Next week, on Tuesday August 13th, hundreds of Ontario health care workers will hear a Motion to determine whether or not their lawsuit can proceed.
The Statement of Claim (and the amended version) are both extremely poorly written. They fail to plead the necessary information to support any of the major allegations. And what has been pleaded is largely irrelevant. Here’s the previous review of the case.
For clarity, there are actually 2 separate Motions filed. One is from the Ontario Government, and the other from the various hospitals and health care employers. It seems that the latter have banded together in an effort to mitigate their costs.
1. Vast Majority Of Plaintiffs Are/Were Union Members
Out of the 473 named Plaintiffs, some 387 of them, or more than 80%, belong to unions. These include CUPE, Unifor, OPSEU, and others. Starting at page 58 in the hospitals Factum, the Plaintiffs, Defendants and respective unions are all listed. There are additional Plaintiffs who are simply “John Doe”.
Why does this matter? It’s because unions are typically governed by collective bargaining agreements. These include the processes to grieve matters. Almost universally, grievances that cannot be resolve end up getting sent to arbitration, whereas litigation is prohibited.
There are limited exceptions to this, such as workers suing their unions for failing to represent in good faith. However, none of these exceptions are listed, nor are any facts pleaded that would allow for them.
Unfair as it may be, the Courts are consistently ruling that injection mandates are essentially relating to the terms and conditions of employment. In essence, unionized workers don’t have the right to sue.
In theory, the non-union Plaintiffs could still go ahead. However, the pleading is full of serious defects, which will make that impossible. Read the last review. And the Factums (written arguments) filed outline additional problems.
In Court proceedings, there’s an overarching principle that cases are to be conducted as swiftly and cost effectively (cheaply) as possible. That’s going to be a problem for several reasons.
2. Motion Record Of 13,000 Pages Submitted
There was apparently a 23 volume Motion Record, comprising some 13,000 pages. A Motion Record is a collection of documents (typically the Notice, and Affidavit evidence) that will be used at the hearing.
Why 13,000 pages? This is because the Statement of Claim, and the amended one, don’t plead any facts or particulars about specific Plaintiffs. Nor do they plead facts or particulars about any facts or particulars for any Defendants. Essentially, the Defendants are having to provide basic information to the Court about the parties.
This is something the Plaintiffs are typically expected to do.
While this does seem like an absurd amount of material, consider that there are 473 named Plaintiffs. That works out to an average of about 27 pages per person, including employment agreements and union documentation.
This isn’t a effort to justify injection mandates. However, it is unfair — in terms of due process — to sue on behalf of so many people, yet provide no information about their circumstances.
3. Moron Lawyer Sues 59 Separate Defendants
There are 59 separate Defendants in this case. Yes, the usual Government ones are named, such as Doug Ford, Christine Elliott, the Attorney General and the Province of Ontario. This is to be expected.
However, dozens more are listed, and they are scattered across Ontario. Various hospitals and health centres are named, and have to respond. These organizations have little to no connection with each other.
In the Katanik case, organized by Take Action Canada, counsel made the decision to sue 47 different Defendants, including 20 municipalities, as well as the Ontario Government. This resulted in over 20 lawyers being involved to defend that case.
In this case, the various non-Government Defendants have pooled their money to file a single Motion to cover everyone. This was done to reduce overall expenses. And good for them, because this could have been a lot worse in terms of costs.
4. Hundreds Of Plaintiffs With No Connection
It has been pointed out in the Factums that the vast majority of the Plaintiffs don’t even live or work in Toronto, where this case was filed.
The Defendants argue that it’s improper to lump so many Plaintiffs together.
While some do work together and know each other, the Plaintiffs are scattered across the country. Now, this case could have been commenced as a Proposed Class Action (notwithstanding the union issue), but it wasn’t. It clogs up the Courts to bring so many unrelated cases together.
5. Pleading Is “Bad Beyond Argument” In Terms Of Quality
See the previous review. It outlines the major defects in the pleading, and provides constructive criticism about how it should have been done.
6. CSASPP Gets Honourable Mention Here
Back in late 2023, Justice Chalmers dismissed a $1.1 million defamation lawsuit brought against CSASPP, the Canadian Society for the Advancement of Science in Public Policy. He ruled that the now infamous email and FAQ were truthful and accurate.
Now, the hospital Defendants are quoting Justice Chalmers.
