert Reply Report

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Bills C-398/C-399: The “Right” Of Homeless Encampments, And Immigration “Equity”

Just before Parliament took its Summer recess in 2024, NDP Member of Parliament, Jenny Kwan, introduced 2 Private Member’s Bills: C-398 and C-399.

Both are in the introductory stage in the House of Commons. While Private Bills don’t commonly become law, there’s always the possibility they will. There’s also the prospect that the contents will simply be incorporated into a larger, Government Bill.

Starting with Bill C-398, it would create the “right” to set up homeless encampments on Federal land. It would amend the National Housing Strategy Act in several places. Authorities would be prevented from blocking them, or shutting them down. And for reference:

Homeless encampment means an outdoor settlement of one or more temporary structures, such as tents, vehicles or other structures that are not designed or intended for permanent human habitation but that one or more persons experiencing homelessness use as their residence.‍ (campement d’itinérants).

(e) establish measures to prevent the removal of homeless encampments on federal land and to identify alternatives to homeless encampments following meaningful engagement with their residents; and

(f) provide for processes to ensure that Indigenous peoples are actively involved and supported in determining and developing culturally appropriate housing-related programs and that responses to homeless encampments respect their rights.

Bill C-398 does talk about “identifying alternatives to homeless encampments”. Presumably this means providing people with low or no-cost housing. Interestingly, there’s nothing in the legislation that says it will only apply to Canadian citizens, or permanent residents, or landed immigrants.

Logically, anyone who entered the country illegally, who who overstayed their visa, would be entitled to the same protections.

Mandate
10 (1) The mandate of the Ombud is to examine the practices of the Department of Citizenship and Immigration to ensure that they are fair, equitable, unbiased, non-racist and non-discriminatory, and to conduct investigations if the Ombud has reasonable grounds to believe that a person or group of persons has been the victim of unfairness, inequity, bias, racism or discrimination — including systemic racism and systemic discrimination — in the Department’s decision-making process.

Duties and functions
(2) The Ombud’s duties and functions include
(a) reviewing the Department of Citizenship and Immigration’s policies, programs, initiatives, training procedures and processing standards to identify fairness or equity problems in the Department’s administration of the Citizenship Act and the Immigration and Refugee Protection Act, including those resulting from biases and discrimination — including systemic racism and systemic discrimination;
(b) receiving and, if appropriate, investigating complaints, including complaints about the problems referred to in paragraph (a);
(c) monitoring trends and patterns in complaints in order to identify the problems referred to in paragraph (a); and
(d) making recommendations to the Minister regarding any unfairness, inequity, bias or discrimination — including systemic racism and systemic discrimination — that the Ombud identifies.

Kwan wants to create an ombudsman to ensure that “equitable” policies and practices are being implemented by the Ministry of Citizenship and Immigration. She also wants that ombudsman to make recommendations to the Minister in order to help this along.

Now, while the connection may seem tenuous, consider this:

The New Democrats and experts agree that the problem on orderly crossings is the safe third country agreement. For over a year now, I have been calling on the government to invoke article 10 of the safe third country agreement and to provide written notice to the United States that we are suspending the agreement.

If the safe third country agreement is suspended, asylum seekers can make safe, orderly crossings at designated ports of entry. This will protect the rights of the asylum seekers, provide safety and stability to Canada’s border communities most impacted by this influx, and allow for the government agencies, such as the RCMP, CBSA, IRCC, and the IRB, to strategically deploy personnel and resources necessary to establish border infrastructure instead of this ad hoc approach. This is the rational, reasonable response to this situation.

Back in April 2018, Kwan posted on her website that she had been calling on the Trudeau Government to suspend the Safe Third Country Agreement. The reason for doing this is so that people entering from the United States — to claim asylum — could simply stroll into any official port of entry.

In November 2018, Kwan called for the Safe Third Country Agreement to be suspended, claiming that the U.S. (under Donald Trump) wasn’t a “safe country”.

In March 2020, she wrote to Trudeau and Freeland, protesting that illegals trying to cross from the U.S. were being turned back.

Taken together, what does this all mean?

It means that Kwan, who is pro-open borders, supports having illegals come in from the U.S., and presumably elsewhere as well. On one hand, she introduces Bill C-398, which entrenches the “right” of people to set up encampments on Federal land. On the other, she has Bill C-399, which creates and ombudsman to ensure that “equitable” immigration policies are enforced, and to make recommendations to the Minister.

Will taxpayer funded “housing for illegals” become a human right?

(1) https://www.parl.ca/legisinfo/en/bill/44-1/c-398
(2) https://www.ourcommons.ca/Members/en/jenny-kwan(89346)
(3) https://www.parl.ca/DocumentViewer/en/44-1/bill/C-398/first-reading
(4) https://laws-lois.justice.gc.ca/eng/acts/n-11.2/FullText.html
(5) https://www.parl.ca/LegisInfo/en/bill/44-1/C-399
(6) https://www.parl.ca/DocumentViewer/en/44-1/bill/C-399/first-reading
(7) https://www.jennykwanndp.ca/on_irregular_border_crossings
(8) https://www.jennykwanndp.ca/emergency_study_on_irregular_border_crossings
(9) https://www.jennykwanndp.ca/open_letter_to_deputy_prime_minister_on_border_restriction

Private Member Bills In Current Session:
(1) Bill C-206: Decriminalizing Self Maiming To Avoid Military Service
(2) Bill C-207: Creating The “Right” To Affordable Housing
(3) Bill C-219: Creating Environmental Bill Of Rights
(4) Bill C-226: Creating A Strategy For Environmental Racism/Justice
(5) Bill C-229: Banning Symbols Of Hate, Without Defining Them
(6) Bill C-235: Building Of A Green Economy In The Prairies
(7) Bill C-245: Entrenching Climate Change Into Canada Infrastructure Bank
(8) Bill C-250: Imposing Prison Time For Holocaust Denial
(9) Bill C-261: Red Flag Laws For “Hate Speech”
(10.1) Bill C-293: Domestic Implementation Of Int’l Pandemic Treaty
(10.2) Bill C-293: Concerns Raised In Hearings Over Food Supplies
(11) Bill C-312: Development Of National Renewable Energy Strategy
(12) Bill C-315: Amending CPPIB Act Over “Human, Labour, Environmental Rights”
(13) Bill C-367: Removing Religious Exemptions Protecting Against Antisemitism
(14) Bill C-373: Removing Religious Exemptions Protecting Against Antisemitism 2.0
(15) Bill C-388: Fast Tracking Weapons, Energy, Gas To Ukraine
(16) Bill C-390: Expanding Euthanasia Into PROVINCIAL Frameworks
(17) Bill S-215: Protecting Financial Stability Of Post-Secondary Institutions
(18) Bill S-243: Climate Related Finance Act, Banking Acts
(19) Bill S-248: Removing Final Consent For Euthanasia
(20) Bill S-257: Protecting Political Belief Or Activity As Human Rights
(21) Bill S-275: Adding “Sustainable And Equitable Prosperity” To Bank Of Canada Act