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UPDATE: BC Supreme Court Allows Case Against Bonnie Henry & Her Covid Mandates

Byadmin

May 6, 2023

B.C. court allows case against Henry’s COVID-19 vaccination order to proceed.

The case, said the judge, brings forward “important and complex” health-care issues “that transcend the interests of those directly involved.”

A B.C. Supreme Court judge has rejected an attempt by provincial health officer Dr. Bonnie Henry to throw out a case alleging her office infringed on the Charter rights of health-care workers when she issued orders requiring they get two COVID-19 vaccines to continue working.

The case was filed by the Canadian Society for the Advancement of Science in Public Policy, an organization that describes itself as advancing “science in public policy in British Columbia” — and challenging COVID-19 measures.

The group, along with executive director Kipling Warner, claimed that Henry’s public health order failed to provide a reasonable exemption for people with religious objections, who are already immune due to infection, face elevated risks to vaccination, or who received a recent negative COVID-19 test.

The court petition cites three orders issued in the fall of 2021 that made COVID-19 vaccinations mandatory for all health-care workers in hospitals and long-term care homes.

Henry’s office, for its part, contested that the decisions were reasonable public health orders handed down to limit transmission of the SAR-CoV-2 virus in high-risk public settings, as well as to protect vulnerable people and the health-care system.

As a software engineer, Henry’s office argued Warner had no apparent connection to health care and provided no evidence to show he had a direct personal connection to the issues brought before the court.

Warner told the court, “… my ability to access medical services in a timely manner has been affected.”

“For example, I have been on the waitlist for approximately one year for surgery related to a sports injury.”

Justice Simon Coval did not agree, writing in the decision that there was no evidence Warner’s surgery wait time was unusual or had anything to do with the orders.

But while Warner was found to have no personal interest in the case, the justice ruled his organization — the Canadian Society for the Advancement of Science in Public Policy — had public-interest standing to bring the case to the court.

Determining that standing required the group to demonstrate the case was both serious enough for a court to hear and that the society had a genuine interest in the case. The legal test also requires the petitioner to show that a case can be reasonably and effectively litigated in a court of law.

The case, said Justice Coval, brings forward “important and complex” health-care issues “that transcend the interests of those directly involved.”

Shared from https://www.vancouverisawesome.com/highlights/bc-court-allows-case-against-henrys-covid-19-vaccination-order-to-proceed-5341497

The Supreme Court of British Columbia has resumed hearings for a class-action lawsuit brought by a non-profit organization against Provincial Health Officer Dr. Bonnie Henry and the COVID-19 mandates introduced by the government.

The certification hearings aim to determine whether to approve the lawsuit, proposed by the Canadian Society for the Advancement of Science in Public Policy (CSASPP) on Jan. 26, 2021.

CSASPP said on its website that its objective is to “obtain any available civil remedy for the maximum number of British Columbians” who were affected by pandemic-related regulatory measures. The group said the public health orders, introduced by Henry and the provincial government, have been “incrementally draconian” and have been widely challenged by physicians, private citizens, business owners, and the academia.

If the case is allowed to proceed, Henry would be required to submit to answering questions, per the Supreme Court civil rules, the group said. In this case, the parties will have an estimated three weeks to question Henry on her decision to introduce the mandates, according to Eva Chipiuk, a lawyer who is providing live Twitter updates of the hearings.

The Epoch Times reached out to Henry and the B.C. Ministry of Health for comment, but didn’t immediately hear back.

Emergency Declaration

The lawsuit “challenges the very premise of the emergency declaration,” Chipiuk wrote on Twitter.

“To be clear, the basis of this class action lawsuit is whether or not the emergency declaration was legal or reasonable. The rational is that without an emergency, there can be no basis for extraordinary executive powers used by the government,” she said.

CSASPP said that its class action doesn’t “presuppose the fundamental premise that there is an emergency,” saying that “legal challenges that construct their argument upon that assumption seek relief from the court for a limited demographic on the basis that they will be well-behaved and not make the alleged pandemic worse.”

“This is a fatal mistake,” the group said. “This argument leaves the government with the emergency card, even if a tactical victory is achieved in the best case scenario. As long as the government has the emergency card, it will always have a very strong argument for the continued exercise and abuse of extraordinary executive powers.”

The previous round of hearings started on Dec. 12, 2022, and was originally set to conclude on Dec. 16, 2022. But things took longer than expected, the group said.

Day 3 of class action certification against Dr Bonnie Henry re emergency declaration continues today.

The Canadian Society for the Advancement of Science in Public Policy (CSASPP) and challenges whether or not the emergency declaration was legal or reasonable. I am here with…
— Eva Chipiuk, BSc, LLB, LLM (@echipiuk) April 26, 2023

Introduction of CSASPP & Kip Warner.

Is going to court expensive?

Important video!! Please watch and retweet!!
Class action lawsuit against Bonnie Henry in BC Canada

Thank you!! 🙏 ➡️ @forevaeva79 pic.twitter.com/nXKOmltiob
— Suzy🇨🇦 (@Susiemagooziee) April 22, 2023

Shared from https://www.theepochtimes.com/hearings-resume-for-class-action-lawsuit-against-bc-pandemic-health-orders_5217742.html

Canadian Society For The Advancement Of Science In Public Policy

Status Updates

25 April, 2023: Certification Footage for 24 April, 2023, Published
(For updates after 25 April, click here)

Friends,

The continuation of our class action certification hearing has attracted a substantial amount of interest, both domestically and abroad. Not surprisingly we made international headlines again.

Video footage of yesterday’s hearing has been published to the usual location. Like with all of the previous footage the same restrictions still apply.

Remember that you need to watch the footage on either a desktop or a laptop. Most of those who tried to view last December’s footage were unable to on their mobile devices due to a still outstanding issue with Vimeo’s platform that is beyond our control.

Counsel for all litigants are currently still on schedule to complete submissions by the end of this week as previously planned. We will keep you apprised as each day’s footage becomes available.

~ Kip

23 April, 2023: Tomorrow’s Certification Hearing and Green Light on Filming

Friends,

We’ve obtained sufficient donations to cover the cost of the videographer. Thank you for contributing.

The cost of sending counsel in for a five day hearing is substantial. We also have to spend time (money) on preparing our Amazon as best we can via her assisting counsel. As donations continue to come in we intend to apply the bulk of it towards our litigation budget for this week and any contingencies that may arise.

For those of you who were not given the chance to attend the previous five days of certification and would like a summary on where things left off, you can find a popular video summary here.

The hearing will continue in the same room within the same building by the same judge. It will begin at 1000 in room 55 at 800 Smithe Street, Vancouver. Justice Crerar is still our presiding judge who is seized of all aspects of this proceeding.

As I have said before, the room assignment could change at the last moment, so be cautioned. But you can always verify the room number, if in doubt, by checking the list tomorrow morning. There are two ways to do this, in-person or online.

When you walk in the front door, walk past the concierge desk and you will see a collection of documents posted on the wall with room numbers for different hearings for that day. Your file number is S-210831. Sometimes hearings are not always listed and sometimes they are which is beyond our control. If you cannot find it, ask the concierge desk or someone in the Registry.

If you would like to check online, you can do so on the Supreme Court’s website here. From the drop down menu select Vancouver and then click open. You will be shown a list of hearings with room assignments.

When you find your way into the Court room please be mindful of etiquette. Leave signage and other protester paraphernalia outside the building. If the hearing has already begun, open the door, remain silent, bow to Justice Crerar, and take your seat in the gallery. Do not take pictures, attempt to record, or otherwise use your mobile or other electronic devices from inside of the Court room to communicate. Make sure your mobile device is on silent. Outside of the Court room you can use your mobile to communicate, but do not take pictures from anywhere inside of the building.

When the hearing footage is ready, it will be published in the usual location, same as before, and with the same restrictions in place.

~ Kip

19 April, 2023: Filming of Certification Still on Hold

Friends,

Our treasurer has advised me this evening that we raised $1,600 of the $6,000 required for our videographer since last Sunday’s status update. That still leaves $4,400 outstanding. As I indicated previously, if we raise that before Monday you will have the hearing filmed. If we do not, I recommend preparing to attend in person and arriving at least an hour early to obtain a seat.

~ Kip

16 April, 2023: Filming of Certification on Hold

Friends,

As you are all well aware we intend to film the entirety of the certification hearing for our historic class proceeding. We have already filmed and published the first five days and we intend to film and publish the remaining set to resume only a week from now on 24 April, 2023.

The only implied condition is that it is financially within our means. Currently it is not. The videographer will cost us approximately $6,000 for the remaining five days. The videographer is competent and was mutually selected by the litigants by order of the Court.

Our priority is to ensure that counsel is able to effectively do their job. We do not want to eat into our litigation budget, nor our contingency fund. If we are able to raise the aforementioned funds before we begin on Monday 24 April, 2023, then we will continue as planned. It is entirely up to you.

~ Kip

13 April, 2023: Certification Resumption Artwork & Summer Banquet Date

Friends,

We have published our artwork for the upcoming resumption of our class proceeding’s certification hearing still set to resume 24 April, 2023, for five days at the Supreme Court building at 800 Smithe Street, Vancouver. You can download the hearing flyer in either JPEG format, suitable for social media, or in high resolution PDF.

In response to public inquiries, we will not be printing out the flyer for distribution to those interested like we did previously. We are doing this to save costs. Instead we would prefer to allocate our resources towards covering the cost of our videographer. The videographer will film the hearing again for those who are unable to attend in person, same as before. Since most of those interested in our work are not able to attend physically, in particular our international following, this is critical.

The videographer’s work is not as simple as simply filming and publishing it. The task is more technical than art because it must comply with the technical nuances of the experimental Court order which permitted it. If you can help contribute to cover the cost of the videographer, please do so.

We recommend, if you have not already, watch the previous five day hearing footage to understand what transpired and where we left off. Alternatively, there is a much shorter podcast available that summarizes some of the more salient moments.

In other news our womens’ led CSASPP Summer Banquet 2023 planning committee is already busy preparing for this year’s banquet to make it even better than the previous. The committee is tasked with sorting out all the logistics from creating the best dining experience, a cocktail hour, floral arrangements, food, music, and more. If you have tips, perhaps from your experience last year, feel free to write the committee directly at banquet_tips@covidconstitutionalchallengebc.ca.

This year’s banquet will be held 7 July, 2023, at the VanDusen Botanical Garden again. Please mark your calendars. Attendance will be limited to 120. We will announce ticket sales soon.

~ Kip

4 April, 2023: Monthly donations now available

Friends,

As the resumption of class certification quickly approaches and we continue to make advancements in our two parallel petitions, it is important that CSASPP has a financially robust foundation as it escalates its war footing.

Sometimes we have to make difficult decisions regarding procedural steps, strategy, and finding the balance between aspirational deliverables and economy of effort. We believe that a predictable monthly cash flow makes planning easier than depending on sporadic donations.

For this reason we have completed integrating an additional merchant processing platform by which anyone can automatically donate an amount of their choosing every month for as long or as short as desired. You can do so here, or by clicking the Monthly Donation button on our donate page. We thank you for your contribution.

~ Kip

30 March, 2023: Justice Coval Issues Corrections to Health Care Workers’ Petition Ruling, Class Proceeding & Summer Banquet

Friends,

Progress on multiple fronts. You will recall on 28 February, 2023, Justice Coval issued his reasons for judgment in which he dismissed an application led by one of our co-petitioners. That application sought to increase the size of the evidentiary record to be considered when our health care workers’ petition is heard on the merits.

There were a number of mistakes Justice Coval made in his ruling on that application which we requested he correct. A letter was jointly submitted by the petitioners on 7 March, 2023. Justice Coval subsequently acknowledged the need for corrections. Today he sent us a memorandum particularizing the corrections he made. The corrected reasons for judgment is now available.

Our class proceeding’s certification is still set to resume 24 April, 2023, for five days.

We are tentatively scheduling this years’ Summer Banquet to be held some time in June. Our women’s led planning committee is making preparations now. We will keep you apprised as soon as tickets become available. We will try to increase capacity this year, if possible, because tickets disappeared very rapidly last year.

Your continued assistance is greatly appreciated as we prepare to resume certification. This is especially important because we have to cover the cost of the videographer to film and publish it for every day of that hearing.

~ Kip

12 March, 2023: Positive Revelations for Appeal of Chief Justice Hinkson’s Injection Passport Ruling in Identifying Potential Conflict of Interest

Friends,

We were recently tipped off several weeks ago by a member of our community and supporter of our work regarding an alleged conflict of interest with respect to Chief Justice Christopher E. Hinkson. They expressed their desire to have this information be made available through a credible organization. We are grateful for their contribution to our work.

The Chief Justice is our province’s most senior judicial political appointment within the Supreme Court of British Columbia. Therefore, as with any tip we receive that may have significant implications for our work, we took extensive time to investigate before providing our findings.

Let me begin by saying that we cannot comment on whether this is an actual conflict of interest or not. We can, however, say with confidence that there is, at the very least, the appearance of one.

To refresh your memory on 12 September, 2022, in a long and almost exclusively technical ruling, the Chief Justice dismissed our petition seeking judicial review of various injection passport related public health orders of Dr. Bonnie Henry (separate from our class action). We argued they were unconstitutional. He disagreed. We disagreed with his disagreement.

That petition is currently before the British Columbia Court of Appeal and scheduled to be heard on the merits beginning on 3 October, 2023, for three days. Our factum traverses the mistakes we believe he made. I will not return to them now, but encourage you to review our status update of 31 January, 2023, for a layman’s English explanation.

I would like to begin with a bit of historical context. In 1943 the world was a very different place than it is now. Picking up a newspaper in Canada you were likely to read about Europe, North Africa, and the Far East being ravaged with the Second World War. Our Dieppe Raid was still fresh in Canadian memory.

Unless you were Irish, Chinese, Indian, Japanese, or indigenous, most people were not concerned with the absolute integrity of our institutions and whether they behaved in a just and equitable manner. And even then, if you were among the aforementioned marginalized groups, you had little agency anyways.

Vancouver was only about a third of the population that it is today. Vancouver, indeed Canada, was closer to its historical colonial roots. Public confidence was therefore much higher in centralized power, traditional institutions, and norms. They were not immersed in the same degree of a critical intellectual climate that they are today. No one from the provincial cabinet began a press conference acknowledging unceded land. Radically revolutionary themes played a minimal role in the mainstream domestic public discourse.

The social, political, and economic landscapes were simpler in some sense. Citizens throughout the British empire were more likely to identify themselves as subjects of the Commonwealth than they were of a distinct national identity. We did not even have our own flag and the eventual patriation that brought us our own independent sovereignty did not come until decades later in 1982 through an act of Parliament. But not of our own, we had to seek permission from the United Kingdom’s.

The public had a stronger appetite then for a consolidation of power. That is why it was apparently not of any great controversy in 1943 for one of the most powerful individuals in British Columbia, unelected, appointed by the executive, and presiding over the judiciary to oversee a $1.2 billion dollar trust fund while sitting as the Chief Justice.

The Vancouver Foundation is not a normal society in the traditional sense like us, incorporated under the same laws as many other provincial non-profits. It was originally a creature of statute, created through an act of parliament. The Vancouver Foundation Act, passed in 1943 by our provincial legislature, set out its purpose, how it operates, and who makes the most important decisions.

For those of you who attended our Summer Banquet last year, you will recall the venue it was hosted at – the VanDusen gardens. The philanthropist lumberman Whitford VanDusen that created it was also responsible for providing a generous endowment of $101,000 to the Vancouver Foundation in the year it was created. In 1943 that was considered a lot of money, and in time it matured into the $1.2 billion dollar Consolidated Trust Fund the Foundation now manages.

Sitting on the Foundation’s Board of Directors is the Chief Justice. This is not a new appointment. It has been a responsibility of whoever held his title since the Foundation was incorporated 80 years ago.

The Board is small. Besides the Chief Justice, a member of the Law Society, a member of the Organization of Chartered Professional Accountants, someone nominated by the United Way, and anyone else elected by the Board manage its most important decisions.

The Chief Justice’s role is hardly clandestine. Besides being in the statute since 1943, his name is brandished bearing his judicial title on the Foundation’s annual publication, the Vancouver Foundation Magazine (see the margin on p. 3).

The Foundation, like most, endeavours to not disperse the principle of their funds. Instead they invest it with the assistance of portfolio managers that work at major financial institutions like Toronto Dominion. These portfolio managers are tasked with generating dividends (returns from investments) to regularly increase the CTF. These proceeds are then distributed to various non-profits and charities seeking donations in response to applications.

Investments are complex and there are many different kinds. Among the different types the Foundation reports are ETFs, or exchange-traded funds. ETFs are a basket of securities that can be purchased through a brokerage firm on a stock exchange. They are offered on virtually every conceivable asset class. The Foundation has many investments in ETFs.

For a $1.2 billion dollar fund, it is almost impossible to imagine a portfolio that did not have investments in the pharmaceutical industry. This is standard, among real-estate, energy, mining, technology, and so forth.

Anyone with a portfolio of that size, unless specifically instructing their portfolio managers otherwise, will have holdings in the pharmaceutical industry. It would be exceptionally rare that a fund of this magnitude would omit such a sector in its investment strategy.

Under Asset Allocation on p. 4 the division of the CTF is defined. Canadian and global equity have a combined allocation of 55 %. That means the CTF is being used to purchase stock in private sector for-profit corporations that are traded on the exchange.

According to the Foundation’s 2022 Report on Investment Performance, the staff and the Board are kept apprised of where the CTF is invested. It is not a blind trust.

That is half of the problem. That is, where money is invested to generate more. The second problem is where are the proceeds of those investments being directed to. This is where we express additional concern.

Based on the T3010 Registered Charity Information Return filed with the Canada Revenue Agency, several years of reporting periods are available. The records are copious with thousands of donees. We will save you the trouble of sifting through them. The following is a summary of our provisional material findings.

In fiscal year 2021 the Vancouver Foundation donated to the Public Health Association of British Columbia $193,072 and to Fraser Health Authority $93,434. The year prior of 2020 Vancouver Coastal Health Authority received $100,000 from the Foundation. A charity setup by the British Columbia Centre for Disease Control to receive donations, the BCCDC Foundation for Population and Public Health, received $13,000.

During the onset to the alleged pandemic in 2019, many of you will recall the traditional intellectual safeguards were largely mute. The British Columbia Civil Liberties Association received $151,718.

Other recipients during that fiscal year include the BCCDC’s Foundation at $57,667, Fraser Health Authority at $41,055, the Registered Nurses Foundation of BC at $4,276, and a charity setup by the Canadian Broadcasting Corporation at a $1,000.

The previous fiscal year of 2018 the BCCDC Foundation again received $57,667, Fraser Health Authority $41,472, the BC Civil Liberties Association $36,104, and the CBC’s charity $1,000.

From the voluminous records we were able to analyze in the time invested, this is where money directly went. The question of where money went after the Vancouver Foundation donated it to the BCCDC Foundation is also worth commenting on.

Unlike the Vancouver Foundation, the BCCDC’s Foundation does not donate to thousands of donees. Based on its own T3010 filing, from fiscal years 2017 to 2021, it donates to only one to four donees a year. A sophisticated organization, such as the Vancouver Foundation, cannot reasonably be said to not know where the aforementioned benefactor receiving a donation would subsequently direct it to.

In every filing we uncovered problematic benefactors. In fiscal year 2021 the BCCDC Foundation donated to the Provincial Health Services Authority $140,247. The year prior of 2020 an amount of $487,689 was donated to the PHSA. In 2019 they received $588,553. In 2018 they received $290,267. In 2017 they received $426,016. The BCCDC Foundation then in 2017 donated to the BCCDC itself $15,300.

Recall that the PHSA is Dr. Henry’s employer, a defendant named in all of our litigation – including the petition in which the Chief Justice presided over. It is impossible for any reasonable person to characterize the movement of substantial sums of money in this manner under the direction of the Chief Justice as, at the very least, not carrying the perception of a conflict of interest.

Unfortunately the potential conflicts do not end there. Mr. Joe Gallagher, the Vice President of Indigenous Health & Cultural Safety at the PHSA also appears to be a Board Member of the Vancouver Foundation.

The potential conflicts transcend merely CSASPP’s affairs. With the Vancouver Foundation donating to various policing charities, and the Chief Justice potentially presiding over criminal matters, endless new questions are raised about every destination of the Foundation’s money.

The Vancouver Foundation’s 2022 Report on Investment Performance defines various conflicts of interest in s 7.1-7.5. Its Code of Conduct and Ethics states that it must “prevent conflicts of interest from creating actual or potential impropriety that could undermine [its] effectiveness and reputation, as per the Foundation’s Conflict of Interest Policy.”

The Ethical Principles for Judges, published by the Canadian Judicial Council notes that “Judges are, and must reasonably be perceived to be, independent, both individually and institutionally. (…) Judicial independence ensures that judges are impartial in fact, and also that they are perceived to be so. (…) Judges should therefore be mindful of the ways in which their conduct would be perceived by reasonable and informed members of the community and whether that perception is likely to lessen respect for the judge or the judiciary as a whole.”

The publication further notes that “While, in the past, Canadian judges have served in leadership positions with organizations such as universities and religious bodies, this service is potentially problematic. The risk that such organizations will become involved in litigation or be the subject of public controversy creates the possibility that the judge will be placed in an awkward position, both in relation to public confidence in the judge’s impartiality and in the judiciary as a whole. While judges may consider accepting such positions, they should reflect on issues of perceived or actual conflict before doing so, all with a view to determining whether the role can be structured in such a way so as to avoid conflicts and appearances of conflict.”

Among the members of the Canadian Judicial Council is our Chief Justice.

The Judges Act, RSC 1985, c J-1, s 55 is clear that “no judge shall, either directly or indirectly, for himself or herself or others, engage in any occupation or business other than his or her judicial duties, but every judge shall devote himself or herself exclusively to those judicial duties.”

One might argue in defence of the Chief Justice that his judicial duties are defined by statute, which includes the Vancouver Foundation Act. Continuing in that thread, one might reason the Vancouver Foundation Act is not prima facie inconsistent with the Judges Act, therefore.

Conversely, one might also argue that what was contemplated by “judicial duties” was adjudicating on civil, criminal matters, and administering the Court. Not writing cheques from a $1.2 billion dollar trust fund on behalf of a highly influential nonprofit.

Other arguments might be available that the Chief Justice’s presence on the Board of Directors, as directed by parliament, constitutes a kind of legislative control over the operation of our Court which is contrary to s 96 of our Constitution. The latter implies that only the Court is free to control its own process and not the legislature or the executive.

But even if his mere appointment to the Board of Directors was not a real or perceived conflict of interest at law, the manner in which the Foundation is operated by him clearly is.

It is not denied by anyone that the Foundation has undertaken an enormous amount of charitable causes and has improved the well being of many. There is no issue there.

But the idea that a small group of unelected individuals, which includes the Chief Justice, two of which represent the legal profession, still have influence as far and wide reaching into virtually every facet of our social, political, and economic life is one that any reasonable person would find repugnant in a Western liberal democracy today.

The Foundation is effectively able to influence everything from the musical performances played at a symphony, the selection of artwork on the walls of our art galleries, the kind of scientific research that is conducted, the themes taught in our university’s textbooks, and more. Further, its reach is not merely within British Columbia, but international in scope with its money, and by extension its influence, extending to Toronto, Harvard, and elsewhere.

I anticipate substantial public discourse on this topic following today’s publication. We will continue to investigate, including the nature of the investment portfolio, the Vancouver Foundation’s by-laws, minutes of board meetings, its lobbying activities, and other potentially useful areas of inquiry.

Our provisional thoughts are such that the likelihood of any degree of success in our appeal of the Chief Justice’s ruling has just increased.

Your continued assistance is greatly appreciated to support our work. We expect to have additional significant revelations likely later this week on other matters.

~ Kip

10 March, 2023: Progress on Health Care Workers’ Petition, Justice Coval Accepts Our Corrigendum Request of 7 March, 2023

Friends,

You will recall in my previous status update of 1 March, 2023, we requested a corrigendum from Justice Coval in respect to his ruling of 28 February, 2023, that dismissed an application to augment the record that was brought in our health care workers’ petition. That request which was jointly submitted by the petitioners to the Court on 7 March, 2023, is now available for your review.

I am happy to inform you that we received correspondence from Justice Coval yesterday acknowledging the need for numerous corrections in his ruling.

I should add that Justice Coval’s comments are positive because they allow us to specify which portions of Dr. Pelech’s valuable affidavit should be struck, rather than the entire affidavit.

He also indicated he would like to have another case management conference at some time in either late March or early April to discuss preparations and readiness for this petition to be heard in May.

Your assistance is greatly appreciated as we prepare for that hearing, our appeal of the Chief Justice’s ruling on our injection passport petition, as well as the continuation of our class action’s certification. The latter is still on schedule to resume for five days beginning on 24 April, 2023. With progress on all fronts, your contribution is essential.

~ Kip

1 March, 2023: News on Class Action, Injection Passport, and Health Care Workers Suits

Friends,

We have news to report on all three challenges. Some of it is good. Some of it is bad. But none of it is fatal for us.

Let me start by providing an update on our health care workers’ petition. I encourage you to start by reviewing my status update of 16 November, 2022, and my recounting the delays that were beyond our control in having this petition heard.

You will recall I did not see having that petition being tethered to Mr. Gall’s petition as prudent. I did not see him then as a wise investment. I still do not. Many of the nurses who have contacted us expressing their concerns do not either. Indeed, even Justice Coval has expressed concerns on several occasions about the decisions Mr. Gall has made.

Being tethered to the other health care workers’ petitions could have been productive in some circumstance. However, as I have warned countless times before, when litigation is managed by lawyers with all important business decisions delegated to said, it can be a recipe for disaster. They have a different concept of time, money, and progress that is alien to the majority of inhabitants on this planet. Even the very word “reasonable” takes on a unique meaning with a lawyer that is a departure from the colloquial usage of a reasonable person.

We were prepared to give Mr. Gall the benefit of the doubt. As the hearing for his application seeking further document production from Dr. Henry went on last December I became increasingly concerned with the poor rapport he had established with our judge. On at least two occasions Justice Coval reprimanded Mr. Gall for not being properly garbed.

We have an uphill battle as is. A wardrobe malfunction by counsel does not help.