4. This Action is untenable with no reasonable chance of success. To borrow Justice Chalmers’ phrasing in Galati v. Toews et al, the pleading is prolix, argumentative, advances pseudo-legal concepts and conspiracy theories, and has no reasonable chance for success. Consequently, the Moving Parties seek an Order striking out the Plaintiffs’ (the “Responding Parties”) Amended Statement of Claim (the “Amended Claim”), without leave to amend, on four grounds:
76. Moreover, this Action does not exist in isolation. Similar pleadings have been filed in Ontario and British Columbia. The British Columbia pleading has since been struck. The Ontario pleading was recently described by Justice Chalmers as follows:
The Ontario pleading is prolix and argumentative. The claim advances pseudo-legal concepts and conspiracy theories that the pandemic was pre-planned and executed by the WHO, Bill Gates, the World Economic Forum and unnamed billionaires and oligarchs. The similarly drafted A4C claim was struck by Justice Ross. In doing so, he described the pleading as “bad beyond argument”.
77. Justice Chalmers further opined that the similar Ontario Action has been improperly pleaded and improperly asserts “bizarre conspiracy theories” which are ineffective and have little or no chance of success. The Moving Parties submit that the same observations equally apply to this case.
Since Vaccine Choice Canada discontinued their case — and presumably kept all the donor money — these comments from Justice Chalmers are closest there will be to a ruling. While the CSASPP case was over (alleged) defamation, the critique has made its way to this lawsuit.
It’s also amusing that the Plaintiffs’ Factum cites that CSASPP was successful in surviving a Motion to Strike back in 2022. This is a bit surreal, to attempt to bankrupt an organization, and then piggyback off of their work.
7. Lawyer Unaware Of Employment Law Precedent
As an aside, it’s baffling that counsel keeps citing the 1995 Supreme Court case of Weber v. Ontario Hydro. It went a long way towards shutting down the ability of unionized employees to go to Court. Time and time again, Judges have thrown lawsuits out for lack of jurisdiction if there’s another outlet.
8. How Much Money Have Plaintiffs Had To Pay?
Without seeing the retainer agreements, it’s impossible to know for sure, but consider that there are 473 named Plaintiffs.
The retainer in the Adelberg case — the Federal one — was $1,000 each.
The retainer in the Katanik case — run by Take Action Canada — was $1,500 each.
There have been rumours going around as well that this retainer was $2,000 per head.
- 473 Plaintiffs * $1,000/Plaintiff = $473,000
- 473 Plaintiffs * $1,500/Plaintiff = $709,500
- 473 Plaintiffs * $2,000/Plaintiff = $946,000
As a rough estimate, it’s fair to say that the Plaintiffs have collectively paid between half a million dollars and a million. And all they’re getting is a cut-and-paste Statement of Claim, with no prospects of getting to Trial.
It’s the same garbage pleading over and over again.
9. Some Final Thoughts
Anyhow, the hearing is next week, assuming it doesn’t get postponed. Of course, it’s also possible that the case just gets dropped altogether. It has happened before.
What will the outcome be? It’s possible that the unionized Plaintiffs will be barred from suing completely. However, the non-unionized Plaintiffs would still have to redraft a proper Claim. This is pretty much what happened with the Adelberg (Federal) case — Government employees were barred, but the private sector workers could proceed. Such a decision could happen again.
Assuming that any of the Plaintiffs are allowed to refile, they need to retain a competent lawyer. Their current one clearly isn’t up to the task.
Pardon earlier errors that listed the hearing date as August 18th, 2024, and the number of Plaintiffs as around 300. It is actually August 13th, with 473 (named) Plaintiffs.
(1) Grifters Main Page
(2) https://www.canlii.org/en/on/laws/regu/rro-1990-reg-194/latest
(3) https://www.ontario.ca/page/search-court-cases-online
(4) Dorceus Statement Of Claim
(5) Dorceus Amended Statement Of Claim
(6) Dorceus Defendant Moving Party Factum SJM Government
(7) Dorceus Defendant Moving Party Factum SJM Hospitals
(8) Dorceus Plaintiff Responding Factum SJM
Hard to get justice if you can’t even get your day in court after collectively spending nearly a quarter million dollars on nothing. One might be better off going to court alone but getting a judgment against the government is most probably next to impossible. The Ontario Nurses association was successful in stopping hospitals from mandating useless masks a few years back. Why would those lawyers not look at this case as an example of how to achieve victory? With more and more evidence piling up against the government’s position and what I think is government lawlessness it’s difficult to accept that the people also can’t get their day in court when the point is declared moot in the governments favour. They will just do it again. I’ve little respect for the law when it is used like this because preventive measures cannot be applied to law that used to punish and terrorize when the government doesn’t have to prove it’s point. Just declare an emergency and call it a day. Bullcrap law from my point of view.