Adam Skelly, Part 1: The Akbarali Decisions

This is the first of a multi-part series on William Adamson Skelly (a.k.a. Adam Skelly). He made national news back in the Fall of 2020 for refusing to bend the knee to the dictates of Doug Ford. This led to both civil and criminal cases in the months to come. His comically bad legal representation also generated attention.

He has another Application, this one to be heard over 3 days in October 2024. This is being organized by the Concerned Constituents of Canada, or CCOC. Since a lot of work was put together a few years ago, letting it go seemed like a major waste of time and money.

Now, the Government can — and most likely will — bring up the issue of mootness. Lawyers will claim that this is all old news, and that there are no orders in effect. Still, it would be nice to actually hear the case on its merits, especially as the Reopening Ontario Act wasn’t ever taken down.

To begin, here was his run in with Justice Jasmine Akbarali back in 2021.

To make a long story short: the Government was successful in bringing a restraining order against Skelly and his business in December 2020. They did it on an expedited basis, with no real chance to defend. However, the ruling allowed for a “come-back Motion” to be brought. This would be Skelly’s chance to show that he was in the right.

From Justice Kimmel’s ruling:

[46] The applicant asked for its costs. The Crown argued that this was not actually an ex parte motion because they had provided notice, even though the court, by an earlier endorsement, had permitted the respondents not to respond. The respondents did not oppose the relief sought (except to raise procedural objections). The Crown had an onus to meet, irrespective of any position of the respondents. If the Crown had proceeded ex parte, it concedes that it would not have been entitled to costs by virtue of Rule 57.03(3).

[47] Although the Crown did provide notice, the respondents’ participation has been deferred until the come-back motion. I have determined that any costs that might be recoverable by the applicant for this motion should be addressed in the context of that come-back motion if it proceeds.

[48] The court’s practice is to fix the costs of each step in a proceeding if possible. The applicant represented to the court that its bill of costs on a partial indemnity scale for the application amounted to $19,675.00. I can appreciate that there was a need for three counsel on a file such as this. This amount is within the realm of expected costs for an urgent application of this nature, although perhaps a little on the high side having regard to comparable cost awards that I was directed to in contested proceedings.

Since the Crown did (technically) provide notice, they were presumptively entitled to costs. However, Justice Kimmel decided — as an act of fairness — that Skelly should have the chance to make his case. Therefore, the option of a “come-back” Motion was granted. Sounds okay, right?

There were a number of problems that came up. First of all, the person(s) filing a Motion are referred to as the “Moving Parties”, not the “Applicants”. It seems that Skelly’s lawyer, Michael Swinwood, wasn’t even aware of what documents he was filing.

This is what Swinwood was filing.

By contrast, the Ontario Government listed that Skelly and his restaurant were in fact the Moving Parties. These are the titles that should have been shown. Just because a Notice of Constitutional Question is included, doesn’t mean that a Motion suddenly becomes an Application.

Look above. The first screenshot is from Swinwood, and the second from Ontario.

Had Skelly been initiating the entire proceeding by way of Judicial Review, then yes, he would have been considered an Applicant. Instead, he was filing a Motion to challenge an earlier ruling, but within the same case.

For Ontario Courts, Applications are governed by Rule 14.05. One can be started with any of Forms 14E, 14E.1, 68A or 73A. Motions are governed by Rule 37, and are initiated by Form 37-A. These are different forms, and completely different rules apply. Now, a Notice of Motion was filed, but it’s baffling why Skelly would be listed as an “Applicant”.

In June 2021, Justice Akbarali refused to hear the Motion, stating that she had no jurisdiction over the matter. She did, however, allow Skelly and his lawyer another attempt, if it were drafted properly.

Here is a very, very brief timeline of events.

November 28th, 2020: The Ontario Government files an emergency Application against Adam Skelly and his business in order to limit the amount and type of business that it can do. Although he is served with notice, this is done on such a short time frame that there wasn’t really the chance to respond.

December 1st, 2020: The Ontario Government serves their Application Record.

December 2nd, 2020: The Ontario Court defers ruling on a decision on the status of Adamson Barbeque, until the following week.

December 11th, 2020: Justice Kimmel of the ONSC grants the Application from Ontario forcing the business to only operate (or not operate) within the parameters of the Reopening Ontario Act. While $15,000 in costs is awarded, it’s deferred pending an anticipated “Comeback Motion” to be filed.

January 22, 2021: A Criminal Court Judge issues and order restricting what Skelly can post online, including any incitement or encouragement that the Ontario “restriction measures” not be followed.

February 1st, 2021: The Notice of Motion is filed, along with the first iteration of the Notice of Constitutional Question.

February 17th, 2021: Swinwood files a 27 page Notice of Constitutional Question. Rather than simply listing the issues to be considered, it’s filled with argument, and reads more like a Factum.

March 9th, 2021: The Toronto Board of Health sues Skelly in an attempt to recoup the costs of paying over 100 police officers to enforce their mandates. There’s another suit filed on March 10th, and it looks like they went after him twice (CV-21-00658431-0000 and CV-21-00658546-0000).

April 12th, 2021: Skelly and the various expert witnesses have their Affidavits sworn. Note, the documents themselves are attached below. As an aside, it’s a bit disappointing that they all play along with the narrative that there is actually a virus.

May 25th, 2021: Matthew Hodge is cross examined on his Affidavit evidence. This would be the first of several days which he is questioned.

May 27th, 2021: Byram Bridle is cross examined on his Affidavit evidence.

May 31st, 2021: Skelly is cross examined on his Affidavit evidence.

June 8th, 2021: Swinwood amends the Notice of Constitutional Question.

June 11th, 2021: The Factum (arguments) are submitted on Skelly’s behalf.

June 14th, 2021: The Factum is amended.

June 18th, 2021: The Government sends their responding Factum.

June 22nd, 2021: Reply Factum is sent on Skelly’s behalf.

June 29, 2021: Justice Jasmine Akbarali declares that she has no jurisdiction to preside over the Motion brought by Skelly and Swinwood. It seems that Rules of Civil Procedure weren’t followed, but another chance is given to do it properly. Costs for this Motion are to be deferred for a few weeks.

July 13, 2021: Justice Akbarali hands down a $15,000 cost award against Skelly for this Motion not being able to be heard. However, the original $15,000 order from December 2020 is deferred for 6 months, pending the outcome of the original matter.

Theories were rampant as to what happened with the June Motion. Some had said Swinwood was grossly incompetent.

Others suggested that Justice Akbarali was biased, and that the case was rigged. Now Swinwood could have simply redone the paperwork, but he didn’t. However, without proof, this is all speculation.

October 2021: Despite the Toronto Board of Health suing Skelly and his business back in March, they don’t actually serve anything for several months.

February 1st, 2022: Michael Swinwood (Skelly’s lawyer), apparently still hasn’t properly prepared the paperwork to challenge the 2020 decision. He never made another attempt. At this point, the outstanding $15,000 is formally awarded against Skelly. Skelly wasn’t given the opportunity to defend himself personally at the hearing.

June 2nd, 2022: RBC wins a financially crippling default judgement against Adamson BBQ. However, it appears to be against the business itself, and not Adam personally.

June 17th, 2022: Another Application is brought (this time with Ian Perry as counsel) against the Ontario Government. It once again challenges the Reopening Ontario Act.

June 14th, 2023: Ontario files a Notice of Motion for security for costs. In these types of Motions, one side is concerned that another won’t (or can’t) meet its financial obligations. This is a way around that. Typically, this leads to money or property being given to the Court, pending the outcome of the dispute. Ontario argues that it’s necessary here.

June 28th, 2023: A $200,000 lawsuit for incompetence, negligence and malpractice is levied against Michael Swinwood, Skelly’s now “former” lawyer. It’s filed by Ian Perry.

August 11th, 2023: Ontario Government files Motion Record for security for costs Motion.

August 28th, 2023: Skelly files Responding Motion Record for security for costs Motion.

August 29th, 2023: Ontario Government files Factum for security for cost Motion.

September 6th, 2023: Reply Factum for security for costs Motion is filed.

September 8th, 2023: The hearing for the Motion for Security for costs takes place.

November 20th, 2023: Justice McAfee issues a $30,000 “security for costs” order against Adam Skelly. This means he’ll have to put up the money in advance, as a sort of “deposit” in order to continue the latest application.

October 1st, 2nd, 7th of 2024: The Challenge to the R.O.A. is scheduled to be heard.

