Back in December 2022, a Proposed Class Action was filed in Winnipeg against several Municipal and Provincial Defendants. This was to challenge the so-called “vaccine passport” system that was in place at the time.
These included:
The Government of Manitoba
Brent Roussin (Chief Medical Officer of Health)
The City of Winnipeg
City of Winnipeg Police Services
The Representative Plaintiff, Courtney Peters, was a civilian working as a Communications Operator with the Winnipeg Police. He had been there for 8 years at that point.
In an unsurprising move, both Manitoba and Winnipeg brought Motions to Strike the Claim. Aside from the significant pleading deficiencies, they stated that the Court had no jurisdiction, due to the collective bargaining system that was in place.
Rather than attempt to fight on for his clients, counsel discontinued the case.
Yet Another Case Discontinued By Leighton Grey
Just 6 months after it was filed, this Manitoba (Proposed) Class Action was dropped. It didn’t even get as far as having the Motion to Strike heard.
Of course, there’s also this Proposed Class Action in Federal Court, with Chief Gregory Burke. Nearly 18 months after the suit was initiated, there’s been no progress beyond amending the Statement of Claim. No Motions. No Defences filed. No Certification started.
This has become a significant problem in recent years. Members of the public cheer as it *appears* someone is fighting for their rights, and they often donate. But then, those cases quietly disappear, and are never heard about again.
Timeline Of Major Events In Case
December 8th, 2022: Statement of Claim is filed in the King’s Bench Court of Manitoba
January 5th, 2023: Municipal Defendants prepare Notice of Motion to strike lawsuit.
January 6th, 2023: Manitoba Defendants prepare Notice of Motion to strike lawsuit.
February 14th, 2023: Hearing for Motion to Strike is adjourned.
February 27th, 2023: Hearing for Motion to Strike is adjourned.
April 27th, 2023: Hearing for Motion to Strike is adjourned.
As an aside, the Notice of Discontinuance is dated April 3rd, 2023, but wasn’t filed until the end of May. Perhaps dropping the case had long been the intention.
The Federal Court of Canada refused a request to extend time to challenge a November decision. Because of Justice Manson’s ruling, this means that approximately 330 current and former military personnel most likely won’t get a hearing to determine whether their case was prematurely struck.
They’re also on the hook for another $1,080 in costs.
From earlier: The case was thrown out for a variety of reasons, including the poor quality of the pleadings themselves, and the lack of facts included. There was also the concern that the Court had no jurisdiction, given Section 29 of the National Defence Act, which mandates a grievance scheme. Their lawyer, Catherine Christensen, had received a similar ruling in late 2021.
From earlier: The Plaintiffs missed their deadline to appeal. Because of the nature of the Appeal, there was a 10 day time limit, not 30. Since it was an Associate Judge (and not a Judge) who struck the case, the Federal Rules require a Motion be filed to review. Christensen did eventually file a Motion requesting an extension of time, but it had all kinds of problems with it.
APPEAL RULING FROM
PROTHONOTARY
JUDGE
Appeal Goes Where
Federal Court
Federal Court Of Appeal
Appeal Ruling To
Single Judge (FC)
Panel of Justices (FCA)
Rules of Procedure
Rule 51
Rules 335 to 357
Time Limit For Notice
10 Days
30 Days
Initial Document
Notice Of Motion
Notice Of Appeal
Procedure
Motion
Appeal
New Evidence Allowed?
No
With Leave, Rule 351
Note: Prothonotary and Associate Judge are the same thing.
The original ruling came out on November 13th, 2024. Christensen filed a Motion requesting an extension of time on December 11th, some 29 days later. One has to wonder if she thought she had 30 days to appeal, and simply messed it up. The responding submissions outlined a comical array of errors.
While extensions of time do happen regularly in Court proceedings, this request was so poorly and incoherently done, it was outright refused. Christensen also never explained how such an Appeal would succeed even if the extension of time were granted. The ruling was pretty harsh.
Since the Court has refused an extension of time, this is most likely the end of the road, unless this is successfully challenged at the Federal Court of Appeal.
And if the Plaintiffs want to take this route, perhaps they should get a better lawyer.
Canadians were subjected to varying forms of lockdown measures from 2020 through 2022. Some restrictions still exist today in places such as health care settings.