If that were not problematic enough, Justice Coval and I had both expressed concerns that the application would delay adjudication on the merits. I lost count of the number of times he cautioned Mr. Gall that bringing such an application may not have been wise. If he had listened, we would have all saved substantial time and money.

At no time did Mr. Gall, nor his client Dr. Tsiang, ever reach out to us before committing to procedural steps that adversely affected our work. I am advised by the nurses that Dr. Tsiang appears to be unaware of what is transpiring in the petition he commenced.

If asked, Mr. Gall would likely cite the law that he was not required to seek our consent. He would be correct.

Whenever a lawyer cites the law to rationalize a decision they made that their mother would have scorned them for, that is sometimes a red flag. The law represents the minimum standard of acceptable behaviour in our society. It does not oblige you to hold the door open for someone, throw a life vest, or donate to a charity. That is why when a lawyer relies exclusively on it in place of a moral argument in a situation like this they have already lost their credibility, in my view.

We also believe, and I suspect Justice Coval believes, that the documents that were before Dr. Henry at the time she issued her injection mandate orders might be as good as it is going to get, if not adequate for the purposes of adjudication without delaying that hearing until the next ice age.

Having no choice but to be dragged along, we sought similar production orders, but we were by no means driving the bus.

We had predicted that Mr. Gall’s involvement would bleed both time and money. Unfortunately we were correct again. Justice Coval issued his ruling 28 February, 2023. The applications for document production were dismissed.

Justice Coval found that Dr. Henry had already provided sufficient disclosure at this time. This does not mean she has managed to dismiss our petition. It just means that the evidentiary record is likely frozen until the petition is heard on the merits – unless there is a good reason to try to augment it again later.

That hearing also had the collateral effect of having two petitioners’ affidavits struck on Dr. Henry’s application. These were portions of Dr. Nordine’s affidavit and Dr. Pelech’s in its entirety. The latter affidavit was one of our expert reports that was costly to prepare.

But it could have been worse. Dr. Henry had initially sought to have additional affidavits struck from the petitioners during that hearing. She opted instead to abandon that application. Thankfully there were no costs awarded against us, by consent of the parties.

We predict that if an appeal were brought, it would most likely not succeed at overturning the Court’s decision. It would only succeed at wasting additional time and donor money.

I should add that the ruling contained a number of unintentional clerical mistakes. Because of this I do not recommend citing the ruling until it is fixed.

The correct procedure is not to appeal, but to seek leave for a corrigendum. This is a correction to a published text. This is different from an appeal where you are trying to have some substantive aspect of a decision changed. The Court produces corrections of this nature from time to time.

We have prepared a draft request for a corrigendum in collaboration with counsel for the other petitioners and they will submit it to the Court when they are ready.

On the subject of the class action, we are still on track to resume certification on 24 April, 2023.

In that proceeding Dr. Henry has advised us that she intends to rely on a decision from the Ontario Court of Appeal where that Court had characterized comparisons with other historical instances in which government mandates were subsequently proven wrong as “inapt”. This is a recent decision and she wishes to rely on it at the continuation of our certification hearing.

With respect to our injection passport appeal, it is scheduled to be heard on the merits beginning at 1000 on 3 October, 2023, for three days.

Originally Dr. Henry had sought to bring an application to have the appeal struck as moot in advance with the hope of obviating the need for a hearing on the merits. Dr. Henry claimed this process of having a standalone application would be more efficient.

We opposed this. Our position is that if she wishes to bring such an application, it should be heard at the same time as the appeal itself. We did not think her proposal would bring greater efficiency.

The Court of Appeal agreed. Court of Appeal Registrar Timothy Outerbridge noted that allowing preliminary applications in advance of an appeal rarely achieves the intended efficiency.

We will continue to keep you apprised, as always. In the mean time, please continue to donate. We cannot resume certification without the resources necessary to do so.

~ Kip

17 December, 2022: Certification Hearing Footage for 13-15 December, 2022

Friends,

This is the second update of today because I suspected you would have preferred to not be kept waiting as subsequent footage became available.

You will recall this morning the footage for the first day of Monday 12 December, 2022, was published. We just published this evening the subsequent three days for Tuesday 13 to Thursday 15 December, 2022. When we have yesterday’s footage for Friday 16 December, 2022, ready we will let you know.

Links to the footage can be found at our Hearing Videos page.

Unfortunately since this morning’s publication of the first day’s footage we received a lot of inquiries from people who did not read the accompanying status update. I will repeat that if you are having problems playing the video on a handset or tablet, please try on a desktop or laptop computer. Sometimes Vimeo takes longer to prepare the video into a format suitable that mobile devices prefer than it does for desktops and laptops.

The temporary playback issues on mobile devices are beyond our control. If you do not wish to wait for them to be resolved by Vimeo, please play on a desktop or laptop.

Please do not share direct links to the videos. Share a link to the Hearing Videos page so that people are more likely to see the disclaimer and the technical caveat regarding playback on mobile devices.

~ Kip

31 January, 2023: CSASPP’s Factum in Appeal of the Chief Justice’s Ruling on Injection Passport Petition

Friends,

You will recall on 12 September, 2022, in a long and largely technical ruling, Chief Justice Hinkson dismissed our petition seeking judicial review of various injection passport related public health orders of Dr. Bonnie Henry.

We are still awaiting the scheduling of a hearing date for the appeal. However, our factum has just been published.

The Chief Justice made a number of mistakes and I will leave the factum to speak for itself. But I will discuss a major one that I am surprised he made.

Under s. 7 of the Charter we all have the right to life, liberty, and security. If you are arrested and charged with homicide you will most likely be detained. But being detained violates your Charter rights. Nevertheless, this violation would be considered justifiable under s. 1 of the Charter. The latter says that these rights can be limited by law so long as those limits can be shown to be reasonable in a free and democratic society.

The purpose of the judicial review mechanism is to ensure the legality of state decision making by using judicial oversight.

The Chief Justice cited R. v Heywood. In Heywood the respondent had been previously convicted of sexual assault involving children. That conviction made him the subject of a (since repealed) provision under s. 179(1)(b)of the Criminal Code that he was not permitted to loiter near playgrounds, school yards or public parks. If he violated that lifetime ban he could face imprisonment.

The Supreme Court of Canada found that this provision restricted the liberty (a Charter right) of the respondent and was ultimately found to be unjustifiably broad. Whenever there is the threat of imprisonment the Court is required to engage in a Charter analysis on whether the violation of a particular right was justifiable.

The Chief Justice in our case did not do that. He did not do that because he believed there was no threat of imprisonment if I violated the public health orders that required an injection passport to attend a symphony event.

This was not correct. He did not appear to be aware of that. Most likely Dr. Henry was not aware of that either.

In Dr. Henry’s public health order of 10 March, 2022, Gatherings and Events, buried down in her list of named definitions on p. 7, she defined an “event” to mean, among other things, “a gathering of participants” for a “symphony performance”. She defined a “participant” to include “an audience member or a spectator”. Under s B(2) on p. 11, a “participant must be vaccinated”. Under s G on p. 15, she warned that “failure to comply with this Order is an offence under section 99(1)(k)) of the Public Health Act.”

Under s 99(1)(k) of the Public Health Act it says that a person commits an offence under s 42 if they fail “to comply with an order of a health officer”. Under s 42, Duty to comply with orders, “A person named or described in an order made under this Part must comply with the order.”

What happens if you don’t comply with an order made under the Public Health Act? The answer is buried in s 108(1)(a) which says that you are liable on conviction to a fine not exceeding $25,000 or to imprisonment for a term not exceeding 6 months, or to both.

This was an error of law. My prediction is that on this basis alone the Court of Appeal will be required to at least remit the petition back to the Supreme Court for fresh consideration.

It is also interesting to note that Dr. Henry did not need to frame a contravention of any of her public health orders as a criminal offence. The government, perhaps through an order in council, could have imposed different fines that would not have been orders from the public health officer.

In other news, while we await resumption of the class proceeding’s certification hearing 24 April, 2023, please donate. The appeal factum for the injection passport petition was costly, but so is the certification.

~ Kip

17 December, 2022: Certification Hearing Footage for 13-15 December, 2022

Friends,

This is the second update of today because I suspected you would have preferred to not be kept waiting as subsequent footage became available.

Links to the footage can be found at our Hearing Videos page.

The temporary playback issues on mobile devices are beyond our control. If you do not wish to wait for them to be resolved by Vimeo, please play on a desktop or laptop.

~ Kip

22 January, 2023: Continuation of Class Proceeding’s Certification Hearing & the BC CDC

Friends,

As you may recall from watching our certification hearing footage we unfortunately ended up using more time than previously allocated within the five days of 12-16 December, 2022. The hearing therefore needed to be continued in the new year at the earliest that all parties’ calendars, including the Court’s, could be reconciled.

I am writing to advise you that the parties have made arrangements for the continuation of our certification hearing on 24 April, 2023, for five days before Justice Crerar again.

You will recall from the footage that there was some controversy over the nature of the relationship between the Public Health Officer and the British Columbia Centre for Disease Control. The latter is an organization that the Deputy Provincial Health Officer has stated in the past under oath “is the scientific and operational arm of the PHO”.

Dr. Henry is now claiming that the BC CDC does not answer to her, but is in fact an independent program of the Provincial Health Services Authority. The PHSA is not named as a defendant in this proceeding. She needs this to be true because adding the BC CDC as a defendant would create additional delays and procedural obstacles that might mitigate the risk of accountability.

We will be making submissions upon resumption of our certification hearing that the relationship is as the Deputy Provincial Health Officer originally claimed, that the BC CDC is the scientific and operational arm of Dr. Henry.

In support of Dr. Henry’s position that they are apparently distinct her Deputy Provincial Health Officer, Dr. Brian Emerson, is now back peddling in a newly tendered affidavit asserting a material distinction. She will be relying upon this affidavit at the continuation of our certification hearing.

If Dr. Henry wishes to throw the BC CDC under the bus, she should seek leave from Justice Crerar to file a third party notice.

The instruction manual says that a third party notice is what a defendant files when they want to argue that, if they are found to have done something bad, a third party is to blame and ought to indemnify them.

In other words, it is the legal process of pointing the finger at someone else. This is what the government is trying to do now as part of their argument that they did not impose isolation or quarantine requirements on all of us.

This is despite Dr. Henry’s public comments to the contrary:

On 31 December, 2021, Dr. Henry discussed isolation requirements;
In the same video she also stated that “If you are unvaccinated, we continue to say that you must isolate for 10 days from when your symptoms began or when your test was positive there is no change to this but if you are fully vaccinated and either have no symptoms or your symptoms are resolving, you no longer have a fever, we are reducing the requirement for self-isolation to five days.”;
In an article 31 December, 2021, titled “B.C. reduces COVID-19 self isolation to 5 days with no symptoms, fast tracks booster program”;
On 28 March, 2020, she stated “… these measures that we are doing now are designed to try and prevent those transmissions from those people to the next generation but any severe outbreak or cluster of cases is going to tip the scales for us and we are at that very critical point right now where we need to continue this action together. We must stay apart with our physical distancing. We must stay home if we are ill, …”.

In the mean time, while we prepare to resume the hearing, let us try to make the best of the time by replenishing our war chest if you can.

~ Kip

17 December, 2022: Certification Hearing Footage for 13-15 December, 2022

Friends,

This is the second update of today because I suspected you would have preferred to not be kept waiting as subsequent footage became available.

Links to the footage can be found at our Hearing Videos page.

The temporary playback issues on mobile devices are beyond our control. If you do not wish to wait for them to be resolved by Vimeo, please play on a desktop or laptop.

~ Kip

1 January, 2023: Colleague Taken Into Custody & Partial Reinstatement of Federal Travel Restrictions

Friends,

I am writing this update to keep you apprised of two recent developments in our field. I do not want to crash the debut of a new year, but I think you would find this information relevant, important, and educational.

Our federal government announced yesterday newly reinstated partial COVID-19 travel restrictions. They take effect this Thursday, 5 January, 2023. As of that date any air travellers departing for Hong Kong, Macao, or the People’s Republic of China will be required to provide proof of a negative COVID-19 test result.

Recall that the federal travel restrictions were originally predicated on a declaration of an emergency.

As you can see the war is far from over. As I have said before, if we do not finish what we started, history will inevitably repeat itself. It already is.

Thinking carefully in how we plan and fight in our field is essential. Our work carries with it high operational risks. Sometimes these risks can pose a serious threat to one’s personal safety, livelihood, or in any other respect.

As a telling example consider my colleague John Carpay, a member of the bar and the Executive Director for the Justice Centre for Constitutional Freedoms (JCCF). The JCCF is an Alberta-based non-profit challenging various COVID-19 related measures, among other things.

Mr. Carpay did not enjoy his New Year’s Eve. I had hoped his difficulties would have ended after he faced serious professional repercussions to his livelihood from the Canadian Bar Association. Instead he spent yesterday in solitary confinement without a cot, mattress, blanket, or even a pillow after having been criminally charged and taken into custody by the Calgary police. This was presumably in response to Mr. Carpay having engaged a private investigator to investigate Chief Justice Joyal’s private life as it related to various provincial COVID-19 restrictions that were in effect at the time.

Although I did not agree with Mr. Carpay’s decision after it was well publicized and I came to learn of it, I do appreciate that he believed that he was doing the right thing.

The lesson is what I have said since the beginning. Passion is sometimes important in problem solving. But sometimes passion alone is inadequate. We must always be mindful that, as a high profile organization, everything that we do can be used against us to undermine our objectives. We must endeavour to think things through as carefully as possible and appreciate the different scenarios that can and will transpire.

With respect to the certification footage, we hope that you have enjoyed reviewing it over the holidays. We are still in the process of raising funds prior to resuming its continuation in the coming weeks. If you are able to contribute, please do so. The sooner we get certified the sooner we can bring an end to all of this.

~ Kip

17 December, 2022: Certification Hearing Footage for 13-15 December, 2022

Friends,

This is the second update of today because I suspected you would have preferred to not be kept waiting as subsequent footage became available.

Links to the footage can be found at our Hearing Videos page.

The temporary playback issues on mobile devices are beyond our control. If you do not wish to wait for them to be resolved by Vimeo, please play on a desktop or laptop.

~ Kip

19 December, 2022: Certification Hearing Footage for 16 December, 2022, International Headlines, and Reflections

Friends,

Last Friday’s day five of our certification hearing has just been linked to on our Hearing Videos page.

We will need more than the five days previously allocated to complete the hearing of all applications. We are not able to resume next week because 16 December, 2022, was the last day the Court remained open before shutting down for the holidays. We will likely resume as soon as counsels’ calendars can be reconciled. As usual you will be kept apprised of scheduling details as they crystallize.

I hope you found last week’s certification hearings informative. Our work has certainly attracted a lot of attention over the last two years. This morning we made international headlines again. The number of articles and media requests are too many for us to keep up with.

But perhaps the greatest credit for promoting our work should be given to Dr. Henry’s counsel. Their submissions continue to persuade people across the country, and sometimes internationally, of the merits of our work. Whenever they resort to delay tactics, character assassinations, or other poor arguments, we often see a spike in traffic and an ingress of additional donations.

By filming the hearings, government becomes less abstract. It becomes tangible. Generic public relations statements at a press conference are instead replaced and evaluated with your government in its raw form.

Some thoughts I will share with you now regarding certification and the necessary work Dr. Henry must complete in order to successfully defend against our application to certify this proceeding.

There is a five-part conjunctive test (all five must be true) in order for an applicant to obtain certification. If any one of the criteria is not met, then the Court may choose to not grant certification. The test is set out as follows in the Class Proceedings Act, RSBC 1996, c 50. I will attempt to summarize and explain:

We must disclose a cause of action. A cause of action is the underlying legal theory that gives rise to our claim;
We must establish that there is an identifiable class of at least two people;
We must establish that the claims of the class members raise common issues, whether or not those common issues predominate over issues affecting only individual members. The term “common issues” is defined in the statute. It does not mean that the issues must necessarily be identical;
We must demonstrate that our class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues;
We must demonstrate that CSASPP acting as a representative plaintiff would fairly and adequately represent the interests of the class, that we have produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and does not have, on the common issues, an interest that is in conflict with the interests of other class members. By “conflict” a specific technical meaning is implied, unlike the colloquial usage.

I believe that we have satisfied all five of the above criteria. Dr. Henry disagrees and, naturally, takes issue with all five. She aims to succeed in establishing the failure of at least one of the criteria. That would negate the conjunction.

The second part of the test should be incontrovertible. In some sense it is. We clearly have more than two people in our putative main and sub-classes. In fact, we have so many that she appears to be aggressively advancing the argument that the size of our proposed classes (as well as the potential liability) is a fatal problem.

There are at least three problems with this argument. First I am not aware of any case law that established an upper bound on a putative class.

Secondly, as you saw above, the statute does not put an upper bound either. The language merely states that there need only be an identifiable class of two or more persons.

What Dr. Henry is attempting to do is insert her own preferred language into Parliament’s. She would like it to read that if the size of the proposed class or sub-classes are too large that the proceeding should be prevented from being certified.

Thirdly, even if Dr. Henry was successful in persuading the Court of her interpretation of the statute in how it should be applied to this proceeding, it could create irreparable harm in terms of our relationship with the state.

What the government is effectively saying is that if it burns down your house, it may be held accountable. But if it burns down the entire village then the problem a proposed class might ask the Court to solve exceeds its capacity, and thus the government must escape the Court’s powers to hold it accountable.

Stop for a moment and think about what your future might look like if that argument was actually taken seriously. The next time the government creates a problem in which it might be found liable, the Attorney General need only advise its client that if it sufficiently aggravates the problem it created the government might avoid any finding of liability in a proposed class proceeding.

Imagine memos being distributed internally that the boil water advisory on the reserve would be best dealt with by ensuring there is adequate lead in every municipality’s drinking water. The forest fire that might have only destroyed half a dozen homes in the interior is best addressed by letting it move unchecked. Childrens’ claims of abuse by social workers would be best mitigated by ensuring all social workers have criminal records.

I think you get the idea.

The class is large because the problem is large. The problem is large because the government created it.

If you are happy with our work, please contribute to our war chest. We suspect that after you watch the footage over the holidays, you will be reminded that we were a wise investment.

~ Kip

17 December, 2022: Certification Hearing Footage for 13-15 December, 2022

Friends,

This is the second update of today because I suspected you would have preferred to not be kept waiting as subsequent footage became available.

Links to the footage can be found at our Hearing Videos page.

The temporary playback issues on mobile devices are beyond our control. If you do not wish to wait for them to be resolved by Vimeo, please play on a desktop or laptop.

~ Kip

17 December, 2022: First Footage From Certification Hearing Released

Friends,

The footage for the first day of our certification hearing has been released. You can locate it and all subsequent footage as they become available on our Hearing Videos page under Court Records in the above menu.

If you have problems playing the video on a handset or tablet, please try on a desktop or laptop computer. Vimeo may be still in the process of transcoding to resolutions suitable for mobile devices.

We had to create a separate Vimeo channel under our account to host these hearing videos. We did this in order to minimize any potential CSASPP branding. Note that this is separate from our primary channel which contains various interviews I have done.

~ Kip

15 December, 2022: Certification Hearing Current Progress

Friends,

I am sorry, but I do not have time to provide substantive updates from the war room while we are in the trenches. It is 22:00 right now and I’ve only just emptied my inbox while putting out half a dozen fires. You will have to bear with me for the time being.

The most important thing to know is that the camera has been rolling since the onset of the hearing. It is also going well – thus far.

Regarding publication of the footage, we have come to a tentative agreement with Dr. Henry’s counsel that we will propose to Justice Crerar tomorrow morning. Once he signs off on it, we should be able to start publishing footage to a location we will announce and provide a link to. That could happen as early as tomorrow night.

That is assuming, of course, that her counsel does not engage in any eleventh’ hour monkey business again.

I will provide a more substantive update as soon as I can.

I am sorry, but we just do not have the budget for even part time paid staff to answer all the queries we receive. This is why it is critical that our followers actually read our status updates and FAQ to avoid hemorrhaging scarce volunteer resources with superfluous inquiries (of which we receive many).

We are fighting. We report regularly on that fighting as best we can for two years now. We cannot also read for people.

~ Kip

13 December, 2022: Certification Webcasting URL, Dr. Reiner Fuellmich, and Certification Hearing Current Progress

Friends,

It is totally beyond our control. Despite having already been granted an order to film the certification hearing, Dr. Henry’s counsel continue to drag their heels on specifically which platform we can publish the footage to. We have tried and exhausted diplomacy, but the fact is that they either do not understand the technical requirements they are insisting on, or are intentionally acting in bad faith to prevent you from seeing what has been going on.

Let me walk you through a chronology since judgment was granted on 7 November, 2022, permitting the filming.

The following day of 8 November, 2022, we provided a draft order to Dr. Henry’s counsel for their review to be entered by the Court Registry. On 10 November, 2022, they reverted with various demands they insisted be added to the order, after it had already been granted. These were watermarking, DRM, resolution limitation, and adding an audio tone to the video.

We sought clarification on the watermarking and the addition of a tone, while deliberating on the second and third proposed requirements. We had a telephone call with Dr. Henry’s lawyers where all parties agreed not to include a tone and to continue discussions regarding watermarking, DRM, and resolution.

We sent correspondence 10 November, 2022, to Dr. Henry’s counsel agreeing to watermark and proposing 1080p resolution at 30 frames per second. We opposed DRM for the reasons I already provided to all of you on 2 December, 2022. I was also opposed to resolution limitation because that is, in effect, an intentional act of vandalism of a public record.

On 15 November, 2022, Dr. Henry’s counsel conceded that although DRM would not stop illegal screen capture, they still insisted on it for “security reasons”. We responded that to address the risk of downloading in contempt of Court, we could require that there would not be an explicit “download” button, which provides effectively the same amount of security as DRM without privacy invasions, and the potentially high costs in the tens-of-thousands of dollars. We also sought further clarification on what specifically they wanted DRM to achieve for them.

Our government had no problem hosting the Cullen Commission footage. Despite that, on 22 November, 2022, Dr. Henry’s counsel advised us that they elected not to provide us with their own hosting platform. They also suggested four different DRM vendors as options to consider. We gave consent to their draft form of the order proposed – although it was silent on DRM. We arranged for a call to discuss this further.

On 23 November, 2022, there was a short conference among counsel. Dr. Henry’s counsel wanted to hear how we proposed to host the streaming services.

We raised issues about how their proposed DRM platforms would not have had adequate bandwidth (the digital plumbing was too narrow) and offered little practical security features that could not be trivially defeated, even by an unsophisticated user.

On 24 November, 2022, we sent another letter to Dr. Henry’s counsel with our proposal and setting out our opposition to their proposed DRM vendors due to bandwidth issues, cost, and software compatibility problems. The letter focused on one particular platform they suggested that might have been the most appropriate and had publicly accessible documentation about features and capabilities. But using that platform was incompatible with the fruit devices that most of our followers already use to access our website and videos.

On 25 November, 2022, Dr. Henry’s letter reverted rejecting our concerns, but did not elaborate in providing any reasons. They did, however, consent to our usage of Vimeo.

Unfortunately on 28 November, 2022, we identified potentially serious bandwidth problems with Vimeo. The platform also comes with no additional DRM that they had previously insisted on.

They asked for us to elaborate on the bandwidth issue. We reverted with the math that predicted that we would quickly exhaust the two terabyte bandwidth limit.

We also proposed setting the YouTube setting to “unlisted” for each hearing video to prevent the videos from being associated with other content they might have taken objection with.

On 29 November, 2022, Dr. Henry’s counsel consented to publishing to YouTube using the “unlisted” feature. This is reasonable, given that our government has already had a YouTube channel for over a decade.

We drafted a letter to the Court advising that the parties had reached an agreement. That should have been the end of it.

On Saturday 10 December, 2022, the weekend before the certification hearing was to begin, Dr. Henry’s counsel resiled from our previous agreement. They cited alleged problems in YouTube’s terms of service, notwithstanding our usage of the “unlisted” and “demonetized” settings which would have prevented YouTube from using the videos in ways they feared.

On 12 December, 2022, the hearing began. Our inboxes are still inundated with people wanting to know where to find the footage. We do not have an answer, despite the camera rolling since Monday with nowhere to upload.

We have gone back and forth trying to be reasonable. Not wanting to waste the Court’s time in seeking a decision on which platform to use or an amendment to the previous order, the issue nevertheless spilled into Court at the onset of the hearing in the morning. That dispute resumed again this morning.

In the interest of getting this footage available as soon as possible, and not having the time or the financial resources to setup our own platform right now, like PeerTube, we are fine with publishing to Vimeo. However, we anticipate the bandwidth likely will run out as already discussed.

We’ve also just upgraded our plan at significant expense because it already did not have adequate storage (different from bandwidth). But beyond that we can do nothing. If we run out of bandwidth, Dr. Henry’s counsel can explain to Justice Crerar why our previous warning to them fell on deaf ears.

In the mean time, please subscribe to our Vimeo channel. Unless Dr. Henry’s counsel decides to change their mind again at the eleventh’ hour, or the Court does not approve of Vimeo, expect that this is where the footage will be published as soon as possible.

In the mean time please avoid contacting us for the link. The delay is beyond our control and you know we will keep you apprised as soon as a solution is implemented. We have very limited resources and the more time we have to respond to correspondence, the less time we have to focus on certification.

Remember, unlike the other side, we do not have $60B budget. We are not staying in hotels and receiving salaries out of the public treasury. We are all volunteers. Always be mindful of that.

Regarding the hearing itself, notwithstanding the quarrel regarding the publication platform, our application thus far is going well. We anticipate this hearing completing at the end of the week after Dr. Henry’s application to strike is heard. We anticipate Justice Crerar will reserve judgment after that.

As usual, the opening day of yesterday had the gallery packed. There were also protesters outside the building and apparently driving by honking.

To accommodate the overflow I was advised in the morning by the sheriff that the space that had previously been occupied by the barrister’s restaurant had been adapted to have the real-time audio patched in.

In other news Dr. Reiner Fuellmich recently interviewed me. The interview is published on our Vimeo channel, with a backup here.

Please continue to contribute financially to our work. I think it is fair to say now that you are all aware we are a good investment and, perhaps, the only one left.

