Category: Vaccines

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Adam Skelly, Part 6: The Final Arguments

It’s been years, but the long overdue challenge from Adam Skelly of the Reopening Ontario Act (R.O.A.) is finally set to be heard at the Ontario Superior Court in Toronto.

Currently, he’s awaiting sentencing on criminal charges that resulted from keeping his restaurant open in late 2020. This was done in defiance of the dictates of Ontario Premier Doug Ford, and Medical Officer of Health, Eileen De Villa. What happens next week in Civil Court will impact that.

If the challenge is upheld, then presumably the criminal charges will be stayed or dismissed.

If this case is thrown out, then sentencing goes ahead

See parts 1, 2, 3, 4 and 5 for background information.

We get to the various Factums, or final arguments of the parties: (a) Skelly; (b) Ontario; and (c) Toronto and Eileen De Villa. While there are plenty of other documents filed, these provide a snapshot of how the case is supposed to play out.

Skelly: Measures Were Heavy-Handed, No Scientific Basis

  • 6 expert witnesses are here to back up his position
  • No evidence that closing restaurants or prohibiting peaceful assembly would have meaningfully reduced COVID-19 transmission
  • City and Province were giving conflicting directions in 2020
  • Police illegally blocked peaceful protests and demonstrations
  • Court shouldn’t “take on faith” that these were necessary
  • No effort made to examine Charter consequences of lockdowns
  • De Villa didn’t actually have the authority to issue trespass order
  • Heavy police presence and fines were designed to “crush”
  • Ad-hoc, or after-the-fact justifications cannot withstand scrutiny
  • It’s not just this case, but a challenge to the R.O.A. itself, passed in 2020

Of course, this isn’t everything, but addresses some of the major points in Skelly’s Factum that are to be brought up at the hearing.

Ontario Wants Case Thrown Out On Procedural Grounds

  • Application amended frequently, and now hard to deal with
  • This is a collateral attack (repeat challenge) to administrative orders
  • Skelly has private standing to bring case, but not public interest standing
  • Skelly is (also) challenging provisions that didn’t apply to him
  • Challenge should have been via Health Services Appeal and Review Board
  • R.O.A. is permitted under broader Quarantine Act (which is Federal)
  • R.O.A was not vague, arbitrary, overbroad or grossly disproportionate
  • No Charter violations for Skelly took place
  • If Skelly’s rights were violated, it was justified under s.1 of the Charter

The arguments from the Ontario Government are an interesting contrast to those of Adam Skelly. Instead of presenting evidence for justification, there are typical grounds raised to dismiss over procedural concerns.

City Of Toronto Raises Similar Objections As Ontario

  • Application is a repeated challenge to settled matters (abuse of process)
  • Judicial Review brought in wrong Court
  • Judicial Review filed too late, and out of time
  • None of this actually violated Skelly’s Charter rights
  • Evidence presented doesn’t establish breaches of most Charter rights
  • If rights were violated, then s.1 justifies it
  • Under existing legal framework, measures were legal and reasonable

Just like with the Provincial counterpart, the City of Toronto and Eileen De Villa largely avoid the case that Skelly has brought. The Factum asks the Court to dismiss for other reasons.

Anyhow, that is how things are shaping up. We have an Applicant with potentially a very strong case, facing Respondents who would prefer to talk about other things. The hearing is to take place over 3 days, and should be interesting.

It would also be nice to finally deal with former counsel, Michael Swinwood. He is almost singlehandedly the reason this case was not heard in 2021.

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 – DeVilla Transcript
(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 – NEW – Responding Record March 2024
(6) Skelly – Costs – Factum – Moving Party – HMK
(7) Skelly – Costs – Responding Factum Applicants Skelly et al
(8) Skelly – Justice Akazaki Deferral Of Case
(9) Skelly – Transcript De Villa
(10) Skelly – Transcript Hodge
(11) Skelly – Transcript Skelly
(12) Skelly – Factum 2026 Hearing
(13) Skelly – Factum De Villa Toronto
(14) Skelly – Factum Ford Ontario

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 – William Briggs Resume
(5B) Skelly – William Briggs Expert Report
(5C) Skelly – William Briggs Expert Reply Report

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Adam Skelly, Part 5: The De Villa Transcript

It’s been over 5 years since Toronto Police showed up in force to close down Adam Skelly’s restaurant in Etobicoke. And it has been ongoing ever since.