Now, what was so wrong with the come-back Motion that Swinwood had filed back in 2021? Aside from naming the Parties incorrectly, there were issues with the relief sought. Justice Akbarali mentioned this in the June 2021 decision.

a. An order staying the within proceedings until the determination of the Notice of Constitutional Question, dated February 1, 2021;

b. A request for a further case conference to establish timelines for the production of materials leading to the determination of the constitutional challenge;

c. A suspension of the s. 9 order [Justice Kimmel’s order] due to the revocation of the EMCPA enunciated in s. 17 of the ROA;

d. Compensation for damages caused by the breaches of the Canadian Charter of Rights and Freedoms under s. 24(1) of the Charter;

e. Such further or other order as may be requested and the court deems just and proper.

But what’s missing here? Skelly’s lawyer isn’t asking that the original restraining order be varied or set aside (terminated). That was the entire point of the come-back Motion is the first place.

From the Ontario Factum:

5. The Respondents’ Notice of Motion does not seek any relief varying or setting aside the restraining order granted by this Court on December 4, 2020 under s. 9 of ROA. Nor does the Notice of Motion seek any declaratory relief. Neither does the Respondents’ Amended Amended Notice of Constitutional Question dated June 8, 2021 make any reference to varying or setting aside this Court’s order of December 4, 2020 or to declaratory relief.

6. The only substantive relief sought in this motion is “An Order for compensation for damages caused by the breaches of the Canadian Charter of Rights and Freedoms under Section 24(1) of the Charter.” This relief is not available, with the result that the motion must be dismissed.

7. First, damages are not available as relief on an interlocutory motion in an application. A claim for damages requires pleadings such as a statement of claim and a statement of defence. There are no pleadings in this proceeding, and the only originating process is the Crown’s Notice of Application. Moreover, there has been no notice as required by s. 18 of the Crown Liability and Proceedings Act, 2019. Failure to give the required statutory notice renders this motion a nullity.

37. As set out above at paras. 4-6, the only substantive relief sought in the Respondents’ Notice of Motion is an order “for compensation for damages caused by the breaches of the Canadian Charter of Rights and Freedoms under Section 24(1) of the Charter.” To the extent that the Respondents purport to seek other or additional relief in their factum, the Court should not entertain such claims.

38. Rule 37.06 provides that every Notice of Motion shall “state the precise relief sought” and “the grounds to be argued, including a reference to any statutory provision or rule to be relied on.” The Respondents’ Notice of Motion makes no reference to setting aside this Court’s order of December 4, 2020 or to any declaratory relief. Nor does it refer to any Rule or statutory provision apart from s. 24(1) of the Charter.

39. The purpose of Rule 37.06 is obvious. The Divisional Court has recently confirmed that it is an error of law to grant relief not sought in a Notice of Motion, that due process underlies Rule 37.06, and that “Parties should not have to guess, speculate or intuitively understand what the issues to be decided are on a motion. In an adversarial litigation system, it is imperative that the litigants are made clearly aware of the case they have to meet.” The Respondents should not be permitted to enlarge the legal issues or claim relief in their factum not sought in their Notice of Motion, particularly since the Respondents’ factum attempting to expand the issues was delivered after the evidence on the motion was adduced and the cross-examinations completed.

Justice Kimmel allowed a come-back Motion to be filed because it was anticipated that there would be significant challenges to the original order. Instead, there were requests for damages in the Notice of Motion. There’s also the issue that a Court can’t award damages on an intermittent (case is still ongoing) Motion.

Justice Kimmel permitted “Relief A”, and instead, Swinwood asked for “Relief B”.

How could Swinwood have screwed things up so badly?

And how come he never tried to fix it later?

Anyhow, more to come.

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

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

Action4Canada: 4 Years Later, No Legitimate Notice Of Civil Claim Filed

Yes, the Action4Canada case has been covered here before, but consider this:

It’s been nearly four (4) years since the group began fundraising, under the pretense that they were going to file a Court challenge in British Columbia. They started in the Summer of 2020, and it’s now the end of March 2024. Almost 4 years later, there’s still no valid case on file.

Despite repeatedly assuring the public that time was of the essence, every attempt has been made to ensure that it will never go forward. Probably the worst example was filing a Notice of Appeal back in September 2022, even though the Judge had granted permission to amend and refile.

It’s undeniable at this point, if it wasn’t obvious long ago. The Action4Canada case was never intended to go to Trial. It was a “placeholder” case, to give the illusion that something was being done. This was all while diverting money and energy away from other causes.

And it’s not as if the case was taken on a pro-bono (or “free”) basis. Donors have paid out hundreds of thousands of dollars for what they thought was a sincere anti-lockdown challenge. They’ve received nothing of value for their money. In the Spring of 2021 alone there was a $200,000 payment for legal services.

True, these people could be delusional, but it could just as easily be an act. It’s hard to imagine anyone this out of touch with reality being given control over an organization’s finances.

Yes, one could argue that there technically was a Claim filed a few years ago. But no sensible person who understands civil procedure takes this seriously. For a quick rundown:

(1) August, 2021: After nearly a year of stalling, Action4Canada files their Notice of Civil Claim, a.k.a. Statement of Claim. It’s 391 pages long, rambling, incoherent, and fails to follow the basics of Civil Procedure. This critique of it aged very well.

(2) August, 2022: The B.C. Supreme Court ruled that it was “bad beyond argument”, and drafted so poorly that it was impossible to respond to. Although leave (permission) was granted to amend, the Claim was never accepted as valid.

(3) February, 2023: The Law Society of B.C. put it in their training manual for new lawyers. This case is now a teaching exercise of “wholly inadequate pleadings”, and how to avoid them. See page 15. That’s right, the LSBC is using it to train new lawyers on how not to draft lawsuits.

(4) February 2024: The Law Society of B.C. puts out its newest version of their training manual for new lawyers, and the Action4Canada case is still in there. Even a year later, they still view it as teaching material. It wasn’t just a one-off.

(5) February, 2024: The B.C. Court of Appeal ruled that the original Claim wasn’t drafted in accordance with the Rules of Civil Procedure. It was too long, confusing, and difficult to follow. They didn’t address the litany of other errors contained within. The lawyer also apparently didn’t understand that you can appeal the Order, but not the Reasons.

This so-called challenge has been smacked down by the:
(a) British Columbia Supreme Court
(b) British Columbia Court of Appeal
(c) Law Society of British Columbia

And it wasn’t over some minor or technical defect or deficiency. This suit has become the laughing stock of the legal profession because it has been so absurdly handled.

More than a month after the BCCA ruling, there’s still no amended NOCC filed. There obviously is no urgency whatsoever to get anything done.

Let’s not forget that both Vaccine Choice cases, from 2019 and 2020, have been allowed to sit idly for years. No rush here either to advance those.

Fundraising started 4 years ago, and still no legitimate Claim from Action4Canada.

If there really was all this expert evidence and testimony ready to go, why mess around with incoherent and unintelligible pleadings? Why unnecessarily complicate things if all of these witnesses were set? It makes no sense whatsoever. Why delay things for years like this?

Even if a well written Notice of Claim were filed tomorrow (unlikely as that is), the Statute of Limitations would be a serious issue. Any new claims would be barred if they happened over 2 years earlier. And since most of the current NOCC is irrelevant or outside the jurisdiction of a Civil Court, there isn’t much left to go on.

What was the plan, to let Bonnie Henry just die of old age?

All that they’ve done is deliberately waste time and money. As of late, they smear their critics as “paid agitators”. Strange how it’s apparently not defamation when they suggest others are controlled opposition.

Remember to donate!

LAW SOCIETY OF BRITISH COLUMBIA:
(1) BCLS Civil Instruction Manual 2023
(2) BCLS Civil Instruction Manual 2024
(3) https://www.lawsociety.bc.ca/becoming-a-lawyer-in-bc/admission-program/professional-legal-training-course/
(4) https://www.lawsociety.bc.ca/becoming-a-lawyer-in-bc/admission-program/professional-legal-training-course/faq-pltc/

ACTION4CANADA APPEAL DOCUMENTS:
(1) A4C Notice Of Appeal September 28 2022
(2) A4C Appeal – Notice Of Appearance – VIHA
(3) A4C Appeal – Notice Of Appearance – BC Defendants
(4) A4C Appeal – Notice Of Appearance – Attorney General of Canada
(5) A4C Appeal – Notice Of Appearance – Peter Kwok, Translink
(6) A4C Appeal – Notice Of Appearance – BC Ferries, Brittney Sylvester
(7) A4C Appeal – Appeal Book – Appellant
(8) A4C Appeal – Appeal Book – Respondent VIH And PHC
(9) A4C Appeal – Appeal Record – Stand Alone Respondents VIHA
(10) A4C Appeal – Appeal Record – Stand Alone
(11) A4C Appeal – Factum – Appellant
(12) A4C Appeal – Factum – Respondent Attorney General Of Canada
(13) A4C Appeal – Factum – Respondent BC Ferries and Brittney Sylvester
(14) A4C Appeal – Factum – Respondent HMK -Provincial Defendants
(15) A4C Appeal – Factum – Respondent Peter Kwok and Translink
(16) A4C Appeal – Factum – Respondent VIHA and Providence Health
(17) A4C Appeal – Consent Order – Factum, Time Limits
(18) A4C Appeal – Change In Representation – BC Defendants
(19) A4C Appeal – Notice Of Hearing February 2024
(20) CanLII Decision In Action4Canada Appeal