~ Kip

11 December, 2022: Tomorrow’s Certification Hearing, Webcasting URL, Court Room Etiquette, and Cryptocurrency

Friends,

Tomorrow 12 December, 2022, is the first day of our five day hearing where we have applied to seek class action certification. You have all waited very patiently for it. Now I need you all to pay attention to a few details.

Tentatively the hearing is to be conducted in room 55 at 800 Smithe Street, Vancouver, beginning at 10AM. The room assignment could change at the last moment, so be cautioned. But you can always verify the room number, if in doubt, by checking the list tomorrow morning. There are two ways to do this, in-person or online.

There is a good possibility that Justice Crerar will order an overflow room be allocated where audio is patched through in real-time, but that is up to him.

Many of you have asked where you can view the hearings online. As you will recall the footage will be published online but will not be in real-time. It will be published likely the following day of each day of this week’s hearings as previously explained.

The platform we have proposed to the Court is our YouTube channel for a variety of practical reasons. The selection of this platform is still subject to the Court’s approval. This is something that likely will be discussed at the onset of tomorrow’s hearing.

I anticipate the morning will be spent with some procedural wrangling with Dr. Henry’s counsel over our usage of this platform, despite her having already previously granted consent after judgment was handed down permitting filming.

If the footage is published to that platform, and you have subscribed to it, you will automatically be notified of the footage as soon as it is made available. If the Court directs us to use an alternative platform we will let you know here. But for now your safest bet is to subscribe to the YouTube channel until you hear otherwise.

When you find your way into the Court room, please be mindful of etiquette. Leave signage and other protester paraphernalia outside the building. If the hearing has already begun, open the door, remain silent, bow to Justice Crerar, and take your seat in the gallery. Do not take pictures, attempt to record, or otherwise use your mobile or other electronic devices from inside of the Court room to communicate. Outside of the Court room you can use your mobile to communicate, but do not take pictures from anywhere inside of the building.

Lastly we have recently began accepting donations via cryptocurrencies. These include Bitcoin, Ethereum, Tether, USD Coin, Monero, and ZCASH. If you would like to donate, either through conventional methods, or through a cryptocurrency, you can do so at our usual donations page. It goes without saying that there is a substantial economic cost to this week’s trench warfare.

~ Kip

2 December, 2022: Certification, Webcasting Ruling, DRM, and Bill-36 Hysteria

Friends,

We continue to make final preparations for our class certification hearing still scheduled to begin 12 December, 2022, for five days. We are making every conceivable refinement we can to mitigate every reasonably foreseeable risk. It is an onerous task made no easier with a shoestring budget, but one we knew would eventually come before us.

The Court published Justice Crerar’s ruling yesterday on our webcasting application. Although his reasons were already given orally from the bench at the conclusion of that application on 7 November, 2022, and well received by those of you in attendance, having it written is certainly beneficial for those who were not.

Justice Crerar noted that we argued “that this matter, affecting all British Columbians, is a matter of widespread public interest. That public interest is not merely theoretical but actual.” He also noted that “there are few issues that have affected the public more than the COVID-19 pandemic and the government response to that pandemic. These matters have literally affected every British Columbian. It is clearly a matter of public interest.”

You will recall that in my status update of 1 June, 2022, I had predicted that the Court would be likely to expand the traditional definition of “open court” in a contemporary context to allow filming of our certification hearing. This turned out to be a prudent business decision. The Court ruled that “broadcast will advance and promote the open court principle under s. 2(b) of the Charter” and that “a broadcast order extends and expands the open court principle.”

The Court also acknowledged the social benefits in doing so. “Apart from informing members of the plaintiff of the progress of the litigation, it will serve an educational purpose for the citizens of British Columbia and advance public review, public understanding, and public scrutiny of the court process.”

Where members of the general public might be either not informed or ill-informed, Justice Crerar remarked that he agreed “with the plaintiff that our recent years have witnessed a proliferation of conspiratorial and uninformed statements about the functioning of different branches of the government, including the courts. It is hoped that the broadcast of these proceedings will, in its small part, show that courts in Canada will hear and adjudicate applications before them in a principled, independent, and neutral manner, without fear or favour.”

With that out of the way we then had to solve the various practical, technical, and logistic hurdles necessary to implement a plan to film the hearing. We began by soliciting bids and engaging a contractor to provide these services.

Since the application was granted we have gone back and forth with Dr. Henry’s counsel over several weeks to arrive at an agreement on some of the finer technical details in how the filming, review, and publication would be conducted.

One major issue Dr. Henry’s counsel insisted on was the usage of digital rights management, or DRM. DRM is a general class of techniques and technologies used to restrict a user’s control over their own computer. It is often referred to by scholars in this area as “digital restrictions management” which is, in my view, a more accurate characterization. This is because these techniques and technologies are not so much concerned with advancing user rights as they are with restricting them.

An example of DRM would be in the technology to prevent the owner of a CD containing music from sharing a copy of it with their neighbour. Sometimes such an act is referred to as “piracy”. The use of this terminology is intended to suggest that the act of duplicating the contents of an optical media can be likened, and morally equivalent, to tracking a ship on the high seas, boarding it, using rope to restrain the crew, dispatching the crew by slitting their throats, and then departing with a chest of gold. It is an analogy industry has worked very hard to normalize among those who cannot think for themselves.

In this particular context Dr. Henry had requested that DRM be implemented by us to control who could watch the hearings’ footage, when, where, and their ability to limit how they might discuss what they saw among neighbours in their communities.

In effect, the manner in which Dr. Henry had insisted DRM would be used would have required us to place you under surveillance. That is a requirement that is simply non-negotiable from our perspective.

Our stakeholders have in the past found her medical advice, an area of her expertise, to be problematic. As someone who works in the field of computing science daily, and who has studied and developed such systems in the past, I was now somewhat surprised that her expertise had recently diversified as I found myself being lectured on DRM’s allegedly salutary qualities.

I was prepared to hear her out. After all, if either her or her counsel had managed to solve a technological problem that every technology giant in the media and entertainment space had failed to solve for decades, despite billions and the best engineers money can afford at their disposal, the least I could do was connect them with my patent attorney so that they could enjoy a lucrative exit into early retirement.

Respectfully, like her medical advice, I found her and her counsels’ understanding of DRM wanting.

DRM is a highly controversial subject area. Like women’s reproductive rights, taxation, immigration, or foreign policy, it has a history of inciting heated debates. But unlike in the aforementioned areas, the general consensus among scholars in legal and academic spheres is not balanced. It is disproportionately negative. Despite that, the controversy has survived for several decades because certain ISVs continue to insist on integrating some form of it in their various products without adequate public consultation.

Our reasons for rejecting Dr. Henry’s request for user surveillance are too many to canvass in any detail today, but could be grouped under the five general rubrics of legal, moral, practical, technical, and economic.

On technical grounds one of Dr. Henry’s proposed DRM vendors, putting aside for a moment its history of perverted ambitions, and past concerns about its conduct in British Columbia, it would not have been compatible with the platform used by the majority of our visitors.

The latter use a popular platform developed by a company with a partially ingested fruit as its mascot. It has a long history of violating civil liberties and abusing its users. This DRM vendor’s lack of compatibility with fruit devices would have been a significant barrier to our adoption, notwithstanding all other issues somehow having been successfully mitigated.

Adopting DRM would also require us, in effect, to provide a product endorsement for a particular ISV’s technology. This is something that would have required us to be in contempt of Court for having monetized a person, contrary to para. 1(t) of Justice Crerar’s order.

In summary we were asked by Dr. Henry to place you under surveillance, potentially break the law, and likely be in contempt of Court. I decided against it.

On another matter there has been much recent hysteria about our provincial legislature’s Bill-36, or the Health Professions and Occupations Act inundating our inboxes. It recently survived third reading and, having been granted royal assent on 24 November, 2022, is now law.

The hysteria revolves around the central claim that all health care workers in British Columbia, with the passing of said legislation, would be required to receive an injection – lest they lose their employment. Additionally, this is often mentioned in tandem with the claim that this was a plot initiated by the incumbent government.

Let me begin by saying that I am not attempting to rationalize the legislation. It is not my intention at this time to opine on its merits.

It is true that it does consolidate the various colleges under a unified framework. Perhaps there may be problems with doing so, but the development of this legislation is not a recent advent. The desire for further centralized control under the Ministry is old. It has been on the drawing board for at least half a decade, if not longer. That is long before either our current premier or his predecessor took office.

Now on the primary concern of injection mandates in the legislation. The legislation does not require practitioners to receive an injection. It remains discretionary on the part of each college. If a college chooses to mandate it, it must be done through its local by-laws. I could be mistaken, but I am not aware of any of the colleges that currently do that or plan to do that.

What it does do is allow Parliament to require that the colleges themselves mandate it – but only through a new enactment. That means the government would need to justify another emergency, declare one, and then either through an act of Parliament or through some form of an order or regulation of the executive trigger the colleges’ amending their by-laws.

If in doubt, you can always review the debate in Hansard (Parliamentary transcripts) of our Minister of Health, or simply watch his exchange with a colleague on this subject for greater comfort.

As usual, I am asking you to please contribute to our war chest. The work ahead of us over the coming weeks is costly. Like an engine firing on all cylinders, we cannot get to our destination without fuel in the tank. Otherwise we end up stalling on the side of the road.

~ Kip

29 November 2022: Certification Hearing Posters

Friends,

As many of you have likely already noticed, our recent artwork for our upcoming certification hearing has gone viral. You can download the poster in either JPEG format (suitable for social media) or in high resolution PDF format (suitable for high resolution printing).

If you would like to obtain large 19” x 13” physical hard copies on high quality 68 lb Soperset material, suitable for either outdoor or indoor posting in your community, please get in touch with one of our volunteers at streetkit@covidconstitutionalchallengebc.ca to arrange for delivery.

Remember to ensure that wherever you place our posters to make sure that you are permitted to do so.

We are still on schedule to begin the certification hearing as planned on 12 December, 2022, for five days. We are anticipating a larger public attendance than at any other high profile case in the BC Supreme Court in decades.

Lastly, if you are able to donate then please do so. High quality printing is expensive – but dwarfed by five days in Court.

~ Kip

16 November 2022: Health Care Workers’ Petition Case Planning Conference

Friends,

As is often the case with these status updates, I have both good and bad news to report to you.

The bad news is adjudication of our health care workers’ petition has been adjourned from the anticipated 28 November, 2022, hearing date. We do not have a new date yet.

This was beyond my control. We did everything we could to advise Justice Coval of the prejudice our stakeholders will continue to endure with justice delayed. His problem was that he did not want to rule on our petition in advance, and possibly inconsistently, with those of our friends’ who joined us later.

It is important to note that neither the Court nor Dr. Henry originally sought the adjournment. The adjournment was initiated by counsel for another petitioner. Despite our best efforts to reason with him after he unilaterally tethered our petition to his own without our consent, our concerns appear to remain lost on him.

Mr. Gall’s position is that additional time (billable hours) is necessary in order to refine what constitutes the evidential record Dr. Henry had before her when she issued her public health order mandating injections. Without any doubt in my mind, it is.

But the problem is it does not matter whether the evidential record is with or without any controversy at all if a judge does not ever have an opportunity to review it. Even if the record contained a written admission from Dr. Henry that the basis of her orders was a horoscope, if her orders are rescinded prior to the petition being heard on the merits, it will not be at all because it will be moot.

If that happens the only persons to benefit are government and our friends’ lawyers billing for every case planning conference while our nurses lose their homes and face pending bankruptcy. It is like being tethered to a boat anchor.

You might think that surely that would be a good thing. If the public health orders are rescinded our health care workers can return to work. This is true, but that means that, without any finding of wrong doing on the part of Dr. Henry, there is no means to recover losses our health care workers incurred in being out of work – nor the reassurance of new case law establishing that she acted unlawfully. That would mean a week after returning to work the orders could theoretically be reinstated with zero accountability.

We even asked Dr. Henry’s counsel this morning if she would agree to waive the mootness defence if we reluctantly consented to an adjournment. The answer we received was “probably not”. This is not a surprise since, as I discussed recently, this was already successfully played with her federal counterpart.

That is the bad news. The good news is, if mootness does not become an issue, we actually have a good chance of prevailing. Our argument and our evidence are in my view strong.

We also may bring an application early December, taking advantage of the delay forced upon us, to compel additional document disclosure from Dr. Henry.

In other news our class action certification continues as planned beginning 12 December, 2022, for five days.

~ Kip

14 November 2022: Health Care Workers’ Petition Case Planning Conference of 16 November, 2022

Friends,

You will recall my update of 20 October 2022: Yesterday’s Unnecessary Health Care Workers’ Judicial Management Conference. At that time I explained the procedural delays in bringing our health care workers’ petition to adjudication. You will recall that we were tethered, contrary to our wishes, to three other somewhat similar petitions. Their respective counsel have been in disagreement in what constitutes the “record”, or the evidence that was before Dr. Henry at the time she made her decision to mandate injections.

Justice Coval had directed on 19 October, 2022, the parties were to take two weeks to come to an agreement, as much as possible, to resolve this issue before the petitions could be adjudicated on their merits. He directed we return before him following this period to reconsider the issue of whether our upcoming 28 November hearing should be adjourned.

That time has come. This Wednesday 16 November, 2022, we have a case planning conference before Justice Coval scheduled for 0900 and proceeding by way of video teleconference.

The purpose of Wednesday’s brief hearing is to determine whether any of the petitions will proceed on the merits on 28 November, 2022, as already scheduled and, if not, how much time is needed for preliminary applications to be heard starting on the same date. If Justice Coval makes an order that any of the petitions cannot proceed on the merits on 28 November, 2022, then the parties will determine dates in April of 2023.

It is my position that CSASPP is ready to proceed on the 28 November, 2022, as already scheduled and if the other petitioners wish for additional time that they should be free to do so independently without dragging us down like a boat anchor. The danger of protracted litigation is eventually the public health orders that mandated injections may be rescinded, Dr. Henry will then claim the relief we are seeking is moot, the clients are stuck with a runaway bill from their respective counsel without any value for money, and the world is deprived of any useful case law to prevent history from repeating itself.

This is not hypothetical, but has already happened recently in other litigation that challenged the federal injection mandates for travellers by air and rail.

We will do everything we can this Wednesday to advocate effectively for sticking to the schedule.

~ Kip

9 November 2022: Justice Crerar Rules on Class Proceeding’s Open Court Application for Certification Hearing

Friends,

Our hearing of 7 November, 2022, went very well. I am delighted to share with you that we prevailed in this historic challenge. The order was granted allowing CSASPP the right to webcast our upcoming certification hearing, mostly as we had applied for based on our evidence from myself and from many others in remote locations and in a variety of predicaments.

As usual, we had a good turnout again.

The certification hearing is still set to begin on 12 December, 2022, for five days. The world has been waiting nearly two years for it. If we prevail at certification this proceeding formally becomes a class action and may proceed to a forty day trial. That means a single plaintiff is augmented with potentially hundreds of thousands, if not millions, affected by the declaration of an emergency. We also then have the formal tools of discovery made available to us to ask Dr. Henry questions and obtain documents.

This is the first time in British Columbia that a class certification has ever been filmed before. We believe this is a significant milestone on the road to accountability in respect to the conduct of the defendants.

The hearing itself was quite interesting. We had an additional guest in the Court, besides Dr. Henry’s counsel on her behalf (and the Provincial Crown’s). The Attorney General of British Columbia was automatically made a respondent because our application related to constitutional questions regarding the webcasting.

The Attorney General’s position was convoluted, but ultimately slightly more rational than Dr. Henry’s – both of which opposed our application in its entirety.

I will not traverse the Attorney General’s entire position, but in a nutshell he attempted to argue that the legal threshold had not been met to grant such an order. Filming the hearing could “jeopardize the safety and privacy of participants”, “creates the risk that context-less or distorted materials will be broadcast, detracting from the public understanding of the proceeding and undermining the dignity of the court.” He further claimed that “the risk that distorted representations may be created and broadcast for purposes contrary to the proper administration of justice is heightened where the nature of a case is particularly controversial or has become highly politicized. CSASPP’s application poses a risk to the proper administration of justice.”

This line of argument is so common it has even been assigned a name.

The Attorney General tendered no evidence of his own in support of his application response. Dr. Henry, on the other hand, had an affidavit submitted on behalf of a paralegalist in the Legal Services Branch within the British Columbia Ministry of Attorney General. I have provided various redactions in good faith to protect their identity.

I encourage you all to review the affidavit. It is a cherry picked selection of mostly the general public’s social media posts, none of which appear to have originated from CSASPP, expressing various public health order related grievances.

It is important to take note how a post can, and likely will be, used out of context by the defendants at every opportunity.

By way of innuendo Dr. Henry’s counsel had hoped to convince Justice Crerar that there may be safety concerns or potential violence that might somehow manifest if the order was granted. There is some deductive gymnastics in Dr. Henry’s application response, but you will get the general idea. As an example, my status update of 2 December 2021: October’s Entered Orders, Measuring Progress, and Historical Lessons from India was selectively read to mean a potential or imminent threat of violence.

Throughout the hearing we heard from three lawyers present on behalf of Dr. Henry and the Attorney General tell us that granting such an order would apparently “undermine the dignity of the Court”, that it would amount to an “abuse of process”, “inflame the discourse”, and that, in any event, you are too unsophisticated to understand what was going on anyways.

We argued that the only affidavit the respondents’ provided from the paralegalist should be given no weight and ignored. Most of the exhibits were hearsay and should not be allowed to be relied upon. It contained social media comments which were made out of Court, by unknown parties (possibly by bots or even the defendants themselves), and with unknown and ambiguous meaning and intent.

The distillate of the government’s position boils down to something very simple, in my view. Filming a trial level proceeding might be fine if anyone else was on trial, except when it is the government.

After hearing submissions from all parties Justice Crerar advised us around noon that he would attempt to return with his ruling by 1530, noting the time sensitivity of this application in order to provide us with adequate runway, if the order was granted, to make preparations for an appropriate contractor to film the hearing.

The order was granted, generally in the form we had proposed to the Court. The only addition was a term that any lawyer or Court staff who does not wish to be on camera would not have to be, and appropriate redactions would need to be made before the video would be released the day after each day of the hearing.

Justice Crerar was not convinced of the merits of most of the respondents’ evidence and arguments. Most importantly he noted that the public interest dimension to our work was not simply “theoretical”, but is well supported by the evidence. He said that webcasting such a hearing can help to better inform the general public on how the judicial system functions at a time when it is often misunderstood.

As soon as we have the written reasons for judgment back and the entered order I will make them available to you for your review.

We need to now begin soliciting bids from various service providers to implement the requirements to webcast. If you have a particular experienced professional contractor in mind, please have them review the draft order beginning on p. 12 of the application and have them get in touch with us.

Engaging a contractor will incur expense and for that reason we invite you to please continue contributing to our war chest.

~ Kip

28 October 2022: Document Production Requests to Dr. Henry for Health Care Workers’ Petition

Friends,

We have sent two letters to Dr. Henry today in respect to her public health order of 12 September, 2022. The provenance of this order goes back a year. This most recent incarnation repealed and replaced a similar order of 18 November, 2021; in turn of 9 November, 2021; and in turn of 21 October, 2021 and 14 October, 2021.

These orders are important to health care workers in hospital settings because it mandated injections as a condition of continued employment. In effect, it was the genesis of what became the catastrophe we are all too familiar with.

The first letter seeks document disclosure. That is, we are asking Dr. Henry to produce documents in time for the 28 November, 2022, petition hearing before Justice Coval. We would like to review what she reviewed in the medical and scientific literature that supported her orders. We have also asked her to produce those studies she reviewed that did not support her orders.

We have sent this letter because she has produced very few documents that reference actual scientific and medical peer reviewed articles or studies. Her response to date has been that there are apparently too many and she is too busy. This letter is our most recent request in an effort to make disclosure easier for her.

The second letter seeks under s 45 of the Public Health Act, SBC 2008, c. 28, her re-assessment of the most recent incarnation of the aforementioned order of 12 September, 2022. This PHO post-dated the original petition, hence why we needed to file an amended version yesterday. In order to re-assess the merits of the orders mandating injections for hospital staff we have enclosed a letter dated 10 August, 2022, from the Canadian Covid Care Alliance which contains an extensive set of references – mostly to the primary literature.

Under s 45, Mandatory reassessment of orders, it is defined by three sub-sections:

Subject to the regulations, a person affected by an order may request the health officer who issued the order to re-assess the circumstances relevant to the order to determine whether the order should be terminated or varied.
On receiving a request under subsection (1), the health officer must re-assess the order in accordance with the regulations.
If, following a reassessment, a health officer reasonably believes that the order is, or conditions within the order are, no longer necessary to protect public health, the health officer must immediately terminate the order, or vary or remove the conditions, as applicable.

One purpose among several of the second letter is to assist in clarifying what she must preserve within the “record” to avoid additional monkey business later. The letter is intended to be routed to her personally and to advise us immediately if it cannot be for any reason.

As usual, please keep the donations coming. We have a busy November ahead of us if everything goes to plan.

~ Kip

27 October 2022: Class Proceeding’s Open Court Application Ready & Further Amended Health Care Workers’ Petition

Friends,

I am happy to share with you that our open court application is ready in our class proceeding. It is returnable 7 November, 2022, before Justice Crerar. The hearing will begin at 9:45 AM at the usual location of 800 Smithe Street, Vancouver.

To refresh your memory I encourage you to revisit our previous status update, 1 June 2022: Preparing for Live Broadcast of Dr. Bonnie Henry’s Trial.

In a nutshell we are asking Justice Crerar in this application to make an order permitting the video recording of our much anticipated certification hearing which is still scheduled to begin 12 December, 2022, for five days. This recording will not be live, but will be embargoed until 5PM the following day of each day of that hearing. This is to give the parties time to ensure privileged information has not accidentally been recorded, such as sensitive conversations between co-counsel or their notes. The video will then be uploaded online for public viewing. The details are found on p. 13 in the draft order attached to the application.

Although Justice Crerar has already made an order that we will have a large courtroom for certification, as discussed previously, there are many reasons why many of you would still not be able to attend in person. We have laid out a number of reasons in various supporting affidavits, including my own.

Recall that the room number is typically assigned either the day before or the morning of the hearing. When you walk into the front door, walk past the concierge desk and you will see a collection of documents posted on the wall with room numbers for different hearings for that day. Your file number is S-210831. Sometimes hearings are not always listed and sometimes they are which is beyond our control. If you cannot find it, ask the concierge desk or someone in the Registry.

When you find your way into the Court room, please be mindful of etiquette. Leave signage and other protester paraphernalia outside the building. If the hearing has already begun, open the door, remain silent, bow to Justice Crerar, and take your seat in the gallery. Do not take pictures, attempt to record, or otherwise use your mobile or other electronic devices from inside of the Court room. Outside of the Court room you can use your mobile, but do not take pictures from anywhere inside of the building.

On another matter, we have further amended our health care workers’ petition today. This is the second time we have amended it. Portions that are underlined have been inserted. These changes were summarized in our cover letter of today when serving Dr. Henry’s counsel.

We made these amendments to adapt to changing circumstance. The petition is still scheduled as of this writing for 28 November, 2022, before Justice Coval. The changes were made in time prior to the hearing so as to not require an adjournment. This was done because the 12 September, 2022, public health order which repealed and replaced a previous order of 18 November, 2021, did not exist at the time we brought the first revision of this petition. You will also note that we added several corresponding ultra vires declarations to declare that the order was unconstitutional.

Lastly, please continue to contribute to our war chest so that we can continue serving our community. We receive no government funding, as you are aware, and are entirely dependent on you to deliver.

~ Kip

20 October 2022: Yesterday’s Unnecessary Health Care Workers’ Judicial Management Conference

Friends,

You will recall on 12 April, 29 June, and 3 September, 2022, I explained the delays in getting our health care workers’ petition before the Court.

Originally this petition was supposed to be heard 6-7 April, 2022. Instead the entire time was wasted responding to Dr. Henry’s arguments concerning whether we should have public interest standing. Despite us being the victor, we lost both of those days we had booked to Justice Coval having to hear submissions primarily on that issue rather than adjudicating on the actual petition. As a result, the petition has still not been heard on its merits.

After that hearing three other petitions came to light. Each sought similar relief. Each is represented by different counsel. When I came to learn of the latter this was of grave concern because I knew from experience that time would be wasted accumulating billable hours rather than actually solving problems for real people. Unfortunately, my prediction was correct again.

Counsel for the other three petitions demanded that they all be heard concurrently with our own. We were opposed to this. We asked them politely to go and pursue their own venture and wished them the best of luck for the sake of economy and efficiency. We are generally amenable to working with anyone, but only so far as it is actually helpful in achieving our objectives.

We ended up before Justice Coval again on 29 June, 2022, at the other petitioners’ request to have this issue resolved. Justice Coval suggested the other three petitioners be heard together, as they wished, and we would be heard separately. That seemed reasonable, but the other petitioners were not amenable. Justice Coval then directed that all four would need to be heard together over a span of ten days.

The way the Scheduling desk generally works is the longer a hearing the longer you have to wait for it. So we began with what was only a two day hearing and now we needed ten.

After a great deal of effort in trying to reconcile everyone’s calendars, including the most scarce of them all, the Scheduling desk, we finally managed to book 28 November, 2022, for ten days. Wasteful, but manageable.

Meanwhile, our suicidal terminated nurses are cleaning homes and finding any other means they can of making a living.

I do not see being tethered to the other petitions as an asset to our matter at this time. On the contrary, I see this as a liability. We have an uphill battle already.

Since the 29 June, 2022, hearing, counsel for the other three petitions have been squabbling over procedural issues, which could potentially create more and more delays.

This is not to say counsel for the other petitioners do not have valid issues to sort out. They do, but they should do that on their own time and dime and not our donors’. They want to determine what constitutes the “record”, or the materials that were before Dr. Henry when she made her injection requirement orders for health care workers. This is very important in administrative law and is crucial to determine if her orders were “reasonable” and valid.

But the whole reason why people are in our Court in the first place is because they cannot agree on something. A dispute over the vague semantics of any concept or terminology in the field of law is inevitable. The longer it drags on for the more billable hours that are incurred. The field contains nothing in it that comes even remotely close to the certainty of a formal definition of the Fibonacci sequence or a neutrino. The vagueness and absence of any formal definitions create lucrative opportunities to endlessly litigate by the barristocracy.

