TURMEL: Judge Favel nixes Ethier appeal for Covid docs JCT: The Appeal was about the Case Management Judge Prothonotary Mandy Aylen lifting the major obligation of serving all the plaintiffs a copy of the motion to strike their cause personally off the Crown and only making them serve it on the Lead Plaintiff. But she did not impose the minor burden of obliging Canada to send everyone a copy of the motion to strike because no rule forced her to. So, everyone cut out of the information loop they were due. Oops. Got that. The power to lift the major burden was the same power to replace it with the minor burden but she said she wasn't going to impose the minor burden because the Rules didn't force her to. So let's see what a Judge says Date: 20210507 Docket: T-171-21 Ottawa, Ontario, May 7, 2021 PRESENT: The Honourable Mr. Justice Favel BETWEEN: MICHEL DENIS ETHIER Plaintiff and HER MAJESTY THE QUEEN Defendant ORDER J: [1] This Plaintiff has brought a motion in writing pursuant to Rule 369 seeking an order pursuant to Rule 51 of the Federal Courts Rules allowing an appeal of Prothonotary's Aylen's April 8, 2021 Order [the Order]. Prothonotary Aylen is case managing this action and several other actions involving essentially the same matter. [2] The Plaintiff's action is one of more than 60 actions in which self-represented plaintiffs seek relief from the federal Government's COVID-19 mitigation measures. The Statements of Claim in each action are almost identical and are based on a kit made available on the internet by Mr. John Turmel [Mr. Turmel], the Plaintiff in T-130-21. JCT: We're up to a Magnificent Seven Seven. J: [3] As case manager, Prothonotary Aylen ordered that, pursuant to Section 50(1)(b) of the Federal Courts Act, it was in the interests of justice to stay certain actions before her, including the Plaintiff's claim, in order for Mr. Turmel's action to proceed. The basis of this Order was due, in short, to the almost identical feature of the statements of claims. Prothonotary Aylen also determined that, rather than ordering the Defendant to keep the Plaintiffs updated on the status of Mr. Turmel's action, the Plaintiffs in the case management matters before her could access any updates on Mr. Turmel's action from the Federal Court's website, and from Mr. Turmel's website. Ultimately, all Plaintiffs would be provided a copy of the decision of Mr. Turmel's action and could take the necessary action thereafter. JCT: Got that? "rather than ordering the Defendant to keep the Plaintiffs updated on the status of Mr. Turmel's action," JCT: I told you she always had the power to oblige them to do the lesser burden as she lifted the greater burden and her pointing out that the Rules made no provision for the specific lesser burden, making it sound like she just couldn't oblige them to keep the Plaintiff's updated when it was nowhere in the Rules. Neither was lifting the greater burden specifically allowed, that's what discretion is for. J: the Plaintiffs in the case management matters before her could access any updates on Mr. Turmel's action from the Federal Court's website, and from Mr. Turmel's website. JCT: Yes, CMJ did say that the other plaintiffs were forced to put in more effort to find the information now that the burden to send it was being lifted from them. But even though she did say others could put in extra effort to find what she could have obliged the Crown to do to mitigate their not having to serve them personally at all, the point remains, even if she truly believed that she could lift their burden but not replace it with a lesser burden, the point is the judge erred whether she didn't know or she did know. J: [4] The Order set out the following: THIS COURT ORDERS that: 1. The actions bearing Court File Nos. 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 are hereby stayed pending the final determination (by judgment or order) in T-130-21 and any appeal therefrom. 2. The Registry shall provide a copy of any final determination in T-130-21 to each of the Plaintiffs in 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. 3. In the event that any party in T-138-21, T-171-21, T- 208-21, T-219-21, T-212-21, T-220-21, T-221-21, T-230-21 or T-242-21 takes the position that their action is differently situated than T-130-21 such that the final determination in T-130-21 (and any appeal therefrom) should not apply to their action, that party shall, within 30 days of the final determination in T-130-21 and any appeal therefrom, requisition a case management conference to establish a schedule for a motion to determine whether their action should move forward. 4. The terms of this Order shall apply to any new Statement of Claim filed subsequent to the date of this Order which is substantially identical to those filed 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 or T-242-21. 5. The terms of this Order may be varied or amended as the Court determines necessary. 