TURMEL: Crown Response Motion to Covid timeline appeal JCT: Case Management Judge ("CMJ") Aylen allowed an incomplete motion to be filed without arguments and demanded I file a response to the incomplete motion record. So I appealed. This is the Crown's response. I get to Reply. Court File No.: T-130-21 FEDERAL COURT BETWEEN: JOHN TURMEL Plaintiff (Moving Party) and HER MAJESTY THE QUEEN Defendant (Responding Party) INDEX Tab Document Page No. 1 Written Representations of the Defendant 1 2 Direction of the Court dated April 26, 2021, T-130-21 16 3 Harris v Canada (Attorney General), 2019 FCA 232 17 4 Hospira Healthcare Corp v Kennedy Institute of Rheumatology, 2016 FCA 215 22 5 Mazhero v Fox, 2014 FCA 219 42 6 Mil Davie Inc v Hibernia Management & Development Co, [1998] FCJ No 614 (CA) 47 7 Order of the Court 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 53 8 Order of the Court dated April 26, 2021, in T-263-21 67 9 Order of the Court dated May 7, 2021, in T-171-21 73 WRITTEN REPRESENTATIONS OF THE DEFENDANT (Plaintiff's Motion to Appeal May 6, 2021, Timetable Order) CR: OVERVIEW 1. The Court did not err when exercising its discretion set the timetable for Canada's motion to strike or for security for costs. Case management judges have wide latitude to set timetables, and the timetable in this case is reasonable because the timelines set out in Rule 369 do not contemplate cross-examinations on affidavits, JCT: Why do you think affidavits aren't contemplated? CR: and would have effectively required Canada to file its written representations before being served with the plaintiff's evidence. Canada therefore requests that this appeal be dismissed with costs. JCT: As they're asking me to file my affidavits before being served with the plaintiff's arguments of what their affidavits are meant to say. So I'm complaining that she's making me file affidavits in response to theirs without knowing what they represent and now they're complaining that they don't want to file their arguments until they've seen my affidavits in response to their affidavits which were not explained. Isn't that neat? I'm complaining I can't know how to plan my response affidavits until they present their arguments for their affidavits and they're complaining about having to file their arguments before finding out what cards I'm choosing. CR: PART I - STATEMENT OF FACTS 2. This claim seeks various forms of relief related to the federal Government's COVID-19 mitigation measures, including (a) a declaration that the measures violate their Charter rights and are not saved by section 1 of the Charter; (b) an order prohibiting any measures that are not imposed on the flu; (c) a permanent constitutional exemption from any such measures; and (d) damages for pain and losses incurred by the Plaintiffs as a result of such measures.1 3. This claim is one of more than 60 substantially similar actions being case managed by Prothonotary Aylen. In orders dated April 8, 2021, and April 26, 2021, the Court ordered that this claim move forward as the lead claim and that the balance of the actions be held in abeyance pending a final determination in this claim.2 JCT: She also ordered them to file written arguments about why their case should continue should the Lead be dismissed after refusing to have a copy of the motion to strike emailed to them. CR: 4. On April 26, 2021, the Court directed that the parties confer and provide the Court with a jointly-proposed timetable for next steps in this proceeding.3 JCT: Get that? The Court ordered us to come up with something different than in the rules without actually ordering that the rules be ignored. CR: 5. The parties subsequently conferred. However, they were unable to agree on a timetable for Canada's motion, which will seek an order either striking the claim on the grounds that the claim does not identify the impugned federal measures, JCT: Get that. When we ask that "all restrictions" be struck down, they need to know what "all" is. CR: disclose a reasonable cause of action, JCT: Fudging the numbers to impose lockdown that violate rights "for our own good" is no reasonable cause of action. CR: or is frivolous and vexatious, JCT: All those suicides are laughing on the other side. CR: or for security for costs on the basis that Canada has numerous cost awards against the plaintiff than remain unpaid.4 The parties accordingly made separate submissions to the Court regarding the timeline for Canada's motion. JCT: So their only card is that I have past costs I haven't paid and they'd like her to strike me as Lead Plaintiff. What she'll do with all those stayed cases after that is quite the question. But the Crown fought to have me declared Lead so they could object to me being Lead. CR: 6. The Court considered the parties' individually- proposed timelines, that it was within its discretion to depart from the timelines for motions in writing prescribed by Rule 369 when warranted, that Canada's motion required affidavit evidence, and might require cross-examination which is not contemplated in the timelines prescribed by Rule 369.5 JCT: So why do you think cross-examinations of affidavits is not contemplated in the rules? CR: 7. The Court concluded that in light of these circumstances, Canada's proposed timetable was reasonable and ordered that: 1. The Defendant shall serve their Notice of Motion and supporting affidavit(s) by no later than May 21, 2021. 2. The Plaintiff shall serve any responding affidavit(s) by no later than June 7, 2021. 3. Cross-examinations, if any, shall be completed by no later than 10 days following the date the Plaintiff serves his responding affidavit(s). 