ACTION4CANADA BCSC DOCUMENTS:
(1) A4C BCSC – Notice Of Civil Claim
(2) A4C BCSC – Response to Civil Claim (Health Authority Defendants)
(3) A4C BCSC – Response to Civil Claim (Provincial Defendants)
(4) A4C BCSC – Affidavit No 1 of Rebecca Hill
(5) A4C BCSC – Notice of Application (AG and RCMP applies to strike)
(6) A4C BCSC – Notice of Application (Provincial Defendants applies to strike)
(7) A4C BCSC – Notice of Application (Translink applies to strike)
(8) A4C BCSC – Application Response (Health Authority Defendants consent to strike)
(9) A4C BCSC – Application Response (BC Ferries consents to strike)
(10) A4C BCSC – Application Response (AG and RCMP consent to Prov. strike application)
(11) A4C BCSC – Application Response (Translink consents to HA Defendants strike application)
(12) A4C BCSC – Application Response (Translink consents to Prov. strike application)
(13) A4C BCSC – Affidavit No 2 of Rebecca Hill
(14) A4C BCSC – Application Record (to strike)
(15) A4C BCSC – Application Response (all plaintiffs)
(16) A4C BCSC – Amended Application Response (all plaintiffs)
(17) A4C BCSC – Transcript Application To Strike
(18) A4C BCSC – Reasons For Striking NOCC In Its Entirety
(19) A4C BCSC – Order striking pleadings
(20) A4C BCSC – Order striking pleading in its entirety with costs payable forthwith
(21) A4C BCSC – Appointment to assess bill of costs for Kwok and Translink
(22) A4C BCSC – Notice of Discontinuance (Kimberly Woolman & Estate of Jaqueline Woolman)
(23) A4C BCSC – Notice of Discontinuance (Amy Muranetz)
(24) A4C BCSC – Notice of Discontinuance (Federico Fuoco & Fire Productions Ltd.)

OTHER:
(1) https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1507/2022bcsc1507.html
(2) https://www.lawsociety.bc.ca/Website/media/Shared/docs/becoming/material/civil.pdf
(3) https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/168_2009_01#rule3-1
(4) https://justice.gov.bc.ca/cso/index.do
(5) https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/120_2022a#division_d0e3656
(6) https://www.canlii.org/en/bc/bcca/doc/2022/2022bcca450/2022bcca450.html#par10

ACTION4CANADA FINANCIAL DOCS:
(A) A4C Docs Profits And Losses 2021-2022
(B) A4C Docs Balance Sheet 2021-2022
(C) A4C-Docs-General-Ledger-2021-2022

“Posties” Injection Pass Case Thrown Out For Lack Of Jurisdiction, Shoddy Pleading

The Federal Court has just thrown out a lawsuit from various Canada Post workers, which challenged the 2021 “injection mandates”. This was a change to the job requirements that applied to everyone. The union eventually forced the matter to arbitration, which the workers lost. See the archives here and here for more information.

The Claim originally had 281 Plaintiffs, but 132 of them discontinued prior to the Motion to Strike being heard. That was nearly half of them.

Like most (or all) Government workers and/or unionized workplaces, there are collective bargaining agreements. These agreements allow for grievances to be filed, and that can lead to arbitration. They typically don’t allow for litigation. Canada Post is one such employer.

Now, if the arbitration process was unfair or corrupted, in theory the workers could have gone to the Court and asked for a review. This would be analogous to filing an Appeal. If serious errors were found, the case could be sent back for a new hearing.

Instead, a few hundred of them ended up suing Canada Post, and the Federal Government. They found a lawyer who apparently convinced them that the the arbitration requirement (and result) didn’t matter. And quite predictably, the case was thrown out for lack of jurisdiction.

The lawsuit had many problems, some of which were fatal.

  • Going to Court when collective agreements require other alternatives
  • Suing after arbitration is already completed
  • Not properly pleading facts and particulars
  • Having a Claim that’s difficult to follow
  • Not understanding jurisdiction of Crown Corporations

Surprisingly, this didn’t come from “Mr. Bad Beyond Argument”. It was from a firm called Grey Wowk Spencer, and its lawyer, Leighton Grey.

In fairness, the Claim was written a lot more clearly than what usually gets critiqued here. The pleading was (mostly) coherent, and it wasn’t that difficult to follow along.

However, there were still serious errors throughout the litigation process. These were the kinds of mistakes that senior lawyers should never be making. In matters such as these, no one’s work is above criticism.

Timeline Of Major Events In Case

It’s important to remember that this didn’t start with a lawsuit. It began with grievances and then arbitration. This matters as it relates to the lack of jurisdiction of the Federal Court.

September 2021: Canada Post announces that it will change the “vaccination” policy, requiring that all employees (and new hires) take the shots in order to be employed. It’s to take effect on November 26th, 2021.

October 26th, 2021 mandatory injection policy is formally approved.

November 15th, 2021: CUPW, Canadian Union of Postal Workers, files grievance against Canada Post’s new policy of requiring the injections in order to stay employed.

January 18th, 2022: Arbitration hearing is held over Canada Post’s policy requiring the injections of all employees. There would be several sessions over the coming months.

January 24th, 2022: Canada Post’s lawyer serves some 700 pages of material related to the arbitration hearings.

February 12th, 2022: Hearing date for arbitration related to Canada Post. Colin Furness, who works for the University of Toronto, testifies.

March 21st, 2022: Hearing date for arbitration related to Canada Post.

March 22nd, 2022: Hearing date for arbitration related to Canada Post.

April 5th, 2022: Final arguments were to be held for arbitration process.

April 27th, 2022: Arbitrator dismisses the grievance against Canada Post, saying that the injection requirement is “reasonable”.

Note: the following information is posted on the Federal Court of Canada website. These steps are from their notes on how things have been progressing. This lawsuit came AFTER arbitration had taken place. Instead of challenging the validity or fairness of the arbitration, it acts as though it never happened.

July 12th, 2022: Statement of Claim is filed with the Federal Court. It names: (a) Canada Post Corporation; (b) Her Majesty the Queen, as Elizabeth was Queen at the time; and (c) Attorney General of Canada.

July 18th, 2022: A Notice of Intention to Respond is filed.

November 3rd, 2022: Defendants send correspondence asking for case management, and to suspend normal timelines to file a Defence.

November 23rd, 2022: Associate Judge Catherine A. Coughlan is assigned to manage the case.

January 16th, 2023: Plaintiffs provide letter for dates for case management conference.

April 6th, 2023: Case conference is delayed until May 31st.

May 31st, 2023: Plaintiffs directed to file Amended Statement of Claim by June 15th.

June 19th, 2023: Plaintiffs file Amended Statement of Claim.

July 7th, 2023: Dates are set down for Defendants’ Motions to Strike (throw out the case), and the following deadlines were established. Worth mentioning, these kinds of Motions are done in many steps.

  • August 18th: Defendants serve (but not file) Notice of Motion, and any Affidavit evidence
  • September 15th: Plaintiffs serve (but not file) any Affidavit evidence
  • October 27th: Any cross-examinations on Affidavits is to have finished. This is similar to a Court setting, where a person gets asked about evidence that they submit. Failure to attend means evidence won’t be considered.
  • November 17th: Moving Party Defendants are to submit their Motion Records, which is a collection of documents. In Federal Court, it also includes the written arguments, or submissions
  • December 8th: Responding Plaintiffs to serve and file their Motion Record(s)
  • January 23rd-25th, 2024: Court to hear the Motions

July 10th, 2023: Lawyer for Canada Post contacts the Court and advises a lack of availability for the week in January when the hearing is to take place.

September 5, 2023: Even more Plaintiffs discontinue, or voluntarily leave the case. It worth mentioning that the Court history is filled with various Plaintiffs discontinuing. This is especially prevalent after the Motion to Strike is set out. Seems they realize that their case will go nowhere.

March 4th, 2024: Motions are eventually heard.

March 13th, 2024: Court releases reasons for striking the case.

March 15th, 2024: Order striking case is officially issued.

It’s disappointing that neither the lawsuit nor the grievance really challenged the pseudo-science that was going on here. Instead, it’s limited to worker rights, and the declarations of “the experts”.

Now we get to some of the problems that the case had. To be blunt, it was a gong-show, and was never going to reach Trial. And to be frank, NONE of these issues are new or novel. They’ve all been dealt with many times before.