As a result, a topic that’s come up numerous times is the idea of Class Actions. This is based on the concept that a single lawsuit — if carefully prepared — will be much more effective than individual claims. Many more people could potentially benefit. And indeed, such cases have sprung up.
With that in mind, it’s worth asking: how are these cases going?
One such suit filed in Federal Court is Chief Gregory Burke v. His Majesty the King, and the Attorney General of Canada. It commenced back in September 2023. To put it mildly, advancing the case doesn’t appear to be much of a priority.
There’s just the Statement of Claim and an amended version on file, both of which look to be horribly deficient. It will have to be further amended.
No Motion to Strike has (yet) been commenced. There’s no Statement of Defence. It doesn’t look like any steps have been taken to certify the case as a Class Action. The most recent action was in December 2024, advising of potential dates for a case conference. Donations are being sought still.
Counsel’s Recent Record On “Vaccine Passport” Cases
This Proposed Class Action is being conducted by Leighton Grey of the firm Grey Wowk Spencer. He has filed several related lawsuits (not Class Actions) in Federal Court in recent years. However, the trend seems to be to discontinue — drop — them, rather than push through.
A search of other Court records — such as Manitoba — reveal other, related cases which were promptly discontinued. One has to wonder how diligently this one will be pursued.
Nothing Pleaded About Chief Gregory Burke, Representative Plaintiff
Most people are familiar with the more “traditional” lawsuits. In those, the details of each Plaintiff must be spelled out in the Statement of Claim, and then, the Defendants respond. They typically know from the onset exactly who is suing them, and for how much.
For (Proposed) Class Actions, the Claim pleads information about 1 or more “Representative Plaintiffs” only. There are “subgroups” or “classes” listed of prospective litigants. They still have to provide enough detail about their own circumstances. Beyond that, there’s a process to attempt to certify the lawsuit as a Class Action. A Judge may (or may not) certify.
Only a single Representative Plaintiff — sometimes called a “Token Plaintiff” — is required, provided he or she is able to qualify for all classes.
Material facts
174 Every pleading shall contain a concise statement of the material facts on which the party relies, but shall not include evidence by which those facts are to be proved.
Particulars
181 (1) A pleading shall contain particulars of every allegation contained therein, including
(a) particulars of any alleged misrepresentation, fraud, breach of trust, willful default or undue influence; and
(b) particulars of any alleged state of mind of a person, including any alleged mental disorder or disability, malice or fraudulent intention.
Problem here: there’s nothing pleaded about Chief Gregory Burke. Federal Court Rules make it clear what’s required in a Statement of Claim. Neither the original nor the amended version provide any information about him.
Since Burke is the only Representative Plaintiff, he must give sufficient detail to at least theoretically support all of such Claims. True, other Plaintiffs may be added, but only if Certification is successful. It’s probably too late to amend the Style of Cause (names of Parties).
Section 2(a) of the Charter;
Section 6 of the Charter (Mobility)
Section 7 of the Charter (Security of the Person)
Section 8 of the Charter (Unreasonable Search and Seizure)
Section 15 of the Charter (Equality)
Tortious interference of economic relations
Tortious inducement to breach contractual relations
Intentional infliction of mental suffering
Malfeasance of public office
Negligent representation
Human rights violations
These are just some of the torts alleged in the Statement of Claim. Problem is: Grey pleads no information to support any of it. Granted, it may be true, but there’s nothing explained. Many are simply listed, with no facts or particulars to support any of it.
We know Burke’s name, and that’s about it.
Yes, the Statement of Claim can usually be amended. Keep in mind though, the case was filed nearly a year and a half ago. Shouldn’t such information already be included?
The Representative Plaintiff is Chief Gregory Burke. He is a senior who lives in Nova Scotia. He was chosen for a number of reasons, including his resistance to lockdown tyranny, which is being prosecuted there. He is also a Metis hereditary Chief who fits into both of the subclasses described in the class action.
Heck, there’s more information listed on counsel’s website than there is in the Statement of Claim.
Other Nonsense Included In Statement Of Claim
The Claim bizarrely pleads product liability and breach of implied warranty. This doesn’t make any sense. If Burke were fighting lockdown tyranny, he wouldn’t have taken any of the injections. And in paragraph 5, it’s stated that the Plaintiffs hadn’t. This would only apply if someone had taken the shot(s) and been harmed. Beyond that, it would be the manufacturers who’d be potentially liable.