4. The Defendant shall serve and file their complete motion record by no later than 15 days from the expiration of the time to conduct cross-examinations, or, if the Plaintiff does not intend to serve an affidavit or conduct cross-examinations, 15 days from the date that the Plaintiff so advises the Defendant. 5. The Plaintiff shall serve and file his complete motion record within 15 days of service of the Defendant's motion record. 6. The Defendant shall serve and file their reply motion record within seven days of service of the Plaintiff's responding motion record.6 Notice I have to present my Defence affidavits before they explain their arguments on their affidavits. CR: 8. On May 21, 2021, Canada served and filed its notice of motion and supporting affidavit. JCT: Notice he doesn't mention that this is not a complete Motion Record. It is lacking the covers, index and arguments. CR: On the same date, the plaintiff advised that he would not be filing supporting affidavits or cross-examining Canada's affiant. Pursuant to the Order, Canada's motion record will be served and filed no later than June 7, 2021. JCT: I didn't want another 4 weeks worth of blood on my hands they didn't seem to mind. PART II - POINTS IN ISSUE 9. The issues in this motion are: (a) What is the appellate standard of review? (b) Did the case management judge make a palpable and overriding error in setting the timeline for Canada's motion to strike or for security for costs? JCT: Remember, minor errors they can make, it's only those that are palpable, make you want to puke, that count. CR: PART III - SUBMISSIONS A. APPELLATE STANDARD OF REVIEW 10. 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.7 JCT: Making me respond to an incomplete Record isn't palpable an error enough. CR: 11. The courts have also held that it is always necessary for the judge on a Rule 51 appeal to bear in mind that the case management prothonotary is "intimately familiar with the history, details and complexities" with of a case, and that in case managed proceedings, appellate intervention accordingly "should not come lightly."8 JCT: That's right. Prothonotary Aylen is the only judicial official who is aware that the murderous lockdown is based on a fraudulent Apple Orange comparison of statistics as she does her best to make it last longer. Note she added a month's worth of dead that I avoided by not filing an affidavit. CR: B. THE CASE MANAGEMENT JUDGE DID NOT ERR IN SETTING THE TIMELINE FOR CANADA'S MOTION JCT: Note that this is the first time it is admitted that she set aside the 2-week timeline in the Rules when she asked for a longer one! CR: 12. The Court did not commit a palpable and overriding error when it set the timeline for Canada's motion to strike or for security for costs. JCT: It all depends if all those extra suicides since she allowed the motion to be stalled don't matter too much. Sure, she stalled the process but a bunch of extra suicides isn't palpable enough error to overturn? CR: 13. Rule 369 sets out the timetable for motions in writing.9 A motion in writing can be filed at any time in the course of a proceeding. Once filed, Rule 369 sets out a timeline for service of the respondent's record and reply submissions.10 The timelines under Rule 369 do not contemplate the exchange of affidavit evidence or cross-examinations. JCT: Why would Rule 369 not contemplate cross-examinations? Three times he mentions how they usually don't but CMJ Aylen did the unusual. CR: 14. However, case management judges have discretion to depart from the timelines set in the Rules. JCT: You'd think they'd have to have a good reason, especially when delay results in more deaths. CR: Rule 385(1) provides case management judges with broad powers to "make any orders that are necessary for the just, most expeditious and least expensive determination of the proceeding on its merits", and "notwithstanding any period provided for in these Rules", fix the period for completion of steps in a proceeding.11 JCT: They should have filed their complete Motion Record before Feb 18 and now are filing in on June 7, 16 weeks later. This was not the "most expeditious" way to go. CR: 15. Rule 385(1) sits alongside Rules 8, 53 and 55, which allow the Court extend or time periods in the Rules, vary them, dispense with compliance with them, make additional orders that are just, and attach terms to any orders.12 JCT: Sure they have the power to change the rules which is why her not making them send copies of the strike motion to other plaintiffs whom she granted the Crown dispensation from filing what they were due to get is being appealed. She had the power to oblige the Crown to the lesser burden as she lifted their greater burden while claiming the there were no rules to force her to do the next best thing. CR: 16. In this circumstances of Canada's motion, a departure from the timeline set out in Rule 369 was warranted, because the timeline did not contemplate cross-examinations on affidavits, and would have effectively required Canada to file its written representations before being served with the plaintiff's evidence. JCT: Fourth time it's mentioned the Rule does not contemplate crossexaminations of affidavits on these motions. Doesn't even guess why. And they shouldn't have to present their arguments with their motion record before finding out mine. CR: 17. The plaintiff asserts that he is unable to prepare his supporting affidavit without Canada's written submissions because he will not know how the facts in Canada's supporting