I said no to the adjournment. Our Court does not exist to enrich lawyers. We are not going through this exercise in order to provide lawyers with a means of employment. We are there to restore the nurses’ jobs. I will not grant consent to an adjournment for a matter that has already seen far too much delay.

Counsel for the other petitions requested a judicial management conference to be held yesterday morning on short notice. As a result I apologize for being unable to provide you with any.

Justice Coval directed the parties yesterday to take two weeks to come to an agreement, as much as possible, with respect to what constitutes the “record” before Dr. Henry made her orders as well as some other minor issues. He directed we return before him following this period to reconsider the issue of whether our upcoming 28 November hearing should be adjourned.

As of this writing the hearing starting on November 28, 2022 is still on. My preference is we keep this date, use only the first day or two for our petition, and vacate the rest to the scarce pool of judicial resources. Counsel for the other petitions can find their own dates – if their clients are willing to wait.

One final update. Distinct from the above, our injection passport appeal had Dr. Henry recently provided formal notice that she intends to participate. This was to be expected, but I thought I would let you know anyways.

~ Kip

7 October 2022: Appeal of Chief Justice Hinkson’s Ruling on Injection Passport Petition

Friends,

I am very happy to share with you that we have initiated the formal appeal process of Chief Justice Hinkson’s ruling on our petition that challenged the injection passport. Our Notice of Appeal is enroute now to Dr. Henry’s counsel.

You will recall from my previous status update that our petition was dismissed entirely on excessively technical grounds.

The British Columbia Court of Appeal is a separate court from the Supreme Court of British Columbia. It was created by our parliament in 1907. Prior to that, if you took issue with a judgment from the Supreme Court, you needed to travel to England and request an appeal through His Majesty’s Privy Council.

When our appeal is heard it will be before three new judges. Appellate judges normally are distinct from lower court justices in that they do not sit in both courts simultaneously.

We are requesting that our appeal set aside Chief Justice Hinkson’s order and grant the relief we originally sought. In the alternative, we are asking the Court of Appeal to order the matter be remitted back to the Supreme Court of British Columbia for fresh consideration.

We believe we may have at least three grounds for an appeal. In short, the grounds are on standing, administrative law, and on Charter grounds. I would prefer to keep our powder dry as long as possible, but I will publish our factum, currently being drafted by counsel, as soon as I am able to.

I understand that many of you were upset with the Chief Justice’s ruling, in particular within the bar. I must admit that I was not entirely surprised by the judgment. But I also knew that it is better to lose in the Supreme Court of British Columbia and prevail in the Court of Appeal than the inverse.

To appeal a Court of Appeal ruling you must request leave (permission) to have it heard in the Supreme Court of Canada in Ottawa – an ambitious task in which approximately only 7 % of applicants are successful.

Our Court of Appeal frequently overturns decisions of the lower court. Not only that, but litigants in the past have succeeded in overturning rulings specifically from the Chief Justice.

In one case our Chief Justice refused to grant public interest standing to the Council of Canadians with Disabilities. The CCD had brought a claim against our provincial government alleging they were being discriminated against in how certain mental health services were provided to them. The CCD successfully appealed the decision. The provincial government’s counsel, some of which were Dr. Henry’s counsel in our petition, then sought leave in the Supreme Court of Canada. Leave was granted, the appeal heard, and subsequently dismissed again with “special costs on a full indemnity basis (…) awarded to CCD throughout”.

As always we will continue to keep you apprised and welcome your contribution to our war chest.

~ Kip

13 September 2022: Chief Justice Hinkson’s Ruling on Injection Passport Petition

Friends,

The Chief Justice’s ruling in respect to the injection passport petition was returned to us. You can read it here and are encouraged to do so.

In a nutshell, we lost. I am sorry.

The ruling is long and technical. But here are some highlights below, beginning with the Court’s assessment of Dr. Joel Kettner’s expert report. We relied on Dr. Kettner who was the former Chief Medical Officer of Manitoba:

[115] Regardless of whether the Kettner Report is inadmissible hearsay, the fact remains that the Kettner Report postdated the impugned Orders, and thus cannot be the basis for a challenge to those orders.

[116] I therefore find that the Kettner Report is not relevant in these proceedings.

On Dr. Henry’s public health orders themselves:

[166] The PHO’s factual findings and rationale for issuing the impugned Orders and the Variance Order were supported by the information available to her at the time, including, without limitation: the currently available scientific evidence regarding SARS-CoV-2; the then-current epidemiology in British Columbia; scientific literature; her background in epidemiology; risks associated with social settings and particular behaviours; the risks associated with vulnerable populations contracting COVID-19; and the impact on the public health and health care systems due to the burden of preventing COVID-19 and treating COVID-19 patients.

[167] In making the impugned Orders and the Variance Order, I am satisfied that the PHO assessed available scientific evidence to determine COVID-19 risk for gatherings in British Columbia, including epidemiological data regarding transmission of SARS-CoV-2 globally, nationally, and in British Columbia, factors leading to elevated transmission risk in religious settings, and COVID-19 epidemiology in British Columbia.

On Dr. Henry’s expert report from Dr. Emerson, the Court determined:

[173] Dr. Emerson also deposed that unvaccinated and previously infected are at a higher risk than vaccinated people with two doses, without providing a complete explanation for this view. I no not find that it was necessary for Dr. Emerson to fully explain his view.

[174] I reject as unreasonable, the petitioners’ assertion that Dr. Emerson’s affidavit is deficient because he did not provide any evidence that the public health care system was overtaxed. I find that his statement to that effect is sufficient.

[175] Similarly, I find that Dr. Emerson’s statement that a “not insignificant” proportion of eligible population remained unvaccinated, without data to support that view, his failure to explain how hospitalizations were recorded, the lack of an explanation as to how the respondent adjusted for age differences, required no further elaboration

Despite all of this, Dr. Henry was not awarded costs and we believe we may have grounds to appeal.

A parallel petition brought by Mr. Maddock had reasons for judgment released at the same time by the Chief Justice. The ruling can be read here. Unfortunately he was not successful either:

[97] The Attorney General’s submissions are aimed largely at the internal rationality of the Variance Order. In my view, the reasoning is clear; the decision bears the hallmarks of rationality in that it is justified, transparent and intelligible.

[98] The remaining question is whether the PHO had the authority to suspend all reconsiderations as she did.

[99] As noted above, s. 54(h) of the PHA empowers the PHO to decline the request of a person affected to reconsider (s. 43), review (s. 44), or reassess (s. 45) an order or a variance order during an emergency. I am satisfied that this provision exists to allow the PHO to exercise her discretion to respond to those matters perceived most immediate and to direct scarce resources in the way that they will be of greatest use to address the exigencies that arise in emergencies.

[100] I accept that the PHO had the statutory authority to exercise her discretion to suspend reconsiderations as she did.

[101] I therefore dismiss the petition to set aside the Variation Order as unreasonable.

Concurrently our health care workers’ petition and class proceeding continue to move forward.

We will keep you apprised, as always.

~ Kip

3 September 2022: Status of All Three Suits

Friends,

The Chief Justice’s ruling in respect to the injection passport petition is still under reserve. In the mean time, we have been very busy preparing for a number of tasks.

Our class proceeding’s certification is still scheduled to begin on 12 December, 2022. Counsel continues to refine our written submissions (arguments to make in Court). That hearing will also hear Dr. Henry’s efforts to strike our proceeding. We have a good chance of prevailing, but anything can happen. Defendants in proposed class proceedings typically bring applications to strike at certification because it is more dangerous to try and do so after successful certification, but less likely to succeed before.

We will be bringing an application to be heard at certification to amend our pleadings to put myself directly into the breach again, if necessary, as an individual plaintiff as well as refining some of the relief we are seeking. This will have the effect of mitigating Dr. Henry’s endless efforts at challenging our standing.

Our open court application we also decided to make additional refinements. Our supporting affidavits are complete, pending a few still needing to be commissioned. They detail a sampling of individuals who have been unable to attend our hearings in the past due to physical mobility issues, cost, time, inadequate seating, or other reasons. We’ve also improved the language of the draft order to ensure we are strategically positioned, if it is granted, to find a third-party service provider at a competitive rate to webcast the certification hearing to the world rather than being locked into a specific contractor.

We are prepared for the health care workers’ petition which is still scheduled to be heard from 28 November, 2022, to 9 December, 2022. Our written submissions were due recently and have been completed. Our health care workers wait patiently in the mean time.

Because the other parallel health care related petitions desired to have their petitions heard concurrently with ours, with CSASPP being the only litigant not wanting that for reasons of economy of time and money, our costs increased.

It was a good business decision as far as the other petitioners were concerned (and Crown counsel who requested it), but it is not good for us because it means we have to spend more time (money) in Court while the other petitioners and respondents make their submissions. This has created a budget deficit because we did not have any choice but to be dragged along with the other petitioners.

We tried reasoning with the other petitioners’ lawyers, but lawyers are generally very poor in managing money and you should avoid leaving them to make important business decisions whenever possible – as I’ve advised many times before. Otherwise there is a strong risk they will run it into the ground – even if it is their own business.

The time spent preparing for the class proceeding’s certification, the certification itself, the several applications to be heard, and the two other petitions are costly despite our best efforts to minimize expenditure. We look at litigation very differently because we are not a business. Despite that, as you have noticed, we do high quality litigation which we continue to deliver on – but it is not free. I run three organizations, in school doing Stanford course work, none of the team takes a salary (they all work other jobs), and we don’t have time to continuously shake money trees.

We are counting on you to continue supplying the war effort. If we are not able to raise adequate funds to continue, we will pull the plug, discontinue our suits, and shutdown while Dr. Henry celebrates. History may well repeat itself this Fall, and unfortunately no one will be able to complain.

~ Kip

10 August 2022: Potential Return of Fall Mandates

Friends,

While we await the Chief Justice’s ruling for our injection passport, still under reserve, it is important that we reflect on the months ahead of us.

None of us can predict with any certainty what will become of public policy come Fall. But there are already troubling signs ahead of us. Minister Dix on 5 August, 2022, provided us with little reassurance that his government would not seek to re-implement COVID-19 related restrictions. Evading directly responding to the question from the press gallery, Dix said that his government’s public health measures will continue to “adapt to the circumstances” and that it was not for him to “speculate what that might be in the future”. His colleague Dr. Martin Lavoie, our acting provincial health officer, provided us with even less comfort: “If we need to reinstate measures, we will keep our eyes on that”.

We are already seeing a certain degree of renewed hysteria, implying a third omicron wave. The potential for a historical replay does not appear to be limited to British Columbia, but we are already seeing injection mandates being reinstated at the University of Toronto for students in residence, reinstatement of mask mandates in a number of jurisdictions in the United States, and even an alleged majority within our own province supporting a return of mandatory masking.

Ultimately we may have only ourselves to blame. When people have short attention spans, they lack the capacity for adequate memory and, by extension, an ability to learn from their own history. This applies even in the case of having lived through several years of irrational restrictions they bemoaned daily, demanded international condemnation and outrage, only to subsequently forget any of it ever happened when rights that never belonged to their government in the first place are returned on loan, and the first world problem of having been previously denied a cup of coffee at a corporate franchise has been alleviated.

But as experimental evidence has shown, sometimes people would rather electrocute themselves than be left alone for a few minutes to think. In my view, a collective degradation of peoples’ attention spans is the greatest threat humanity is facing. If you can think of a greater threat, ask yourself if such a complex problem required more than a few seconds to contemplate a viable solution and you will find confidence in my claim. If you abridge people’s attention spans, you can disarm their ability to exercise self determination.

Your future is in your hands. If we abandon stomping out the python, it will inevitably come back to bite us. Closure for us means court orders that prevent history from repeating itself. If you are in agreement, it is critical that you continue to replenish our war chest so we finish the job you tasked us with completing.

~ Kip

3 August 2022: Another Victory for Health Care Workers Petition

Friends,

You will recall in our health care workers’ petition Justice Coval awarded CSASPP public interest standing on 4 May, 2022 (we only required one of our petitioners to have it). On 3 June, 2022, I informed you that Dr. Henry had subsequently provided us with formal notice that she was unhappy with his ruling and wished to appeal it.

I am delighted to inform you that yesterday Dr. Henry provided us with formal notice of having abandoned her appeal. This was prudent on her part because she had an uphill battle in light of recent developments in Ottawa at the Supreme Court of Canada.

The SCC is of the mind that the basis for legality is the rule of law. If people cannot challenge their government in the Court then they cannot hold the state accountable and it could be seen as above the law. If a litigant has raised a serious justiciable issue, has a serious interest in the matter, and has proposed a suit that is a reasonable and effective means of bringing the case to Court, then the Court is more likely than not to exercise its discretion in awarding public interest standing.

Regarding Sunday’s banquet, it was a smashing success based on your feedback! We very nearly sold out before the sale ended. We may end up having another banquet in the Fall.

~ Kip

28 July 2022: Today’s Class Proceeding’s Judicial Management Conference

Friends,

This morning’s judicial management conference for the class proceeding canvassed the previously discussed agenda. I have a mixture of good and bad news, but mostly good news.

Dr. Henry’s trial has been generally adjourned. His Lordship was concerned that there simply would not be enough time to deal with discovery and any other procedural issues that may arise after certification, such as sifting through hundreds of thousands of Dr. Henry’s documents. That is bad. But not as significant as it sounds because, as I have said many times before, the certification hearing is far more important in a class proceeding than the trial.

The certification hearing is not showing any signs of a need to be adjourned from its five day start on 12 December, 2022. That is still a green light.

It may be only a small oversimplification to say that one of the greatest threats the provincial government is facing right now is the outcome of that certification hearing. If we prevail at certification, the result will likely be catastrophic to the executive council’s interests.

The good news is that Justice Crerar assured the parties that the rescheduling of the trial will be revisited at the conclusion of the certification hearing, or shortly thereafter, to ensure the action would continue to move forward. He advised us that the issue of the trial would not be forgotten and, provided we obtain certification, Dr. Henry will still have her trial.

Regarding the transcripts Dr. Henry was seeking, she was not able to obtain them in their entirety. His Lordship was prepared to make an order that she may have only a portion in order to assist her counsel in making submissions in response to certification.

His Lordship was provided with notice of our open court application. He granted our request for leave to bring the application well before the 90 day requirement before the certification hearing. This is important because if we brought it within the time frame contemplated by the practice direction, there was a risk there would not be enough runway to receive a ruling authorizing the webcasting of the certification hearing before it actually began.

Justice Crerar advised that his professional background as a barrister prior to being appointed to the bench would provide him with the necessary industry expertise he would need in order to rule on it without the need of an amicus curiae. This is a kind of external consultant engaged by the Court to advise on questions of law.

And last of all, we are looking forward to seeing you all on Sunday!

~ Kip

26 July 2022: Agenda for Class Proceeding’s Judicial Management Conference of 28 July, 2022

Friends,

We are ready for Thursday’s judicial management conference. We have made available the mutually drafted agenda for your review.

Thursday will be a combination of small uncontested things and at least one significant thing Dr. Henry will undoubtedly contest. Among the minor issues is a previously granted order of 12 May, 2022, that was submitted for entry to the Registry that bounced back. The parties will seek His Lordship’s endorsement of the order. This is a minor clerical formality in entering orders with the Registry, despite technically already having come into effect the moment they are orally pronounced in chambers.

Dr. Henry’s counsel would also like to seek an order that transcripts be made available to them from our 12 May, 2022, judicial management conference. At that time we advised His Lordship that we may retain additional counsel to assist with Dr. Henry’s examination for discovery and trial. Crown counsel seeks to create a problem out of this by alleging that the additional counsel, of which we did not name, must meet certain criteria necessary for class proceedings. They would like to find a problem. We are not concerned and there is nothing prejudicial about Crown obtaining those transcripts, but with one caveat.

Recall that we had requested the same at a previous judicial management conference and were denied. This is because Rule 5-2(7), prevents the production of transcripts at judicial management conferences. The thinking behind that rule was that sometimes settlement discussions may arise and those are normally confidential. That is not to say a litigant cannot request them anyways, but they would be best to bring a formal application to do so and not an informal oral application without notice.

Dr. Henry would also like to adjourn her trial, currently set at our previous 10 August, 2021, judicial management conference. In fairness to her, she almost has a good reason.

If certification is granted following that hearing on the week of 12 December, 2022, His Lordship will likely need several months to prepare his reasons for judgment on whether certification is awarded or not. If it is awarded then we will have only the time between receiving his reasons and the commencement of her forty-day trial set to begin on 17 April, 2023, to complete discovery. That might not seem like a lot of time, especially considering the volume of documents we are likely to parse, any applications we may need to bring to compel further production, conducting Dr. Henry’s examination for discovery, applications to compel her to answer questions she would prefer not to, and so forth.

Despite that, we think we can get the job done in time for trial without any need for an adjournment. But having said that, it is important that you all prepare yourself for the good possibility His Lordship will adjourn the trial if he believes the time frame is inadequate.

We will also be providing His Lordship with informal notice of our open court application. According to the practice direction, such an application “must be filed not more than 90 days and not less than 14 days prior to the start of the scheduled hearing in the proceeding in relation to which the authorization is sought (…) [u]nless the court otherwise orders”. We do not want to delay the filing of that application until 90 days before the certification hearing because it might not leave His Lordship with enough time to think about whether to grant it or not. This is why we will need to seek his direction this Thursday on timelines for that application.

Lastly, most of the tickets for our CSASPP Summer Banquet are gone, but there are still some remaining. We’ve also been getting a number of inquiries from ladies with questions about footwear. Yes, heels are generally fine because our indoor venue is hard. But if you go and tour the gardens outside (and you should), it is a combination of mostly grass (fine for bare feet), gravel, and dirt.

~ Kip

22 July 2022: Class Proceeding’s Judicial Management Conference of 28 July, 2022

Friends,

Our class proceeding’s next judicial management conference is confirmed for next week Thursday 28 July, 2022, before Justice Crerar. It will begin at 0900 and last for roughly an hour. I do not know whether it will be held by video conference or in person yet. Regardless, you will receive the usual debriefing.

At the JMC we will discuss with Dr. Henry’s counsel and Justice Crerar the parties’ current timetables in preparing for December’s certification and the progress made to date. Certification is still set to begin for five consecutive days on 12 December, 2022.

On a side note, we actually nearly lost the latter certification date a few days ago due to a clerical mishap at the Scheduling desk (not our fault). This had the effect of unintentionally vacating the certification date without our knowledge. Thankfully we took immediate action to restore it successfully.

On the agenda to discuss with His Lordship is our open court application and its related timelines. We announced this in our previous status updates of 1 and 13 June, 2022. You will be happy to know that the drafting of our application, supporting affidavits, and authorities are now complete.

Lastly, if you haven’t purchased your ticket already to our much anticipated CSASPP Summer Banquet of 31 July, 2022, you may wish to do so soon because seating is limited and tickets are disappearing. We look forward to meeting you!

~ Kip

7 July 2022: CSASPP Summer Banquet

Friends,

On behalf of the team we are delighted to invite you to the CSASPP Summer Banquet to be held on 31 July, 2022, at VanDusen Botanical Gardens. Enjoy an evening of food, wine, botanical gardens, and live music to celebrate our work and your contributions. Reception begins at 4PM with dinner at 5PM. Tickets are limited.

Admission includes a buffet style wholesome dinner, desert, a drink, cash bar, live classical music, and garden access (until 7PM).

Please arrive in formal banquet attire.

~ Kip

6 July 2022: Today’s Health Care Workers’ Case Management Conference

Friends,

This morning’s hearing was both brief and productive. Justice Coval began by explaining his reason for issuing his memorandum of 4 July, 2022. In a nutshell, we were the only petitioner who requested to be heard separately from the other three. He was attempting to balance the interests of the other petitioners.

All the petitions seek similar relief, but ours is different in that we are seeking relief on behalf of a class of affected persons rather than only the individuals named as the petitioners. This is similar in some sense to our class proceeding where someone brings a claim before the Court on behalf of many others. We relied on a similar mechanism for challenging public health orders under s 43(7) of the Public Health Act, SBC 2008, c 28:

Reconsideration of orders

(…)

(7) For the purposes of this section,

(a) if an order is made that affects a class of persons, a request for reconsideration may be made by one person on behalf of the class, and

(b) if multiple orders are made that affect a class of persons, or address related matters or issues, a health officer may reconsider the orders separately or together.

We do not require ten days and anticipate only a single day would be sufficient for CSASPP to complete its submissions. In requiring ten days the likelihood of the Scheduling desk accommodating the hearing in the near future is low. We always try to plan for efficiency and reduce delays whenever possible.

With the assistance of the Court we were able to set down a hearing date that could be reconciled with counsels’ calendars. The petition will be heard on 28 November, 2022, to 9 December, 2022. Counsel for all parties will arrange deadlines for the exchange of materials amongst themselves prior to the hearing. Justice Coval advised he would appreciate written submissions from all parties prior to the weekend preceding the start of the hearing, or Friday 25 November, 2022.

To reduce expenses we sought leave for our counsel to attend virtually on days we do not intend to make submissions. Leave was granted for all parties.

As always, we will continue to keep you apprised.

~ Kip

4 July 2022: Next Health Care Workers’ Case Management Conference

Friends,

Justice Coval has sent us a memorandum today in respect to our health care workers’ petition regarding whether it would be heard separately or in tandem with other related petitions:

“Following up on the June 29, 2022 Judicial Management Conference, please be advised that I will now be managing all four Petitions. Further to the submissions of counsel at the JMC, I have decided they should all be heard together over 10 days. Scheduling will be in touch with you to arrange another JMC to schedule the hearing dates and timetable for delivery of materials. Any advance progress you can make on those issues would be much appreciated.”

Subsequent to his memorandum we received notice from Scheduling this afternoon that our next hearing for this matter is set down for this Wednesday 6 July, 2022, at 0900 for 45 minutes. The primary purpose is to discuss finding a date to having the petition actually adjudicated. We need to do this because scheduling is complicated in having to reconcile calendars for counsel for every petitioner.

Wednesday’s hearing will be held virtually. I will unfortunately not have time to setup a public dial-in (it’s also very expensive), but I will provide you with a summary of what transpired as always.

Please remember to continue replenishing our war chest. A ten day hearing will be costly. If we prevail, we will be able to recover some of our costs from Dr. Henry per English Rule.

~ Kip

29 June 2022: Today’s Health Care Workers’ Case Management Conference

Friends,

As discussed 23 June, 2022, we had a Case Management Conference booked for this morning before Justice Coval in respect to our health care workers’ petition. You will recall Justice Coval previously awarded CSASPP public interest standing in dismissing Dr. Henry’s application to have our petition dismissed.

The agenda for this morning’s CMC was to determine the manner in which our petition and three other related petitions should be heard. Our position was, and continues to be, that we would prefer to have our petition heard separately rather than all four at once.

Crown counsel for Dr. Henry proposed having all four heard over the span of ten days. Whether all four were heard separately or together, their costs would likely stay the same for her. Dr. Henry’s counsel are funded by the taxpayer. For us, such a proposal would cause delay and inflate our costs significantly. Government lawyers and engineers apparently have conflicting understandings of efficiency.

One might argue that letting our adversary have their way would not increase our costs because our counsel need only appear when she needs to. But that is impossible for anyone to know with any certainty when that might arise. Also consider that in her absence she would not be present to potentially raise objections to Crown counsel’s evidence which could arise at any time during the ten days.

The likelihood of being able to reconcile counsel of records’ calendars for all four petitions and Crown counsels’ any time soon is unlikely. But even if that were possible, the most important calendar to reconcile is the Court’s. Unfortunately it is unlikely that the Scheduling desk would have ten consecutive days available any time this year, which is undoubtedly already well known to Dr. Henry’s counsel.

We do not want this petition to wait any longer than necessary – especially since approximately 2,500 health care workers have lost their jobs in British Columbia due to injection mandates. This petition would have already been heard on 7 April, 2022, had Dr. Henry not wasted all of our time contesting unsuccessfully our standing at that hearing.

Justice Coval suggested a potential option, which I think is quite reasonable: Let the other three petitioners be heard together and let us be heard separately, as had been our original intent. After hearing submissions from each party he advised that he would need some time to consider the best course and directed the parties to arrange a further CMC within the next two weeks.

As usual we will keep you apprised. In the mean time, please continue to contribute financially.

~ Kip

23 June 2022: Progress on Multiple Fronts

Friends,

Our open court application is mostly complete, pending some affidavits. We anticipate discussing when it will be heard with Justice Crerar at our class proceeding’s next Judicial Management Conference before the same.

The latter is currently set for 0900 on 28 July, 2022. This hearing will not be in-person, but via Microsoft Teams. The purpose of the hearing is to provide Justice Crerar with an update on how the litigants are preparing for the much anticipated certification hearing, provide notice of our upcoming open court application, and any issues that may arise along the way.

Regarding the affidavits in support of the open court application, if you have a physical disability or mobility issue which has prevented your attendance at any of our hearings in Vancouver, past or future, please get in touch with reception to provide a brief summary and your contact details. Someone will be in touch with you.

The health care workers’ petition has a Case Planning Conference scheduled for 0900 on 29 June, 2022. Like the class proceeding’s next JMC, it will also be held via Microsoft Teams. This was at the request of Crown counsel concerned with the cost and time of travelling from Victoria to Vancouver, given the hearing will be relatively short.

Further, Crown counsel had requested that all petitions related to this one be heard together by the same judge. I declined to provide consent because that would have been neither efficient nor economical.

For both hearings I will as usual provide you with a summary of everything material that transpired. In the mean time, all hearings are costly and we ask that you please contribute financially if it is within your means.

Regarding Chief Justice Hinkson’s ruling on the constitutionality of the injection passport which you have all been waiting patiently for, it is still under reserve.

~ Kip

13 June 2022: Open Court Application

Friends,

I had informed you on 1 June, 2022, that if we reached our fundraising target of $25,000 we would green light the open court application. The latter would be brought within our class proceeding before Justice Crerar. The purpose of such an application is to expand the definition of open court to facilitate public access to (everyone’s) hearings – ideally over the internet.

I have good news for you. We have reached approximately half of that target. If you would like to contribute, please do so. This is enough to get the process started. Accordingly, I have issued my most recent instructions-to-counsel letter.

We will report back to you in due course.

