TURMEL: Crown Response to Ethier No-Documents Stay Appeal JCT: Michel Ethier appealed Case Management ("CMJ") Judge Prothonotary Aylen's ruling made stayed plaintiffs put in more effort in order to help the Crown put in less effort. I'll say that again. The Crown asked to put in less effort and the judge agreed and ordered plaintiffs to put in more effort. Again, CMJ made it easier on the Crown by making it harder on the Plaintiffs! And the Registry clerks, she'll soon find out. Har har har. Court File No.: T-171-21 FEDERAL COURT BETWEEN: MICHEL DENIS ETHIER Plaintiff (Moving Party) and HER MAJESTY THE QUEEN Defendant (Responding Party) WRITTEN REPRESENTATIONS OF THE DEFENDANT (Plaintiff's Motion to Appeal the April 8, 2021, Stay Order) CR: OVERVIEW 1. The Court did not err when it stayed the plaintiff's claim pending the final determination of a substantially similar claim. In particular, it was not a palpable and overriding error for the Court to conclude that the plaintiff's concerns about receiving updates on the lead claim did not amount to prejudice, nor did the Court err in declining to require that Canada serve the plaintiff with documents filed in the lead claim. JCT: Ethier's appeal lays out the prejudice suffered by being cut out of the documentation and then expected to make a decision based on that incomplete information. http://smartestman.ca/c19a1.pdf for Appeal #1. CR: 2. Canada therefore requests that this appeal be dismissed with costs. PART I - STATEMENT OF FACTS 3. This claim is one of more than 60 actions in which the self-represented plaintiffs seek various forms of relief related to the federal Government's COVID-19 mitigation measures.1 The statements of claim in each action are almost identical and are based on a "kit" made available on the internet by John Turmel, the plaintiff in John Turmel v HMQ, T-130-21 (the "John Turmel Claim").2 4. The COVID-19 Kit Claims are being case managed by Prothonotary Aylen. During a case management conference with the plaintiffs in the first ten COVID-19 Kit Claims, the Court proposed that the John Turmel Claim move forward as the lead claim, and that the balance of the actions (hereinafter referred to as the "Subsequent COVID-19 Kit Claims") be held in abeyance, pursuant to section 50(1)(b) of the Federal Courts Act3, pending a final determination in the John Turmel Claim. 5. During the case management conference, Canada agreed with the Court's proposal. JCT: He keeps trying to make it sound like it was the judge's idea though he had moved to file only 1 motion. So the Court's proposal was prompted by the Crown's demand. CR: The plaintiffs in the Subsequent COVID-19 Kit Claims were also largely prepared to agree to a stay provided that they were served with all of the materials filed in the John Turmel Claim.4 However, after Canada indicated that it would not provide this information, and the Court noted that Canada did not have an obligation to do so under the Federal Courts Rules, some of the plaintiffs, including the plaintiff in the present claim, expressed disagreement with having their claims stayed.5 JCT: Ethier pointed out she could have said: "I refuse your request to make it easier on you if you don't do..." CR: 6. After the case management conference, the Court directed that plaintiffs who did not consent to the Court's proposal provide written submissions as to why their action should not be stayed.6 7. The plaintiff in the present claim did not file written submissions as to why his action should not be stayed.7 However, other plaintiffs filed submissions disagreeing with the proposal.8 Their submissions largely centred on their concerns about being kept informed regarding the status of the John Turmel Claim while their claims were stayed. JCT: And I filed submissions on why it was wrong to not send them a copy of what they would receive if she did not grant the Crown request to make it easier on them. CR: 8. After considering the parties' submissions and reviewing the principles underlying the interests of justice test that governed its discretion under paragraph 50(1)(b) of the Federal Courts Act, the Court concluded that the interests of justice favoured its proposal. 9. The Court noted that the Subsequent COVID-19 Kit Claims significantly overlapped with the John Turmel Claim and that none of the plaintiffs disputed the John Turmel Claim's suitability as a lead claim.9 The Court noted that in such circumstances, "considerations of judicial resources, efficiency, and the orderly conduct of multiple proceedings all support the Court's proposal."10 JCT: No problem with waiting for the Lead Plaintiff result, only a problem with not sending them a copy of the info. CR: 10. The Court also found that there would be no prejudice or harm to the plaintiffs if their proceedings were stayed pending the determination in the John Turmel Claim. It noted that the plaintiffs were initially prepared to agree to a stay of proceedings, and that none of the plaintiffs suggested any specific harm or prejudice in their submissions.11 JCT: Judge should have known that cutting them out of the info loop would make a decision on whether to continue on their own based on possibly incomplete info was unfair. CR: 11. To the extent that the plaintiffs were concerned about being kept informed regarding the status of the John Turmel Claim, the Court also observed that the plaintiffs could obtain updates through the Court's online recorded entries in the John Turmel Claim as well as John Turmel's website.12 Moreover, the Court ordered the Registry to provide a copy of any final Court decision in the John Turmel Claim to each of the plaintiffs.13 JCT: And Ethier pointed out that the final decision does not have all the arguments that were made. So again, not the complete information they would have if they got it all in their email. CR: The Court also noted that not only was there no obligation on Canada to provide the plaintiffs with all of the materials filed in the John Turmel Claim, JCT: And there is no obligation to dispense with Canada serving everyone as they should be. But she acted as if she were obliged to make it easier on them. Think about that, if she refused their request, they have to give it to everyone. Saying that the rules don't provide for copies to be sent after granting their request not to serve it on everyone! CR: these options made imposing such an obligation unnecessary: While the Plaintiffs and Mr. Turmel would prefer that their access to information regarding T-130-21 be rendered more convenient for them by requiring the Defendant to serve them with all of their materials, I am not prepared to impose such a burden on the Defendant. If the Plaintiffs are interested in T-130-21, they can put in the effort to follow its progress."14 JCT: And of course, Ethier got to make fun of a judge who thinks adding a CC to an email is a burden. CR: 12. The Court therefore issued an order: - staying the Subsequent COVID-19 Kit Claims (including the present claim) pending the final determination in the John Turmel Claim and any appeal therefrom; - for the Federal Court Registry to provide a copy of any final Court decision in the John Turmel Claim to each of the plaintiffs in the Subsequent COVID-19 Kit claims; - giving each plaintiff in the Subsequent COVID-19 Kit Claims 30 days from the final determination of the John Turmel Claim to request a case management conference to schedule a motion to determine whether their claim should move forward; and - applying this procedure to any substantially identical claims filed from the date of the order. JCT: Without having gotten all the info, what a great offer. CR: PART II - POINTS IN ISSUE 13. The issues in this motion are: (a) What is the appellate standard of review? (b) Did the case-management judge err in staying the plaintiff's claim or in declining to require that Canada serve the plaintiff with its materials in the John Turmel Claim? PART III - SUBMISSIONS A. APPELLATE STANDARD OF REVIEW 14. The standard of review applicable to discretionary orders made by prothonotaries is palpable and overriding error with respect to findings of fact and mixed fact and law, and correctness with respect to extricable questions of law.15 15. The courts have also held that it is always necessary for motions judges, on a Rule 51 appeal, to bear in mind that the case managing prothonotary is very familiar with the particular circumstances and issues of a case and that, as a result, intervention "should not come lightly."16 B. THE CASE-MANAGEMENT JUDGE DID NOT ERR IN STAYING THE PLAINTIFF'S CLAIM 16. The Court did not commit a palpable and overriding error when it determined that the plaintiffs failed to identify the existence of any specific harm of prejudice if their claims were stayed pending the determination of the John Turmel Claim. 17. The plaintiff does not dispute that the Court correctly identified the interests of justice test that governs its discretion to stay proceedings pursuant to paragraph 50(1)(b) of the Federal Courts Act: 1) securing the just, most expeditious and least determination of every proceeding on its merits; 2) so long as no party is unfairly prejudiced and it is in the interests of justice, the Court should exercise its discretion against the wasteful use of judicial resources; and 3) the public interest in moving a proceeding forward fairly and with due dispatch.17 18. The plaintiff alleges that the absence of a requirement for Canada to serve him with the materials filed in the John Turmel Claims created unfair prejudice that militates against a stay. However, the Court did not err when it determined that 1) Canada did not have an obligation to serve him with the materials, and that 2) the absence of an obligation did not create the level of harm or prejudice contemplated in the interests of justice test. JCT: They say she doesn't have to grant the copies. We say she doesn't have to grant no personal service without them. CR: 19. Contrary to the plaintiff's assertion that Canada was "moving to be granted dispensation from serving each of us personally," the Court