He is awaiting sentencing on criminal charges that are stayed pending the outcome of this Application. If he wins here, the charges presumably get thrown out. If this Application fails, then the stay is lifted.

See parts 1, 2, 3 and 4 for background information.

Skelly is taking both the Ontario Government and the City of Toronto to Court, and is directly challenging sections of the Reopening Ontario Act (R.O.A.) which made these shutdowns possible. Adamson Barbeque itself had been named as an Applicant, but has since gone bankrupt.

Finally, we get to hear from Eileen De Villa, who was at the time, the Toronto Medical Officer of Health. She has left the position and claims to be “living her life”.

Currently, the hearing is set for 3 days at the end of February.

Also, the Factum is available, and is an interesting read. Other documents include Skelly’s transcript, and that of Matthew Hodge.

Toronto Health Officials Barred From Revealing Advice To Ford

From pages 95-96: The subject of a November 16th, 2020 publication came up. When asked about whether or not health officials had signed non-disclosure agreements, De Villa’s lawyer refused to answer. A request to see the NDA itself was also refused.

On page 98, her lawyer refused to answer whether or not the topic of Constitutional or Charter Rights had been discussed.

De Villa Admits No Authority To Issue Notice To Trespass

Starting at page 168, De Villa admits she had no actual authority to issue a “Notice To Trespass”. However, it didn’t stop her from issuing orders that effectively did just that. On page 181, her lawyer refuses a request to produce any other related orders she had issued.

Other Interesting Developments

De Villa frequently claims to not remember specific details. It’s unclear whether this is true, as so much time as passed, or if she’s being evasive.

At page 45, De Villa confirmed that she had sought legal advice to determine whether or not she actually had the authority to implement certain measures. A request to get information on that advice was refused.

Page 66, De Villa refused a request to release all data and evidence that had been shared with David Williams, who was the Provincial Medical Officer of Health. This was in response to an October 2nd, 2020 letter. She also refused to answer whether or not her orders were controversial, or had a political impact.

Page 76, De Villa refuses to answer whether or not she had sough input from members of the restaurant or entertainment industry before closing indoor dining. She claims it wasn’t her intention to “decimate” them, but apparently didn’t consult anyone.

Page 81, De Villa is asked about the assertion that 44% of cases from September 20th to 26th had been in restaurants, bars and entertainment venues. She couldn’t answer the source of that information.

Page 99, De Villa refused to discuss what evidence had been shared with the City of Toronto in order to justify various restrictions.

At page 182, De Villa’s lawyer says that she was allowed to issue trespass notices, but will come up with a reason as to why it’s justified.

At page 196, De Villa admits that when the Toronto Public Health Unit filed a lawsuit against Skelly to recoup their funds, he filed a 3rd-Party Claim against her.

At page 197, De Villa refused to answer whether it would be considered a conflict of interest if her husband, Richard Choi, had financial interests in Astra Zeneca.

Overall, it seems pretty clear that De Villa’s counsel was trying to avoid having her answer as many questions as possible. She objected to virtually everything. However, we’ll have to see what the judge decides.

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 – DeVilla Transcript
(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 – NEW – Responding Record March 2024
(6) Skelly – Costs – Factum – Moving Party – HMK
(7) Skelly – Costs – Responding Factum Applicants Skelly et al
(8) Skelly – Justice Akazaki Deferral Of Case
(9) Skelly – Transcript De Villa
(10) Skelly – Transcript Hodge
(11) Skelly – Transcript Skelly
(12) Skelly – Factum 2026 Hearing

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 – William Briggs Resume
(5B) Skelly – William Briggs Expert Report
(5C) Skelly – William Briggs Expert Reply Report

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The Hartman Appeal, Part 2: The Hearing Approaches

The much anticipated Appeal between Dan Hartman and the Government of Canada is set to be heard on Monday, January 26th. There is a separate lawsuit against Pfizer itself, which has been delayed.