~ Kip

3 June 2022: Dr. Bonnie Henry Appeals CSASPP Public Interest Standing & Class Certification Hearing Date

Friends,

Back in April we had our petition heard that challenged the injection mandates confronting public health workers. You will recall we made international and domestic headlines when Justice Coval awarded CSASPP public interest standing to have that petition subsequently heard on its merits. We are in the process of preparing for and setting down a hearing date for the latter now.

Our stakeholders were thrilled to learn of this news. We were very pleased too.

Unfortunately Dr. Henry was less than satisfied with the customer service in the Supreme Court of British Columbia. She shared her grievance with us today in providing notice that she would like the Court of Appeal for British Columbia to overturn Justice Coval’s ruling.

To ask an appellate court to overturn a decision is not an overnight process. It is a time consuming one which could potentially take a year or longer for her. She needs to convince an appellate judge that Justice Coval made an error in fact or in law.

It can also be expensive. But then if the taxpayer finances her counsel for the appeal, as it has been doing to date, it is free for her to roll the dice.

But most importantly, until that appeal is actually heard and a judgment favourable to her interests is made, if that happens at all, Justice Coval’s order still stands and our plans continue unabated.

On that thought our class proceeding has its certification hearing finally set down at last after reconciling with the calendars of all counsel of record. You can mark your own for Monday 12 December, 2022, beginning each morning at 10AM, for five days, before Justice Crerar, and at the usual place within the Vancouver Law Courts at 800 Smithe Street, Vancouver. As previously discussed, Justice Crerar has already directed Court staff to arrange a large capacity courtroom.

While we await the certification hearing, the health care workers’ hearing, and Chief Justice Hinkson’s ruling on our injection passport petition, we will carry on preparing for the health care workers’ petition. We will also continue to raise critical funds for the application I discussed 1 June, 2022, to seek the Court’s permission to broadcast Dr. Henry’s certification and trial live.

I anticipate there will be numerous hearings between now and class certification in relation to all three proceedings. As usual, we will continue to keep you apprised and deliver value for money.

~ Kip

1 June 2022: Preparing for Live Broadcast of Dr. Bonnie Henry’s Trial

Friends,

Some of you may recall our status update of 21 January, 2022, summarizing our class proceeding’s judicial management conference before Justice Crerar. At that time he directed Court staff to reserve a large capacity courtroom for our certification.

This was prudent because we anticipate many thousands will attempt to attend – more so than capacity will allow. We always encourage public attendance, but we are also mindful that it is simply not practical for many.

For those who live far away, there have been many instances where an individual has arrived at the courthouse to attend one of our hearings only to find they are unable to obtain a seat in the gallery. The sheriff then asks them to wait outside. Others have mobility issues because they are disabled making it impractical to get to the courthouse. And yet others are able bodied, but simply cannot afford to travel from Hope to Vancouver with the rising cost of fuel.

There is what appears to be a simple solution: Broadcast live the hearings to the general public over the internet. This is normal in some other foreign jurisdictions. The problem is this has never been done in the Supreme Court of British Columbia before and there is no jurisprudence instructing the Court on what to do.

His Lordship stated that, although he is sympathetic to having these proceedings be more widely accessible, there is neither a tradition nor a case precedent in British Columbia for broadcasting civil proceedings. In other words, he has his hands tied.

But he had more to say on that. He also said that if we wished to change this, we would need to instead bring a formal application to expand the constitutionally protected open court principle.

This does not mean that, as of right now, you are intentionally being restricted for political reasons. On the contrary, there is a reason why there is a physical gallery in every courtroom. The problem is that the system was devised centuries before the advent of the internet.

The internet has changed many things in law. As an example, the old common law tort of nuisance originally contemplated physical neighbours in conflict because those were the only kind of neighbours the world had then. Your neighbour polluting upstream meant your livestock might die and then you would have a claim for damages.

It was appropriate during the Industrial Revolution in attempting to reconcile individual rights with the requirements of industrialization. The internet came along and expanded the concept of “neighbourhood” so that persons having no physical proximity would be able to bring a claim against the operator of an obnoxious bot or a spammer residing in a foreign jurisdiction.

As I had noted on 21 January, 2022, there are costs and benefits to bringing such an application. It was therefore a business decision and one that I would reflect carefully on. We always do this before spending your money on any procedural step.

Since then I have reviewed the literature and have concluded that the Court is more likely than not to be willing to redefine favourably what “open court” means in the twenty-first century if we are well prepared. We cannot guarantee anything, of course. But I think the odds are favourable.

So we shall bring the application then. It would be heard before Justice Crerar. If we prevail, again, this will establish a precedent that will have ramifications across the province, if not nationally, for other proceedings.

If this is important to you, we would like to raise $25,000 within the next two weeks so that we can get started on drafting it immediately and to continue sustaining our work. The sooner you donate, the sooner it will be filed, heard, and adjudicated. If we obtain a favourable judgment we can reassure everyone that they will be able to attend our certification, Dr. Bonnie Henry’s trial, and any other hearings, no matter their location or means.

While we await Chief Justice Hinkson’s ruling in our injection passport petition, currently under reserve, please donate to our war chest so that we can make this a reality.

~ Kip

19 May 2022: Injection Passport Petition Progress, Part 2

Friends,

Today’s injection passport petition hearing before Chief Justice Hinkson was a continuation of yesterday’s. Like yesterday’s it was productive.

There will be no hearing tomorrow. Submissions by counsel for both parties concluded this afternoon.

We began at 1000 with Crown counsel continuing off their submissions from yesterday regarding the issue of public interest standing. That is to say, Dr. Henry’s position was that the evidence we provided before the Court that her injection passport related public health orders were unlawful cannot be heard by the Court because we should not be allowed to be there.

Within a short period of time there were no vacancies within the gallery. Unfortunately many individuals who commuted a great distance were unable to access the Court room because there was no space left to sit.

After submissions on standing, Crown counsel moved on to challenge whether we have grounds to challenge the reasonableness of a variation of one of Dr. Henry’s orders. Their primary evidence in this respect was an expert report from Dr. Brian Emerson who cited various supporting data to buttress Dr. Henry’’s position, implying that her process was data driven. Their argument was that this data allegedly prompted Dr. Henry to invoke the precautionary principle to take necessary measures that otherwise might have been excessive.

The precautionary principle was borne out of the principles of biomedical ethics. These were not created to allow questionable medical practices. Quite the inverse, they were begotten out of the Second World War in which dangerous, occasionally lethal, medical experimentation was performed on civilian and military prisoners of war, or other encumbered persons, without informed consent, to advance the state of the art in aviation science and other areas necessary for the war effort by both allied and axis forces.

The Chief Justice asked Crown counsel about the requests for reconsideration that were submitted to Dr. Henry that went unanswered. Like yesterday, he inquired whether it was reasonable to suspend Charter rights that preclude an individual from seeing a hospitalized loved one. He suggested that suspension of Charter rights was not discretionary on the part of the executive.

The exchange moved on to Crown counsel claiming that natural immunity should not be grounds for granting an exemption in response to a request for reconsideration because the double injected allegedly appear to have superior results to those with natural immunity.

At times there appeared to be a lack of linear and logical progression of a cogent argument on the part of Crown counsel. From discussing natural immunity, Crown counsel then claimed that Dr. Henry was not limited to dealing only with the alleged pandemic, but she was also cognizant of other emergencies. Her press conference of 31 August, 2021, with Minister Dix discussing the opioid epidemic was cited.

After returning from the morning break Crown counsel claimed that the alleged hospital strain was the result of the uninjected, and in particular, those carrying the delta variant. The delta variant, according to Crown counsel, was a significant threat to public safety and allegedly left our health care system at capacity. Crown counsel cited Dr. Emerson’s report as their source.

During yesterday’s submissions we showed the Court that a comment made in September, 2021, by Dr. Patricia Daly, Chief Medical Health Officer for Vancouver Coastal Health, implied that the injection mandates restricting access to restaurants was actually not intended to curb the spread of infection, that not being a concern of Dr. Daly, but to incentivize injections. Crown counsel attempted to perform damage control in rebuffing our evidence: Dr. Daly had apparently misspoken and, in any event, was not in a position of meaningful authority.

The Chief Justice found this explanation dubious in noting that Dr. Daly managed the largest public health unit in British Columbia.

Crown counsel attempted to poison the wells in claiming that I have attempted (successfully) to hold other (powerful) persons to account. It was not clear how this was relevant, or if it was, how it advanced Dr. Henry’s position to the detriment of our own.

Crown counsel then moved on to rebuff our challenge which alleges s 7 of our Charter, our right to life, liberty, and our security was undermined. Crown counsel alleged that we had not met the burden on the second part of the test laid out in Taylor. The Chief Justice asked Crown counsel to contemplate whether being denied the right to visit a loved one in a hospital engages s 7, per para. 390. Crown counsel replied that, even if s 7 had been undermined, it was permissible to do so under s 1 of the Charter which allows for rights to be suspended if reasonably necessary because they are not absolute.

In reply our counsel reaffirmed that we have public interest standing and that our organization’s capabilities enhance those limited to a single individual.

Our counsel asserted that our report from Dr. Kettner is admissible as evidence because it was before Dr. Henry at the time she refused to grant a request for reconsideration. She also said that Dr. Henry’s affidavit from Dr. Emerson was largely inadmissible because it contains hearsay and general statements.

Our counsel advised the Court that the evidentiary record before the Court establishes that Dr. Henry’s orders were unreasonable. She ended her submissions with the Chief Justice that there appeared to be a misinterpretation of the case count statistics Dr. Henry allegedly relied on, the latter demonstrated an abuse of power, and that the Taylor decision did not consider other relevant case law.

The Chief Justice advised the parties that he would reserve judgment, but would endeavour to work expeditiously.

We invite you to contribute to the replenishment of our war chest. We also thank all of those who attended today who witnessed our continued commitment to delivering value for public money.

~ Kip

18 May 2022: Injection Passport Petition Progress

Friends,

Today’s injection passport petition had its first day in Court before Chief Justice Hinkson. It was productive.

Sometimes judges are very helpful and accommodating, only to subsequently dismiss your application with costs. Other times they can appear adversarial, yet end up granting the relief sought. One thing I have learned over the years is to be cautious at trying to read the tea leaves until you have their actual judgment in hand.

Keep the above in mind before drawing a conclusion about what happened today.

We began at approximately 1000. Our counsel was present along with two others acting as in-house Crown counsel. Both parties estimated requiring a day each to make their submissions.

Our counsel began her submissions by summarizing the petition, what we are seeking, and how we had recently refined it to challenge various injection passport related public health orders of Dr. Henry’s as being contrary to s 7 of our Charter. That section reads: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

In her submissions our counsel stated that our petition, while not a class action, is actually brought on behalf of a class of affected persons under s 43(7) of the Public Health Act, SBC 2008, c 28.

Throughout the day Chief Justice Hinkson asked critical questions and took turns acting as Devil’s advocate before both parties. This is something a prudent judge must do.

Crown counsel advised the Court that it wished to challenge our standing again, but would concede private interest standing for myself personally. Ultimately the Court may have final say on that.

Our counsel advised the Court that Dr. Henry’s primary evidence is an affidavit from Dr. Brian Emerson. She argued it lacks specificity in addressing the evidence we tendered from Dr. Joel Kettner, the former Chief Medical Officer for the Province of Manitoba. The latter’s report was submitted to Dr. Henry as part of several requests for reconsideration we submitted to seek an exemption from the injection passport related Public Health Orders.

A judicial review can only challenge a decision of the executive based on the information it had at the time it made the decision. This is why the requests were submitted.

We completed our submissions at 12:32. Crown counsel began their own before we took a break for lunch.

After lunch there was a particularly salient, albeit awkward exchange, between Crown counsel and the Chief Justice.

The Chief Justice asked Crown counsel why its client’s response to one of our requests for reconsideration went unanswered, even without a form letter response. Crown counsel responded that Dr. Henry’s office had 800 such requests it received for processing. The Chief Justice suggested that 800 out of a province of over five million individuals might not be significant. Crown counsel responded that their client was also busy dealing with an emergency.

The Chief Justice asked whether it was reasonable to not provide a response to people unable to see loved ones in hospital who were expected to pass. He also asked whether a lack of employees was a reasonable excuse for suspending Charter rights.

Crown counsel hemmed and hawed, but did not really have a substantive answer after a very long and awkward pause. The Chief Justice asked, if the lack of response was due to an emergency, when had that state of emergency ended. Crown counsel advised that it was not sure. The Chief Justice suggested it was June of 2021. Crown counsel advised again it was unsure and would need to verify. The Chief Justice stood down the Court for a brief recess allowing Crown counsel an opportunity to do so.

When we returned from recess, Crown counsel argued that Dr. Kettner’s report was not addressed to Dr. Henry, and therefore it was excusable that she did not respond to it. The Chief Justice reminded Crown counsel that just because the letter was addressed to our law firm, which is standard when seeking a medical opinion, regardless, it was subsequently submitted to Dr. Henry’s email address intended for requests for reconsideration.

Just before the day ended, Crown counsel advised the Chief Justice that they estimated completing their submissions by noon tomorrow, if not sooner. That would leave the remainder of the afternoon for responding and closing submissions. That may mean we will not have to be back on Friday, saving us the costly expense, but that remains to be seen.

More to follow tomorrow.

A reminder again that your donations are instrumental to maintain our work.

~ Kip

15 May 2022: Injection Passport Petition

Friends,

A reminder that this week from Wednesday 18 May, 2022, until Friday 20 May, 2022, your injection passport petition will be heard by Chief Justice Hinkson for three days.

The location will be the Vancouver Law Courts at 800 Smithe Street, Vancouver, and will begin each morning at 0945. As discussed previously, this is the building that hosts both the Supreme Court of British Columbia and the British Columbia Court of Appeal. Avoid the building across the street. It is the Provincial Court and is not affiliated with this proceeding.

The room is typically assigned either the day before or the morning of the hearing. When you walk into the front door, walk past the concierge desk and you will see a collection of documents posted on the wall with room numbers for different hearings for that day. Your file number is S-219760. Sometimes hearings are not always listed and sometimes they are which is beyond our control. If you cannot find it, ask the concierge desk or someone in the Registry.

When you find your way into the Court room, please be mindful of etiquette. Leave signage and other protester paraphernalia outside the building. If the hearing has already begun, open the door, remain silent, bow to His Lordship (vicariously the Sovereign), and take your seat in the gallery. Do not take pictures, attempt to record, or otherwise use your mobile or other electronic devices from inside of the Court room. Outside of the Court room you can use your mobile, but do not take pictures from anywhere inside of the building.

A reminder again that your donations are instrumental to maintain our work for you.

~ Kip

12 May 2022: Today’s Class Proceeding’s Judicial Management Conference Debriefing

Friends,

This morning’s Judicial Management Conference proceeded on schedule at 0900 before Justice Crerar. It was slightly over an hour in length. The primary purpose was to discuss new materials we submitted, proposed amendments to our pleadings, subsequent hearing dates, and Dr. Henry’s forty-day trial.

We proposed new amendments to our pleadings to strengthen our case. We did not have to. But if we did not, it would have increased the risk of not surviving certification. Ultimately it was Crown counsel that prompted us to need to make the amendments which, as Justice Crerar had opined at a previous hearing, was not in their strategic interest.

Regardless, the cost of these amendments is the opposing side is generally afforded additional time to respond in a situation like this. Since Justice Crerar’s deadlines were already tight as is, something had to give. I made the judgment call to make the necessary amendments at the cost of pushing back our certification hearing. The latter will still be heard this year, but in the Fall and not 20 June, 2022, as previously scheduled.

Do not think the adjournment of the certification is a bad thing. It is better that we prevail at certification than have it come expeditiously and fail. Justice Crerar advised us that this was strongly in our interest. We are in agreement. If we survive certification, you will not care that you waited a few additional months for it.

If Dr. Henry attempts to implement another lockdown this Fall, we will respond accordingly. However, based on the information I have available to me, she does not intend to do so. This was part of the reason why I made the decision to amend – though cabinet can be capricious.

We are in the process of reconciling our counsel’s calendar with that of Crown counsels’ and will announce the new certification date as soon as it is confirmed.

Besides Dr. Henry’s application to adjourn the certification hearing, she also applied to adjourn her trial currently scheduled for 17 April, 2023, into the distant future. His Lordship was not prepared to grant such an order. He reaffirmed his commitment several times that he desired to see this proceeding move along and hold all litigants to their deadlines.

~ Kip

11 May 2022: Tomorrow’s Class Proceeding’s Judicial Management Conference

Friends,

You may recall our status update of 21 April 2022: Today’s Judicial Management Conference for our Class Proceeding and Injection Passport Hearing Date. At that time Justice Crerar made an order setting down our next Judicial Management Conference for the class proceeding. It is tomorrow 12 May, 2022, before the same.

The JMC will be held virtually instead of in-person. Justice Crerar directed the Scheduling Manager to make arrangements.

Because we only just learned of this arrangement yesterday, we will not have adequate time to setup a public dial-in. However, as usual, we will provide a debriefing summary of what transpired and any orders made.

In a nutshell, Dr. Henry would like to seek adjournments tomorrow for both the certification hearing and trial. No public consultation was carried out by her.

One of her reasons given was that we filed two affidavits late, but neither contained any material evidence and were strictly procedural.

Nevertheless, our work making international headlines is provoking our friends in an on-going public relations crisis to clutch at whatever straws they can find. We cannot guarantee that Dr. Henry will not be successful in seeking an adjournment tomorrow, but we will endeavour to put our best foot forward of why she should not.

~ Kip

4 May 2022: Victory for Health Care Workers Petition on Standing

Friends,

This update is subsequent to that of 12 April 2022: Last Week’s Health Care Workers’ Petition. You will recall in early April at the hearing discussed in the aforementioned status update that we attempted to defend our petition before Justice Coval from Dr. Henry’s application to dismiss it. Dr. Henry argued at some length for two days that CSASPP did not have public interest standing, and therefore the Court should not hear our petition.

Our petition challenges three sets of Dr. Henry’s Public Health Orders that mandated injections for health care workers. Our basis was that the orders were unreasonable and unconstitutional.

As a contingency, in the event she prevailed, we brought a backup application to add additional individually named plaintiffs. We also preemptively inserted myself directly into the breach to mitigate this risk.

After hearing submissions Justice Coval reserved his judgment on this issue of standing. A decision would need to be made before the petition could continue and be adjudicated on its merits.

He released his reasons for judgment this morning. Dr. Henry was not successful. CSASPP has public interest standing. Our petition will proceed.

The Court found that “the Petition challenges state action based on legislatively-delegated discretionary powers. In my view, the petitioners are correct that whether those actions comply with the Charter and the [Judicial Review Procedure Act] are clearly questions suitable for judicial determination (…) Regarding a serious issue, the Impugned Orders directly impact members of a defined and identifiable group in a serious way that, at least on the surface, relates to their Charter rights. CSASPP alleges that its alternative proposals reflect a superior approach, taken in other Provinces and elsewhere around the world, much less intrusive on healthcare workers’ Charter rights. In my view, this raises substantial questions that meet the threshold of ‘clearly not frivolous.’ (…) In my view, CSASPP’s Reconsideration Request and allegations regarding the Reconsideration Response show an engaged, concrete adverseness counting in favour of standing. (…) CSASPP’s petition appears to be a reasonable and effective means of bringing forward the evidence and claims regarding the Reconsideration Request and Response.”

A gentle reminder to please continue to replenish our war chest as we continue to deliver value for money.

~ Kip

28 April 2022: Donations Needed

Friends,

We have no material news to report at this moment in respect to Court hearings, orders made, and so forth. But I have something else that is critical to be brought to your attention.

I am writing to remind you again that your donations are essential to continue our work. With three suits, expert reports, multiple lawyers, multiple upcoming hearings, and many costly bills to pay, if we cannot meet our financial obligations our work will unfortunately come to a grinding halt. Your government would like nothing better than to see that happen. This could happen even with all the cost savings measures we already have in place, like not taking salaries.

Fighting a war is costly and requires a continuously replenished war chest to sustain it. If you have not already, please consider making a donation through any of the multiple methods we are setup to accept.

~ Kip

21 April 2022: Today’s Judicial Management Conference for our Class Proceeding and Injection Passport Hearing Date

Friends,

This morning’s Judicial Management Conference before Justice Crerar in respect to our proposed class proceeding went well.

The hearing took place in courtroom 45.

The morning began by reviewing the agenda counsel for the plaintiff and the defendants had jointly prepared. First on the list was the deadline we had to file our written submissions (arguments) which we missed. Crown counsel had provided us with voluminous materials that required additional time for us to review, hence the delay. We sought a time extension and the following dates were set by Justice Crerar:

25 April, 2022 – Reply and application response of the plaintiff;
3 May, 2022 – Our application to amend our pleadings to be filed and served;
10 May, 2022 – Response to application to amend to be filed and served by the defendants;
13 May, 2022 – Plaintiff’s written submissions to be provided to defendants;
6 June, 2022 – Defendants’ written submissions to be provided to defendants;
13 June, 2022 – Reply submissions of the plaintiff due.

We also advised Justice Crerar that we intend to tighten up our pleadings to increase the likelihood of prevailing at certification to address all of the alleged issues Crown counsel intends to raise.

Crown counsel advised Justice Crerar that they are concerned about Dr. Henry’s trial date because they anticipate appeals after the certification hearing. The trial is currently set down for 40 days beginning on 17 April, 2023, in a large capacity courtroom. When prompted by Justice Crerar on whether Crown counsel intended to seek an adjournment, their response was that they only wished to “alert” the Court of the possible need to push the trial back, but that no formal adjournment application was before him.

Crown counsel did advise that they may wish to bring one at a later date. Justice Crerar responded that he was generally not amenable to adjournments, as he had made it clear from the onset of this proceeding to ensure the matter continues to move forward in a timely manner, but requested they prepare submissions in this respect at the next Judicial Management Conference scheduled for 12 May, 2022, at 0900. Justice Crerar also advised that it may take 3 – 4 months to render a decision on the certification application because our class proceeding is complicated.

In respect to our injection passport petition, separate to the above class proceeding, it has been set down for 18 May, 2022, at 0945 before the Honourable Judge Hinkson for three days.

A reminder again that your donations are instrumental to maintain our work for you.

~ Kip

14 April 2022: Class Proceeding’s Judicial Management Conference of 21 April, 2022

Friends,

You will recall we had a Judicial Management Conference on 21 January, 2022, before Justice Crerar for our class proceeding. At that JMC he ordered a new JMC to maintain the momentum of our proceeding’s various procedural steps. It is still set for next Thursday, 21 April, 2022, at 0900 before His Lordship.

But this upcoming hearing, indeed all hearings for all three of our proceedings, will be heard in person instead of by teleconference until the Court orders otherwise. This is due to the Court’s COVID-19 Notice No. 42 of 11 April, 2022.

The location will be the Vancouver Law Courts at 800 Smithe Street, Vancouver. This is the building that hosts the Supreme Court of British Columbia, where our hearing is being conducted, and the British Columbia Court of Appeal. Avoid the building across the street. It is the Provincial Court and is not affiliated with this proceeding.

The room is typically assigned either the day before or the morning of the hearing. As soon as we have it available we will publish it online. Alternatively, when you walk into the front door, walk past the concierge desk and you will see a collection of documents posted on the wall with room numbers for different hearings for that day. Your file number is S-210831. Sometimes hearings are not always listed and sometimes they are which is beyond our control.

When you find your way into the Court room, please pay attention to Court room etiquette. Leave signage and other protester paraphernalia outside the building. If the hearing has already begun, open the door, remain silent, bow to Justice Crerar (vicariously the Sovereign), and take your seat in the gallery. Do not take pictures, attempt to record, or otherwise use your mobile or other electronic devices from inside of the Court room. Outside of the Court room you can use your mobile, but do not take pictures from anywhere inside of the building.

This will be the first time Justice Crerar will see our stakeholders face to face. Be on your best behaviour.

A reminder again that your donations are instrumental to maintain our work for you.

~ Kip

12 April 2022: Last Week’s Health Care Workers’ Petition

Friends,

Thank you for listening to last week’s petition hearing. As I predicted, the majority of the time was spent on procedural wrangling with Crown counsel taking an issue on the question of standing. This occupied two of the three days, with completion of both side’s submissions ending on Thursday.

Justice Coval has reserved his judgment on this question. We anticipate approximately two weeks, after which the continuation of the hearing will be decided based on that decision. If Justice Coval agrees that we have standing, then the petition will proceed.

A reminder again that your donations are instrumental to maintain the continuous momentum behind our work.

~ Kip

4 April 2022: Public Dial-In for Health Care Workers’ Petition

Friends,

The public dial-in coordinates are below for this Wednesday’s hearing. You will recall that this petition seeks to challenge on constitutional and administrative grounds the injection mandates health care workers’ have been confronted with. To access it, perform the following steps:

Dial phone number: +1 (778) 907-2071;
When prompted for Meeting ID, enter: 794 6938 2817;
Press #;
Ignore prompt for participant ID and press # (again);
When prompted for meeting password, please enter: 881212;
Press #.

The hearing will begin on Wednesday 6 April, 2022, at 10AM and continue on until at least Friday. But we will likely require more time. This is because Crown counsel will predictably try to consume the majority of the time on procedural wrangling on the issue of standing. That is, whether we should be allowed to bring such a challenge in the first place before the substantive issue of whether the government made a mistake in issuing any of the public health orders in question.

Usually counsel checks in with the Court clerk around 0945, but you are welcome to call in, and probably should, much earlier than that to ensure you are able to get in. Your line will automatically be muted.

We are only able to accommodate a maximum of a 1,000 callers, as in our previous hearings. We encourage groups of you to share a single line and listen together to ensure that as many people can get in as possible. Usually our lines become saturated to complete capacity within a few minutes.

As in all of our previous hearings, please take note again of the Court’s COVID-19 Notice 43 that outlines conditions for remote access, including complying with the Policy on Use of Electronic Devices in Courtrooms.

Note that this petition is separate from our two other proceedings, the class action and the injection passport petition. If this petition fails, our other two proceedings will still continue on.

~ Kip

3 April 2022: Justice Crerar’s Orders of 21 January, 2022, Judicial Management Conference for Class Proceeding

Friends,

A brief interlude before this busy week begins.

