Category: Types of Law

This is yet another instance of “alternative” media not telling the whole story.

Recently, the news broke that 3 Applications for Leave to the Supreme Court of Canada had been denied. These were attempts at secondary Appeals for Peckford, Bernier and Naoum, challenging the “travel mandates” and the requirement to take the shots in order to travel.

There was actually a 4th Application grouped together, but those litigants have since filed a Statement of Claim instead. The other 3 chose to take the above route.

For context, the 4 related Applications were filed in late 2021 and into 2022. Because they covered essentially the same subject matter, they would be heard together.

• T-145-22: Nabil Ben Naoum
• T-247-22: Maxime Bernier
• T-1991-21: Shaun Rickard, Karl Harrison
• T-168-22: Brian Peckford, Leesha Nikkanen, Ken Baigent, Drew Belobaba, Natalie Grcic, Aedan MacDonald

To make a very long story short: it didn’t have to be this way.

The Federal Court ruled in October 2022 that the 4 cases were “moot”, meaning there was no active issue to try. Since mandates were no longer in effect, all that was sought was declaratory relief. This was in spite of talk that injection mandates could return at some point.

Now the Applicants could have taken another path, and commenced Actions (and filed Claims). This was made clear to them.

Rather than do this, they all chose to appeal the mootness ruling.

They appealed, instead of taking the easier path to fix their case.

Basically, this is Action4Canada 2.0

Action4Canada Case V.S. Travel Mandates Case

Consider 2 high profile cases in recent years.

(Case #1) Back in August 2022, the Action4Canada case (filed in Vancouver) was struck as “bad beyond argument“. This 391 page monster failed to follow even the basics of Civil Procedure. It was incoherent, and asked for all kinds of remedies outside the jurisdiction of a Civil Court. However, Justice Alan Ross did allow an amended Notice of Civil Claim to be filed.

Instead of filing a proper Claim, the ruling was appealed instead. They lost.

(Case #2) Back in October 2022, the Federal Court struck 4 Applications to Federal injection mandates for travel for “mootness”. Justice Jocelyne Gagné made a discretionary finding that there was no live issue to try, since the mandates were no longer in effect. However, Justice Gagné, and Associate Justice Tabib, had remarked that if there were damages, then these cases could proceed as Actions. Of course, this would involve filing Statements of Claim.

Instead of filing Actions, ALL of the Applicants appealed.

Following this, they (other than Rickard and Harrison) attempted to appeal again.

The Action4Canada and travel mandate cases share a common thread. Although the circumstances differed, all were given the option to correct the flaws in their pleadings. Instead, each of them chose to appeal.

Filing Actions V.S. Filing Judicial Reviews

JURISDICTION	ACTION	JUDICIAL REVIEW	STEPS TAKEN
Federal	Statement Of Claim	Application	Motion
Ontario	Statement Of Claim	Application	Motion
British Columbia	Notice Of Civil Claim	Petition	Application

Although the names vary somewhat, there are normally a few different ways to commence legal action.

The most common way is with an Action, and it involves filing a Statement of Claim, or some similar document. These can be very simple cases, or they can be very complex and tedious.

A lesser known and understood method is by Judicial Review. In essence, it’s the challenging of some sort of decision or order made by some Government official. Despite how it’s often used, the idea is to challenge simple rulings, such as licences being denied, or funding not being received. It’s typically a much more streamlined process than Actions.

There is overlap between them, and the circumstances of each case determines which would be appropriate.

Why does this matter? Because the Federal Court left open the possibility for these litigants to refile their grievances as Actions, and ask for damages. Instead, they appealed, because …. reasons.

Rickard and Harrison were quite aware of this, as their 2022 Motion indicates. So when the Applications were struck, they could have refiled, but as Actions. They appealed, because …. reasons.

Justices Tabib & Gagné Stated That Case Could Proceed As An Action

True, at an earlier Motion, Associate Justice Tabib did dismiss a Motion that would have allowed the Rickard/Harrison Application to be converted into an Action. Yes, the original pleading wasn’t permitted to be amended to include damages.