Problems include:

Court Has No Jurisdiction Due To Collective Bargaining Agreement

CUPW is covered by their collective bargaining agreement. See archive. Article 9 is very long, and goes into depth about the grievance process. If disputes cannot be resolved, then the normal course is to go to arbitration. And in fact, that’s exactly what happened here.

Article 9.99 covers “declaratory relief”, which is something that so-called constitutional lawyers almost always try to claim. In fact, it’s claimed in this case. The Arbitrator is given wide range to adjudicate over nearly type of employment dispute.

But instead of challenging the fairness or adequacy of the hearings (i.e. review or appeal), the lawsuit acts as if they never happened. Consequently, this case was doomed to fail.

Federal Court Has No Jurisdiction Over Crown Corporations

[47] As noted at the outset of these Reasons, Canada Post advances two distinct arguments asserting this Court has no jurisdiction to entertain the Claim.

[48] First, it argues that as a Crown Corporation, the Federal Court lacks jurisdiction over Canada Post pursuant to sections 17(1), 17(2) and 17(5) of the FCA. Citing the oft-quoted decision in ITO-Int’l Terminal Operators v Miida Electronics, [1986] 1 SCR 752 (SCC), Canada Post argues that none of the three-part test for jurisdiction is met: There is no statutory grant of jurisdiction by the Federal Parliament; there is no existing body of federal law which is essential to the disposition of the case and which nourishes a statutory grant of jurisdiction; and this is not a case based on the “law of Canada” under section 101 of the Constitution Act, 1867.

[49] Further, Canada Post relies on the recent decision of Associate Judge Horne in Van Sluytman v Canada, 2022 FC 545 at para 56, for the proposition that section 17 of the FCA only applies to the Crown, eo nomine (by its name), and not to statutory corporations acting as agent for the Crown: Committee for Monetary and Economic Reform v Canada, 2014 FC 380 at paras 87-88; affirmed 2015 FCA 20.

[50] In its responding memorandum of fact and law, the Plaintiffs do not address this argument
directly
. Rather, they assert that the Federal Government acting under statutory and constitutional
law effectively controls Canada Post. To bolster their position, they point to section 91(5) of the Constitution Act where the Government of Canada has exclusive authority over postal services. Any arguments that suggest that Canada Post is not an agent of the Federal Government, the Plaintiffs say, amounts to “legal sophistry”.

The requirement to go through the grievance process was addressed in the previous section, but it’s not the only problem that the former workers have to deal with.

Apparently, it’s been settled law for many years that the Federal Court doesn’t have jurisdiction to preside over cases involving Crown Corporations. This applies even though Ottawa does hand down some rules relating to how they can operate.

Of course, even if Canada Post were part of the Federal Government, there still wouldn’t be jurisdiction to sue. Sections 208 and 236 of the FPSLRA, Federal Public Sector Labour Relations Act, allow employees to grieve but not to litigate. In other words, the Court would still lack jurisdiction.

By the way, Committee for Monetary and Economic Reform v Canada (a.k.a. COMER, or the Bank of Canada case), was struck for lack of jurisdiction. It was also struck multiple times for failing to state a cause of action, by “Mr. Bad Beyond Argument”.

The Attorney General of Canada was removed since the directive to mandate injections only went to the Federal Government, not to Crown Corporations. The case against Canada was also struck. However, this comes across as unfair, since Canada Post still implemented the policy anyways.

Statement Of Claim So Poorly Written Many Would Be Blushing

[Paragraph 1] f. A Declaration pursuant to section 217, 217.1 & 219(1) of the Criminal Code, 1985, that the Canada Post Corporation mandatory vaccination practice for covid-19 violates sections 124 & 125 of the Canada Labour Code, specifically sections (q),(s),(w) and (y), wherein the corporation demonstrated criminal negligence causing harm by not providing their employees the necessary “Informed Consent” regarding any of the potential adverse effects or dangers associated with the vaccines they provided their employees as options.

g. A Declaration pursuant to section 217, 217.1 & 219(1) of the Criminal Code, 1985, that the Canada Post Corporation violated sections 124, 125 of the Canada Labour Code, specifically sections z.03, z.04, z.05, z.06, z.11, z.13 & z.19, by failing to capture within each of the national safety minutes, any discussion to either educate, review, or document any of the potential hazards or dangers associated with their vaccination options on any of the national collective bargaining agencies that operate under Canada Post.

h. A Declaration pursuant to section 217, 217.1 & 219(1) of the Criminal Code, 1985, that the Canada Post Corporation violated sections 124, 125 of the Canada Labour Code, specifically sections (t), (v), (w) & (z), by implementing several different covid 19 vaccines as personal protective equipment in the work place. Not only failing to provide their employees with the knowledge and understanding necessary to properly use the corporation’s newly implemented personal protective equipment, the corporation also failed to ensure that said personal protective equipment be deemed safe under “…ALL conditions of their intended use.”

i. A Declaration pursuant to section 217, 217.1 & 219 of the Criminal Code, 1985, that the Canada Post Corporation violated section 127.1(1) & 128 of the Canada Labour Code, by refusing to properly investigate thousands of employee health and safety concerns regarding the vaccine products mandated for use by the Canada Post Corporation, instead, deeming the employees as “non-compliant” in the process by placing them on leave without pay status.

j. A Declaration pursuant to section 217, 217.1 & 219 of the Criminal Code, 1985, that the Canada Post Corporation violated all applicable clauses – (a) through (g) – within section 125.1 of the Canada Labour Code, by failing to review, document and disclose to their employees, the proprietary ingredients recognized as known dangerous goods contained within the vaccines that they were assigning their employees as personal protective equipment, and, by failing to inform their employees of the potential direct exposure to ethylene oxide as it pertains to the nasopharyngeal swabs used at Canada Post rapid testing sites, their employee home testing kits and when requiring their employees to confirm their positive or negative covid status by means of their mandatory PCR test process.

m. A Declaration pursuant to section 265.(1) of the Criminal Code, 1985, that the Canada Post Corporation mandatory vaccination practice for covid-19 violated section 122.(1) & 122.1 of the Canada Labour Code, by not only subjecting their employees to confusing and ineffective work place processes and expectations in relation to their covid 19 protocols, but also by subjecting their unvaccinated employees to regular psychological violence in the form of coercion or ridicule from their peers and management representatives at Canada Post.

n. Damages for violation of the Plaintiffs’ rights pursuant to sections 2, 122, 124, 125, 125.1, 127.1(1), and 128 of the Canada Labour Code as well as section 217(1) of the Criminal Code, in the amount of $500,000.00 per Plaintiff;

This is the kind of nonsense that “Mr. Bad Beyond Argument” is famous for. Here, Grey asks for all kinds of declaratory relief that the Federal Court can’t possibly grant. He’s asking a civil Court to provide criminal remedies. For obvious reasons, there’s no jurisdiction. And it’s not just a brief mention, but is in there many times.

Thankfully, the Amended Statement of Claim removes all of these. However, the fact that they were in at all shows that this lawyer has a very poor grasp of procedure. Did he not read the Action4Canada or Adelberg cases? In both cases, the Judges said that this was improper.

And these weren’t the only problems.

k. A Declaration pursuant to section 3(1) of the Genetic Non-Discrimination Act, 2017, that the Canada Post Corporation Defendants violated clause (b) specifically, by requiring them the Plaintiffs to undergo PCR testing that sampled RNA genetic material (covid-19 virus) to continue their employment at Canada Post, as per the corporation’s Defendants’ mandatory vaccination practice.

Many people cite this Act, but few know what it’s really about.

The intended use of the legislation was to ensure that people with various birth defects wouldn’t be subjected to discrimination. It could also be extended to cover race and ethnicity, which are genetic. It wasn’t designed to mean various “medical” procedures.

This was also removed from the original Claim.

Facts (Rule 174) And Particulars (Rule 181) Need To Be Pleaded

The Federal Courts Rules lay out how procedure is supposed to take place in the Court. It’s complimented by the Federal Courts Act. Together, these outline how things are done.

One of the problems with having so many Plaintiffs is that it becomes difficult to plead facts for each one. And in this case, there are no specific facts for anyone. No one is named.

At paragraphs 41 and 42 of the decision, it’s noted that it isn’t clear at all which of the Plaintiffs are even invoking religious belief as a reason to refuse the injections.

At paragraph 44 of the Amended Claim, it’s stated that the “Practice provides for accommodation, “due to a medical, religious or other prohibited ground of discrimination under the Canadian Act.” However, it’s never listed which Plaintiffs are invoking which exemption. In theory, the Claim could be rewritten like this:

Group “A” Plaintiffs refused based on religious beliefs (and list them)
Group “B” Plaintiffs refused based on medical beliefs (and list them)
Group “C” Plaintiffs refused based on conscientious objection (and spell it out)
Group “D” Plaintiffs refused based on other reasons (and list them)

Yes, the Statement of Claim would be much longer, but it least it would be clear who was refusing for what reason. In its current form, the Judge is left to guess. And it continues under “Charter violations”.