Broadly speaking, the case argued 2 alternative torts: (a) negligence; and (b) malfeasance of public office. Either Ottawa was not careful in how the vaccine policies were laid out, or people intentionally acted in ways that were contrary to their duties.

Back on March 24th, 2025 Justice Antoniani threw the case out entirely, with no option to amend the pleading.

Part of the reason for contesting this is the practice that Plaintiffs are typically given the chance to fix any defects. It’s understood that parties are supposed to “get their day in Court” whenever possible, and not have things derailed over procedural concerns.

Regarding negligence, it was ruled that there was no “duty of care” to the Hartman Family, and thus the tort could not succeed. Ottawa had acted towards the public at large, not a specific group. These actions were considered “core policy decisions”, and immune from liability.

As for malfeasance, the Judge said that the pleadings were inadequate in terms of addressing the likelihood of causing harm. Rather than allow for the Claim to be amended, it was refused.

Questions To Be Asked In Appeal

  • Did the learned motion judge err in law by misapplying the “plain and obvious” test for striking a pleading and failing to read the claim generously, thereby prematurely dismissing arguable claims?
  • Did the learned motion judge err in law in his application of the Anns/Cooper test by finding it was plain and obvious that the Respondents owed no private law duty of care to Sean Hartman?
  • Did the learned motion judge err in law by classifying all the impugned government conduct as immune “core policy,” thereby failing to distinguish between policy and operational acts?
  • Did the learned motion judge err in law by striking the claim for misfeasance in public office where the necessary elements of the tort were pleaded?
  • Did the learned motion judge err in principle by refusing to grant leave to amend the Statement of Claim?

Put simply, the Appeal will argue that the Judge jumped the gun in striking the case, and that it should have been heard on at least 1 of the 2 torts alleged. The Factum goes into the arguments that will be heard. The Appeal Book contains other important documents.

Unsurprisingly, the Attorney General says that the right decision was made.

Hopefully, the Court of Appeal will allow the case to proceed, even if portions of the pleading need to be rewritten. But with many of the recent decisions, who knows what will happen?

AGC COURT DOCUMENTS:
(1) Hartman AGC Statement Of Claim (September, 2023)
(2) Hartman AGC Reasons For Decision (March, 2025)
(3) Hartman AGC Notice Of Appeal (April, 2025)
(4) Hartman AGC Appellants Factum
(5) Hartman AGC Appeal Book And Compendium (July, 2025)

PFIZER COURT DOCUMENTS:
(1) Hartman Pfizer Statement Of Claim (September, 2023)
(2) Hartman Pfizer Fresh As Amended Statement Of Claim (March, 2025)
(3) Hartman Pfizer Statement Of Defence (December, 2025)

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Case Conference Sought In Stale Military Injection Pass Case

Parties in a 2023 case over injection passes in the military are asking the Court what to do next. The disagreement comes over how to proceed. The Defendants want to bring a Motion to Strike — to throw out the case — while the Plaintiffs want to pursue other steps first.

The lawsuit itself hasn’t progressed since the pleadings were filed in 2023.

The information about the Plaintiffs is interesting, and the paths they’ve taken are varied. The lengths of service for some exceed 25 years. They’re located all over Canada, and are involved in many occupations. Some of them were kicked out for refusing the shots, or forced to retire. Others took them, and have ongoing health problems.

From the information listed in the Statement of Defence, any preliminary challenge would most likely be based on 2 ideas:

  1. Lack of jurisdiction (a.k.a. alternative system available); and
  2. Insufficient detail pleaded in Statement of Claim

1. Government Claims “Grievance Scheme” Should Have Been Used

15. The Plaintiffs had recourse through the grievance process established under the National
Defence Act (“NDA”). The CAF grievance process is set out in sections 29 to 29.15 of the NDA and Chapter 7 of the Queen’s Regulations and Orders (“QR&O”). Subsection 29(1) of the NDA provides that any officer or non-commissioned member of the CAF who has been aggrieved by any decision, act or omission in the administration of the affairs of the CAF for which no other process for redress is provided under the NDA is entitled to submit a grievance.