Starting around paragraph 57, there are allegations that the Government had breached its duty of care to the Plaintiffs. It goes on and on about the dangers posed by “experimental vaccines”. But once again, the Plaintiffs plead that none of them took the shots.
Grey pleads the Nuremberg Code among other remedies that have no jurisdiction in a Canadian Civil Court. This is a Galati favourite, and part of the reason his cases are typically struck early on.
As for the Genetic Non-Discrimination Act, the purpose of that legislation had to do with race, ethnicity, and genetic disorders a person might have. It doesn’t apply here, yet lawyers routinely include it.
There are also allegations of interference with economic relations. For this tort to work, the Defendants would have to have done something improper or illegal to a third party that harmed the Plaintiffs. None of that is specified here. The employers would need to be identified, and the circumstances laid out.
The entire Claim reads as if Grey had simply cut and pasted from various other lawsuits, without paying much attention to how logical it all was.
Pleading Names The Subclasses (Groups of Plaintiffs)
Typically, a Class Action will name various “subclasses” of Plaintiffs. These are people who will still be part of the litigation, but whom have been impacted in different ways. Quote:
“Employment Subclass“: members who have experienced job loss or adverse employment effects as a result of the Defendants’ actions. This subclass includes those who have been terminated, denied promotions, experienced decreased working hours or suffered any other professional hardship
“Travel Subclass“: individuals who were prevented or prohibited from travelling due to their vaccination status. Members of this subclass have been adversely affected by the Defendants’ conduct and policies that either implicitly or explicitly restricted the mobility rights of unvaccinated individuals, thus causing significant disruption to both their personal and professional lives.
“Dual Impact Subclass“: is unique in that it encapsulates members who fall within both the aforementioned subclasses.
As stated before, there’s no information pleaded about Burke. He may very well have valid claims both regarding employment and travel, but there’s nothing provided.
October 5th, 2023: Government sends notice that it will respond and defend.
November 1st, 2023: Associate Judge Michael D. Crinson and Justice Mandy Aylen are assigned to be case management Judges for the suit.
December 10, 2023: Defendants contact Court, asking that any Statement of Defence be deferred until after Certification Motion has been heard and determined.
June 3, 2024: Statement of Claim (Plaintiff Class) filed with the Court.
December 19th, 2024: Letter from Plaintiff’s lawyer about case management dates.
Note: All of the dates listed can be confirmed by searching the respective cases on the Federal Court website. It keeps a detailed listing of all significant events.
That’s where things currently stand. No Statement of Defence has been filed. There’s no Motion to Strike (yet), though presumably one is coming. And the process for a Certification Motion hasn’t even been started.
“2024-10-07
Current Status: The Statement of Claim was filed on 25 September 2023. A Federal Court action with a similar fact pattern recently faced a Motion to Strike Application to amend the Statement of Claim. We await online production of the Amended Statement of Claim to better assess whether further refinements are required in our action. In the interim a Case Management Conference has been requested. Scheduling of same is pending.”
An October 2024 status update may shed some light on things. The current plan is apparently wait to see what happens in some similar case, and then further amend this suit. So… to just wait and see, and piggyback off of someone else. Shouldn’t clients be talking to that lawyer then?
The case is nearly a year and a half old, and there’s just the Statement of Claim. Could such a case be certified and advanced? Maybe, but it doesn’t seem very urgent.
Countless times in the last few years, we come across announcements about lawsuits being filed to challenge so-called injection passports. There’s initially plenty of hope and optimism that meaningful results will force Governments to change their ways. And a suit filed against Westjet in the Fall of 2022 was one such example.
The suit named:
His Majesty The King in Right of Canada
Attorney General of Canada
Westjet Group Inc.
Westjet Airlines Ltd.
Westjet Encore
Westjet Vacations Inc.
Swoop Inc.
These announcements are typically followed up with requests for donations, or solicitations for more clients, and more fees. There’s never really “enough” money.
But all too often, there won’t be any new reporting.
This is usually because they’re quietly dropped. And that’s exactly what happened here.