You will recall we had a Judicial Management Conference on 21 January, 2022, before Justice Crerar for our class proceeding. At that time various procedural orders were made by his lordship. These orders granted CSASPP’s request to amend its certification application by 15 February, 2022, the defendants a time extension for responding materials, and a new judicial management conference scheduled for 21 April, 2022, to continue moving things forward.

The Registry recently returned to us the entered orders where the document can also be downloaded from our Court Documents archive.

For background information on what it means to “enter” an order, please refer to our status update from 2 December 2021: October’s Entered Orders, Measuring Progress, and Historical Lessons from India.

~ Kip

31 March 2022: CSASPP’s War Chest and Donations

Friends,

Next week is going to be a busy week in court for our health care workers’ petition which will last at least three days, but likely longer. That also means it will be expensive.

Your donations are critical to ensure we are able to continue operations. We remind you that no one on our team takes a salary, so all the money we raise goes towards filing fees, couriers, barristers (we have many), solicitors, expert reports, hosting fees, telephone, cabs, printing, and so forth.

If you wish to donate, there are a number of options available here. These include wire, bank draft, e-transfer, cheque, or GoFundMe.

~ Kip

3 March 2022: Amended Health Care Workers’ Petition

Friends,

We have filed an amended version of our health care workers’ petition. You will recall the petition’s intention is to challenge the injection mandates health care workers are confronted with. The amendments are intended to increase the probability of us prevailing.

Some personal information has been redacted.

This petition is still scheduled to be heard for three days commencing on 6 April, 2022. Note that this petition is separate from our two other proceedings, the class action and the injection passport petition.

~ Kip

2 March 2022: Today’s Injection Passport Case Planning Conference

Friends,

Today’s Case Management Conference for our injection passport petition was heard by Chief Justice Hinkson. It was productive.

The purpose of the hearing was to facilitate setting down a hearing date for the petition and to establish deadlines for the exchange of materials.

This petition, at last, has a date. It will be heard on 18-20 May, 2022, in Vancouver by Chief Justice Hinkson. We may or may not require the entire three days.

Of historical interest to many of you, the Chief Justice issued a judicial declaration on 18 March, 2021, in a separate and past proceeding. He concluded that numerous public health orders of Dr. Henry were “of no force and effect against [the petitioner] as they unjustifiably infringe his rights and freedoms with respect to public protests pursuant to ss. 2(c) and (d) of the Charter”.

A judicial declaration is a kind of authoritative pronouncement or establishment of a fact.

Three deadlines were set down regarding written submissions. Written submissions are the lawyer’s argument to the Court in written form. These are necessary for lengthier and more complex legal arguments.

We must provide our written submissions by 19 April, 2022. Dr. Henry’s written submissions are due 6 April, 2022. If we wish to provide a reply to her submissions, we must do so by 3 May, 2022.

Our class proceeding and the petition for health care workers’ confronted with injection mandates are still scheduled to continue. The latter will have a judge assigned, whereas the former will continue to be seized by Justice Crerar.

To be “seized” of a matter before the Court is to be responsible for presiding over all of its hearings. These might be minor procedural hearings concerned with scheduling all the way through to final adjudication on the merits.

Thank you everyone for your donations. We will continue to deliver value for money.

~ Kip

1 March 2022: Injection Passport Case Planning Conference of 2 March, 2022

Friends,

I just received on short notice the respondents have set down another Case Management Conference for our injection passport petition. It will be heard tomorrow at 1030AM.

To refresh your memory, please review our status update, 16 February 2022: Dr. Henry’s Case Planning Conference of Today for Injection Passport Petition, for some historical context.

The purpose of the previous hearing was in respect to our and three other petitions challenging the legality of the injection passports. Our petition and the others all do so on constitutional or administrative grounds. Some have hearing dates and some do not. Ours does not.

Chief Justice Hinkson will preside again tomorrow because he is our case management judge for this petition.

Crown counsel has advised us tentatively that their agenda for tomorrow is as follows:

Ask the Chief Justice to update us on whether he has assigned a judge to hear all petitions challenging the injection passport together;
Examine each petition to review dates that have been set to obtain confirmation of whether the assigned justice is available and booked for those same dates;
To seek directions on how best to go about booking dates for the petitions, including our own, that do not yet have hearing dates.

Because of the short notice we will not be able to issue a public dial-in, but will keep you apprised of anything material that transpires as always.

~ Kip

23 February 2022: GoFundMe Hysteria, the Freedom Convoy, and Administrative Incompetence

Friends,

We are aware of the on-going hysteria in the community regarding GoFundMe and our usage of the same. As a general policy we endeavour to not disparage other campaigns. If they ask us for suggestions, we are happy to provide it where we may be able to assist.

Nevertheless, due to the volume of inquiries we are receiving it needs to be explained that the Freedom Convoy, however well intentioned it may have been, had administrative issues that led to the problems its leadership experienced with GoFundMe.

The leadership was disorganized. They did not appear to have any formal managerial or executive training, nor did they appear to have much practical experience in running an organization. There did not appear to be any level of formal corporate governance, mandate, by-laws, constitution, director resolutions, or many other basic administrative tasks completed. Donor funds did not appear to be insured. There did not appear to be a clear chain of custody for them. They did not appear to protect their IP, and by extension their ability to effectively communicate. There was no clear organizational hierarchy outlining who was responsible for what and this naturally begot disputes of such a nature by various persons claiming to be their voice.

Further, they did not appear to act on sound legal advice. On the contrary, they even fell into the trap of OPCA arguments which have plagued the anti-lockdown movement for approximately two years. This was a hazard we have warned about on our FAQ for nearly a year now.

A basic rule of warfare is never arm your opponent. This was disregarded. The results were a disaster at approximately $9M in donor funds that did not reach their intended destination, approximately another $20M in taxpayer funds incurred by law enforcement; some of the leadership taken into custody; an interim injunction obtained in response to noise complaints by a private citizen seeking millions through a proposed class proceeding; a provocation enacting for the first time in history the now rescinded federal Emergency Act via an extraordinary order in council; the stage set for a subsequent bank run; and, presumably, the remaining funds that did reach their intended destination now being used for the leadership’s costly and unfortunate criminal and civil defence.

There were undoubtedly tactical gains made in winning some hearts and minds, but ultimately it was a net strategic failure.

We underwent a due diligence process with GoFundMe, same as the Freedom Convoy and everyone else who uses the platform, a long time ago. We provided the platform with all of our relevant corporate and other administrative records. Despite their apparent visceral distaste for our campaign, they had no reasonable grounds to terminate it and have conceded as much. They have reassured us they will not shut it down. For that reason, for more than a year now, our campaign continues unabated on their platform as you have all noticed.

This does not mean we trust the platform or that we will still have a presence on it tomorrow. On the contrary, we do not trust them. Anything can happen. For that reason we have had a contingency plan already in place to litigate, if necessary, with the platform – among other options. I suspect the platform is well aware of this.

We do not store funds with GoFundMe and never have. All of our money is stored in a community credit union with strict accounting controls in place. Communications with our bookkeeper are encrypted via the international OpenPGP standard, as opposed to relying on ProtonMail which activists are encouraged to never use.

Our financial institution is fully aware of our financial activities and we have been reassured we are in compliance with all of their regulatory requirements – including FINTRAC. Whenever a person chooses to donate through the platform, we receive a wire automatically within a few days.

The current relative ease we enjoy with the platform is because we cleared the due diligence hurdle early after we studied their Terms of Service and anticipated their next move. If we had not, donor funds would have remained precariously in the platform’s trust for an extended period of time until the loudest voice with the greatest persuasive authority succeeded in convincing the platform to send the funds elsewhere.

We are aware there are alternatives to GoFundMe. But what people need to understand is that all the different platforms, including those leveraging cryptocurrencies, share the same choke points where they interface with the conventional financial plumbing system. The latter is the only place where funds become exigible into legal tender that can then be used to pay your bills by creditors who only accept legal tender. Those choke points are controlled by the same already compromised institutions no matter where you go.

Maybe one day we can deal with how to redesign the world’s financial system. But right now that is beyond the scope of our mandate and not a practical goal to assert today. If our stakeholders choose to not use the platform we have always had alternatives like cheque, money order, bank draft, wire, or e-transfer. This is not a new development, but options that have been available since the onset of our campaign.

It may be tempting to blame the seagulls for running off with your lunch when you leave your picnic table. But only a fool blames them for doing what any reasonable person would have expected them to do to an unattended lunch. They are seagulls. The platform did exactly what we predicted it would do based on the decisions undertaken by the Freedom Convoy’s administration and the evidentiary dossier the law enforcement and regulatory lobby was gifted by the same.

All boycotting or divesting from GoFundMe does is make it more difficult for us to pay your bills. We do not think that because others did not rationally think things through, however well intentioned, and with devastating consequences to themselves, that we should bear their externalized costs.

This is not the first time that we have seen an incompetently run campaign become mired in scandal or lose a fortune to corrupt lawyers; administrative incompetence; self aggrandizement of event planners with aspirations for Woodstock or for a theocracy; and the prioritization of sensationalism, courting of alt-right tabloids, promotion of OPCA, and hyperbole over dispassionate rational analysis and hitting the books.

Imagine a public demonstration at the Vancouver law library where people sat down and studied what they had been deprived of in high school – civics, civil procedures, administrative, and constitutional law. Even basic knowledge of civics would have at least directed protesters to the correct city where the majority of the mandates that affected them originated.

Is this an endorsement of a functional and efficient judiciary? Of course not. But you do not have any other practical option – as this is slowly becoming apparent to everyone.

Another recent example involves a controversial British Columbia based partisan non-profit. It brought a several hundred page claim against various mostly state actors – effectively a replication of what their controversial lawyer already billed to draft and file in Ontario. The pleadings were filed contrary to multiple civil rules requiring brevity, among other things, and despite having been warned by the community for more than a year not to commit to many of the mistakes they were anticipated to make – and did make.

Their lawyer was also warned by us as early as 29 January, 2021, that filing in British Columbia may cause procedural complications for our work. They did not listen.

The defendants named in the aforementioned non-profit’s proceeding were able to book a full day hearing to have the suit thrown out with three applications to strike. These are not pro forma applications. These applications unfortunately have substantial merit, have nothing to do with the plaintiffs’ expert reports (none needed to be filed that early), weak testimony, or anything else to do with the substance of their claim. The defendants’ jobs were made far too easy that they need not have concerned themselves with any of that. The applications to strike are based on fundamental defects in the suit any first year law student should have been able to identify within a few seconds of examining the several hundred page document.

Our prediction is the applications to strike are almost guaranteed to be granted in whole or in part when they are heard. This will create case law and we cannot anticipate how Crown counsel may leverage it at a later date in our own proceedings.

That is unfortunate for that non-profit. But the cost of their administrative incompetence was externalized to all of our stakeholders in having to continue to live with an unchecked injection passport without a hearing date available to us. The hearing date their defendants initially obtained was what we had also tried to obtain multiple times from the lottery based system at the Court’s scheduling desk so that we could have your injection passport petition adjudicated.

But despite us having been locked, loaded, and mostly prepared for months now, the date went to the other non-profit’s proceeding. Effectively, there was a reckless misallocation of scarce judicial resources now reserved for at least an entire day to dismiss what should never have been filed in the first place. I say “at least” because the hearing ended up being adjourned to a new to be determined date because the non-profit’s controversial lawyer claimed to be unavailable for the defendants’ applications due to medical reasons – despite stakeholders being reassured that another lawyer would allegedly continue with the work in their absence.

The executive can carry on even in times of nuclear war. Our legislature can also continue to function through video conferencing during virtually any circumstance. But the entire judiciary effectively becomes dismantled, or perhaps pacified, when something as simple as a single phone line to the Scheduling desk has nothing available in the Court’s calendar for hearings. It is a poor design that will remain so until it becomes an election issue. But in the mean time, and for this reason, it is essential that scarce judicial resources are used responsibly and with foresight.

In our opinion the only winner was their lawyer who was paid regardless and who may have never had any serious intention of prosecuting their claim in the first place (the community warned them repeatedly about this too). It is unlikely their lawyer will be sanctioned, nor is their lawyer likely to personally assume any liability in an adverse costs award on that proceeding’s dismissal. The lawyer knew this, hence why they billed copiously by the hour for the time to draft it.

Further, the plaintiffs, which includes a young mother and a small business owner already facing financial hardship, will likely be jointly and severally liable for any adverse costs order on the defendants’ successful strike applications. It is well established jurisprudence the defendants will be entitled to recover their costs from any of the plaintiffs with assets on dismissal unless the Court orders otherwise. That means someone might lose their home, have their vehicle seized and auctioned, or have their bank account or wages garnished.

The principals behind that non-profit were all conspicuously absent from the list of plaintiffs so as to not put themselves personally into the breach and face the risk of an adverse costs award. None of them acknowledged any mistakes related to having retained their chosen lawyer or the instructions they provided to them. None of them have tendered their resignations to date. The principals did not listen to those who pleaded with them while insisting their theology would somehow emancipate them. One of the principals even went so far as to reassure their stakeholders they were in direct contact with a deity who had apparently provided an endorsement.

We understand people are passionate. But you cannot expect to win a war with passion alone and in the process abandon reason. Leaders sometimes need to fall on their sword when they keep making fatal mistakes or demonstrate a lack of core competencies. They need to take full responsibility for their actions, resign, and allow their organization to carry on executing its mandate. A non-profit’s primary purpose is to serve its mandate and not its directors.

~ Kip

19 February 2022: Economy of Effort & Defining Success

Friends,

The team has just released part 5 of our studio footage. This segment addresses the importance of economy of effort and what success might look like. You can view it here.

~ Kip

16 February 2022: Dr. Henry’s Case Planning Conference of Today for Injection Passport Petition

Friends,

Dr. Henry unilaterally set down a case planning conference yesterday on short notice to be heard today. The purpose of the hearing was in respect to our petition and three other petitions challenging the legality of the injection passports. Our petition and the others all do so on constitutional or administrative grounds.

Though we have been trying since last November, our petition still does not have a hearing date. Crown counsel’s position was that this would allegedly be a more efficient use of Court resources if the same judge heard all four to ensure consistency of rulings.

Chief Justice Hinkson presided today and appointed himself as our case management judge for all of the petitions. He ordered that all of them be heard by the same judge, but did not rule out the possibility that this might be him.

Two of the other petitions have hearing dates scheduled and these (for now) will not be disturbed. A case management conference will be held in the near future on a date to be determined to set dates by which the parties are to exchange materials.

~ Kip

14 February 2022: Injection Passport QR Code Technical Details

Friends,

Many of you have asked what British Columbia’s injection passport QR codes actually contain. Based on my analysis following successful reverse engineering, I am aware of the following personal information encoded within it:

Your full legal name;
Your birth date;
Date injection received;
Injection lot number;
Venue that administered the injection.

The above information is submitted for a digital signature using an elliptic curve cryptographic key in the possession of the Ministry. This happens only upon issuance and is a kind of asymmetric cryptography, meaning two different keys are used. One key is used to sign the data and another is used to verify its provenance. The latter key is embedded within the injection verification mobile application, hence why it does not need to call home.

But the signing key is carefully guarded by the Ministry and is not intended for redistribution. It appears to be hosted on a Microsoft Azure server in Toronto where signing requests are submitted.

Microsoft has been on record for more than a decade that under the USA Patriot Act, data hosted by the company outside of the United States may still be accessible to the United States government.

Further, Microsoft Azure servers are almost always running on a type of hardware which has a catastrophic vulnerability known for many years among competent engineers whereby a determined attacker can obtain complete control of the computing environment and all information contained therein. This vulnerability was most likely an intentional backdoor installed in response to the National Security Agency’s SIGINT (signals intelligence) request in 2013 to “insert vulnerabilities into commercial encryption systems, IT systems, networks, and endpoint communications devices used by targets.”

I hope that is helpful.

~ Kip

10 February 2022: Crown Counsel’s Adjournment of 16 February, 2022, Health Care Workers’ Petition

Friends,

I am sorry. We did everything we could to prevent this. Crown counsel brought an application this morning on very short notice to adjourn the health care workers’ petition. They claimed that because senior counsel, Jacqueline Hughes, Q.C., was just appointed to the bench on Monday, they would not be in a position to proceed with our petition that had been scheduled for several months.

I found the story doubtful that Justice Hughes awoke on Monday morning and discovered she was a judge without anyone from the PMO or the federal Justice Minister having been in contact with her prior. She did not tender her own affidavit.

The argument that tens of thousands of health care workers who are without a job should have their hardship prolonged because one individual with an adversarial interest just obtained a career advancement is questionable. To add insult to injury, we were ordered to pay costs – albeit likely only a few hundred dollars and not until after the petition is actually heard.

Crown counsel was not only asking for an adjournment, but was not even willing to propose new dates available from the Scheduling desk. This was because, naturally, they were fully aware there were none.

There is good news, however. Master Muir was sympathetic to the health care workers being potentially prejudiced by delay and was fully cognizant of the fact that we have struggled to obtain hearing dates. She made direct inquiries through the Scheduling desk and obtained a new three days for us beginning on 6 April, 2022. These dates were not previously available to the parties.

So in summary, we have not lost. The government will be required to face the music, but it has managed to succeed in stalling again. We will use the extended time to continue to strengthen the petition. Your donor funds will be essential in that.

~ Kip

7 February 2022: GoFundMe & Public Dial-In for 16 February, 2022, Health Care Workers’ Petition

Friends,

Our three day petition hearing we brought on behalf of all British Columbia health care workers confronted with injection mandates is currently scheduled to begin at 1000 on 16 February, 2022. It will last for three days by way of teleconference at the Vancouver Law Court. It likely will not be before Justice Crerar because this is a separate proceeding from our proposed class action.

To access the public dial-in, please perform the following steps for each of the three mornings:

Dial phone number: +1 (778) 907-2071;
When prompted for Meeting ID, enter: 868 8407 6146;
Press #;
Ignore prompt for participant ID and press # (again);
When prompted for meeting password, please enter: 455167;
Press #.

Please take note of the Court’s COVID-19 Notice 43 that outlines conditions for remote access, including complying with the Policy on Use of Electronic Devices in Courtrooms for those wishing to listen to the hearing.

We are only able to accommodate a maximum of a 1,000 callers because to increase the size would be prohibitively expensive. We encourage groups of you to share a single line and listen together to ensure that as many people can get in as possible.

PS We are aware of peoples’ recent concerns with GoFundMe. We preemptively took steps to mitigate by completing certain administrative tasks before our campaign went live a year ago. The platform has never been able to shut us down for that reason, nor would it be in the platform’s best interest to do so because we discovered an apparent flaw in their Terms of Service.

~ Kip

24 January 2022: Dr. Henry’s Response to Health Care Workers’ Petition

Friends,

I received this morning a copy of Dr. Henry’s response to our petition of 26 November, 2021. The latter was brought on behalf of all health care workers in British Columbia affected by injection mandates. You can review the petition here and its corresponding response here.

There are several supporting affidavits Dr. Henry intends to rely on. They are currently still with counsel and I will make them available as soon as we are able to.

As of this writing this petition is still set to be heard for three days beginning on 16 February, 2022.

For background context on the petition, please refer to two previous status updates. These are 16 December 2021: Hearing for Health Care Workers Scheduled and 26 November 2021: CSASPP’s Petition in Opposition to Health Care Workers’ Injection Mandate.

To summarize Dr. Henry’s response, she consents to none of the orders we are seeking and opposes all of them. She lays out her argument of why her public health orders are important and how CSASPP and its Executive Director should not have standing with the Court for a constitutional challenge on a technical basis.

Putting myself personally into the breach, which was necessary in this proceeding, always had me anticipate predictable behaviour on the part of Dr. Henry’s counsel. This is why I was not surprised that there was a minor shot taken at me personally in citing my involvement as a litigant in other well publicized matters as a whistle blower defendant; and as a representative plaintiff in class actions against Google and others.

Where I have acted as representative plaintiff in the past for other proposed class proceedings, it is my understanding that all four of those proceedings ended with settlements approved by the Court for class members – although I went to great length to obtain better terms. Anyone is free to review the comments made by class counsel on my role in that public interest work and come to their own conclusion. For those proceedings disposed of in which I was named as a defendant, I prevailed in all of them.

This is not an opportunity for self aggrandizement. I raise this only because they have. But perhaps you will find the relevance to Dr. Henry’s defence where we were not. Nevertheless, I do not resort to salacious personal details about opposing counsels’ Tinder profiles or their personal lives. I would hope that Her Majesty’s learned counsel would remain mindful of this while addressing the business at hand.

As the old adage goes, if you have the facts, pound on the facts. If you have the law, pound on the law. If you have neither, pound on the table.

~ Kip

22 January 2022: Certification Application for Class Proceeding

Friends,

I have said before that in a proposed class proceeding the certification hearing is arguably more important than trial and any barrister with experience in this field will tell you the same. If a proposed class proceeding survives certification, its lethality benefits from what can only be described in military parlance as a “force multiplier”. That is, the claim escalates in complexity from a defendant defending against a single plaintiff to potentially one of several million. Defendants, therefore, will resort to every tool they have available to prevent certification before they run the risk of being held accountable at trial.

Corporate defendants with resources comparable to national and provincial governments are rarely able to continue defending against a class action after successful certification. It is not cost effective. At that point their options are either to gamble in proceeding to trial or do what the majority do and enter settlement discussions.

We all know this campaign and its proposed class proceeding has attracted significant attention domestically and internationally. Some of this attention has apparently come from Dr. Henry herself as alluded in a recent interview published by the CBC just prior to recent New Years’ celebrations. In that interview she remarked that she has “said from the very beginning that we wait for the recriminations, the class-action lawsuits and the public inquiries before we start celebrating anything“.

I am delighted to share with you that her champagne remains corked and on ice, but our stakeholders may have better cause to celebrate. Our certification application was filed and served on the defendants and is now available here. We encourage you to read it.

This much anticipated application is still scheduled to be heard for five days during the entire week of 20 June, 2022. It is supported by many affidavits, including from a former premier who contemplated and contributed some of our Charter’s language (in particular s 1). We also have an affidavit provided by one of Dr. Henry’s former counter-parts in Manitoba. As discussed yesterday, we will further strengthen our application by filing an amendment no later than 15 February, 2022.

Because we have so many affidavits, and more than my team and I currently have time to catalogue and upload, we will try to solve this problem by preparing a single canonical PDF of the hearing’s entire application record with embedded tab indices. This will make following the hearing easier so you do not need to flip between multiple documents as you listen and counsel advises Justice Crerar to turn to this or that tab. We hope to have this prepared closer to the hearing when we have all of our friends’ materials.

For those who may not know, an application record is the physical binder that is handed up to a judge which contains the application, its response, and any affidavits the parties intend to rely on. Authorities (case law, statutes, etc.) are typically handed up in a separate binder.

We will continue to move forward cost effectively and with regular status updates.

~ Kip

21 January 2022: Summary of Today’s Judicial Management Conference

Friends,

As usual the public dial-in process was dysfunctional. But this time it was not the Court’s fault. It appears as though the coordinates I gave you yesterday contained a typo, so please accept my apologies. Some managed to catch it and get in while others were not.

Regardless, we had a positive and productive hearing. The following is a summary of all orders made:

Our certification hearing that was set down for the week of 20 June, 2022, now has a confirmed length of five days;
We must deliver our amended certification application by 15 February, 2022;
The defendants’ response to our certification application is due 12 April, 2022;
If we wish to reply to the defendants’ response to our certification application, we must do so by 19 April, 2022;
Our next JMC will be held on 21 April, 2022, at 0900.

Concerning order (2), Justice Crerar provided some suggestions to improve our certification application that would be in the interest of all stakeholders and without pushing back our already scheduled and much anticipated Summer date. That application was of course not returnable today, but His Lordship did manage to obtain and review an electronic copy in time for today’s JMC.

Besides improving the strength of our application, doing so will also reconcile Crown counsels’ desire to be given more notice about which authorities we intend to rely on (case law, statutes, etc.). Normally certification applications are fairly pro forma, as ours partially already is, in reciting the standard authorities for class proceedings. Representative plaintiffs, indeed all litigants, generally like to keep their powder dry as long as possible.

However, as Justice Crerar aptly pointed out, this is not a claim involving a slip at the mall or a faulty kitchen appliance with a product recall. The significance of who we selected as defendants and what we allege they have done places a greater onus on our part to inform the Court of why the relief sought should be granted.

No problem.

Concerning order (1), the plan is to have the certification hearing in a large Court room to seat as many people as possible. Justice Crerar has already directed Court staff to make that arrangement at a previous JMC.

We also discussed how the hearings for this proceeding can be made more widely accessible to the public. Justice Crerar stated that, although he is sympathetic to having these proceedings be more widely accessible, there is neither a tradition nor a case precedent in British Columbia for broadcasting trial level proceedings. In other words, he has his hands tied.

Therefore, if we wish to change this, we need to do more than write a letter, seek leave or a judicial direction on an oral application, and instead bring a formal application explaining why. Such an application likely will invite other interested intervenors because we must give them notice under Rule 8-1(7) because they may be “affected by the orders sought”. To draft and prosecute such an application is a business decision. There are costs and benefits. We will deliberate and reflect on this further.

~ Kip

20 January 2022: Dial-In for Tomorrow’s Judicial Management Conference of 21 January, 2022

Friends,

We made an earnest effort to improve public access to our hearings using better technology, but thus far we are still waiting for the necessary authorizations within the Court. In the mean time you will have to rely on the telephone system.

For tomorrow’s 0900 Judicial Management Conference before Justice Crerar for our proposed class proceeding, please use the following public dial-in information:

Dial in instructions:

1. Dial Phone number: +1 778 907 2071

2. When prompted for Meeting ID, Enter: 8400 455 0187

3. Press #

4. Ignore prompt for Particpant ID and Press # (again)

5. When prompted for Meeting Password, Enter: 453702

6. Press #

I will draw your attention again to the fact that you are not permitted to record audio from the hearing unless you are accredited media. If you are not sure if you are accredited media, you probably are not. If you would like to become accredited media, you can find out how here.

Tomorrow’s tentative agenda will discuss case law for our certification application hearing, the number of days that may be necessary for that hearing, scheduling our next JMC, and possibly the public access issue.

On the first subject the defendants would like us to provide notice of which authorities (case law, statutes, etc.) that we may rely on at the certification hearing in advance of having served our written submissions (written copy of essentially oral arguments made in court) on the defendants.