Yes, Justice Gagné did strike the Applications as being “moot”. Since no one (apparently) sought damages in their Application, and the travel mandates were lifted, there apparently wasn’t a “live” issue to try.

However, consider what was actually written in the October 2022 decision.

[41] As stated above, these proceedings will have no practical effect on the rights of the Applicants. They have obtained the full relief available to them and a decision of the remaining declaratory relief would provide them no practical utility. If they suffered damages as a result of these IOs/MO being in force, they would have to bring an action against the Crown and have their respective rights assessed in light of all the relevant facts.

This is from the ruling, and is pretty clear. If there were damages suffered, then the case should be brought as an Action, not an Application.

Standard For Review: Housen v. Nikolaisen, 2002 SCC 33

After the 4 Applications were declared “moot” in the Fall of 2022, the Applicants could have converted them into Actions, and filed Statement of Claim for each (or one for everyone). Appealing made no sense, especially when looking at the “Standard of Review“. See highlighted version.

What this means is that different standards are applied, depending on whether someone is challenging a: (a) finding of fact; (b) application of or findings of the law; or (c) a discretionary act by a Judge.

Findings of fact: standard of review is “overriding palpable error”
Findings of law: standard of review is correctness
Exercises of discretion: standard of review is “overriding palpable error”

The standard of review for findings of fact is such that they cannot be reversed unless the trial judge has made a “palpable and overriding error”. A palpable error is one that is plainly seen. The reasons for deferring to a trial judge’s findings of fact can be grouped into three basic principles. First, given the scarcity of judicial resources, setting limits on the scope of judicial review in turn limits the number, length and cost of appeals. Secondly, the principle of deference promotes the autonomy and integrity of the trial proceedings. Finally, this principle recognizes the expertise of trial judges and their advantageous position to make factual findings, owing to their extensive exposure to the evidence and the benefit of hearing the testimony viva voce. The same degree of deference must be paid to inferences of fact, since many of the reasons for showing deference to the factual findings of the trial judge apply equally to all factual conclusions. The standard of review for inferences of fact is not to verify that the inference can reasonably be supported by the findings of fact of the trial judge, but whether the trial judge made a palpable and overriding error in coming to a factual conclusion based on accepted facts, a stricter standard. Making a factual conclusion of any kind is inextricably linked with assigning weight to evidence, and thus attracts a deferential standard of review. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference-drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion.

A. Standard of Review for Questions of Law
.
On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus the standard of review on a question of law is that of correctness: Kerans, supra, at p. 90.

There are at least two underlying reasons for employing a correctness standard to matters of law. First, the principle of universality requires appellate courts to ensure that the same legal rules are applied in similar situations. The importance of this principle was recognized by this Court in Woods Manufacturing Co. v. The King, [1951] S.C.R. 504, at p. 515:

Justice Gagné “exercised her discretion” to find that the 4 Applications were moot. In other words, she simply decided that the cases weren’t worth hearing. Now, why does it matter that she used her discretion?

As it turned out, the Appellants argued the wrong test. 2 of them thought it was “correctness”, and the other 2 didn’t specify what they wanted.

Appealing a “discretionary” order is damn near impossible. It’s not enough to say that someone can come to a different conclusion. It must be demonstrated that the Judge’s use of that discretion contained outright error. It’s a much higher standard than correctness.

The Appellants also tried arguing the merits of their cases. However, the only issue to be decided was whether Justice Gagné committed “overriding palpable error” by finding the cases to be moot. It seems that the lawyers don’t understand the purpose of appealing.

Considering that the Applicants could have simply refiled their cases as Actions, it’s baffling why they would do this.

Bernier, Peckford, Naoum Launch SECOND Appeal

The majority of these litigants apparently weren’t satisfied losing once in Appellate Court. They decided to try again with the Supreme Court of Canada. Remember, the goal here was to get the finding of “mootness” overturned. They (still) could have filed Actions — as they were advised — but appealed again, because …. reasons.

Not even “Mr. Bad Beyond Argument” attempted a second Appeal with Action4Canada.

