Reader Feedback: Focus More On The Merits Of Respective Grievances

It’s always appreciated when readers take the time to comment, regardless of whether it’s positive, negative, or more neutral. Feedback from the audience is usually very beneficial.

However, recent comments are worthy of a response.

In short, the suggestion was to spend more time going through the merits of the various suits. This was preferable to the focus of detailing how they collapse, as it doesn’t present a balanced picture. An interesting idea indeed.

For context: many of the recent postings here have focused on the injection mandates (a.k.a. “vaccine passports”) that people were pressured into taking. This was often done in order to keep their employment. The suggestion had been made to address more of the “meat” of the claims themselves, rather than procedural issues. Sounds great, but there’s a problem.

Now, countless cases have either been dropped, struck or dismissed, including many high profile ones. The suits that were thrown out were typically done with a Motion. This means that there was no adjudication on the merits, but instead, lawyers attacked something about the pleading itself.

A wise man pointed out in detail how many other cases were made substantially more difficult (if not impossible) by the concept of “Judicial Notice”. In essence, Courts will simply “defer” to previous rulings of similar findings instead of trying it themselves. While this may be an efficient way to save time and money in theory, in practice, it often leads to litigants not getting their day in Court.

Another concern is the concept of “mootness”, where a Judge can simply decline to hear a case, saying that there’s no live controversy to preside over.

The article is well worth a read.
https://chuckblack.substack.com/p/more-on-the-concept-of-judicial-notice

As much as people prefer cases to be “tried on the merits”, that too often doesn’t happen. Procedural issues, mootness, and “Judicial Notice” are all obstacles to real justice. While it’s up to the Judge to “take Judicial Notice”, or to determine a case to be “moot”, they can’t be blamed for everything. A large part of the problem is directly caused by the lawyers themselves.

And that leads to the next point.

We won’t be able to see whether or not litigants have valid grievances, since cases are routinely thrown out on a preliminary challenge.

To repeat: we won’t be able to see whether or not litigants have valid grievances, since cases are routinely thrown out on a preliminary challenge.

It’s baffling that this needs to be pointed out.

Yes, lots of people have gotten tickets and fines thrown out. Others have gotten criminal charges tossed. Many have successfully challenged EI decisions which originally refused them access. This is great, and especially commendable for those who self represent. At the individual level, it’s wonderful news.

But, for better or worse, the focus on this site has been big, high profile lawsuits.

Even major cases that have advanced beyond initial pleadings tended to focus on exemptions for lockdown restrictions, rather than challenging public policy. Broader lawsuits have basically gone nowhere.

Sure, we can read through the Statement of Claim (or Notice of Application) of various lawsuits. The Plaintiffs or Applicants will present their version of events. But until a case actually progresses along, there won’t be much to report.

There doesn’t seem to be any dispute that people were pressured into taking the shots. Often, this was in the context of travel or employment. Logically, there would be only 2 options here, and cases should proceed easily. Either they were: (a) justified; or (b) unjustified.

However, too many lawyers have come up with option (c), which is to crash their lawsuits procedurally. Strange, the Department of Justice doesn’t hire such idiots.

While covering public cases is not new, this site tries to offer something substantially different from what’s available on other platforms. This includes:

1. Following up on cases not covered elsewhere
2. Attaching at least some of the Court documents
3. Honest critiques about what has been going wrong
4. Document at least some of the wasted donation money

This should be typical, not an outlier.

1. Following Up On Cases Not Covered Elsewhere

Beginning in 2020 and well into 2023, there was an almost endless stream of announcements that lawsuits had been filed against Governments and their employees. This happened in every Province, and in the Federal Court. But what was typically lacking was any subsequent coverage. These suits died quietly.

Cases covered here include: (a) Canada Post; (b) Canadian National Railway; (c) Purolator; (d) Westjet; (e) Winnipeg Police; (f) Cornell; (g) Dorceus; (h) Katanik; (i) Adelberg; (j) Angione; (k) Qualizza, and (l) Briant, among many others.