Shoddy Claims Being Recycled In Federal Court
The Westjet lawsuit should look familiar. It was filed by Leighton Grey of the firm Grey Wowk Spencer. It’s one of many filed in recent years that went absolutely nowhere.
Grey has been in the press many times since 2020, often for filing a high profile lawsuit. That said, rarely does anything ever come of it. These cases are typically struck or discontinued (dropped).
And here, “The Discontinuer” is at is again.
Once Again, No Material Facts Or Particulars Pleaded
Material facts
174 Every pleading shall contain a concise statement of the material facts on which the party relies, but shall not include evidence by which those facts are to be proved.
Particulars
181 (1) A pleading shall contain particulars of every allegation contained therein, including
(a) particulars of any alleged misrepresentation, fraud, breach of trust, willful default or undue influence; and
(b) particulars of any alleged state of mind of a person, including any alleged mental disorder or disability, malice or fraudulent intention.
Regular readers will have heard the terms “pleading facts” and “pleading particulars”. While the numbering systems differ, the Rules are the same across Canada. In short, there must be enough detailed information in a lawsuit that the opposing side is able to understand, and respond.
JURISDICTION
PLEAD FACTS
PLEAD PARTICULARS
Federal Court
Rule 174
Rule 181
British Columbia
Rule 3-1(2)(a)
Rule 3-7(17)
Manitoba
Rule 25.06(1)
Rule 25.06(11)
Ontario
Rule 25.06(1)
Rule 25.06(8)
Nova Scotia
Rule 38.02(2) and (3)
Rule 38.03(3)
One of the reasons Grey’s claims are typically so short is that he rarely pleads any facts. Despite having over 100 Plaintiffs, the suit is less than 25 pages. Once again, there’s no specific information about any Plaintiff, other than they are/were employees of Westjet. There’s nothing about:
Who is a current employee v.s. who left?
Who had no shots, 1 shots, 2 shots, or more?
Who worked remotely v.s. who worked in person?
Who got any sort of severance pay?
Who (if anyone) was subject to any bonus or performance contract?
Were there different unions, and any overlapping, or different policies?
Who raised which specific objection to taking the injections?
Who attempted which type of exemption method?
Which specific religious objections (for those who invoked it) applied and how?
Who went to grieve with their union?
What were the results of any internal grievance?
This isn’t to defend the policy at all. However, from a due process perspective, there’s so little information contained that it’s impossible to defend against. Basic information must be pleaded for each Plaintiff. Grey includes none of it.
None of the Charter violations are pleaded properly either. While (initially) the Court is to accept everything as true, there is very specific information that must be alleged to make it possible to advance.
There’s also a lack of particulars. The suit makes all kinds of allegations of malice, bad faith, and malfeasance of public office, but doesn’t spell out any of it.
The Claim and Amended Claim include allegations which a Civil Court doesn’t have jurisdiction over, such as relying on the Criminal Code of Canada.
Looking at the: (a) Canada Post; (b) CNR; (c) Purolator; and now (d) Westjet pleadings, it’s clear that it’s the same suit just tweaked a little. Grey merely changes the names in the Style of Cause (the Parties) and refiles elsewhere.
Clients are paying (presumably) good money for recycled garbage.
Westjet Has Collective Bargaining Agreement For Employees
Westjet employees appear to be part of CUPE Local 4070, which is one of many unions. Unsurprisingly, there is a collective bargaining agreement which outlines most of the important things involved.
Article 30 lists the various steps involved, and the people who are involved. Like many unions, Arbitration and not litigation, is considered to be the final one. Article 31 then goes through the process itself.
Grey discontinued the case rather than have the jurisdiction challenged. He has done this with multiple lawsuits now.
Now, Umar Sheikh and Angela Wood showed a way around the grievance requirement in another Federal case. Specifically, they argued that the introduction of the injection pass was a new condition imposed “without meaningful consultation”. Basically, the way mandates were implemented circumvented the grievance process. They successfully stopped a Motion to Strike.
Note: All of the dates listed can be confirmed by searching the respective cases on the Federal Court website. It keeps a detailed listing of all significant events.
And that’s how this Westjet case concluded.
The Government (and the Westjet Defendants) threatened to bring Motions to Strike. The likely reasons were the lack of jurisdiction, and the shoddy nature of the pleadings. Rather than fight, the lawyer dropped the case. He never even tried to fight back.
