In recent years, there has been a common pattern happening in high profile lawsuits. Specifically, litigants have a tendency to file unnecessary Appeals, in order to delay their own cases. This happens when Judges permit amended versions to go forward, but are ignored.
Readers of this site have heard of the infamous 4 “travel mandates cases”, brought in 2021 and 2022. They’re perhaps the most egregious examples.
Summer of 2022, all 4 Applications were declared “moot” by Associate Chief Justice Gagné. This was because the vaccine passports weren’t in effect anymore. There was one important caveat though: Applicants were free to refile as an Action, with a Statement of Claim. This is clear in paragraphs 27, 41 and 46 of the decision.
Instead of filing Statement of Claims — which was expressly permitted — all of the Applicants appealed. Rickard/Harrison, Bernier, Peckford, Naoum, etc…. all filed Notice of Appeal. That’s correct, they appealed ACJ Gagné’s ruling, when they could have amended. No convincing explanation has ever been provided of why.
Lawyers for the Appellants then proceeded to crash their cases into the ground. Among other problems, they argued the wrong standard of review for mootness. Instead of properly arguing “overriding, palpable error”, 2 argued correctness, and the other 2 nothing at all.
Bernier, Peckford and Naoum all filed Applications for Leave, requesting that the Supreme Court of Canada hear their cases. Again, they appealed, when they could have amended. All Applications were denied.
Interestingly, none of Bernier, Peckford or Naoum appear to have filed a Statement of Claim afterwards, despite the fact that they could have. They simply abandoned their cases.
Instead of going to the Supreme Court, Rickard and Harrison finally filed their own claim in 2023, which was the more sensible option. But that, and the amended version had serious problems, with the Attorney General brining a Motion to Strike.
When Associate Judge Trent Horne eventually ruled, something interesting happened. The Section 7 and 12 claims were struck entirely, and the Section 6 (for Rickard only) as well. But while the Section 15 claims were struck as well, he granted leave to amend.
The public is being told that the case is “moving to Trial” on the s.15 claims. This is a gross misrepresentation of what the Judge said. Getting permission for a rewrite is not the same thing as getting the green light to move forward.
Rather than filing another version, Rickard and Harrison appealed again. Once more, they appealed a decision, when they could have amended their filings. Noticing a pattern here?
Results Of November 2024 Motion To Strike
- Section 6 (mobility): Allowed to proceed for Harrison, struck entirely for Rickard
- Section 7 (security): Struck entirely for both Rickard and Harrison
- Section 12 (cruel/unusual): Struck entirely for both Rickard and Harrison
- Section 15 (equality): Allowed to proceed for both Rickard and Harrison
This is what the pinned tweets of Rickard and Harrison say. But the truth is quite different.
- Section 6 (mobility): Allowed to proceed for Harrison, struck entirely for Rickard
- Section 7 (security): Struck entirely for both Rickard and Harrison
- Section 12 (cruel/unusual): Struck entirely for both Rickard and Harrison
- Section 15 (equality): Struck for both Rickard and Harrison, but with leave to amend
In reality, the case was struck entirely against Rickard. Harrison (being the only Canadian citizen), could pursue s.6 at any time. The only caveat is that they have an opportunity to file — yet another — version of the Statement of Claim for s.15.
This *may* be one of the reasons behind the latest appeal. Rickard’s only pathway (currently) at continuing the case is a long-shot attempt to redraft the Statement of Claim in a way that would allow the s.15 claims to go ahead. He doesn’t have s.6 to fall back on. This may be a way of creating a “backup”.
That may not be a bad idea. However, Rickard and Harrison need to be honest about the results of the Motion.
Rickard/Harrison V.S. What Horne Actually Wrote About S.15 Claims
The tweet is very long, but it does get to the specifics about each tort. For the most part, they’re accurate.
Paragraphs 54 to 61 of A.J. Horne’s decision make it very clear what happened regarding the Section 15 claims. They are not “proceeding to Trial”. They were struck, albeit with permission to amend.
[55] Vaccination status is not an enumerated ground in section 15, nor has it been recognized as an analogous ground. Analogous grounds are those similar to the enumerated grounds that would often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity (Corbiere v Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203 at para 13).
[56] No material facts are specifically pleaded in respect of the section 15 claim. The plaintiffs broadly allege that the vaccine mandates, implemented through the IMOs, violate section 15.
[57] Charter actions do not trigger special rules on motions to strike; the requirement of pleading material facts still applies. The Supreme Court of Canada has defined in the case law the substantive content of each Charter right, and a plaintiff must plead sufficient material facts to satisfy the criteria applicable to the provision in question. This is no mere technicality, “rather, it is essential to the proper presentation of Charter issues” (Mancuso v Canada (National Health and Welfare), 2015 FCA 227 at para 21).
[61] While the chances of having vaccination status recognized as an analogous ground for the purposes of section 15 may be remote in light of the current jurisprudence, I am not satisfied that such an argument is bound to fail if the plaintiffs allege that vaccination would constitute an unacceptable cost to their personal identity, or would tear asunder immutable or even deeply held beliefs. Lewis and Costa do not foreclose this possibility, or stand for the proposition that vaccination status is incapable of constituting an analogous ground. While it may be dim, there is a “glimmer of hope” (La Rose at para 122) that vaccination status could be recognized as an analogous ground. Leave to amend to add a cause of action under section 15 is granted for both plaintiffs, however any such amendment must be fully and completely particularized.