Paragraph 88: freedom of conscience under Charter s.2(a) breached
Paragraph 89: freedom of religion under Charter s.2(a) breached
Paragraph 90: right to life under Charter s.7 breached
Paragraph 91: right to liberty under Charter s.7 breached
Paragraph 92: right to security of the person under Charter s.7 breached
Paragraph 93: right to privacy of the person under Charter s.7, 8 breached
Paragraph 94: right to equality under Charter s.15 breached

While all of the “standard” Charter violations are listed, it’s unclear who is invoking which. While there will certainly be a lot of overlap, this needs to be spelled out.

There are several other torts later on, none of them properly pleaded.

Paragraph 100: tortious interference with economic relations
Paragraph 101: intention infliction of mental suffering
Paragraph 102-105: assault and battery
Paragraph 106-107: human rights violations
Paragraph 108-118: Charter violation damages, aggravated, punitive, bad faith

Yes, it’s true that the facts are to be assumed true — or at least capable of being proven — in the initial stages. But there aren’t any facts pled. There are just brief accusations, without specifics, and it’s unclear who is even alleging what. Here, it just seems like the lawyer threw in every tort he could think of, in the hopes that something would stick.

Granted, this isn’t nearly as bad as the Action4Canada or Vaccine Choice Canada pleadings. That would require real effort. But like those cases, there isn’t enough information to respond to.

And to be fair, at least this case doesn’t sue everyone in sight, exponentially driving up costs. Many others do, to their clients’ detriment.

When pleading facts, lawyers are supposed to spell out the who, what, where, when, how, etc… This is to provide enough concrete information for the Defendants to respond to. But like so many cases, there are just accusations without the detail, and they’re typically struck.

Now, if it were just the poor pleading, the Judge could have allowed the Claim to be rewritten. This often happens. In paragraph 15, it’s stated “If a pleading shows a scintilla of a cause of action, it will not be struck out if it can be cured by amendment”. It then goes on to cite Al Omani v Canada, 2017 (one of Mr. Bad Beyond Argument’s cases, which was struck).

However, since there was never any jurisdiction in Federal Court, no amount of editing would fix this problem. There are some things which editing and proofreading will never solve.

Will the lawyers be issuing refund cheques? Seems doubtful.

Note: Of course, this isn’t to justify in any way what has been happening over the last few years. All of it was uncalled for and harmful. This critique is just to outline what went wrong for the “Posties”. Do not interpret it as any sort of justification for Government tyranny.

ARBITRATION:
(1) https://www.cupw.ca/sites/default/files/urb-ja-31-2022-ca-en.pdf
(2) Canada Post Collective Bargaining Agreement 2022
(3) Canada Post Arbitration update, February 2022 (removed)
(4) Wayback Machine Archive
(5) CUPW On Some Updates On Arbitration
(6) Wayback Machine Archive On Arbitration Updates
(7) https://www.cupw.ca/en/last-days-arbitration-vaccination-practice-grievance
(8) Wayback Machine Archive Of April 1st, 2022 Update
(9) https://www.cupw.ca/en/arbitrator-dismisses-grievance-against-canada-post%E2%80%99s-mandatory-vaccination-practice
(10) Arbitration Decision (Removed)
(11) Canada Post Arbitration Ruling, Full Text
(12) Wayback Machine Archive Of Arbitration Decision
(13) https://www.fct-cf.gc.ca/en/court-files-and-decisions/court-files#cont

LITIGATION:
(1) Canada Post Statement Of Claim July 2022
(2) Canada Post Amended Statement Of Claim June 7 2023
(3) Canada Post Order Timetable July 2023
(4) Canada Post Defendants Motion Record October 2023
(5) Canada Post Decision Striking Amended Pleading
(6) Canada Post Notice Of Change Of Solicitor November 2024
(7) Canada Post Affidavit of Karine Solakian November 2024
(8) Canada Post Notice Of Motion November 2024

OTHER LAWS AND DECISIONS
(1) https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1507/2022bcsc1507.html#par52
(2) https://www.canlii.org/en/ca/fct/doc/2023/2023fc252/2023fc252.html#par51
(3) https://www.canlii.org/en/ca/fca/doc/2015/2015fca20/2015fca20.html
(4) https://www.canlii.org/en/ca/fct/doc/2017/2017fc786/2017fc786.html#par32
(5) https://laws-lois.justice.gc.ca/eng/regulations/sor-98-106/index.html
(6) https://laws-lois.justice.gc.ca/eng/acts/F-7/FullText.html
(7) https://laws-lois.justice.gc.ca/eng/acts/P-33.3/

Ontario First Responders Case To Be Discontinued After Bait-And-Switch Fails

A year ago, a $125 million lawsuit was filed in Ontario against various employers whom had forced people out of their jobs. This stemmed from the Fall 2021 injection mandates across Canadian Provinces and elsewhere. It made headlines across Canadian media outlets.

Interestingly, the case wasn’t filed until March 2023, nearly 18 months after the mandates came into effect. Clearly, this wasn’t urgent at all. And when it eventually was filed, it sat dormant for another year. This gem came from “Mr. Bad Beyond Argument”, and was written in an incomprehensible and unintelligible manner.

Keep in mind, Section 4 of the Ontario Limitations Act sets the time limit (for most things) at 2 years. Since so much time has elapsed, there will be no second opportunity. If this case falls through, that’s it.

Of course, this case never stood a chance. See the previous review on it. There were a litany of basic errors made that ensured it. These include:

  1. Recycling Statement of Claim from earlier struck cases
  2. Including content in a CIVIL Claim for which there’s no jurisdiction
  3. Drafting the Claim in a way that’s incoherent and incomprehensible
  4. Involving union/Government workers who are barred by arbitration requirements
  5. Unnecessary delay, causing issues with the Statute of Limitations
  6. Suing a needless amount of people, driving up costs

It’s this last point that’s of particular interest in this development.

Original retainer was $1,500 each Plaintiff, to cover all

According to the retainer agreement that’s freely available, each of the Plaintiffs would be expected to pay $1,500. While this sounds low, keep in mind that there were supposed to be 100 or more litigants. This would put the total at around $150,000.

That sounds like a reasonable amount, if the case were ever to get to Trial. However, this one never would, for a variety of reasons.

What kind of idiot sues this many unrelated parties?

Twenty (20) different towns, cities and municipalities are being sued. Each is run independently, and presumably, each will end up getting their own lawyer. And this should be obvious, but lawyers are expensive. Even poor and incompetent ones want lots of money.

Considering that the injection mandates were a Provincial dictate, the Plaintiffs could have sued the Ontario Government, and left it at that. However, the moron who compiled this case decided to sue everyone under the sun, even when Plaintiffs had no connection.

  1. HIS MAJESITY THE KING
  2. Solicitor General of Ontario
  3. Town of Ajax
  4. Town of Ajax Fire Department (Fire Chief Aaron Burridge) City of Cambridge
  5. City of Cambridge Fire Department (Fire Chief Brian Arnold)
  6. City of Greater Sudbury
  7. City of Guelph, City of Guelph Fire Department (Fire Chief Dave Elloway)
  8. City of Hamilton
  9. City of Hamilton Police
  10. City of Hamilton Police Chief (Frank Bergen)
  11. City of Hamilton Fire Department (Fire Chief David Cunliffe)
  12. City of Markham
  13. City of Markham Fire Department (Fire Chief Adam J. Grant)
  14. City of Mississauga
  15. City of Mississauga Fire Department (Fire Chief Deryn Rizzi)
  16. City of Ottawa
  17. City of Ottawa Police
  18. City of Ottawa Police Chief (Eric Stubbs)
  19. City of Ottawa Fire Department (Fire Chief Paul Hutt)
  20. City of Pickering
  21. City of Pickering Fire Department (Fire Chief Steve Boyd)
  22. City of Toronto
  23. City of Toronto Police
  24. City of Toronto Chief of Police (James Ramer)
  25. City of Toronto Fire Service (Fire Chief Matthew Pegg)
  26. Toronto District School Board
  27. Toronto Transit Commission
  28. Toronto Transit Commission Chair (Jon Burnside)
  29. City of Windsor
  30. City of Windsor Fire Department (Fire Chief Stephen Laforet)
  31. Town of Orangeville
  32. City of St. Catharines
  33. Regional Municipality of Durham
  34. York Region
  35. York Regional Police
  36. York Regional Police Chief (Jim MacSween)
  37. City of Niagara Falls
  38. Niagara Regional Police
  39. Niagara Regional Police Chief (Bryan MacCulloch)
  40. Town of Oakville
  41. Town of Oakville Fire Department (Fire Chief Paul Boissonneault)
  42. Peel Region
  43. Peel Regional Police
  44. Peel Regional Police Chief (Nishan Duraiappah)
  45. Town of Whitby
  46. Town of Whitby Fire Department (Fire Chief Mike Hickey)
  47. Municipality of Leamington

It would be one thing if lawsuit named several officials in a Federal or Provincial Government. They’d all be lumped together, and likely represented together. But here, completely different towns and cities are being sued, some on behalf of a single Plaintiff. This is not a good approach.