affidavit will apply to Canada's arguments. However, all notices of motion set out the relief being sought by the moving party, the grounds intended to be argued, references to any statutory provision or rule to be relied on, and a list of the evidence to be used at the hearing of the motion.13 JCT: If "all notices of motion set out the relief being sought by the moving party, the grounds intended to be argued, references to any statutory provision or rule to be relied on, and a list of the evidence to be used at the hearing of the motion," so why do they need a Memorandum of arguments in motion records at all if they're not needed? Crown makes a great case for getting rid of the Memorandum of arguments if you have the Notice and Affidavit! Who needs a Memorandum when you have the Notice and Affidavit! CR: Indeed, the same day that he was served with Canada's notice of motion and supporting affidavit, the plaintiff was able to advise that he would not be filing supporting affidavits or cross-examining Canada's affiant. JCT: See, what do I need to know the arguments for the facts presented in the Affidavit. I'm deciding I don't need any more without getting the arguments. Must be because I don't need them. Even though it's because I don't know what their affidavits are for until they make their arguments on them. Seems so stupid you almost have to wonder if this is real. CR: 18. Requiring parties to serve evidence and conduct cross-examinations before written submissions is an accepted practice and does not give rise to prejudice - for example, oral motions and applications for judicial review at the Federal Court routinely proceed on this basis. JCT: So why do the rules on motions indicate it takes a Memorandum of Argument and Motion Covers to go with the Notice, Affidavit to bring a Motion? CR: On the other hand, requiring Canada to file written representations before the close of evidence would prejudice Canada's ability to respond to the plaintiff. JCT: Just as I say requiring me to file my affidavit facts before their written representations prejudices my ability to respond to the Defendant. Neat eh? I'm complaining that making me file my cards before they lay out how they're going to play theirs is unfair while they argue that their having to explain how they're going to play their cards with their cards prejudices their ability! So doing it according to the rules prejudices them! Har har har. Isn't it sad almost no one's going to ever read this. CR: 19. The plaintiff also asserts that the Court cannot consider affidavit evidence in Canada's motion to strike and for security for costs. This mischaracterizes the law concerning evidence on motions. While the Rules prohibit evidence on a motion to strike for no reasonable cause of action, Canada does not intend to file evidence in support of argument on that issue,14 but only in support of its alternative request for security for costs. In particular, Canada intends to file evidence of its previous costs awards against the plaintiff, and that these costs awards remain unpaid. Evidence is clearly permitted for this purpose.15 JCT: So they have nothing on the case, just on getting me disqualified after fighting so hard to get me as Lead! CR: 20. Finally, the plaintiff alleges that the Court committed a palpable and overriding error by extending the timelines for Canada's motion in writing because it "wastes time while Canadians are dying from lockdown." However, the plaintiff did not file any evidence below to support these bald allegations of prejudice. JCT: Needs to see evidence of people dying from lockdown. CR: Nor can the plaintiff rely on facts that are applicable to other individuals to support his allegations of prejudice.16 JCT: After staying the other plaintiffs, he now argues that their facts and woes should not be taken into consideration. PART IV - ORDER SOUGHT 21. For these reasons, Canada asks that the plaintiff's motion appealing the Timetable Order be dismissed, with costs fixed at $500. ALL OF WHICH IS RESPECTFULLY SUBMITTED Dated at Toronto this May 27, 2021. Attorney General of Canada Department of Justice Ontario Regional Office 120 Adelaide Street West, Suite #400 Toronto, Ontario M5H 1T1 Per: Benjamin Wong Counsel for the Defendant TO: The Administrator Federal Court of Canada AND TO: John C. Turmel Plaintiff, self represented JCT: I have until Monday to file my Reply. It won't be long and I'll try to get it filed by tomorrow so the judge has a full week to decide whether to make them complete their Motion Record record before June 7 or not. Notice there will be nothing to contradict our facts: 1) fudged the Apple Orange comparison numbers; 2) lied about symptomless transmission; 3) hid actual 166 deaths no in Long-Term-Care; 4) PCR for false positive sheep, goat, papaya; 5) CDC death certificate guidelines to up Cover over bullet 6) overdosed patients with HCQ with false study to deter use Given those are all true, the Crown has to explain how they do not give us cause of action to be angry and seek remedy. And explain I should present defence against an incomplete motion record so they don't have to present arguments against my incomplete response to their incomplete motion? And why they should get so much time after they're in default? Whole lot of lawying going on. Let's see if I can get my Reply filed by tomorrow. Sure, the judge just has to wait until June 7 to mooten the appeal but we did get our objection to the Court giving the Crown the advantage! Even if the game is rigged, it still goes on record for posterity to judge the judges.