It is possible that a new complaint would be drafted in such a way that the s.15 claims could go to Trial. However, that’s not what happened here at all. And it’s not just some technicality either.
Also, why appeal A.J. Horne’s ruling if you’re proceeding anyway?
This is the sort of thing Action4Canada did.
Rickard/Harrison Case Is PRIVATE Suit For Damages
[29] The plaintiffs submit that they are able to challenge IMOs as they relate to rail travel because an intention to travel by rail at the material time is irrelevant; they say the inability to travel by rail alone triggers the ability to advance a claim. I cannot agree. There is no indication in any version of the statement of claim that the plaintiffs ever intended to travel by rail when the IMOs were in place. There is no loss or harm, and no basis to claim damages, in this respect. A claim for damages based on railway travel would be an abstract complaint about a government restriction that had no impact or consequence on the plaintiffs. I fail to see how either of the plaintiffs have standing to advance a claim for damages based on a method of transportation they did not use, and expressed no interest in using. At the hearing, the plaintiffs directly stated that they are not advancing a claim based on public interest standing. Leave to amend in this respect is refused.
The original Statement of Claim, the amended version, and the proposed new version ask for anything other than money for themselves. No injunctive or declaratory relief is sought.
At the 2024 hearing, they make it clear that they are NOT seeking any sort of public interest standing, which would benefit many more people.
“Buyout” From Ottawa Is Always An Option
This has been stated before, but is worth repeating:
Because it’s a private lawsuit, seeking only monetary damages, Ottawa could always offer to pay it out, along with costs. This would mean no groundbreaking decision, and no precedent. And really, there’d be no practical way for the Plaintiffs to refuse such an offer.
Current Appeal Is A Somewhat Of A Gongshow
Because the ruling was from an Associate Justice, and not a full one, Rule 51 of the Federal Court Rules applies. This means that there is a 10 day time limit to file Motion to have it reviewed.
However, their lawyer missed the deadline to appeal by a few weeks, then requested an extension of time to file. The Crown decided not to oppose the request.
The Court did issue new direction on refiling, and the extension has since been approved.
Instead of filing a new Statement of Claim, Rickard and Harrison are appealing the portions that struck entirely, which are s.7 and s.12. Keep in mind, the Attorney General hasn’t initiated any Appeal. They’ve come solely from the Plaintiffs/Applicants. They’ve also mentioned the possibility of this upcoming decision being appealed as well.
Should that happen, things will probably take close to a year at the Federal Court of Appeal. Then, they’ll have to refile their claim, something they could have done months ago.
Or, to be more accurate, a Statement of Claim could have been filed in the Summer of 2022, after the original Applications were declared “moot”. That was nearly 3 years ago.
Think about it: we can be well into the year 2026, or even 2027, and these people will still be asking for money to file
*checks notes*
another Statement of Claim.
Note: All of the dates listed can be confirmed by searching the respective cases on the Federal Court website. It keeps a detailed listing of all significant events.
FEDERAL COURT APPLICATIONS STRUCK:
(1) https://www.canlii.org/en/ca/fct/doc/2022/2022fc1463/2022fc1463.html
FEDERAL COURT OF APPEAL RULING:
(1) https://www.canlii.org/en/ca/fca/doc/2023/2023fca219/2023fca219.html
(2) Travel Mandates Appeal Bernier Memorandum
(3) Travel Mandates Appeal Peckford Memorandum
(4) Travel Mandates Appeal Rickard-Harrison Memorandum
(5) Travel Mandates Appeal Respondents Memorandum
SUPREME COURT OF CANADA APPLICATIONS FOR LEAVE:
(1) https://www.canlii.org/en/ca/scc-l/doc/2024/2024canlii80713/2024canlii80713.html (Bernier)
(2) https://www.canlii.org/en/ca/scc-l/doc/2024/2024canlii80711/2024canlii80711.html (Peckford)
(3) https://www.canlii.org/en/ca/scc-l/doc/2024/2024canlii80702/2024canlii80702.html (Naoum)
RICKARD/HARRISON STATEMENT OF CLAIM:
(1) Rickard T-2536-23 Statement Of Claim
(2) Rickard T-2536-23 Notice Of Intent To Respond
(3) Rickard T-2536-23 Amended Statement Of Claim
(4) Rickard T-2536-23 Notice Of Motion
(5) Rickard T-2536-23 Motion Strike Statement Of Claim
(6) Rickard T-2536-23 Plaintiff Response To Motion To Strike
(7) Rickard T-2536-23 Motion To Further Amend Claim
(8) Rickard T-2536-23 Further Amended Statement Of Claim
(9) Rickard T-2536-23 Response To Plaintiff Motion To Amend
(10) Rickard T-2536-23 Decision For Motion To Strike
(11) Rickard T-2536-23 Rule 51 Motion Appealing AJ Horne Decision
(12) Rickard T-2536-23 Letter From Crown On Extending Time To Appeal
(13) Rickard T-2536-23 Order Regarding Motion To Extend Time
MISCELLANEOUS:
(1) https://x.com/ShaunRickard67/status/1840070389965128046
(2) https://www.freedomandjustice.ca/donate/
(3) CRA Page Of Institute For Freedom And Justice
(4) Corporations Canada Page
STANDARD OF REVIEW:
(1) https://www.canlii.org/en/ca/scc/doc/2002/2002scc33/2002scc33.html
(2) Housen (Highlighted)