correctly found that there was no legal requirement under the Federal Courts Rules that Canada serve the plaintiff with the materials filed in the John Turmel Claim.18 JCT: Right, Canada would not have to serve them materials in my case, but would hat to serve the plaintiff is hown materials filed in his own case! CR: 20. The Court then considered the options available for the plaintiffs' to receive updates on the status of the John Turmel Claim.19 Not only could the plaintiffs obtain updates through the Court's online recorded entries in the John Turmel Claim as well as John Turmel's website, the Court also ordered that the plaintiffs would receive a copy of any final Court decision in the John Turmel Claim. CR: 21. Although the plaintiff alleges that these options are inadequate because he requires all materials filed in the John Turmel Claim to make a decision on whether to pursue his claim, he has not explained why information beyond the Court's findings in the John Turmel Claim are necessary. JCT: Duh. The Court findings don't have all the arguments that were made and not accepted. Does he want Michel to file arguments that were already rejected but not in the final decision? CR: 22. However, to the extent that this information is necessary, the plaintiff is able to obtain copies of all documents that will be filed in the John Turmel Claim through Federal Court Registry. The Court did not commit a palpable and overriding error when it found that while the plaintiff would prefer that his access to information be rendered more convenient for him, this did not amount to prejudice, and if the plaintiff was interested in the John Turmel Claim, he "can put in the effort to follow its progress."20 JCT: It wasn't an issue of his access to the information he would be due would be more convenient if she didn't grant their request not to give it to him, it was that his access would not be less convenient! Guess he didn't notice that. CR: PART IV - ORDER SOUGHT 23. For these reasons, Canada asks that the plaintiff's motion appealing the Stay Order be dismissed, with costs fixed at $500. JCT: Usually, they ask for $150 or $250 but maybe fighting to not be prejudiced by them getting it made easier should be punished more. CR: ALL OF WHICH IS RESPECTFULLY SUBMITTED Dated at Toronto this April 28, 2021. Attorney General of Canada Department of Justice Ontario Regional Office Per: Benjamin Wong Counsel for the Defendant AUTHORITIES CITED 1 Hospira Healthcare Corp v Kennedy Institute of Rheumatology, 2016 FCA 215 2 Jensen v Samsung Electronics Co Ltd, 2019 FC 373 3 Order dated April 8, 2021, in T-130-21, T-138-21, T-171- 21, T-208-21, T-219-21, T-212-21, T-220-21, T-221-21, T-230- 21, and T-242-21 JCT: I don't even care what authorities he's quoting. You know they only deal with making things more efficient but will not deal with making it harder on one party to make it easier on the other. CR: APPENDIX A - LEGISLATION Federal Courts Act, RSC 1985 c F-7, s 50(1) Stay of proceedings authorized 50 (1) The Federal Court of Appeal or the Federal Court may, in its discretion, stay proceedings in any cause or matter (a) on the ground that the claim is being proceeded with in another court or jurisdiction; or (b) where for any other reason it is in the interest of justice that the proceedings be stayed. JCT: So he and the judge are pretending she didn't have the power to make impose on him the "burden" of sending a copy of strike motion on the Lead Plaintiff to lift the burden of sending him his own personal strike motion! So here's the Achilles Heel of her decision. If you're watching my file at the registry and see when the record of motion to strike, my record of response, and their Reply are filed, at the top of the page, you can see: Recorded Entry Summary Information Copies of public documents which are already in electronic format can be sent by e-mail, upon request to the Registry: fc_reception_cf@cas-satj.gc.ca. Indicate the Court File number in the subject of your email. In the text, you must clearly identify the document number and its name (this information is located in the Recorded Entry Summary column). So instead of the Crown sending a CC to everyone, everyone gets to contact a Registry Clerk one at a time and request it be emailed to them! Har har har har har har. So instead of 1 CC to everyone, the Registry will have to send an individual one to each person who asks. And we will all ask. Har har har. Making us and the Registry put in more effort to help the Crown put in less effort. Come on, admit that it's pretty funny that her Order will make the Registry deal with all of us one at a time when the Crown could have dealt with everyone all at once. But everyone at once was too much of a burden so it will have to be one at a time! Har har har har har har. Won't that be fun asking the judge to overrule her order because it makes us and the clerks put in more effort to save effort for the Crown. Har har har har har har har har har har har. Ethier's Reply is due after 4 days, on Monday. Stay tuned!