Before even a single Motion could be argued, the entire lawsuit was discontinued. Plaintiffs are presumably out of luck for any retainer fees they’ve paid.
With all of the horrible cases that have been covered, it’s rare (but refreshing) to see one that’s actually well put together. Last week, Federal Court Judge Southcott dismissed (most) of a Motion to Strike, allowing the case to proceed.
A Proposed Class Action for Federal workers was filed in October 2023 by B.C. lawyers Umar Sheikh and Angela Wood. It was on behalf of 3 Representative Plaintiffs who were forced out of their positions. They had been employed by:
Department of National Defence (Payne)
Correctional Services Canada (Harvey)
Federal Economic Development Agency for Southern Ontario (Molaro)
Many of the cases involving injection passports filed in recent years were sloppy, and didn’t properly plead any tort or Charter violations. One of the most infamous was the “bad beyond argument” Adelberg case, and Appeal. Interestingly though, since Adelberg didn’t quite result in all claims being thrown out for good, it served as leverage for this case.
But what Sheikh and Wood did was quite different. They argued just 2 torts, and at least one of them never tried in a serious way in these cases.
Section 2(d) of the Charter: Freedom of Association
Malfeasance of Public Office
The Malfeasance of Public Office tort was struck regarding the 3 Plaintiffs here. The reason being that all 3 apparently had some right to grieve under the Federal Public Sector Labour Relations Act. But the Judge did allow for the possibility of new Plaintiffs — it is a Class Action — whom might qualify.
As for the Section 2(d) allegations: they are allowed to proceed.
Sections 208/236 FPSLRA Typically Bar Workers From Court
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
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 main obstacle to Government workers suing is the Federal Public Sector Labour Relations Act, or FPSLRA. Section 208 gives everyone the right to grieve, while Section 236 prohibits Actions (or lawsuits). This is similar to unionized private employers, and there are plenty of rulings striking such cases.
But what happened here is rather clever. By using union arguments about meaningful consultation, the Judge was persuaded that there was no valid grievance process, or at least that it was arguable.
Section 2(d) Of Canadian Charter: Freedom Of Association
44.The Plaintiffs’ and Class Members plead that s. 2d of the Charter provides for Freedom of association which guarantees the right of employees to meaningfully associate in the pursuit of collective workplace goals, which includes a right to collective bargaining. As such Laws or state actions that prevent or deny meaningful discussion and consultation about working conditions between employees and their employer may substantially interfere with the activity of collective bargaining, as may laws that unilaterally nullify significant negotiated terms in existing collective agreements.
45. The Plaintiffs and Class Members all had freely negotiated, valid, and binding contractual employment agreements with the Treasury Board.
46. None of the Plaintiffs or Class Member contractual employment agreements called for disclosure of Covid-19 vaccination status nor mandatory Covid-19 vaccination.
47. The Plaintiffs’ and Class Members plead that the Policy was a new term and condition placed upon their employment by the Treasury Board absent collective bargaining, memoranda of agreement, consideration, or consent.
48. The Plaintiffs’ and Class Members plead that the imposition by Treasury Board of a new term and condition of employment absent collective bargaining, memoranda of agreement, consideration, or consent violates their protected right under s. 2d of the Charter.
49. The Plaintiffs’ and Class Members plead that the action of the Treasury Board in imposing a new term and condition of employment absent collective bargaining, memoranda of agreement, consideration, or consent is not saved by s.1 of the Charter as the Treasury Board did not possesses the requisite justification based upon the objectives espoused by the Policy.
(This is from paragraphs 44 to 49 in the Statement of Claim.)
To understand why the Motion to Strike failed, consider what is actually being argued. No one contests that the terms of employment were changed. Instead, the challenge is brought over lack of consideration and meaningful consultation. It’s not entirely that injection mandates were introduced into Government employment. It’s that there was no proper protocol in implementing it.
Section 2(d) had been mentioned — in passing — in other injection pass cases. But Sheikh and Wood may be the first to actually have used it successfully.
If all of this sounds like a union argument, it is. Sheikh is former counsel for the British Columbia Nurses’ Union (BCNU), and for a time, was the C.E.O. This case was written from the perspective of someone who expects employers to deal in good faith with workers.