Sure, they’ve had brief mentions elsewhere, but not this level of detail.

2. Attaching At Least Some Of The Court Documents

We’re well into the internet era. Given how easy it is to pull Court documents and obtain Judges’ findings, there’s no reason not to include some of it with an article or review. It gives readers background material to fact check and review for themselves.

A wise man pointed out that “law is about more than just reading the judgements and tracking the paperwork”.

While this is true, at least some documents are necessary anyway. In order to have any sort of intelligent discussion on a case, people have to agree on the basic facts. When was it filed? What were the Plaintiffs asking for? Was the case struck? Was it past the Statute of Limitations? What arguments did opposing counsel make?

Other sites may include a Statement of Claim when announcing the suit is launched, or a CanLII ruling afterwards. These are certainly helpful, but there’s much more.

Reasonable people can have a nuanced discussion on the overall merits of a strategy. They can have valid disagreements on the best course of action. But they still need to be grounded in the same reality.

Lawyers and their clients typically make public statements about their litigation. Problem is: what they say is often either exaggerated, or made up completely. But once you have the Court documents, their input often isn’t really necessary.

3. Honest Critiques About What Has Been Going Wrong

Going back to 2020, there’s a very strong “tribal” mentality, especially within the Freedom Movement. There seems to be the pressure to stand with “your side”, regardless of the circumstances. In the context of these lawsuits, one is expected to remain silent about the obvious problems:

• Suing when arbitration and/or grieving required (no jurisdiction)
• Commencing a proceeding too late (Statute of Limitations)
• Missing other key deadlines
• Filing the wrong paperwork to start proceeding
• Drafting incoherent and unintelligible pleadings (“Bad Beyond Argument”)
• Failing to properly plead torts (missing essential elements)
• Making weak and unconvincing arguments
• Seeking remedies Court can’t grant (also jurisdiction)
• Taking unnecessary steps that don’t advance case (appealing v. amending)
• Lawyers filing Motions to formally withdraw as counsel (abandoning clients)
• Simply not advancing a case at all
• Recycling pleadings rejected in other Courts

This isn’t the result of corrupt Judge(s). The above actions are caused by Plaintiffs’ lawyers either through: (a) incompetence; (b) negligence; or (c) intentional acts. Sure, the motivations can be debated.

There have been complaints that this site is divisive, and overly negative. While true, it’s also honest coverage about the states of these cases. Instead of blindly cheering for one side, explanations are provided about what has gone wrong. Where else is this done?

Remember: pretty hard to get into the merits of these cases when they’re thrown out due to the actions of their own lawyers.

4. Document At Least Some Of The Wasted Donation Money

It’s important to remember that many of these “freedom lawsuits” aren’t just some private matters. Plaintiffs and Applicants in many of them solicit donations in order to finance them. It comes through direct funding, and through sales of merchandise.

No one is suggesting that people cannot crowdfund or solicit donations for litigation. There’s nothing inherently wrong with doing it. That being said, it becomes a public matter. After all, such cases are being financed by the public.

If counsel isn’t doing a professional job (see above list) then it’s in the public interest to report on what’s going on. This has been done here extensively, with millions wasted just from a single lawyer.

Donations often cannot be refunded, true. That said, litigants owe it to their donors to be completely transparent, both with their money, and with updates on their cases. And it makes sense. If we are to demand accountability from elected officials, it should be practiced here as well.

So, What About The Merits Of These Cases?

It would be nice to focus on the merits on grievances, especially in the context of the injection mandates. Undoubtedly, most, if not all, are valid. No one disputes that people either lost their employment, or suffered some other hardship.

However, since the “freedom lawyers” put forward an almost endless array of shoddy and defective cases, it’s extremely rare to see a case proceed past the initial stages. If one actually does get to Trial, it can be discussed at length.

At the start, all we really have is the Statement of Claim, which anyone can access and read. Other than simply quoting it, there’s not much to go on.

Covering the “technical details” of how litigation implodes isn’t for everyone.

Sorry, not sorry.