There’s also the significant issue that it’s not clear who many of the parties are. Given how poorly worded it is, this can be left open to interpretation.

Take Ottawa, for example. The lawsuit names: (a) City of Ottawa; (b) City of Ottawa Police; and (c) City of Ottawa Police Chief (Eric Stubbs). This is clearly talking about 3 different parties.

However, others like Oakville list: (a) Town of Oakville; and (b) Town of Oakville Fire Department (Fire Chief Paul Boissonneault). It’s not clear if the Fire Department itself if being named, or whether Fire Chief Paul Boissonneault is, and it’s just listing his title.

Similarly with “City of Pickering Fire Department (Fire Chief Steve Boyd)”, and “City of Windsor Fire Department (Fire Chief Stephen Laforet)”, are the Fire Departments themselves being named, or the actual Chiefs? There are several of these instances where it’s not clear who is being named.

On the subject of not knowing who people are: the lawsuit includes several “John Does”. This is complete nonsense. If a person is going to Court asking for money, they need to identify themselves. This is repeated from the Vaccine Choice Canada, Action4Canada, and Adelberg cases.

In short, dozens of separate potential lawsuits were joined into one. Since each jurisdiction ended up getting their own counsel, costs would inevitably skyrocket. And it led to this:

Another $4,500 from each, $450,000 in total to cover costs

November 24, 2023, this letter was sent to the Plaintiffs, demanding another $4,500 each, or else the case would be discontinued. In other words, their lawyer was threatening to pull the plug unless more money was handed over.

According to the letter, there were already 22 different lawyers on retainer for the various Defendants. It’s fair to assume that each would be asking for costs if they were able to get the case thrown out. Courts typically do award costs to successful parties.

$1,500 each became $6,000 really fast.

This is the bait-and-switch that was pulled on the Plaintiffs.

Because there were so many Defendants sued, and now so many lawyers, there would likely be dozens of Motions to Strike (or for Summary Judgement). It’s entirely possible that the total cost award — when the case was thrown out — would amount to thousands of dollars against each Plaintiff. Supposedly this extra half million (or so) would be put in trust to pay off the anticipated cost awards.

Not only that, the lawyer handling the file never tried to defend it. Instead, he held their case hostage, quadrupling the original price. Of course, the the lawsuit would still have been tossed anyway. Given the fact that the Plaintiffs were Government and/or unionized workers, they’d have no jurisdiction to sue in Court. Even without that, the Claim would, in any event, have to be rewritten in a coherent manner.

The letter cites a January 24th, 2024 case conference, to set dates for a Summary Judgement Motion. Presumably, the Defendants want the case thrown out for lack of jurisdiction. Remember, employees of unionized workplaces typically have the right to grieve and to arbitrate, but not to litigate.

For reference: the January 24th hearing did happen, but it was adjourned indefinitely. As of now, there are currently no dates set for anything.

There is an alternate theory on why this demand letter came. Given that the Ontario First Responders Claim is essentially a cut-and-paste of the Adelberg (Federal) case, it’s entirely possible that the lawyer himself would have been personally on the hook. He just recycles his Claims, makes cosmetic changes, and refiles them.

A deadline of December 17th, 2023 was given to vote. According to a source within, the group voted on whether or not to pay the extra money. The answer was overwhelmingly “no”. This meant they weren’t willing to give in to blackmail.

If a Notice of Discontinuance is filed, it amounts to dropping the case. And given how much time has passed, none of the litigants will be able to seek further recourse.

It seems unlikely that any refunds will be issued, regardless of what a dumpster fire this suit was from the beginning.

Statement of Claim didn’t follow Rules of Civil Procedure anyway

The Action4Canada, Vaccine Choice Canada and Adelberg (Federal) cases were all critiqued a long time ago. None of these Statement of Claims, all drafted by the same person, followed the basics of Civil Procedure. Whether in British Columbia, Ontario, or the Federal Court, there are certain minimum standards everyone needs to meet.

The documents were so incoherent, that even a person without a background in law could see that there would be serious problems.

Action4Canada and Adelberg were both struck as “bad beyond argument”. These were in August 2022 and February 2023, respectively. This was before the First Responders case was filed.

Adelberg had the additional problem that most of the Plaintiffs were barred from suing because of legislation that mandated a grievance process. Again, that ruling came out before this one was filed.

It was reported in January 2023 that the Police On Guard and Children’s Health Defense (Canada) cases had been dormant since their initial filings nearly 2 years before. Again, this was before the First Responders case. How many warning signs are needed?

$150,000 was thrown away on a case designed to go nowhere. None of the Plaintiffs will ever get their day in Court over this. What a waste.

A comment about the group that organized this case, Take Action Canada:

Over 2 years later, this nonsense is still posted their website. They actually gloat about this site getting sued for warning about the dangers of these scam lawsuits. Sandra Sable, who apparently runs T.A.C., even gave an Affidavit in support of a similar intimidation lawsuit against CSASPP and their leadership. She complains that the criticism of other cases — like A4C/VCC — led to potential Plaintiffs dropping out en masse. Apparently, it caused her endless headaches, and threatened the viability of the suit itself, which is probably true. In other words, Sable was fully aware of what she was signing onto, and did it anyway.

The irony: if Sable and T.A.C. had taken these warnings to heart, Plaintiffs in the First Responders case wouldn’t have been taken advantage of like this. Plenty of former clients saw what was going on. But some people are immune to good advice.

Since the Plaintiffs were will never get justice for their cases, perhaps they can start filing malpractice lawsuits, and get the insurance money. Gill and Lamba have clearly learned how this works.

T.A.C. DOCUMENTS/LINKS TO LOOK AT
(1) https://takeactioncanada.ca/
(2) https://twitter.com/Takeactioncan
(3) Ontario EMS Retainer Agreement – $1,500 Each Plaintiff
(4) Ontario EMS Statement Of Claim
(5) Ontario EMS Amended Statement Of Claim
(6) Ontario EMS Requisition To Amend
(7) Ontario EMS Notice Of Intent To Defend
(8) Ontario EMS Demand For More Money

T.A.C. POSTS SURVEY ABOUT DISCONTINUING “FIRST RESPONDERS” LAWSUIT
(1) https://takeactioncanada.ca/tac911-legal-action-1st-responder-essential-workers-update-dec-survey/
(2) Take Action Canada — Legal Action 1st Responder Essential Workers Update Dec Survey
(3) Wayback Machine Archive
(4) https://canucklaw.ca/wp-content/uploads/Ontario-EMS-Demand-For-More-Money.pdf

MEDIA COVERING INITIAL FILING
(1) https://kitchener.ctvnews.ca/former-municipal-employees-launch-125m-lawsuit-over-vaccine-mandates-1.6298453
(2) https://www.insauga.com/ex-oakville-hamilton-municipal-workers-part-of-125m-lawsuit-filed-over-vaccine-mandates/
(3) https://www.baytoday.ca/local-news/126m-class-action-vaccine-mandate-lawsuit-launched-6656849
(4) https://www.therecord.com/news/waterloo-region/covid-19-lawsuit-seeks-125m-from-ontario-municipalities-including-cambridge-fire-department/article_f6ba19fb-7152-590d-9573-2fe81653efd5.html

Second Anti-SLAPP Motion Commenced In University Of Guelph Lawsuit

Wednesday, February 28th, 2024, Byram Bridle, the high profile professor from the University of Guelph, was back in Court. This was a short hearing to set down another anti-SLAPP Motion to dismiss his December 2022 lawsuit.

Guelph has previously filed a Statement of Defence, on behalf of all their Defendants. But now, their lawyer, Lynn Turnbell, is asking that the case be thrown out altogether. Their stated reason is that the contents of the Claim are covered under Section 137.1 of the Courts of Justice Act, which is the anti-SLAPP provision.

Guelph further states that the subject matter should be tossed for a lack of jurisdiction. Bridle is a university employee, as are most Defendants. It’s argued that the matter should have gone to arbitration instead of litigation. And they’re not wrong.

The initial anti-SLAPP Motion was filed by Kate Costin, the lawyer for David Fisman. Yes, it’s that David Fisman. It’s unclear why his content (Twitter related) is being connected to this. That will be heard on November 19th, 2024.