Of course, this is nowhere near the end. The case still needs certification, and even then, there are many steps before Trial. That said, at least the case is still alive.
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.
Section 2(d) Superior To Common 2(a)/7/15 Challenges
Typically, the “freedom lawyers” have cited the standard s.2(a), s.7, and s.15 when it comes to challenging injection requirements. And predictably, they always fail. They never plead the necessary facts, and hence, these claims are routinely tossed.
Facts Required For Section 2a (Religion) To Be Considered
(1) that he or she sincerely believes in a practice or belief that has a nexus with religion, and
(2) that the impugned state conduct interferes, in a manner that is non‑trivial or not insubstantial, with his or her ability to act in accordance with that practice or belief
Facts Required For Section 7 (Security) To Be Considered
(1) plaintiff must plead facts to establish a deprivation of their right to life, right to liberty or right to security of the person.
(2)The claim must then set out facts to show that any deprivation of these rights was effected in a manner contrary to the principles of fundamental justice.
Facts Required For Section 15 (Equality) To Be Considered
(1) on its face or in its impact, the state action creates a distinction based on a prohibited ground (either enumerated or analogous); and
(2) the state action imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage
Section 2(a) – freedom of religion – may allow for individual exemptions, depending on what is actually in the specific injections. It doesn’t, in any way, permit religion to be generally used to circumvent mandates.
Section 7 – security of the person – fails since the Courts have repeatedly said there’s no “right” to have a certain profession. Nobody was actually forced to take these shots, although there were certainly consequences.
Section 15 – equality – does not apply at all, since “vaccination status” isn’t in the Charter (enumerated), and hasn’t ever been recognized (analogous).
Other injection passport challenges have included: Section 8 (search and seizure); Section 9 (arbitrary detention); and Section 12 (cruel and unusual punishment). In fairness though, they have been extremely half hearted attempts.
Yes, one could plausibly conclude that the Charter is worthless, since it doesn’t protect people outside of narrow grounds. And they’re right.
However, plenty of lawyers still take large amounts of money from clients knowing that these portions offer no protection whatsoever.
The Section 2(d) method described above may be about the only way around a largely useless and defective Charter. By challenging not the mandates themselves, but how they were implemented, there’s at least one pathway. Without having meaningful consultations about retroactive changes to their contracts, people are denied their right to freely associate in the context of employment.
The Federal Government may very well try to appeal this decision. After all, it’s taxpayer money anyway. But for now, Section 2(d) challenges seem to be realistic method, at least for litigants who don’t normally have the right to sue.
Sheikh and Wood have a similar case on reserve in B.C., based on the same arguments. We’ll have to see how this ruling impacts that one.
Back in mid-November, this site covered the 2023 case of some 330 members of the Canadian Forces, which had been struck by Associate Judge Catherine Coughlan.
The case was full of serious problems, including: (a) Statement of Claim not pleaded properly; (b) Evidence not being properly pleaded; and (c) Section 29 of the National Defence Act, or N.D.A.
The N.D.A. specified a grievance process was to be used, as opposed to suing in Court. This is common in most unionized and Government workplaces in Canada. Even though the lawyer was trying to argue around that requirement, over 100 of her clients were concurrently trying to grieve.
Worse, the Plaintiff’s lawyer, Catherine Christensen, had been told by the Federal Court back in late 2021 that clients couldn’t bypass the N.D.A. She knew, or at least should have known, that this problem would come up again.
Since the pleading was struck by an Associate Judge, as opposed to a Judge, there is a Rule which allows a Motion to be filed to ask for a review of the decision. However, counsel’s handling of this was comically bad, and very negligent.
This “Lionel Hutz” episode would be funny, except for the real world consequences.
Christensen Missed The Deadline To File Notice Of Motion
The case notes on the Federal Court website list November 12th as the date of the ruling. CanLII gives it as November 13th. Here, it doesn’t really matter, since there was no notice for a month.
There are actually 2 different types of Appeals within the Federal Courts, and those are addressed below. The one that the Plaintiffs here wanted had a time limit of just 10 days. Counsel took 29 to respond. One has to wonder if she got them mixed up initially, and only realized the error later.