Just as in Qualizza and Neri, the Government here claims that Plaintiffs “should” have filed grievances, similar to what unionized workers do. This is invoking the defence that the Federal Court has no jurisdiction to hear the case, regardless of the merits. This has gotten many related suits thrown out.

The Statement of Defence also says that current and former veterans have the option of applying for compensation, which must be exhausted prior to commencing litigation.

2. Inadequate Pleading, Considering Allegations Made

The Government also criticises the quality of the Statement of Claim itself. While over 30 declarations are sought, critical detail is missing from the pleading.

A complaint here (and common in these cases) is that necessary detail is missing to even theoretically advance. For example, while many Plaintiffs claim to have a religious objection to the shots, under Section 2(a) of the Charter, not one of them explains what the objection actually is. Here’s a primer in what should be added.

True, one could easily argue that the Charter is useless, and it largely is. But then, why makes such claims in the first place?

While the Statement of Claim makes many accusations against the military, and very serious ones, they do need to be spelled out in much greater detail.

Unfortunately, far too few people get their “day in Court”. In an ideal world, every valid case would get to Trial. However, thousands of Plaintiffs have seen their cases thrown out (often for lack of jurisdiction) prior to any ruling on the merits. And others are bogged down by drafting deficiencies.

(1) Bruce Statement Of Claim
(2) Bruce Statement Of Defence
(3) Bruce Reply Statement
(4) Bruce Notice Of Discontinuance McLaren
(5) Bruce Notice Of Discontinuance Radford
(6) Bruce Letter To The Court

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UHCWBC And BCPSEF Conclude Certification Hearings, Decision Under Reserve

A pair of Proposed Class Actions wrapped up their hearings for certification on Friday, in the B.C. Supreme Court. These groups are attempting to convince a Judge that this is the most expeditious way to process thousands of claims related to loss of employment over injection mandates from 2021.

On a related note: the Court will also consider Applications brought to throw both cases out completely. The Government is making the usual arguments about how these cases are an “abuse of process”, and an ineffective way to resolve disputes. Notes from the hearings were provided by observers who attended, and are quite detailed. For simplicity, they were compiled into a single document. The suits came from:

(1) UHCWBC – United Health Care Workers of British Columbia
(2) BCPSEF – British Columbia Public Sector Employees For Freedom

It’s unclear how many Plaintiffs would result if either case was certified, but it could be in the hundreds, if not thousands. A lot of people didn’t like being pressured to take the shots.

See Parts 1, 2, 3, 4, 5, 5, 7, and 8 in this series on s.2(d) challenges.

UHCWBC And BCPSEF Part Of Series Of s.2(d) Cases

CASE NAMES FEDS4F/BCPSEF FREE2FLY/UHCWBC/UHCWO
Government Workers? Yes No
Filed Federally? Feds For Freedom Free To Fly
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

There are actually 5 different Proposed Class Actions going on which are based on a variation of the s.2(d) argument. While similar, there are differences in the arguments being advanced.

Feds For Freedom (Payne) initially got past a Motion to Strike at the beginning of 2025, but that was overturned by the Court of Appeal. By contrast, Free To Fly (Hill) survived a preliminary challenge that the Government did not appeal. This bodes well for the health care worker cases, as the arguments are essentially the same.

Update: The case of British Columbia Teachers’ Federation v. British Columbia, 2016 SCC 49 was mentioned after this publication. Without getting lost in the weeds, it allowed Court access in instances where collective bargaining was impacted unilaterally without good faith consultation. There isn’t the comparable “ouster” that exists Federally, over constitutional challenges. This is good news for public sector workers, hoping to avoid the fate of Payne.

The B.C. cases are having both Applications to Strike and for Certification heard at the same time. The Ontario lawsuit appears to have been pushed back to the end.

Another wildcard is that CSASPP was refused certification recently, but Justice Crerar’s decision has been appealed. There is potentially some overlap with the ones here.