“Applying for Leave” is a term that means asking for permission. The SCC doesn’t hear cases from all interested parties. Instead, it picks and chooses what it finds to be important. In fact, most Applications are denied.

Rickard and Harrison, to their credit, did finally make the right choice. However, their Claim has serious issues that will be addressed in a bit.

Bernier, Peckford, Naoum Likely Time Barred At This Point

Even if the above litigants wanted to refile their cases as Actions, it’s likely too late. For most things, the Statute of Limitations is 2 years. As we are now at the end of August 2024, it’s very unlikely that there would be any recent damages they could claim.

To sound like a broken record: they could have done this back in October 2022.

Rickard/Harrison Claim Not Properly Pleaded

Even though Rickard and Harrison are pursuing a Claim, they aren’t out of the woods yet. The pleading is Galati-level bad in terms of its quality.

The Claim is very bare-bones in terms of detail. A Judge might find that there aren’t sufficient facts pleaded. In fairness, the amended version fixes some of it.

Considering that there are allegations of “bad faith”, there’s a requirement to give full particulars, which hasn’t been done.

The Claim pleads breaches of s.6 (mobility), s.7 (security) and s.15 (equality) Charter Rights. However, none of them are properly pleaded. They don’t even specify that the Plaintiffs are Canadian citizens, which is required for the s.6 breach to have teeth. The Notice of Motion is actually quite a good reference point.

What Kind Of Idiot Appeals Instead Of Fixing Their Case?

Allison Pejovic, one of the lawyers involved in the SCC Leave Applications, released a video describing what had happened. She sounds very compelling and passionate. Taken at face value, there’s no reason to doubt anything she says.

However, what she fails to mention is that the Applicants (in all 4 cases) were able to proceed with the cases (as Actions) if there had been damages as a result. From the 2022 ruling:

[40] It is true that the parties, and to some extent the Court, have already invested financial and human resources in these files. However, most of the Court resources are yet to come with a five-day judicial review hearing and extensive writing time (these files comprise 23 affidavits and 15 expert reports totaling approximately 6,650 pages). That is without considering potential appeals to the Federal Court of Appeal and to the Supreme Court of Canada.

There were apparently: (a) 23 Affidavits; and (b) 15 expert reports, which totaled over 6,600 pages. Cross-examinations of witnesses also took place. And unlike with Action4Canada, these piles of documents actually exist. But because these lawyers appealed instead of refiling, these will never get to Trial.

And the way the Rickard/Harrison case is proceeding, it will go nowhere either.

One really has to wonder how all of the “freedom lawyers” can be so clueless and incompetent in pursuing cases against the Government.

FEDERAL COURT APPLICATIONS STRUCK:
(1) https://www.canlii.org/en/ca/fct/doc/2022/2022fc1463/2022fc1463.html

FEDERAL COURT OF APPEAL RULING:
(1) https://www.canlii.org/en/ca/fca/doc/2023/2023fca219/2023fca219.html
(2) Travel Mandates Appeal Bernier Memorandum
(3) Travel Mandates Appeal Peckford Memorandum
(4) Travel Mandates Appeal Rickard-Harrison Memorandum
(5) Travel Mandates Appeal Respondents Memorandum

SUPREME COURT OF CANADA APPLICATIONS FOR LEAVE:
(1) https://www.canlii.org/en/ca/scc-l/doc/2024/2024canlii80713/2024canlii80713.html (Bernier)
(2) https://www.canlii.org/en/ca/scc-l/doc/2024/2024canlii80711/2024canlii80711.html (Peckford)
(3) https://www.canlii.org/en/ca/scc-l/doc/2024/2024canlii80702/2024canlii80702.html (Naoum)

RICKARD/HARRISON STATEMENT OF CLAIM:
(1) Rickard T-2536-23 Statement Of Claim
(2) Rickard T-2536-23 Notice Of Intent To Respond
(3) Rickard T-2536-23 Amended Statement Of Claim
(4) Rickard T-2536-23 Notice Of Motion

STANDARD OF REVIEW:
(1) https://www.canlii.org/en/ca/scc/doc/2002/2002scc33/2002scc33.html
(2) Housen (Highlighted)