Had she sought an extension of time right away, this headache could have been avoided. Similarly, if a Notice of Motion (for the Appeal) was filed, followed by seeking an extension, it would be okay. But that’s not what ended up happening.
Granted, Courts often will allow for filings beyond the limitations period, if there are good reasons provided. However, this is far from counsel’s only error.
Appealing WITHIN Federal Courts V.S. Appealing BETWEEN Them
APPEAL RULING FROM
PROTHONOTARY
JUDGE
Appeal Goes Where
Federal Court
Federal Court Of Appeal
Appeal Ruling To
Single Judge (FC)
Panel of Justices (FCA)
Rules of Procedure
Rule 51
Rules 335 to 357
Time Limit For Notice
10 Days
30 Days
Initial Document
Notice Of Motion
Notice Of Appeal
Procedure
Motion
Appeal
New Evidence Allowed?
No
With Leave, Rule 351
Note: Prothonotary and Associate Judge are the same thing.
Many will find this nitpicky and boring. But procedurally, there are very different rules to follow depending on who one wants to appeal to. As stated, this would be a Rule 51 Appeal, and the time limit is just 10 days to serve and file a Notice of Motion.
Had the case been struck by a Judge initially, then going to the Federal Court of Appeal would have been the only recourse. Rule 51 doesn’t allow Judges to overturn each other.
Mixing Up “Moving Parties” And “Applicants” Repeatedly
This may seem petty, but is worth mentioning:
Action: This is brought by filing a Statement of Claim. The people who initiate it are called the Plaintiffs, and the people who respond are the Defendants.
Application: This is brought by filing a Notice of Application, seeking Judicial Review of an Order or decision. The people who initiate it are called the Applicants, and the people who respond are called the Respondents.
Appeal: This is brought by filing a Notice of Appeal, seeking to challenge another Court decision. The people who initiate it are the Appellants, and the people who respond are the Respondents.
Motion: This is brought to by filing a Notice of Motion, to initiate steps within, or related to an Action, Application, or Appeal. The people who initiate them are the Moving Parties, and the people who respond are the Respondents.
Since Christensen filed a Motion seeking permission for an extension of time, her clients, at this point, would be considered MOVING PARTIES. But she repeatedly refers to them as “Applicants”, even though they never were. Even calling them “Plaintiffs” would be more accurate.
She also cites the “Federal Courts Act” at times when she really means the “Federal Court Rules”. Those are 2 completely different things. Still, the Court will know what the references are.
Motion Brought Under Wrong Rule (Should Be Rule 8, Not 51)
TAKE NOTICE THAT the Applicants will make a motion to the Court in writing under Rule 51(1) of the Federal Courts Rules.
Extension or abridgement
8(1) On motion, the Court may extend or abridge a period provided by these Rules or fixed by an order.
When motion may be brought
8(2) A motion for an extension of time may be brought before or after the end of the period sought to be extended.
This is already wrong. While the ultimate goal is to appeal the decision of Associate Judge Coughlan, first, an extension of time needs to be granted. In reality, this Motion should state Rule 8. True, the Court would still understand what she’s trying to do, but missing the deadline now means filing another Motion.
The written submissions make clear the extension is sought under Rule 8, but the Notice of Motion still needed to be fixed.
Christensen explains that the delay was caused by the difficulties of corresponding with over 300 clients. The Government responded that that the Notice of Motion could have been filed anyway, with the option to discontinue, or even just a Notice to ask for an extension. It would have cost just $20.
Motion Asks For Written Representations…. In Court Of Appeal?
leave for the Motion to be heard with written representations under Federal Courts Act Section 369.2(1);
Written representations only — Federal Court of Appeal
369.2 (1) Unless otherwise ordered by the Court and subject to subsection (2), all motions brought in the Federal Court of Appeal shall be decided on the basis of written representations.
Christensen asks that the Judge determine the Motion with written representations, as opposed to having an oral hearing. This is common for simple Motions, and by itself, is not unreasonable.
However, Rule 369.2(1) applies to the Federal Court of Appeal. If she intends to appeal the decision of an Associate Judge, it remains within the Federal Court.
Unnecessarily Asking For Leave To Appeal?