Understanding The Arguments Of These s.2(d) Cases

Government Workers: It is true that unionized and Government workplaces typically have a collective bargaining agreement. This means that there’s some sort of grievance process to follow, and then arbitration. How these differed is that the Plaintiffs are arguing that injection mandates “added a term or condition” to the employment, without any meaningful consultation, negotiation or consideration. In the Payne case, that was accepted initially, then overturned.

Non-Government workers: The argument differs here, because the Government isn’t actually the employer. Instead, Plaintiffs allege the Government induced a breach of contract, by causing the employer to “add a term or condition” to the employment, without any meaningful consultation, negotiation or consideration. Another way to look at this is as third party interference.

In both variations, the Plaintiffs state that their Section 2(d) Charter rights (freedom of association) were violated. This was caused by the Government not allowing employers and employees to engage in voluntary relationships. Presumably, employers wouldn’t have fired anyone (or very few), without authorities meddling.

The UHCWBC case (and similarly, the UHCWO one) appear to be on more solid ground because they are not Government employees. The go-to tactic of claiming lack of jurisdiction does not apply to them.

We’ll have to wait for a decision, however long that takes. Assuming certification of either happens, this is only the beginning. Much more will have to be done prior to Trial. Both groups are still fundraising to cover existing costs, and CSASPP is trying to raise money for their ongoing Appeal.

BCPS EMPLOYEES FOR FREEDOM COURT DOCUMENTS:
(1) BCPS Notice Of Civil Claim October 2023
(2) BCPS Amended Notice Of Civil Claim April 2024
(3) BCPS Response To Civil Claim May 2024
(4) BCPS Requisition Case Management August 2024
(5) BCPS Notice Of Application Certification October 2024
(6) BCPS Notice Of Application To Strike October 2024
(7) BCPS Response To Application To Strike November 2024
(8) BCPS Consent Order Scheduling Of Materials January 2025
(9) BCPS Plaintiff Submissions Certification And Strike December 2004
(10) BCPS UHCWBC Plaintiff REPLY Submissions Cert/Strike January 2025

UHCWBC COURT DOCUMENTS:
(1) UHCWBC Notice Of Civil Claim October 2023
(2) UHCWBC Amended Notice Of Civil Claim April 2024
(3) UHCWBC Response To Notice Of Civil Claim May 2024
(4) UHCWBC Amended Response To Notice Of Civil Claim May 2024
(5) UHCWBC Requisition For Case Management Scheduling August 2024
(6) UHCWBC Notice Of Application For Certification October 2024
(7) UHCWBC Response To Application For Certification October 2024
(8) UHCWBC Notice Of Application To Strike Claim October 2024
(9) UHCWBC Consent Order Scheduling October 2024
(10) UHCWBC Response To Application To Strike November 2024

CERTIFICATION NOTES:
(1) UHCWBC and BCPSEF Certification Notes
(2) https://x.com/uhcwbc
(3) https://unitedtogether.ca/
(4) https://x.com/bcpsef
(5) https://bcpsforfreedom.com/
(6) https://www.covidconstitutionalchallengebc.ca/

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Military Veterans Injection Pass Appeal Dismissed, Hennelly Factors

The Federal Court of Appeal threw out a challenge on Monday involving hundreds of current and former members of the Canadian Armed Forces. Another $2,340 in costs was also ordered. As of now, this appears to be the end of the road.

Many had thought that the purpose was to get the case back on track, after it was struck last year. However, that’s only partly true. This proceeding was to determine whether or not Justice Manson of the Federal Court erred in refusing to grant an extension of time to bring an initial Appeal. The filing deadline had been missed.

The Justices here ruled that no mistake had been made, and the Appeal was dismissed.

Appeals Within/Between Federal Courts

Whether it’s a Judge or Associate Judge/Prothonotary who makes a decision matters, if parties wish to challenge. It determines where the Appeal goes to, procedure, and more importantly, the time limit.

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

The original claim was struck over (a) inadequate pleadings; and (b) a requirement to follow the grievance scheme, by an Associate Judge, back in November, 2024. This meant there was a mere 10 days to serve a Notice of Motion. However, counsel appeared to mistake it for being a 30-day limit. Justice Manson refused a request to extend time. The case was effectively time barred at that point.