6. There shall be no costs associated with this Order. JCT: All our arguments against can be read at http://SmartestMan.Ca/c19a1.pdf and Crown response with all the court documents at http://SmartestMan.Ca/c19docs J: [5] As this motion is made under Rule 51 of the Federal Courts Rules, SOR/98-106, and reviews a Prothonotary's Order, the Court will apply the standard of review as given in Housen v Nikolaisen, 2002 SCC 33. The Federal Court of Appeal has recently approved of this standard in the context of a prothonotary's decision in Hospira Healthcare Corporation v Kennedy Institute of Rheumatology, 2016 FCA 215 at para 79 [Hospira]. That is, "palpable and overriding error" for questions of fact and questions of mixed fact and law; and "correctness" for questions of law (Hospira at para 66). JCT: Saying the Rules didn't let judges replace the larger burden they were lifting with a lesser burden because it wasn't in the rules was palpable and overriding error if it tends to make you nauseous. Remember, we completely agreed to forgo the greater burden, one reason why she lifted it is we agreed to it being lifted if we got a copy. So we agreed to it being lifted with or without a copy. We only asked that they accept the lesser burden of a lousy email copy! And they said no. And the judge could not disagree because she couldn't burden the Crown with CC on an email. Another pukable excuse for partiality toward the Crown. But don't tell me all the biasing against us going on doesn't make you feel good about our case. Wouldn't have to play dirty if they thought they were winning. Would they be doing pukable things to you like cutting you completely out of the loop as you are due if she didn't lift that burden when all you wanted was a lousy emailled copy? And she said no? J: Therefore, I will afford substantial deference to the aspects of Prothonotary Aylen's Order that relate to the facts and the application of the law to the facts. I will afford no deference to Prothonotary Aylen's determinations of the applicable law. JCT: So, substantial deference to her right to lift the burden by naming a Lead Plaintiff and no deference to her not replacing it with the lesser burden when it didn't have to be in the Rules for her to have obliged the lesser burden. So substantial deference to what we have no problem with, and no deference to her misusing the Rules to cover for the partiality. So if he's not going to give any deference on part where he might feel like puking too... J: [6] As the case management judge, Prothonotary Aylen is "intimately familiar with the history, details and complexities" of this matter (C. Steven Sikes, Aquero LLC v Encana Corporation Fccl Ltd., 2016 FC 671 at para 13). [7] I have reviewed the Order and note that Prothonotary Aylen correctly identified the legal authority for issuing a stay pursuant to section 50(1)(b) of the Federal Courts Act, namely that it is in the interests of justice to do so [Clayton v Canada (Attorney General), 2018 FCA 1]. Prothonotary Aylen, at paragraphs 16 to 22 then considered the totality of the circumstances and the applicable principles in exercising her discretion. JCT: We don't care that she's "intimately familiar with the history, details and complexities" of our case nor question the authority, we do care about her adding to our burden to help the Crown when the lesser burden that was laughably least burdensome! The "least burden" possible and she would not oblige them to balance the lifting of what we were due that they were getting. J: [8] I find that Prothonotary Aylen did not make a palpable and overriding error in making the Order. I also find that Prothonotary Aylen considered the totality of the circumstances and applied the correct legal principles in exercising her discretion. [9] The Appeal is therefore dismissed. JCT: And you're ending up not being served the documents used to beat your case nor even get a copy of the documents used to beat your case. The court keeping you in the dark about your case about all the way. Anyway, great story to tell how judges and lawyers think emailing a copy is too great a burden. THIS COURT ORDERS that: 1. The appeal of Prothonotary Aylen's April 8, 2021 Order is dismissed. 2. The Defendant is granted costs in the amount of $500.00. "Paul Favel" Judge JCT: This $500 costs has nothing to do with your stayed cases below. It has to do with a higher-level appeal no one else had to do to find out what Mike found out. Had he won, he'd have overturned her decision to cut you all out and won cutting himself, and you, back in. The $500 costs is because he appealed and it's even a bit high for self-defenders. The latest claim by Gisele Pilon seeking a medpot exemption was dismissed for $150 when they asked for $250. So $500 lets us know how really convinced he is that cutting you out of the documentary loop completely shouldn't have been complained about. Especially with parts to which he could give no deference. So with a Prothonotary who thinks a lousy email copy is too great a lesser burden to impose as she lifts their greater burden, (great argument phrase, isn't it? refuse to impose the lesser burden as she lifts their greater burden) and now with a judge who doesn't see palpable error in cutting you out of the process that you were originally due to have without obliging that you get at least the "least burden," what are the chances of finding 3 Appeal judges who will think any differently? Sure, I'd love to appeal these two judges who did it to you but does Mike need another grand or two owed in costs on such a long-shot. Of course I love righteous long-shots so we have 30 days until June 5 to appeal to try to take the extra effort off your backs and put the least effort back on the Crown's back. So while we're thinking about whether Michel should continue the fight to get you all back into the loop, I filed my own appeal of her May 6 decision ordering an 11-week process for what should have taken 2 weeks under the regular rules and again put me at a disadvantage. Coming up later. Incredible how they tried to sneak an extra 9 weeks into the timetable and I caught them. One heck of a fun appeal. And have appealed to move forward "forthwith!" And pointed out who'll be blamed for all the youth suicides during the delay in getting a ruling on the lockdowns based on an elementary Apple to Orange comparison.