Counsel for Bridle requested that everything be moved back to 2025. He stated that he will be taking his annual 2 month vacation to Turkey — for medical reasons.

However, Justice Dow refused that request. The Fisman anti-SLAPP Motion will still be heard in November 2024, and the Guelph Motion is now booked for October 16th, 2025.

University of Guelph Faculty covered by collective agreements

The University of Guelph publicly posts their collective bargaining agreements, which include ones with faculty members. This particular one took only seconds to find.

Article 40 of the agreement, beginning on page 131, makes it clear the steps that are to be taken in the event of a serious problem within the university.

  • Informal resolution
  • Formal grievance
  • Arbitration

This wasn’t difficult to find. Not only does Bridle presumably have a copy of this document, but it’s publicly available on the school’s website.

True, there may be the power of a Court to review the findings of an Arbitrator, depending on the rules that are set out. This would be analogous to filing an Appeal. However, what happened here was suing in Court instead of going to arbitration. These are not the same thing.

40.1 The Parties agree to attempt to resolve disputes arising from this Agreement amicably and promptly.

40.2 In order to ensure that Grievances of Members are remedied in a reasonable, just, and equitable manner, the University and the Association mutually agree that the procedure for submitting and dealing with Grievances shall be as indicated in the remainder of this Article.

Informal Resolution
40.9 The University and the Association mutually agree that it is the desire of the Parties that differences in the interpretation, application, administration, and alleged violations of this Agreement shall be dealt with as quickly as is reasonably possible. If a Member has a complaint or dispute that may give rise to a Grievance, they and/or an Association designate shall first discuss the matter at a meeting arranged for this purpose with the Dean, University Librarian, or, in the case of Veterinarians, Director, or designate, within twenty (20) days after the Member would reasonably be expected to have become aware of the circumstances giving rise to the complaint or dispute.

40.11 Failing informal resolution of the complaint or dispute and within ten (10) days following receipt of notification of the proposed resolution under the informal process, the Association has the right to present the written Formal Grievance to the Provost, or designate, pursuant to this Article.

Formal Grievance Procedure
40.14 Following receipt of a Formal Grievance, the Provost, or designate shall convene a meeting within ten (10) days with the Member and/or the Association designate. With reasonable notice to the other Party prior to the meeting, either Party may have others attend who have information relevant to the specific Grievance. The Provost (or designate) shall reply in writing within fifteen (15) days of that meeting.

40.19 Failing resolution of a Grievance, the University or the Association will provide notification that a matter shall be submitted to Arbitration. Such notification must be made in writing and addressed to the other party within fifteen (15) days of the date of receipt of the Formal Grievance decision.

40.22 The decision of the Arbitrator shall be final and binding upon the Parties.

40.23 All arbitration expenses, including the remuneration of the Arbitrator, shall be shared equally by both Parties, subject to the award of costs by the Arbitrator as part of the remedy.

Looking at Article 40.22, it seems that the Arbitrator’s ruling is meant to be final. There’s no obvious way to challenge it further, unless the process is demonstrated to be corrupted. Since no arbitration took place, that would be difficult to prove.

The process outlined is pretty straightforward: (a) informal resolution; (b) formal grievance; and (c) arbitration, if needed. There’s no mention whatsoever about having an option to pursue litigation. This is typical in unionized and Government workplaces.

But according to the Statement of Claim, that’s not what happened.

After the grievance process went against Bridle, he didn’t pursue arbitration. Instead, he sued everyone involved. This included Nick Duley, and outside HR consultant, who was hired for an investigation. Also named is Laurie Arnott, Vice President of Faculty Relations. It’s alleged that there’s a grand conspiracy against him.

Paragraph 100, it’s stated that Guelph refused to investigate online harassment that happened outside of school grounds. It fell outside the scope of the collective bargaining agreement, and hence, no ability to do anything. This comes across as reasonable.

Paragraph 136 of the Claim says that Bridle refused to participate in Duley’s investigation, calling it a “kangaroo court”. Duley is referred to as a “hired gun”. That won’t sit well without proof.

The content in the Claim comes across as being so over the top, it’s difficult to determine what’s factual, and what’s overblown.

Now, it’s possible that the Court may find that the grievance process was corrupted and unworkable, but that’s for the Plaintiff to establish. This is sometimes referred to as “residual jurisdiction”. While a major conspiracy is alleged, it seems that it would be very difficult to prove.

Contending with the anti-SLAPP Motions

Fisman appears to have nothing to do with the University of Guelph, so including him in this case seems unproductive. Even if he did interact with some of the online content, he’s not involved in essentially what is a workplace dispute at Guelph. Considering how hard it is to prove defamation, and to get damages, this will be a tough sell in November.

The Kulvinder Gill/Ashinder Lamba, Boraks and CSASPP cases are also good examples of how much bad lawyering can impact clients.

Gill v. Maciver, 2022 ONSC 1279
Gill v. Maciver, 2022 ONSC 6169
Gill v. Maciver, 2023 ONCA 776
Boraks v. Hussen, 2023 ONSC 4294
Boraks v. Hussen, 2023 ONSC 6420
Galati v. Toews et al, 2023 ONSC 7508
Galati v. Toews et al, 2024 ONSC 935

There’s also this gem from March 2021, with a Motion scheduled for this Fall.

The trend in recent years is to implement mechanisms designed to screen out cases as abusive. For defamation type cases, these are called anti-SLAPP laws. SLAPP is of course an acronym for a strategic lawsuit against public participation.

Again, it’s hard to tell from this Statement of Claim what’s real, and what’s hype and distortion. Hopefully, more will come out in the pending Motions.

To survive an anti-SLAPP Motion, the Plaintiff is required to prove at least some of the damages. This means submitting Affidavit evidence, and being cross examined on it. The Plaintiff must also establish that there are no reasonable defences that could be relied upon. Will this happen?

How will all of this end?

It’s possible that there will be a negotiated settlement to discontinue the case entirely. Although s.137.1(5) “stays” the case, the parties can always agree to drop it. This sort of thing has happened many times before.

If not, it’s going to be very expensive for Bridle. He’s facing full indemnity (100% of costs) on 2 separate anti-SLAPP Motions. This could set him back $100,000 or more. Courts tend to be very harsh to Plaintiffs who bring lawsuits to silence public speech improperly.

An open question is why this case was even brought. Even a quick read through the collective bargaining agreement would have indicated that this was not the path to take. Should the Guelph Motion not succeed under anti-SLAPP provisions, it will likely still get dismissed due to lack of jurisdiction.

Reading through the Claim, it looks as though large parts of this are simply cut and pasted from earlier lawsuits. The same sorts of allegations come up over and over again. This isn’t original content.

It appears that Bridle was poorly advised both in employment law, and defamation law.

(1) https://www.ontario.ca/page/search-court-cases-online
(2) https://canucklaw.ca/wp-content/uploads/Byram-Bridle-Statement-Of-Claim.pdf
(3) https://canucklaw.ca/wp-content/uploads/Byram-Bridle-Statement-Of-Defence.pdf
(4) https://canucklaw.ca/byram-bridle-lawsuit-unlikely-to-ever-get-anywhere/
(5) https://www.uoguelph.ca/facultyrelations/collective-agreements
(6) https://www.uoguelph.ca/facultyrelations/system/files/UGFA_CA_2022_FinalPrint_Nov20_2023.pdf

Following Anti-SLAPP Appeal, Another $1.85 Million Malpractice Lawsuit In The Works?

Last Friday, a Notice of Action was filed with the Ontario Superior Court, at their Toronto Division. A woman intends to sue her former counsel, “Mr. Bad Beyond Argument”, for: (a) professional negligence; (b) breach of fiduciary duty and/or breach of contract in the amount; and (c) aggravated and/or punitive damages.

A Notice of Action is not the same thing as a Statement of Claim. Instead, this document is occasionally filed when a lawsuit is in the works, but the Statute of Limitations is approaching. Justice Stewart dismissed the Gill/Lamba suit on February 24, 2022, and this Notice was filed February 23, 2024. This came just a day before the 2 year anniversary.

Once filed, a Plaintiff has 30 days under Rule 14.03 to serve all Defendants with this Notice, and the Claim itself. (Pardon the error which previously listed the time as 6 months).

Jeff Saikaley and Albert Brunet are listed as counsel for Kulvinder Gill. They also represented her at the Court of Appeal which ultimately dismissed the Maciver anti-SLAPP Appeal.

What does the Notice of Action say?

1. The Plaintiff, Dr. Kulvinder Gill, claims against the Defendants, Rocco Galati and Rocco Galati Law Firm Professional Corporation as follows:
a. General and special damages for professional negligence, breach of fiduciary duty and/or breach of contract in the amount of $1,500,000;
b. General damages for pain, suffering and loss of reputation in the amount of $250,000;
c. Aggravated and/or punitive damages in the amount of $100,000;
d. Prejudgment and postjudgment interest in accordance with sections 128 and 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended;
e. The costs of this proceeding on a substantial indemnity basis, plus all applicable taxes, and;
f. Such further and other relief as the plaintiff may advise and as this Honourable Court
may seem just.