Now, the case went to the Federal Court of Appeal. What should have happened was a committed effort to convince this panel that it was a mistake to not grant that extension. Instead, it was glossed over in favour of attempting to argue the case shouldn’t have been thrown out in the first place.

Ultimately, the Court of Appeal ruled that no error was made in refusing to grant an extension of time.

Hennelly Factors: What Decided This Appeal

The test for whether or not to grant an extension of time is commonly referred to the Hennelly Test, or the Hennelly Factors. While not exhaustive, these are 4 considerations that need to be made.

  1. a continuing intention to pursue an appeal of the Associate Judge’s order
  2. that their proposed appeal had some merit
  3. that the respondents would not be prejudiced by the delay
  4. that there was a reasonable explanation for the delay

A number of other issues were raised, such as not following procedures, and citing incorrect rules. That said, this is what courts look to when making their decision on time extensions.

Factor #1: Was There A Continuing Intention To Appeal?

[7] In particular, the Judge held that there was no evidence supporting an intent to appeal, even when considering the Affidavit.

The Affidavit submitted surprisingly came from counsel, and not from a client. On contentious issues, lawyers are prohibited from swearing out evidence they intend to argue. Typically, a client or a clerk does this. Consequently, this one was disallowed.

It also didn’t say the magic words: “I/we always intended to appeal”.

Factor #2: Was There Some Merit To The Appeal?

[12] Second, the appellants contend that the Judge erred in concluding that their proposed appeal had no likelihood of success. In fact, the bulk of the appellants’ submissions in this appeal focuses on the merits of some aspects of the Associate Judge’s order. The appellants contend in this respect that the Associate Judge erred: (i) in treating their claim as improperly bypassing the CAF grievance system; (ii) in concluding that that system was an adequate alternative remedy; and (iii) in striking the amended Statement of Claim without leave to amend.

[13] One major problem with these submissions is that nothing of that sort was put to the Judge. As the Judge correctly noted, both the Affidavit and the appellants’ written submissions in support of the Motion are silent as to how the appeal of the Associate Judge’s order might be successful (Order at para. 15). This problem is exacerbated by the fact that these submissions are based, in large part, on documents, mostly directives and reports on reviews of the National Defence Act and the CAF, that were not before the Judge and that were appended, in e-versions, to the appellants’ Memorandum of Fact and Law in this appeal.

[14] As the respondents correctly point out in their written submissions, the Judge cannot be faulted for not considering documents and submissions that were not put to him.

The Motion requesting the extension of time actually didn’t get into this at all. No draft submissions were attached, nor was there a section outlining what the appeal might look like. Justice Manson denied the request, in part, not knowing he Court of Appeal saw nothing wrong with that.

Factor #3: Will The Respondents Not Be Prejudiced By The Delay?

[7] …. On prejudice, the Judge found that although the respondents did not claim to be prejudiced by the delay in bringing the Motion, they were “certainly going to be prejudiced” by the fact the appellants were seeking an additional delay – that is up to the end of January 2025 – to file a “full motion record for an Appeal” (Order at paras. 19-21). According to the Judge, the respondents, in such context, were facing “indefinite delay going forward”.

This is probably the most subjective part of the test, as it’s hard to prove that a party is prejudiced. Nonetheless Justice Manson concluded that there was already excessive delay, and that there probably would be again.

Factor #4: Was There A Reasonable Explanation For The Delay?

[7] …. Finally, the Judge determined that both the 29-day delay and the additional 6-week delay sought to create a “full motion record for an Appeal”, were not explained in any rational sense, even, again, when considering the Affidavit (Order at paras. 22-23).

The official reason for the delay was that there was a serious logistical problem coordinating over 300 clients, to determine who actually wanted to appeal. Justice Manson ruled that a Notice of Motion could still have been filed within the 10 day period. in short something could have been filed, and the client issues sorted out later.

Part of the problem with this test is that it’s discretionary, and largely subjective. What one Judge may consider a reasonable explanation, another would reject out of hand. Similarly, one may view submissions to have “at least some merit”, while a colleague would not. There’s no uniform standard.