I am skeptical that such an order will be made because this would be a historical departure from parties generally not being required to exchange authorities well in advance of a hearing, especially when they may not know all of them until sometimes only minutes prior to the onset of the hearing. On the other hand who knows.

All of our certification materials have been filed and served. Once we receive back the filed copies from the Registry, they will be made available to you. We prefer to avoid publishing unfiled materials whenever possible so as to ensure viewers are able to validate their provenance.

~ Kip

3 January 2022: Class Proceeding Judicial Management Conference on 21 January, 2022

Friends,

Pursuant to para. 4 of the Case Plan Order made by Justice Crerar at our Judicial Management Conference (“JMC”) of 1 October, 2021, our next JMC hearing will be held on 21 January, 2022, at 0900 for one hour.

The purpose of the JMC is for the parties to advise the Court on the current state of the class proceeding as we manoeuvre towards class certification. The latter will be held this Summer during the week of 20 June, 2022. All of our certification materials must be served a week from now by 10 January, 2022.

At the JMC we intend to advise Justice Crerar of the status of our expert reports and other procedural steps. Crown counsel for the defendants likely will grieve about deadlines for our expert reports as set out in para. 5 of the Case Plan Order of 10 August, 2021. We are not concerned.

Please consider preparing yourself by reading both of the aforementioned Case Plan Orders which will be the primary subjects of the upcoming JMC.

As usual, we will facilitate public access to the hearing and will release the details on how as soon as they become available to us.

~ Kip

1 January 2022: Cancelled Medical Procedure Witness

Friends,

We need a witness to come forward who had a medical procedure that was cancelled in March 2020. The witness will be able to confirm what procedure had been scheduled and how its cancellation affected them.

We would like the witness to please get in touch with reception as soon as possible where they can provide a brief summary. This is time sensitive.

Happy new year to everyone.

~ Kip

23 December 2021: New Bumper Stickers

Friends,

By popular request we now have bumper stickers available. These beautiful super gloss bumper stickers are a large 9” x 4”. They are printed using scratch resistant inks on very strong high quality vinyl material. They are designed to be durable and survive the elements.

Because of their quality these stickers are somewhat costly to produce in volume. Anyone who donates $20 or more as of today can contact reception to arrange for free delivery, or save time and annotate your donation with your full mailing address. If you reside within the Vancouver area we may be able to courier one to you before Christmas. If you reside outside of the area, we can mail it to you.

As usual, all of the donor funds go towards expert reports, filing fees, lawyer fees, and so forth.

~ Kip

16 December 2021: Hearing for Health Care Workers Scheduled

Friends,

You will recall that we filed and served our petition on behalf of all British Columbian healthcare workers confronted with injection mandates. It is supported by two affidavits, one from myself and the other from one of our paralegalists. All of these documents can be accessed at the aforementioned links or at the usual place under our Court Documents’ page.

For more general information explaining petitions, please see our status update from 4 November, 2021.

The weaponization of scheduling is unfortunately not unusual in litigation. We had to go back and forth with Crown counsel to reconcile their calendar, our own counsel’s, the Court’s, and Crown counsel’s grievance over minor procedural issues relating to service.

Crown counsel alleged she was initially unavailable on our original proposed dates. Since both herself and her co-counsel are few and those affected by the petition are many, we suggested she move carriage of the file to any of her many other salaried talent the Ministry has at its disposal – and failing that, to employ its $60B budget in retaining external counsel, as the Attorney General already does on a weekly basis for civil forfeitures, family matters, and so forth. Crown counsel retorted that we too were free to do the same – a crowd-funded campaign with a total budget less than what the government allocates on furnishings.

Putting aside the dubious logic, we reminded her that adjourning the hearing would not be in the public interest because it may come at the cost of escalated civil unrest beyond our control – but which likely could have been mitigated by her clients.

The conclusion was that this petition will be heard over three consecutive days beginning on 16 February, 2022, at 10AM at the Supreme Court at 800 Smithe Street, Vancouver. As always, we will facilitate public access – which may even include the room itself if the Court has fully re-opened by then. Our other petition challenging the injection passports will likely be heard a few weeks after that in March.

We are in the process of having an additional critical expert report drafted. This report is costly and we thank you for your donations to ensure it is available in time to increase the odds of prevailing in your favour.

Thank you for your continued patience. Temperance is a virtue.

~ Kip

2 December 2021: October’s Entered Orders, Measuring Progress, and Historical Lessons from India

Friends,

We recently received back orders entered by the Registry. These were made by Justice Crerar on 1 October, 2021, following our second Judicial Management Conference and on 28 October, 2021, following Dr. Henry and the Provincial Crowns’ application for further and better particulars (details). The practice direction (a set of customs) requires that orders be formally entered by the Registry, though this is often a formality that litigants dispense with.

These documents are available at the aforementioned links. They are also archived under our Court Documents.

Although we do not discount other metrics, we do not measure our campaign’s progress based on the number of attendees at protests, YouTube views, social media shares or likes, prominent public figures courted, endorsements received, favourable media coverage, or funds raised. We have a single canonical metric we use to benchmark progress, and arguably the only one that matters: Court orders and meaningful procedural steps undertaken to obtain them.

I understand that many of you have become increasingly restless over the last year. The measures in question are amplifying, civil liberties continue to dissolve, overwhelming evidence of public harm outweighing any purported benefit emerges daily, and you are awaiting a process devised in England in an era when the average citizen was illiterate, correspondence was carried by ship, and it was normal for a mother to be publicly executed for swiping a cabbage in the marketplace. It is expected historically that a proportional response by certain reactionary elements within our society would make itself present at some point.

We routinely receive communications from the general public with knowledge of the personal residence of this or that cabinet minister, public official, their agents, various salacious details concerning the aforementioned’s personal lives, and the desire to make their grievances heard. I have gone to great length to dissuade them from harassing or in any way creating a provocation, generally with great success even when our opponents continue to act in bad faith.

There are at least two reasons for this. In reducing your conduct to meet the coercive level of your adversary, it degrades our ethos and consequently our credibility. Secondarily, even a cosmetic reading of history makes it clear that such activities will only lead to our opponents predicating new or increased extraordinary executive powers on such events.

When a government resorts to Medieval coercion, it is not because it is strong, but because it is weak and cannot obtain what it wants on the merits of its ideas being considered. Governments that lie are not fully in control. If they were fully in control, what citizens believed would be inconsequential. They lie because they are dependent on something you still have control of.

The British Empire, what was once the world’s most formidable economic and military power, invaded and occupied what was then the wealthiest country in the world. The British cabinet’s policies in India were brutal, violent, and would not have been tolerated in their own country. In 1897 the British presence even declared a pandemic with a disproportionate response that allowed confiscation of individual property, entry of personal residence, and forced quarantine whenever it was politically expedient. The army relied on tools of coercion and violence justified by a legal system which was of their own design and entirely self referential.

Eventually the British presence was brought to its knees prior to its subsequent eviction in 1947 after nearly a century of plunder – the spoils of which are still celebrated today with the Koh-i-Noor, one of the world’s largest cut diamonds remaining among our sovereign’s Crown Jewels. A small, frail, and elderly Indian man garbed in a toga and sandals made it happen, and without firing a single shot – that having already been tried many times.

Granted, Gandhi originally proposed a constitutional challenge before abandoning the notion and, indeed, his entire career in law as a barrister. But the point is that you do not always need to resort to the same level as your opponents in order to defeat them, even when there appears to be a gross asymmetry of power. You are not the first in history to experience what you are living through now. India did it without arms and you can to.

Please be patient and let this process run its course.

~ Kip

26 November 2021: CSASPP’s Petition in Opposition to Health Care Workers’ Injection Mandate

Friends,

Thank you for your patience – and in particular from our health care workers.

As promised we have filed and served our petition in opposition to the injection mandates faced by all affected health care workers in British Columbia. It is currently supported by two affidavits, one from myself and the other from one of our paralegalists. All of these documents can be accessed at the aforementioned links or at the usual place under our Court Documents’ page.

For more general information explaining petitions, please see our status update from 4 November, 2021.

Today’s petition brings the total number of proceedings we initiated, and currently still extant, at three. This includes one proposed class proceeding, a petition challenging the injection passport, and today’s petition challenging the injection mandate for health care workers. To assist in your perusal of our filed documents, we have annotated each specific document’s section on the Court Documents’ page to reference the proceeding it belongs to.

I would like to end by letting people know that this type of work is costly. None of our team, including myself, take salaries. Expert reports, disbursements, and lawyer fees can become considerable, even when well managed with economy of effort. In taking on two additional petitions at public request, granted both are still well within our mandate, both are nevertheless peripheral to our class proceeding and encourage expenses to continue to accrue. As you know well by now, we have never been ones to panhandle, but the increased expenditure has made your donations more critical now than they already were.

As soon as we have a hearing date from the Scheduling desk we will let you know so that everyone may listen live, as usual.

~ Kip

25 November 2021: Transcript from Dr. Henry’s Application of 28 October, 2021

Friends,

We just received the transcripts from Dr. Henry’s application for further and better particulars of 28 October, 2021, this morning. You can find it here, or under our usual Court Documents page.

~ Kip

14 November 2021: Thoughts on Remembrance Day

Friends,

I generally do not publicly opine on matters like this, but I am disappointed by the conduct of a minority of individuals on Remembrance Day. I shared my thoughts recently when asked for comment by the Western Standard in their article that was published today.

~ Kip

8 November 2021: CSASPP’s Response to Demand for Particulars

Friends,

You will recall on 28 October, 2021, Dr. Henry and the Provincial Crown brought an application seeking further and better particulars (details) with respect to our pleadings (what they are being sued for) we amended on 15 September, 2021. Justice Crerar ordered that we serve by end of business day today the defendants with our Response to Demand for Particulars. We have done so.

For more background information, please see our previous status update of 28 October, 2021: Summary of Dr. Henry’s application hearing.

~ Kip

4 November 2021: Application Seeking Judicial Review of Injection Passport PHOs

Friends,

We have filed our application today seeking judicial review of the injection passport public health orders and an affidavit in support of it. These documents are archived in the usual place under our Court Documents.

The orders we are seeking are set out in paras. 1-6 of the application. I ask that you please read the application, the supporting affidavit, and our FAQ before making inquiries with us.

We anticipate a three full day hearing. You will be kept apprised as soon as the Scheduling desk provides us with a date.

The affidavit contains an expert report from Dr. Joel Kettner, MD, MSC, FRCSC, FRCPC. Dr. Kettner was formerly the Chief Medical Officer of Health and Chief Public Health Officer for the Province of Manitoba from 1999 to 2012.

The format of this application is technically different than the ones you may have already seen because I opted to use a different civil procedure. If the Court were a computer, it would have three different buttons that turn it on to start running a new program. These are the requisition, notice of civil claim, and the petition. The notice of civil claim you have already seen. It effectively tells the Court who is suing who, what happened, what the Court should do about it, and why it is justified in doing so.

Although this application falls well within our mandate, it is technically a separate proceeding. It is a petition pursuant to Rule 2-1(2) and as such has a new file number that will exist parallel to our extant class proceeding. In a nutshell, petitions are a kind of standalone application.

Petitions go back to ancient times. But as they are used now, they became most recognizable under Edward I of England. In medieval England someone who had a request or protest of some kind could seek an audience with the sovereign. When the petitioner standing in line was called, he would make a formal request before the king. Perhaps he wanted land or an inheritance misappropriated by the church returned to him and only the king was in a position to do something about it.

A petitioner technically is not suing a defendant, but the closest analogue is a respondent whose job it is to respond to the petition and defend against it. There is no trial, but there is a kind of application hearing. Like applications, all evidence is usually tendered before the Court in the form of affidavits. In that sense it has a paper trial.

There are several advantages to a petition for this particular problem we are trying to address over a notice of civil claim which will become apparent at a later date.

We will be bringing a separate application to assist all health care workers affected by injection mandates. We originally intended to do so with this one, but the public health orders keep changing which added a layer of complexity.

~ Kip

4 November 2021: Reasons for Judgment on Defendants’ Application for Further Particulars

Friends,

This is an addendum to the previous status update. I apologize for the delay in providing Justice Crerar’s oral reasons for judgment. They were only returned to us this morning.

You can view the oral reasons for judgment here where it is also archived under our Court Documents section.

If the document disappears, try again later. Scribd’s spam filter is very poorly written and raises many false positives. Each time this happens we get in touch with them to correct it which sometimes takes a few days.

~ Kip

28 October, 2021: Summary of Dr. Henry’s application hearing

Friends,

An interesting hearing today.

Dr. Henry’s application initially demanded fifteen particulars (details) from CSASPP clarifying what she was being sued for. This included where she allegedly was in breach of her Hippocratic Oath.

Dr. Henry abandoned all but two of the fifteen demands. Of the two that remained, Justice Crerar was prepared to issue an order to compel CSASPP to clarify only one of them. This was due to a mixture of our having already provided most of the requested information to her well in advance of today’s hearing, but also because Dr. Henry did not have an adequate legal basis to obtain what she was seeking prior to discovery.

Justice Crerar’s order requires CSASPP to identify the government’s agents or employees, if known to us, who were responsible for the following conduct I drafted in para. 44 of our pleadings:

44. In addition, the defendants have obstructed or discouraged licensed physicians and other treatment providers licensed under the Health Professions Act , R.S.B.C. 1996, c. 183, from advocating modalities or therapies with respect to the clinical approach in treating COVID-19 and related diseases, despite the physician having independently undertaken reasonable review of the scientific literature, that may improve a patient’s immune system, reduce the potential negative outcome of a viral infection, and potentially accelerate the time required for recovery.

This is not a problem. Further, Justice Crerar observed that providing such particulars may be to our advantage in increasing our chances of surviving certification. He made no costs order.

Justice Crerar, who formerly taught civil procedures, advised the parties that the hearing was likely unnecessary. We are in agreement.

Regarding the dial-in circus, I apologize for the confusion. The Court changed the number only a few minutes prior to the hearing with insufficient notice to advise the majority of you, contrary to our request delivered well in advance. The new dial-in had a capacity of only one-hundred callers – clearly inadequate, given the last hearing had over a thousand attempt to attend. Even Crown counsel was unable to attend their own application hearing at one point.

This was outside of the control of Justice Crerar who has nothing to do with administering the Court’s IT.

I instructed counsel to seek an adjournment of only a day (non-prejudicial to Dr. Henry) at the onset of the hearing to be able to give the general public better notice. Justice Crerar was concerned that doing so might make accommodating our already tight self-imposed deadlines for moving our case along difficult and decided to carry on.

Justice Crerar issued his reasons for judgment at the conclusion of the hearing, which we are grateful for. It is not unusual for a judge to reserve judgment for several months of deliberation.

For those who were not able to attend, we have already ordered transcripts of the day’s proceeding and the concluding reasons for judgment. As soon as we have them, so will you.

As many of you have noticed, the technological infrastructure in our Court is wanting. It is more than a minor nuisance. It is arguably so inadequate to constitute a violation of your constitutional right to an open court. But the tragedy does not end there.

Our provincial Ministry of Justice, which is responsible for providing the Courts with the resources it needs, had a forecasted budget of $60 billion dollars allocated for this current fiscal year. This single ministry alone has more financial resources available to it than all the public treasuries of the nations of Slovakia, Pakistan, Algeria, Peru, Ecuador, Croatia, Slovenia, Bulgaria, Libya, Serbia, Lebanon, Costa Rica, Kenya, and Laos.

We are in the process of making formal arrangements, with the approval of the Court, to modernize public access in this digital age to our subsequent hearings. We sought, and were granted, leave (permission) by Justice Crerar to begin making inquiries with the Court’s technical staff.

~ Kip

27 October, 2021: Dial-in for Thursday 28 October, 2021, hearing for Dr. Henry’s application

Friends,

You can join us tomorrow to listen live to our 10AM hearing before Justice Crerar by dialling (778) 725-6348 or toll-free at (844) 636-7837 with conference ID 960 371 077#. If you are reading this from a handset, you can speed dial with the conference ID automatically entered for you by clicking here.

I suspect that you will already be muted automatically, but please ensure you do this manually on your end anyway to ensure our hearing is not interrupted.

I am advised that this line should be able to hold more than a 1,000 callers so that we hopefully do not run into the same problem again.

If you are not able to attend, I am advised that the transcripts I preemptively ordered should be available by Friday 29 October, 2021, or earlier. We will publish them as done previously. Because this is an application hearing and not a judicial or case planning conference, transcripts are permitted.

As noted for our previous hearings, the Court’s COVID-19 Notice 43 outlines conditions for remote access, including complying with the Policy on Use of Electronic Devices in Courtrooms for those wishing to listen to the hearing.

~ Kip

26 October, 2021: Dr. Henry demands additional details from CSASPP

Friends,

This Thursday 28 October, 2021, at 10AM, at the usual place of the Supreme Court at 800 Smithe Street, Vancouver, we will be having a hearing by video teleconference before Justice Crerar. We will provide the information on how to access the hearing as soon as we have them.

This hearing is at the defendants’ volition. Dr. Henry and the Provincial Crown have brought an application to seek additional particulars (details) from CSASPP on the specifics of what exactly they are being sued for. We have responded accordingly with our response and a supporting affidavit. All of these documents are available under our Court Documents section of our website.

While this may seem painfully obvious to our followers on what the defendants are being sued for, as I have indicated previously, this is a standard tactical move. Intelligent defendants always try to dispose of a suit early on a procedural basis (some rule of Court has allegedly not been complied with) in order to avert the plaintiff’s claim from eventually being adjudicated on its merits by a trial judge.

But this does not always work out the way the defendants think it will.

Lastly, I apologize for the short notice. This is one of the challenges our team has in balancing our working lives outside of the campaign with our volunteer civic work.

~ Kip

18 October, 2021: Orders of 10 August, 2021, Judicial Management Conference

Friends,

We have finally received back the entered orders from our 10 August, 2021, Judicial Management Conference before Justice Crerar. The orders were entered by the registry on 15 October, 2021. You can download a copy from our Court Documents page. This document contains the expected timelines the parties must submit to for various hearings, document exchange, and so forth.

~ Kip

4 October, 2021: Summary of 1 October, 2021, Judicial Management Conference

Friends,

Thank you for attending last Friday’s Judicial Management Conference. We had over a thousand people attempt to attend by teleconference, in addition to those who were at the courthouse. The agenda canvassed can be downloaded here.

Unfortunately our platform was only able to accommodate a maximum of 1,000 listeners at a time. We were expecting several hundred, but not over a thousand. The call limit was reached in very short order, so we estimate there was a much greater public interest than the aforementioned maximum capacity. Accordingly we will take steps to substantially increase this limit for our next hearing.

We had a productive morning. Justice Crerar made the following four orders:

Our response to the defendants’ request for additional particulars (details) is due from us 12 October, 2021;
If the defendants are still not satisfied with the additional particulars provided by us, they must bring an application no later than 28 October, 2021, for appropriate relief;
The defendants have a deadline of 25 November, 2021, to file their Amended Response to Civil Claim;
Our next Judicial Management Conference is scheduled for 21 January, 2022, at 0900.

Regarding (1), we have already provided the requested details on 30 August, 2021. These can be located here. The defendants claim deficiencies in our particulars, but ultimately only the court can determine that.

If the defendants believe we have not complied with order (1), Justice Crerar’s order (2) allows the defendants to bring an application for additional relief. However, he cautioned the defendants from acting in an excessively high handed manner, given the grey areas of the relevant law and the complexities of class proceedings.

Regarding order (4), we will provide dial-in details as usual as the date approaches.

~ Kip

29 September, 2021: Agenda for 1 October, 2021, Judicial Management Conference

Friends,

For those interested, you can obtain a copy of the parties’ mutually agreed upon agenda to be canvassed during this Friday’s Judicial Management Conference here.

Please also keep your audio on mute so as to not interrupt the hearing.

~ Kip

28 September, 2021: Public Dial-In for 1 October, 2021, Judicial Management Conference

Friends,

To access this Friday’s 0900 Judicial Management Conference before Justice Crerar by telephone, please use the following public dial-in information:

Dial +1 778 907 2071
Enter Meeting ID: 87258141524
Press ‘#’
Press ‘#’ again (There is no participant ID)
Enter Passcode: 22479088
Press ‘#’

~ Kip

27 September, 2021: 1 October, 2021, Judicial Management Conference Update

Friends,

Justice Crerar has just granted an order allowing a public dial-in to our 1 October, 2021, Judicial Management Conference. It will be held at 0900 at 800 Smithe Street in Vancouver – though the parties will be attending by teleconference. There will be many items to discuss at this hearing.

We are advised by independent activists that a rally will be held outside of the court house. As with the previous hearing of over a thousand attendees, we are not responsible for organizing the event and encourage those who wish to attend to liaise with those who are.

As previously discussed, we are not permitted to obtain transcripts of this hearing. Interested parties are therefore advised to listen in real-time. The orders made at the end of the hearing will be published for your review.

As soon as we have the public dial-in number later this week, we will publish it here for you.

~ Kip

20 September, 2021: Transcripts, Reasons for Judgment, and the Hidden Gem of the 13 September, 2021, Hearing

Friends,

We have received and published the transcripts and reasons for judgment of our 13 September, 2021, hearing where we were denied short leave (permission). Recall that we were seeking short leave to have our application seeking a stay (temporary pause) of the injection passport public health order heard. You can locate these two documents at the usual place under our Court Documents section of our website.

The defendants have taken the position on more than one occasion, including in their submissions to the court, that the standing (eligibility) of CSASPP to bring a constitutional challenge in the first place is doubtful because it is a body corporate as opposed to a natural person who has sustained injury.

In para. 4 of the reasons for judgment I draw your attention to a salient remark of Registrar Nielsen that was only brought to my attention today upon closer examination. Although the court technically had no application returnable by the defendants to adjudicate on the issue of standing, Registrar Nielsen nevertheless opined that “There is a question of standing on whether or not Charter rights could be alleged infringed by the plaintiff. My inclination is that this is probably something the Court might look at nevertheless, given recent developments in the law in that regard.”

The issue of standing is the primary tool Crown counsel intended to rely on to undermine this proceeding’s class certification. This is standard and any intelligent lawyer is taught to always try to exhaust defending against a claim on a procedural basis (applicable technical rules) before it can be adjudicated on its merits (a judge making an actual decision on the essence of the claim).

~ Kip

17 September, 2021: Dr. Reiner Fuellmich & 1 October, 2021, Judicial Management Conference

Friends,

Two important updates for you. The first is my friend and working colleague Dr. Reiner Fuellmich who chairs the Berlin based Corona Investigative Committee will be flying to British Columbia to participate in Dr. Bonnie Henry’s examination for discovery as well as her trial – notwithstanding any applicable travel restrictions that may apply at that time. Your donor funds will support his important assistance.

The committee’s fact finding mandate has conducted extensive research and interviewed hundreds of witnesses, but lacks the judicial tools of discovery and subpoena we have available to us. Our work is therefore complementary in nature.

Secondly, our next Judicial Management Conference to discuss the current progress of our suit will be held on 1 October, 2021, at 0900 for one hour before Justice Crerar. A copy of the filed requisition of 13 August, 2021, confirming the date can be located under our Court Documents.

The hearing will be held at the usual place of the Vancouver Law Courts of 800 Smithe Street, Vancouver – though the parties will likely be attending by telephone. We will provide the dial-in instructions as soon as we have them so that members of the general public can listen in real-time, like our previous hearing before Justice Crerar.

The purpose of the JMC is to continue discussions with his lordship and the defendants where we left off at our previous JMC of 10 August, 2021. We will review any timelines that were previously agreed to, and any changes that may need to be made in light of our upcoming application seeking judicial review of the injection passport.

We are still awaiting a copy of the order of our last JMC of 10 August, 2021, containing the previously agreed to timelines, but Crown counsel has still not returned to us a copy of the draft order’s endorsement (signature). As soon as we have it we will make it available for public access.

~ Kip

15 September, 2021: CSASPP’s Amended Notice of Civil Claim

Friends,

We have amended, filed, and served a new revision of our Notice of Civil Claim pursuant to Rule 6-1(1)(a). Text that is underlined is new. Text that has been struck through has been removed.

You can download a copy from our Court Documents section of our website.

~ Kip

14 September, 2021: Reconsideration of Dr. Henry’s Orders of 10 August, 2021

Friends,

As some of you may be aware, Dr. Henry’s injection passport related orders of 10 August, 2021, allegedly provided a mechanism for those wishing to request reconsideration of their applicability. The Food and Liquor Serving Premises and the Gatherings and Events orders both contained the following on p. 9 and p. 12 respectively:

Pursuant to section 43 of the Public Health Act, you may request a medical health officer to reconsider this Order if you:

(a) have additional relevant information that was not reasonably available to the me or another health officer when the order was issued or varied,

(b) have a proposal that was not presented to me or another health officer when the order was issued or varied but, if implemented, would (i) meet the objective of the order, and (ii) be suitable as the basis of a written agreement under section 38 [may make written agreements], or

(c) require more time to comply with the order.

A request for reconsideration of this Order on the basis of a medical contraindication made by a person to whom the Order applies must include a signed and dated statement from a medical practitioner, based upon a current assessment, that the health of the person would be seriously jeopardized if the person were to receive a first or second dose of vaccine, and a signed and dated copy of each portion of the person’s health record relevant to this statement.

A request under section 43 may be submitted to the Provincial Health Officer at ProvHlthOffice@gov.bc.ca with the subject line “Request for Reconsideration about Proof of Vaccination”.

I have underlined portions to draw your attention. What I would like you to do is submit requests for medical exemptions, and to do so on the basis of bona fide medical, religious or other grounds if you can establish any of the following:

you have a medical condition. This could be allergies or you have symptoms of myocarditis or pericarditis following your first injection;
you have recovered from COVID-19;
you can produce a negative rapid antigen COVID-19 test from no more than 48 hours before the event or attendance at a restaurant as an alternative to proof of injection.

If your request is denied and you made an earnest effort to comply with the above reconsideration process, please get in touch with reception. We would like to rely on your submission and response, assuming you received one at all, in our upcoming application seeking judicial review. Our judge will review your correspondence, so please be cognizant of this.

~ Kip

13 September, 2021: Short Leave Application Seeking Stay of Injection Passport Order

Friends,

As you may recall, we had a three step plan for addressing the injection passport:

Apply for short leave, which is permission to have another application heard sooner than the usual seven clear business days of notice. The latter application is (2);
Stay (pause) the injection passport order by a small but reasonable period of time to permit us to prepare for a more comprehensive and detailed judicial review application;
Bring an application seeking a judicial review of the injection passport order.