2. leave for an extension of time to apply for Appeal of a prothonotary order;
3. leave to commence an application for Appeal under Federal Courts Act Section 51(1);
Appeals of Prothonotaries’ Orders
51 (1) An order of a prothonotary may be appealed by a motion to a judge of the Federal Court.
Service of appeal
(2) Notice of the motion shall be served and filed within 10 days after the day on which the order under appeal was made and at least four days before the day fixed for the hearing of the motion.
Items #2 and #3 don’t make any sense. Rule 51 is very short, and there’s no Leave (permission) needed to appeal a decision of a Prothonotary or Associate Judge. You just file a Notice of Motion. It’s also unclear what “apply for an appeal” means, but perhaps it’s a reference to Leave, which isn’t required.
And again, Christensen mixed up “Motion” with “Application”.
Christensen Improperly Swears Her Own Evidence
Use of solicitor’s affidavit
82 Except with leave of the Court, a solicitor shall not both depose to an affidavit and present argument to the Court based on that affidavit.
There’s a practice that lawyers aren’t suppose to argue their own evidence, as it tends to blur the lines between witness and counsel. Typically, an associate, clerk or client will swear it out. A Judge “may” allow it, but there are no guarantees.
Missing the deadline was bad enough. This is just a procedural Motion, seeking an extension of time, and it’s full of very basic mistakes.
Did Plaintiffs Always Intend To Appeal?
One thing the Government brought up is that the Motion says that the parties agreed to appeal, but not that they always intended to do so. This seemingly trivial choice in wording may sink the Motion, depending on how lenient the Judge is.
Motion Doesn’t Specify How Appeal May Be Successful
On paragraph 20 of their submissions, the Government lawyer states that the Plaintiffs offer no insight as to how an Appeal would theoretically be successful, assuming they were granted a time extension.
Paragraphs 7 through 16 of the Notice of Motion very broadly list a series of errors, but none of it is specified. Perhaps a better idea would have been to attach a draft version of the submissions they intended to use — except they weren’t done.
This could have been avoided if a request for a time extension had been filed right away. Seriously, it would have cost just $20, and their position would be a lot better.
Timeline Of Major Events In This Lawsuit
June 20th, 2023 – Statement of Claim is filed in Federal Court on behalf of 330 Plaintiffs.
July 28th 2023 – Amended Statement of Claim is filed.
August 7th, 2023 – Notice of Intention to Respond is filed by the Government.
September 11th, 2023 – Statement of Defence is filed by the Government.
September 22nd, 2023 – Reply to the Statement of Defence is filed.
January 30th, 2024 – Court compels Defence to file their Affidavit of Documents.
March 3rd, 2024 – Court orders case management for the lawsuit.
April 29th, 2024 – Court gives a schedule of events to unfold.
Defendants shall serve and file their motion to strike by July 12th, 2024.
The Plaintiffs shall serve and file their motion in response by August 9th, 2024.
Hearing of motion to strike to be in-person at the Federal Court August 20th, 2024.
June 26th, 2024 – Plaintiffs contact Court, ask for hybrid setup so that Plaintiffs can attend the proceedings remotely.
July 11th, 2024 – Government files Motion to Strike the case.
August 12th, 2024 – Court contacted to request permission to file materials.
August 14th, 2024 – Court allows Plaintiff Motion materials to be filed, despite them not complying with the rules and procedure laid out.
August 14th, 2024 – Motion Record with 35 Affidavits filed by Plaintiffs
August 20th, 2024 – Court adjourns Motion to Strike hearing until September 19th.
September 19th, 2024 – Motion to Strike heard in Court.
November 12th, 2024 – Statement of Claim is struck without Leave to Amend. $5,040 in costs ordered.
December 12th, 2024 – Plaintiffs serve Notice Of Motion to extend time limits
December 17th, 2024 – Government responds, saying time extension shouldn’t be granted.
Now, the Court may very well grant an extension to file the Rule 51 Motion papers. There has been a longstanding aim of not using procedural rules unjustly to hinder litigation.
That being said, the Plaintiffs are far from guaranteed any success with this Appeal, even if it were heard. The Statement of Claim had many defects, as outlined in the last article. It’s unclear how any of it could be fixed.
For just a $20 fee, Christensen could have asked for an extension right away. She could have explained that some clients wanted to appeal, while others had not yet responded. Such a request would have been difficult to refuse.