The Court of Appeal concluded with this:

[17] One other major problem with this appeal is that the appellants, at best, only superficially address the Judge’s application of the other Hennelly criteria (intent to appeal, delay and prejudice) to the circumstances of the case. There is nothing for us, therefore, to conclude that the appellants have met the highly deferential palpable and overriding error standard on these issues.

At the Monday hearing, a considerable amount of time was spent arguing how an Appeal could have proceeded (which is the 2nd Factor). That said, none of that had been put to Justice Manson previously. The 1st, 3rd, and 4th Factors weren’t addressed in great detail. The Appeal was dismissed.

What Happens Now For The Plaintiffs?

It’s quite disappointing for Plaintiffs, especially to have it end this way. The Court of Appeal never made any meaningful or deep findings on the merits of their cases. Nor was any new ground broken over employment rights. A missed deadline is what ultimately sealed their fate.

There’s no single answer for what comes next. Many are still employed with the military, while others have left. And most have at least initiated the grievance process, and are at various stages. They have some things to figure out.

While an attempt at the Supreme Court of Canada is theoretically possible, it seems unlikely to happen.

FEDERAL COURT/CLAIM STRUCK:
(1) Qualizza Statement Of Claim (June 2023)
(2) Qualizza Amended Statement Of Claim (July 2023)
(3) Qualizza Statement Of Defence (September 2023
(4) Qualizza Reply To Statement Of Defence (September 2023)
(5) Qualizza Defendants Motion To Dismiss Claim (July 2024)
(6) Qualizza Plaintiff Motion To Strike Written Submissions (August 2024)
(7) Qualizza Transcript Of Coughlan Hearing (September 2024)
(8) Qualizza Order Striking Statement Of Claim Without Leave (November 2024)

FEDERAL COURT/RULE 8 MOTION TO EXTEND TIME/RULE 51 APPEAL:
(1) Qualizza Plaintiffs Motion To Extend Time To Appeal (December 2024)
(2) Qualizza Defendants Respond To Motion To Extend Time To Appeal (December 2024)
(3) Qualizza Order Denying Extension Of Time (January 2025)
(4) Qualizza Federal Court Notes

FEDERAL COURT OF APPEAL/CONTENTS OF APPEAL BOOK:
(1) Qualizza Notice Of Appeal (January 2025)
(2) Qualizza Motion Record Contents Of Appeal Book (February 2025)
(3) Qualizza Responding Motion Record Contents Of Appeal Book (March 2025)
(4) Qualizza Order Contents Of Appeal Book (April 2025)

FEDERAL COURT OF APPEAL/ARGUMENTS/RESULTS (AD HOC):
(1) Qualizza Appellants Memorandum Of Fact And Law (May 2025)
(2) Qualizza Respondents Memorandum Of Fact And Law (June 2025)
(3) Qualizza FCA Order Dismissing Appeal (December 2025)
(4) Qualizza FCA Reasons Dismissing Appeal (December 2025)

FEDERAL COURT OF APPEAL/MARK LOLACHER REINSTATEMENT:
(1) Qualizza Notice Of Discontinuance (January 2025)
(2) Qualizza Lolacher Motion Record (March 2025)
(3) Qualizza Lolacher A.G. Responding Motion Record (March 2025)
(4) Qualizza Lolacher Christensen Responding Motion Record (March 2025)
(5) Qualizza Lolacher Order For Reinstatement (May 2025)
(6) Qualizza Lolacher Reasons For Reinstatement (May 2025)

FEDERAL COURT OF APPEAL/VENDETTA AGAINST LOLACHER:
(1) Qualizza Lolacher Letter To Court (May 2025)
(2) Qualizza Federal Court Notes FCA
(3) Qualizza Order Justice Gleason Refusing Filing Of Materials (June, 2025)

SUPREME COURT OF CANADA, APPLICATION FOR LEAVE:
(1) Qualizza SCC Notice Of Application For Leave To Appeal
(2) Qualizza SCC Application For Leave To Appeal
(3) Qualizza SCC Certificate File Access
(4) Qualizza SCC Response From AG Opposing Application
(5) Qualizza SCC Responding Certificate

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