We did not succeed today in (1) to allow (2) to be heard today.

Justice Crerar was not available on such short notice. Registrar Nielsen (a kind of junior judge) took his place. Registrar Nielsen denied short leave because, according to him, this matter did not meet the test for urgency. His reasoning was that the services being denied were non-essential and there is, according to him, a rising COVID-19 case count.

We have begun the process of ordering transcripts so that you may review the exchange with the court and will notify you when they are available.

It is important to note that today was not a loss. This is a delay, or tactical set back. I know time is of the essence for all of you, but nothing that happened today prevents us from performing (3) seeking a judicial review. This is our intention, Crown counsel is aware of this, and so is the court. Some of our materials are already prepared.

A judicial review is a kind of application hearing whereby a judge reviews a decision of an administrative body, in this case the Public Health Officer. The judge then makes a decision on whether the government’s decision still stands or if changes must be made.

We are working expeditiously and will keep you apprised of our judicial review hearing date, as well as our next case planning conference.

~ Kip

10 September, 2021: C&D Letter to Business Owners Regarding Masking Exemptions

Friends,

This tool was prepared 10 September, 2021, in response to popular request to address businesses seeking to enforce masking requirements without honouring exemptions. This document supersedes the previous edition and is intended to address the latest public health order.

British Columbians who believe they are confronted with a private venue’s discriminatory practise may choose to rely on this document.

A copy can be obtained under our Tools & Street Kit section of our website. This is a public service and there is no cost to you.

~ Kip

10 September, 2021: CSASPP Seeks Stay of Injection Passport Order

Friends,

I have instructed counsel to bring a short leave application seeking a stay (pause) of the recently announced public health order mandating injection passports for a variety of public venues. The order is slated to take effect Monday 13 September, 2021.

We sought a copy of the order from Dr. Henry’s counsel to analyze, but are yet to receive it.

The government is already obtaining many of the benefits of an already partially implemented public policy with the province’s machinery already moving into place, but without any of the responsibilities that come with having to potentially defend against a judicial review of the order.

This is unsportsmanlike.

We will be asking the court to draw an inference adversarial to Dr. Henry’s interests and to stay the order until we have had adequate time to prepare an application seeking judicial review.

The hearing will be heard, unless bumped due to scheduling, on Monday 13 September, 2021 by teleconference for one hour at some time between 1000 to 1600. The litigants will likely not be physically present in the court house, but the judge may be. The court house is at the usual place of 800 Smithe Street, Vancouver.

Justice Crerar, although assigned as our judge in this proceeding, may not be available for this hearing and another judge may be assigned in his place.

I am advised by independent activists that they intend to be present outside the court house to show their support.

Given the short notice, we likely will not have time to arrange real-time public telephone access, but we will order transcripts to be made publicly available as soon as possible.

~ Kip

7 September, 2021: Letter to Air Canada & Dr. Henry’s Response to Request for Injection Order

Friends,

On 30 August, 2021, CSASPP requested a copy of the injection passport order. We received a letter from Crown counsel dated 3 September, 2021, on behalf of Dr. Henry advising that the order is not publicly available. Crown counsel did not provide a timeline for its availability either. Her letter is available on our Court Documents page.

We have completed preparing a letter intended to benefit all employees of Air Canada confronted with mandatory injections as a condition of continued employment. The letter was sent to Air Canada, IAMAW Local 2323, and CUPE. A courtesy copy is provided on our Tools & Street Kit page.

~ Kip

7 September, 2021: Letter to Post Secondary Institutions Regarding Injection Order

Friends,

This letter is intended to benefit students, faculty, and other staff in response to the Ministry of Advanced Education and Skills Training’s Health, safety remain top priority for return to campus news release of 24 August, 2021.

This letter was sent to all post-secondary institutions on their behalf on 3 September, 2021. Courtesy copies are provided on our Tools & Street Kit section.

~ Kip

3 September, 2021: Is This a Right Wing Movement?

Friends,

The team has just released new studio footage. This time we address the misconception that those critical of COVID-19 measures are exclusively of the right.

~ Kip

1 September 2021: Letter for Health Care Workers to All BC Health Authorities

Friends,

This news release is a follow up to my previous one of today. As promised, we have drafted and are in the process of sending a second letter. This one is to be sent to all of the regional health authorities to assist those who work in hospitals.

This letter will be delivered by us, but a courtesy copy is published within our Tools & Street Kit titled Letter for Health Care Workers to All BC Health Authorities.

If you get an error from Scribd claiming the document has been removed, this is because their platform is raising a false positive in flagging it as spam. It does this because it contains URLs and their AI is not particularly well contemplated. In the interim, while this is being addressed, you can always click the Download button instead.

~ Kip

1 September 2021: Letter for Health Care Workers to All BC Long Term Care Facilities

Friends,

As per your request, we have released a letter intended for all British Columbia health care workers currently working within long term care facilities that are required to submit to the COVID-19 Vaccination Status Information and Preventive Measures Order announced 20 August, 2021.

This letter will be delivered to all British Columbia long term care facilities by us, but a courtesy copy is published within our Tools & Street Kit titled Letter for Health Care Workers to All BC Long Term Care Facilities.

We will send a similar letter to all of the regional health authorities to assist those who work in hospitals.

~ Kip

30 August 2021: CSASPP Provides Dr. Henry with Deadline to Produce Proof of Injection Order & Other Correspondence

Friends,

We have requested from Dr. Henry and the Crown a copy of the new provincial health order announced 23 August, 2021. The order will require individuals to provide proof of injections to access a broad range of venues. It is difficult to challenge when the order has not been made public.

We have received from Dr. Henry and the Crown a request for additional details about our suit, pursuant to Rule 3-7. We responded today.

Regarding all healthcare workers, employees and contractors of Air Canada, and those affected by the injection passport, we will have more news for you shortly.

~ Kip

27 August 2021: Expeditious Civil Remedies & Injections

Friends,

We are in the process of seeking appropriate civil remedies in an expeditious manner for three categories of affected individuals. These are as follows:

Minors as young as twelve who are being administered injections as part of a provincial program, sometimes dubbed the “Vax Vans”. These minors are not required to have obtained parental consent. This program is already in effect. We have many concerned parents reaching out to us regularly about this. If you are a parent with a minor who was injected without parental consent, please get in touch with reception immediately;
All health care workers defined and affected by the Public Health Order of 20 August, 2021, COVID-19 Vaccination Status Information and Preventitive [sic] Measures Order. This order takes effect 8 September, 2021. We take note of the more than five thousand nurses that have lobbied us to do something;
All of those affected by Dr. Henry’s “proof of vaccination” policy as announced during her 23 August, 2021, press conference and scheduled to take effect 13 September, 2021. This is sometimes referred to as a “vaccination passport”. The order has not as of yet been released, likely in bad faith to intentionally obstruct judicial review.

Note that none of the above in any way reflects a deviation from our policy of taking no position on the general efficacy of the science behind immunization. For more on our rationale, please review our FAQ.

I remind you that I am not a lawyer and cannot give you legal advice. Having said that, I suggest that you do not quit your job. Leave it to your employer to take formal administrative steps to terminate you. You will have more avenues for redress at a later date.

In the interest of balancing public transparency with tactical considerations, I will be reticent with details for the time being. But rest assured, you will be kept apprised of hearing dates and means of public access.

~ Kip

23 August 2021: Injection Passports & Related Mandates

Friends,

We are fully cognizant of your concerns regarding Dr. Bonnie Henry’s press conference of this afternoon. Rest assured, we are preparing an appropriate and expeditious response to directly address them.

I will have an update for you shortly. In the mean time, hang tight and please wait patiently for our next status update. I anticipate it will be later this week.

~ Kip

11 August 2021: Dr. Bonnie Henry Ordered to Stand Trial

Friends,

Thank you for attending yesterday’s hearing. It is the first of many. I am advised that there were many dialed-in, in addition to a large crowd of approximately seventy-five outside the court house listening in real-time.

We had a positive start in our first day in court. A summary of the more salient things that happened follows.

We had some initial technical difficulties in the teleconference and so some of you may not have heard how the hearing began. Thankfully our judge stood down the court until those challenges were resolved to ensure the public was able to listen.

Crown counsel opposed the setting down of a trial date, claiming it was premature. We argued it was appropriate. Our judge agreed because the court’s schedule fills up quickly.

Dr. Henry, in her capacity as the Provincial Health Officer for the Province of BC, and the Crown, will stand trial as ordered by the court starting 17 April, 2023. It will be set for 40 days. We also intend to conduct her examination for discovery well before that.

Our certification hearing will be on the week of 20 June, 2022. For those of you unfamiliar with class actions, a certification hearing is very important, arguably more so than trial.

We had previously requested from Dr. Henry her calendar availability to provide testimony under oath. Crown argued this was premature. Our judge did not make any order respecting her calendar’s availability because he said she is already required pursuant to Rule 7-2 to make herself available after certification. Further, Crown counsel reassured the court she would cooperate in providing her availability at that time.

Crown counsel explained to our judge that they would like more details on what the defendants are being sued for and anticipate providing a formal request (the term of art is a “demand for particulars”). Crown counsel did not initially propose a deadline on when they expected to do this.

Our judge said the Crown has been in possession of the suit since January of 2021 and should not need much time to figure out what the alleged concerns are. He ordered Crown to provide their requests to us by 25 August, 2021.

If we see fit to expand, revise, or reduce our pleadings we may file a revised version no later than 15 September, 2021. This is not a concern for us.

Crown counsel advised the judge prior to the hearing that they had not been consulted in our request that public access be made available by teleconference for the hearing. Our judge said public access is important, so far as it does not violate the rules of court. He also said the public should be able to listen in real time to what was happening and be informed of any orders that are made.

However, our judge confirmed that pursuant to Rule 5-2(7), transcripts are generally not made available for case planning conferences (which a judicial management conference is a kind of). The language used in the rule is “recording”, which also includes transcripts unfortunately. Note that Rule 5-2(7) does not apply to other types of hearings, such as applications, registrar hearings, or trials.

The original reasoning behind this rule was to encourage parties to have frank discussions, including those that may relate to settlement as contemplated under Rule 5-3(m). Settlement discussions normally are an occasion in which privilege is attached (confidential).

We intend to publish the entered case planning order once finalized and returned by the court. Orders are effective immediately upon pronouncement of the court, but entering a written copy that can be subsequently referred to is a formality that is commonplace.

We will return to court for our second case planning conference 27 September, 2021, as ordered by the judge. Any issues that the parties wish to address must be brought with advance notice to the parties.

Lastly, Crown counsel requested an order that we provide the names of our expert witnesses in advance of submitting our certification application materials. We opposed the order. Our judge agreed that Crown does not need the names at this time because that information is privileged for the time being.

We will continue to take all reasonably necessary precautions to protect the identity of any high level government whistleblowers within Dr. Henry’s staff, another governmental entity, or those in the private sector that may communicate with us from time to time.

Lastly, we would like to thank Crown counsel for their submissions. In particular, Ms. Jacqueline Hughes, Q.C., whose advocacy on all of our behalf before the Cullen Commission is laudable.

~ Kip

9 August 2021: Tomorrow’s Judicial Management Conference’s Public Dial-In

Friends,

We are advised this evening via Supreme Court Scheduling that Mr. Justice Crerar has formally granted our order seeking public telephone access to tomorrow’s hearing. Note that your attendance is subject to the Use of Electronic Devices in Courtrooms and Rule 5-2(7).

To reiterate, our hearing begins at 0900 tomorrow morning. Dial +1 (778) 907 2071. When prompted for Meeting ID, enter 840 7463 2480. Press #. Ignore the prompt for Participant ID and press # (again). When prompted for a Meeting Password, enter 344468. Press #.

Please ensure your microphone is muted and you do not record any portion of the hearing. If you are unable to attend, please review our previous status update for other options on how to review what happened.

~ Kip

4 August 2021: Dr. Henry’s Case Plan and 10 August, 2021, Judicial Management Conference

Friends,

Dr. Bonnie Henry has provided her case plan outlining her proposed timelines for this proceeding. There is general agreement on timeline, with some disagreements.

Nevertheless, she has not provided her calendar availability for her examination for discovery as previously requested. We will be seeking an appropriate judicial direction at our JMC on 10 August, 2021.

With respect to the JMC, it begins at 0900 by teleconference with Justice Crerar. The litigants agree on a one hour time estimate. To listen to the hearing live, please dial +1 (778) 907 2071. When prompted for Meeting ID, enter 840 7463 2480. Press #. Ignore the prompt for Participant ID and press # (again). When prompted for a Meeting Password, enter 344468. Press #. You will be automatically muted. This conference line should be able to handle a maximum of 1,000 concurrent callers.

Please note that you are not permitted to record any portion of the hearing.

If you are unavailable to listen to the hearing live, you can make an appointment after with In Court Technology at +1 (604) 660-3500, providing them with file number S-210831, to listen to a recording at the court house. Additionally, we will be obtaining a transcript of the hearing and will publish it as soon as it is ready.

On another note, our recent Cease & Desist Letter to Stubborn Businesses has been well received. We have received reports from you of some businesses having removed their mask required signage immediately after having being served.

PS Apologies for the delay. Counsel was tending to a personal matter and I had professional obligations outside of CSASPP.

~ Kip

29 July 2021: Is Going to Court Expensive?

Friends,

The team has released a new short video from the studio. It is intended to address the commonly held misunderstanding of the cost of going to court. You can view it here.

~ Kip

26 July 2021: Cease & Desist Letter to Stubborn Businesses

Friends,

By popular request we have prepared a C&D Letter to Stubborn Businesses for public distribution to the many businesses that continue to require mandatory masking of customers, despite the repeal of Minister Order M274 on 1 July, 2021. You can obtain it at no cost from our Tools & Street Kit section of our website.

~ Kip

7 July 2021: Solicitor General Rescinds Thirty-Three Ministerial Orders

Friends,

As most of you are undoubtedly aware, our provincial Solicitor General, Minister Mike Farnworth, rescinded thirty-three ministerial orders under the Emergency Program Act, R.S.B.C. 1996, c. 111, s. 11, on 29 June, 2021. Although many of you remain convinced that CSASPP played a material role in persuading cabinet to do so, we cannot in good faith be certain of that. Having said that, nothing our government has done to date has ruled that possibility out either.

Regardless, we are all happy these orders have been rescinded.

Many of you have asked us what will become of our work now. The answer is simple. Nothing in our mandate has changed. You asked us to hold your government accountable. We have no intention of filing a discontinuance. Only through accountability for past actions can future ones be mitigated.

We will have more material updates for you shortly.

~ Kip

21 June, 2021: Dr. Bonnie Henry’s Examination for Discovery and CSASPP’s Case Plan Proposal

Friends,

We have begun the process to summon Dr. Bonnie Henry for her examination for discovery to be conducted following class certification. In the American parlance this is sometimes referred to as a “deposition”, but the idea is the same where a witness is interviewed under oath with a record produced in the form of a transcript to be relied upon later. You can read our letter to Dr. Henry’s counsel here.

During the examination for discovery we will be free to ask Dr. Henry any question that pertains to our suit for a maximum of 7 hours. However, we anticipate seeking a court order extending this to up to 18 hours per Rule 7-2(2). We also anticipate that she will not voluntarily submit to an examination and that we may need to seek a court order.

Dr. Henry has until 21 July, 2021, to provide her disposition to our request. Failing that, we will seek an appropriate court order.

Under Rule 22-8(4) if a witness refuses to attend a scheduled examination for discovery without a lawful excuse that person is guilty of contempt of court and subject to the court’s power to punish contempt of court. The latter is exercised either through an order of committal or by imposition of a fine or both pursuant to Rule 22-8(1). If the court is of the opinion that Dr. Henry may be guilty of contempt of court, it may order that she be apprehended and brought before the court pursuant to Rule 22-8(5).

Lastly, we sent our case plan proposal to Dr. Henry’s counsel which outlines the remaining steps and timelines to completion. These timelines have been compressed as much as possible to accommodate your desire, the court’s calendar, our counsel’s, and will be tabled before our judge at our 10 August, 2021, judicial management conference.

~ Kip

20 June, 2021: Alternative and Complementary Health Treatments

Friends,

Sometimes we get asked what we are doing to help those seeking alternative or complementary medical treatments as part of our suit. We’ve added a response to our FAQ here.

~ Kip

11 June, 2021: Commercial Insurance Template Package

Friends,

If we prevail at trial we will have obtained a long term solution. But this does nothing to alleviate the catastrophic economic harm faced by tens of thousands of businesses across our province now as a result of COVID-19 related government measures. Statistics Canada reports that British Columbia experienced 17,350 business closures in April of 2020; a more than two-hundred percent increase from 7,623 in 2019; 6,719 in 2018, and 6,834 in 2017.

We have listened carefully to our stakeholders like you and understand that you need additional short term tools to augment those we continue to produce. What you need more than anything right now is money to address your cash flow challenges.

After several weeks of refinement by counsel and the team, we are ready to release our Commercial Insurance Template package to help you initiate your process of obtaining relief from your business insurance policy. You can download an editable copy from our website. This document must be modified with respect to your specific insurance policy. We have annotated it where necessary so that you can remove or modify those paragraphs as they relate to your circumstance.

Lastly, to ensure that we continue to dynamically adapt to our community’s needs, we endeavour to track performance metrics whenever practical. If you obtain any form of relief from your insurer, we ask that you please contact reception to let us know as soon as possible.

~ Kip

8 June, 2021: Improving How We Communicate With You

Friends,

Although tens of thousands of you already follow and share our work without our ever having put out a formal press release, we know we could improve how we communicate with you. For this reason we have just released our new website, social media presence, and the first segment of a studio interview we filmed recently to help answer many of your questions.

If you would like a stack of flyers for distribution to anyone, or cease and desist letters directed at regulators, please ask reception and we would be happy to make arrangements at no cost to you.

On that note, we now have a receptionist to receive and route your inquiries to the appropriate party at +1 (604) 256-3060. Alternatively, we can be reached by email at reception@covidconstitutionalchallengebc.ca.

Our work continues efficiently, effectively, and with economy of effort in remaining well under budget.

~ Kip

11 May, 2021: Assignment of a Judge

Friends,

Mr. Justice David A. Crerar was assigned today as our Judicial Management Judge. He was appointed to the bench 24 June, 2019. He will preside over all of our hearings.

A Judicial Management Conference has been scheduled with him for one hour on 10 August, 2021, at 9AM. I suggest you mark your calendars.

Normally these are held at the Vancouver Law Court at 800 Smithe Street, Vancouver. However, this may be held by teleconference.

Any proceeding that is brought as a proposed class action in BC is judicially managed. This means the same judge presides over all hearings, as opposed to a random one for each application. This is required under Practice Direction No 5 and has been the norm since 2010.

~ Kip

10 May, 2021: Cease & Desist Letter to Regulators

Friends,

On my instructions counsel prepared a cease and desist letter to provincial regulators and municipal by-law enforcement on behalf of all class members who are business owners.

Apologies for the delay. There were a few revisions that needed to be made before I was comfortable having it sent out.

This is a public document and you are welcome to redistribute to any business owner who may be the target of coercive action by any civil authority in respect to the COVID-19 measures. It is our hope that this will allow business owners to be left alone, at least temporarily, concurrent to our long term litigation solution.

Although the letter is being sent out now to all named recipients on behalf of class members, for greater certainty and comfort business owners can keep a copy on premise should civil authorities make an appearance.

Additionally, we will be releasing in the next few weeks another tool to assist small and medium sized businesses obtain much needed financial relief. I know you are suffering and time is of the essence, but hang tight. The cavalry is coming.

~ Kip

8 April, 2021: Warrior’s Den Interview

Friends,

Jonathan Fader of Warriors Den has uploaded a recent podcast with me from last night to Spotify and various other platforms. You can find it here.

In case you missed it, I did another interview several weeks ago on Reid Small’s Peripheral Talk. You can find it here.

Although I have declined interviews from time to time, when I agree to do them, I prefer to do them with grass roots independent media.

~ Kip

6 April, 2021: Defendants’ Response to Civil Claim

Friends,

News from the front. The defendants filed their joint reply 31 March, 2021. However, we were only served with it today. You can find a copy of it here.

Crown counsels’ response was mechanically predictable and does not contain any surprises. The paragraph references refer to the numbered paragraphs within our Notice of Civil Claim available here.

Both parties can amend their respective above positions (“pleadings” in the legal parlance) as many times as they like until a trial date is set down. At that point pleadings are “closed” and you need to obtain consent from the other side or leave (permission, in old English) from the court to make changes. Framing pleadings correctly is important because these documents set the boundaries for the business the parties and the judge can engage in at trial.

As an example, if you claimed in your pleadings that you were hurt when you were hit by a car, you can’t also claim the loss of your vehicle at trial unless you gave notice to the other side in your Notice of Civil Claim. Inversely, the defendant can’t raise the defence at trial that you waited too long to sue unless that defence was raised in their reply.

With the defendants having filed their reply, we now look forward to proceeding into discovery following the assignment of a judge. We pre-emptively initiated that process 4 March, 2021, with a filed requisition.

When a judge is assigned, a hearing will be held. At that time usually nothing important is adjudicated, but the process or road map to get there is set down. This is done either by consent, or if the parties can’t reach an agreement, with the help of the judge. This includes setting down deadlines for discovery.

Discovery is the civil procedure by which parties learn more about the strengths and weaknesses of their respective arguments by obtaining evidence from the other side. This may be in the form of electronic records, physical records, or other media. Sometimes a party refuses to disclose something in its possession, in which case the other side can ask a judge for help.

This evidence can also include up to seven hours of in-person under oath interviews per witness (called an “examinations for discovery” here, or a “deposition” in the United States). The examination transcript will be generated by a court reporter containing every question put to the witness and everything said by the witness in response.

It is our intention to conduct extensive public consultation in preparing the relevant questions to be put to our primary witness, Dr. Bonnie Henry. The transcript of her examination will likely be made publicly available since we intend to rely on it at trial. Crown will do everything they can to avoid having her called as a witness and we will do everything we can to ensure they fail.

I am in the process of contemplating appropriate instructions to counsel and will revert as soon as we have a material update to share with you.

Understand that from time to time there may be things I would like to share with you immediately, but since Crown reads all of these updates, it’s sometimes important to know when to keep your powder dry.

We’re doing everything we can to not move this at the geological timescale the system is accustomed to. In the mean time, hold tight. We’ve got your back.

~ Kip

31 March, 2021: Requesting Assignment of Case Management Judge

Friends,

As of this writing Crown has not filed a reply. We have taken the procedural step to request the assignment of a case management judge.

I know you are all on edge right now with the renewed lockdown, but you have to appreciate we have little control over the judicial system’s notion of efficiency.

As always, we will report back to you as soon as we have a material update.

~ Kip

1 March, 2021: Delays

Friends,

A brief update for you while I race to deal with a patent filing deadline.

The defendants Dr. Bonnie Henry and the Provincial Crown were both served several weeks ago. Service was accepted on their behalf by the Provincial Attorney General in Victoria.

Crown counsel predictably requested additional time to file their reply, after waiting several weeks to seek our consent, and only after having been given ample advance warning from the onset of service that they should be cognizant of their original deadline under the Rules. Their reason given was, naturally, COVID-19.

Because it was not clear to me how the latter has adversely affected the functionality of a word processor, the Court’s e-filing system, or why at least one of Her Majesty’s learned counsel has nevertheless been making regular appearances in other hearings, I was not amenable to an open ended extension. Further, the proposed class members continue to endure on-going catastrophic harm without any accommodations being made for them.

Crown therefore has until 8 March, 2021, to file. If that deadline is missed, Crown is aware that we are within our right to immediately seek a desk order for a default judgment (and will do so).

If Crown seeks additional time and brings an application to that effect, we will require affidavit (sworn) evidence from Crown counsel (of record) directly and not from a subordinate, a para-legalist, or a miscellaneous civil servant.

Deponents of affidavits can be placed on the stand. For that reason lawyers are generally loath to create a situation where they may be held to the same level of accountability as everyone else in society they put there on a daily basis.

If their deadline is not missed, we will seek a hearing date as soon as one is available from Scheduling for a judicial case management conference. All proposed class actions are judicially case managed, which means there is a single judge who usually presides over all hearings as opposed to a random assignment at each one. This reduces the time litigants need to spend at each hearing recollecting the detailed procedural history to the judge.

At a judicial case management conference the litigants and the Court come to an agreement on the process, and if they can’t, the judge helps them out. The emphasis is on process and not on outcome since only a trial judge will know what that is. The hearing is about agreeing on timelines for discovery, anticipated applications, class certification, expert witnesses, and so forth.

After Crown has filed its reply, discovery will begin immediately. We anticipate examining (sometimes called a “deposition” in the American parlance) Dr. Henry as soon as possible. We have many questions for her and anticipate extensive document disclosure, likely with the assistance of the court.

Crown will most likely refuse to allow her to be examined. But thankfully we have an independent judiciary.

Witnesses during an examination are placed under oath. They must answer any question put to them that falls within the scope of what has been pled (our Notice of Civil Claim and their reply).

Objections can be raised by counsel, and we anticipate that is most of what we will be hearing from her. But ultimately a judge decides whether the objection was valid, and if not, can order a witness to show up again, answer the questions, produce a document, and pay a fine.

A very good objection a witness like Minister Adrian Dix might raise would be to say that a question falls under the rubric of cabinet confidence. That is, they can’t talk about it because the common law throughout the former British Empire said for centuries that what goes on in cabinet stays in cabinet. However, Dr. Henry is not a cabinet minister.

PS A recent interview I did with Reid Small that might help answer some of your questions.

30 January, 2021: Public Response (edited)

Dear Friends,

Since we filed several days ago, our phones and inboxes have been inundated with whistle blowers, other lawyers wanting to get involved, donors, and many other positive inquiries.

We thank you for all of your support, but for efficiency sake please contact us directly instead of our lawyer’s office if you have any inquiries. If appropriate, I will forward to counsel.

If you have confidential documents you wish to provide, we can make arrangements to allow you to do so securely. If you wish to have an encrypted phone or video call, we can also make arrangements.

Yours truly,

~ Kip