2. The Defendants acted for the Plaintiff with respect to various litigation matters starting in late 2020, including defamation actions and disciplinary proceedings initiated by the College of Physicians and Surgeons of Ontario. Their representation of the Plaintiff was negligent, constituted a breach of contract and a breach of the fiduciary duties, causing the Plaintiff significant damages.

Of course, this isn’t the entire pleading. The real Statement of Claim is presumably in the works, and it should be interesting to read. Ashvinder Lamba also has a $600,000 malpractice suit pending, alleging many of the same things as Gill.

Brief timeline of some major events

Pre-2020: Gill and Lamba have prior issues with Maciver and Alam. These predate the “pandemic” and the debate over lockdown measures.

Summer/Fall of 2020: Gill’s public opinions, which contradict the “approved” narrative, lands her in trouble with the CPSO, the College of Physicians and Surgeons of Ontario. This is the regulator which is responsible for licensing in that Province. They’re not too happy that her views don’t toe the line.

Summer/Fall of 2020: Gill gets into many trivial arguments on Twitter, leading to some harsh replies. These are screenshotted to use as evidence.

December 2020: Gill and Lamba, sued 23 individuals and organizations for defamation. This was primarily (although not entirely) brought over Twitter spats that Gill had engaged in.

March 2021: Gill sues the University of Ottawa and one of its professors, Amir Attaran, for $7 million. This is over 2 rude comments on Twitter, one where he calls her an “idiot”. This is obviously a frivolous lawsuit, and mere insults aren’t actionable.

September 2021: Over the course of 3 days, several anti-SLAPP Motions are argued before Justice Stewart in the Superior Court. These are Motions to dismiss, based on Section 137.1 of the Courts of Justice Act. This is a section of the law that allows for rapid screening of lawsuits brought to “stifle public interest speech”.

February 2022: Justice Stewart dismisses the suit was dismissed under Ontario’s anti-SLAPP laws. This wasn’t at all surprising to anyone who understands defamation law. It was an extremely weak case. At this point, costs have yet to be determined.

March 2022: The lawyer for Gill and Lamba files a Notice of Appeal, despite the fact that he doesn’t intend to stick around. It also becomes apparent that counsel doesn’t fully understand the purpose of anti-SLAPP laws, nor the standards applied.

May 2022: Counsel for Gill and Lamba succeeds in getting himself removed from the case for “health reasons”. This come despite him actively being involved in other litigation, and even commencing other lawsuits.

July 2022: Gill and Lamba (with new counsel) try to get new cost submissions filed. They claim that their previous lawyer didn’t do anywhere close to an adequate job.

September 2022: The Appeal is “perfected” meaning all the documents are submitted. Note: there still hasn’t been an award of costs yet for the original decision from February.

October 2022: Gill and Lamba are hit with $1.1 million in legal costs from the Defendants, who were successful in getting the case thrown out. But to be fair, Gill took the bulk of the hit. She had sued all 23 Defendants, while Lamba was only pursuing a case against 2 of them.

October 2023: One of the Respondents, the Pointer Group Inc., argues a Motion that Gill should have to pay her costs up front, given how weak the Appeal is.

November 2023: The Motion for security for costs is denied.

December 2023: After many delays, the Appeal is finally heard, but with only a few Respondents left. Most have cut some sort of deal to accept partial payment.

February 2024: The Court of Appeal for Ontario throws out the Appeal against the few remaining Respondents who hadn’t yet settled over this. (CanLII version available)

February 2024: Ashvinder Lamba, Gill’s then co-Plaintiff, files a $600,000 professional malpractice lawsuit against their former counsel.

Gill’s baseless and abusive defamation suit with Attaran

Anti-SLAPP laws exist for a reason. It’s to stop people from using the legal system as a weapon to silence critics on issues of public interest. And nothing screams frivolous like attempting to bankrupt a person over some name calling. Here’s the background on this one.

SLAPP of course refers to a strategic lawsuit against public participation.

Gill has been before the CPSO several times

While the comical defamation lawsuits have made national news, Gill’s adventures with the CPSO have pretty much flown under the radar. She has attracted several complaints since 2020, over her public stances and comments. Lawsuits were brought in Court to try to resolve it there, largely on the grounds of free speech. Such litigation has been repeatedly thrown out as “premature”.

In fairness, prematurity just means there’s a lack of jurisdiction.

The problem, realistically, is that the CPSO — like many professional organizations — mandates that problems be resolved internally first. Here’s one of Gill’s decisions, from 2021. Starting at paragraph 31, it’s explained that this is a long established policy, going back decades. The rationale is that if this isn’t followed, it leads to fragmentation and splitting of cases, along with overlapping rulings.

This isn’t to justify in any way what the CPSO has been up to. They’ve shown themselves to be a willing accomplice to the Ford regime, and deserve no sympathy.

It’s to recognize that had Gill been competently advised, it seems unlikely she would have pursued this path. In the Notice of Action, she alleges that former counsel was negligent.

There is a parallel between:

  • Doctors suing the CPSO (instead of using the internal disciplinary process first); and
  • Public sector and unionized workers suing their employers (instead of filing grievances)

In both instances, lawsuits are likely to be thrown out. The burden is on the Plaintiff to show that the other remedies are unworkable and/or corrupted. Now, the million dollar question in these cases is whether they were advised of this in advance.

Who will ultimately be on the hook for this?

Doctors, lawyers, and pretty much all professionals are required to have insurance. This protects against lawsuits for negligence, incompetence, malpractice, and more. It’s to ensure that there is money available for successful claims, and that it won’t bankrupt them.

One caveat: insurance providers typically refuse to pay out if there are accusations of dishonesty or misrepresentation. But Gill and Lamba are just alleging negligence and of breach of contract, which should be okay.

We’ll have to see what the Statement of Claim looks like, when it’s eventually filed. But just going off of the Notice, it doesn’t look good.

Why pursue this? One possibility is that Gill really needs the money. Even “settling” with most parties in the case with Lamba, she still owes hundreds of thousands of dollars. Saikaley and Brunet want to get paid as well, and this may be a way to do it. Then there’s that anti-SLAPP Motion pending with Amir Attaran and the University of Ottawa.

Update: On March 25th, 2024, the actual Statement of Claim was filed, and it’s a doozy.

GILL PROFESSIONAL MALPRACTICE CLAIM:
(1) Gill Malpractice Notice of Action
(2) Gill Malpractice Statement Of Claim

LAMBA PROFESSIONAL MALPRACTICE CLAIM:
(1) Lamba Statement Of Claim

MOTION FOR SECURITY OF COSTS
(1) Gill V. Maciver Amended Notice of Motion – 26 Sept 2023
(2) Gill v Maciver – San Grewal’s appeal for support M54554.MPF.PointerGroup – October 2023.PDF
(3) https://drive.google.com/file/d/1PbEewt3dAKqAT5Udp6BIIqrM9Y_AhPHv/view
(4) Ruling: Motion For Security Of Costs – Denied

KULVINDER GILL/ASHVINDER LAMBA CASE:
(1) Gill/Lamba Defamation Lawsuit December 2020
(2) https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html#sec137.1_smooth
(3) Gill/Lamba Factum Of Medical Post Tristan Bronca
(4) Gill/Lamba Case Dismissed As A SLAPP
(5) https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1279/2022onsc1279.html#par17
(6) Gill/Lamba Notice of Appeal and Appellants’ Certificate
(7) Gill/Lamba Appeal – Notice of Intention to Dismiss Appeal for Delay, May 12, 2022
(8) Motion To Recuse – Badly Redacted -2022-06-17 – Notice
(9) Motion To Recuse – Badly Redacted -2022 – Motion Record
(10) Gill/Lamba July 15 Letter To Obtain New Counsel
(11) Gill/Lamba Case Conference Brief July 29, 2022
(12) Gill/Lamba Endorsement New Counsel Cost Submissions August 3, 2022
(13) Gill/Lamba Case $1.1 Million In Costs Ordered October 31, 2022
(14) Gill/Lamba Appeal Dismissed As Baseless By ONCA
(15) https://coadecisions.ontariocourts.ca/coa/coa/en/item/22116/index.do

GILL/ATTARAN/UNIVERSITY OF OTTAWA CASE:
(1) Gill-Attaran Statement Of Claim
(2) Gill Attaran Affidavit Of Service
(3) Gill-Attaran Notice Of Intent
(4) Gill-Attaran Motice To Recuse
(5) Gill-Ataran Motion To Recuse Motion Record