TURMEL: Judge Zinn dismisses appeal against Aylen claim strike JCT: This is a couple ot days in. I read the last paragraph and was so dismayed, though possible Zelenko pressure, I put it down and did other stuff until now: Date: 20211018 Docket: T-130-21 Citation: 2021 FC 1095 Ottawa, Ontario, October 18, 2021 PRESENT: The Honourable Mr. Justice Zinn BETWEEN: JOHN C. TURMEL Plaintiff and HER MAJESTY THE QUEEN Defendant ORDER AND REASONS [1] The Plaintiff appeals the July 12, 2021 Order of Prothonotary Aylen, as she then was, striking his Statement of Claim in its entirety, without leave to amend and with costs. JCT: I think the "without leave to amend" for such a life- and-death nation-breaking segregation seems not only nasty but not sound. Regardless, they're not going to let it be tried whether the WHO compared Apple to Orange to trick us with a hundredfold hyped Covid Mortality Rate. Zinn J: I. The Claim [2] Prothonotary Aylen describes the Plaintiff's claim as seeking "various forms of relief related to the federal Government's COVID-19 mitigation measures." JCT: We asked to be exempt from mitigation restrictions but the Crown changed it to the less precise "measures" in its submissions and the judge has adopted the less precise framing of the remedy sought. I didn't ask to be exempt from measures but from restrictions. Zinn J: The grounds asserted in the 130 paragraph Statement of Claim allegedly warranting the relief sought, are the following actions of the World Health Organization [WHO] and Canada: 1) WHO's comparing the Covid 3.4% "Case Fatality Rate" CFR "Apple" not to Flu's known 10% CFR "Apple" but to the Flu's 100-times smaller 0.1% "Infection Fatality Rate" IFR "Orange" to exaggerate the threat of Covid death by a hundredfold; 2) WHO's finding no documented asymptomatic transmission and Wuhan's finding zero transmission by 300 asymptomatics in 10 million tested shows the "Theory of Asymptomatic Transmission" behind masked social distanced lockdowns does not agree with experiment. 3) Canada's 10,947 Covid deaths by Nov 15 2020 had 10,781 in Long-Term-Care and only 166 not in Long-Term-Care died; only 1 in 230,000 Canadians. 4) restrictions on civil liberties to mitigate a virus with lethality hyped a hundredfold are an arbitrary, grossly disproportional, conscience-shocking violation of Charter rights resulting in an unwarranted toll in human degradation and impoverishment. [3] The Plaintiff seeks the following relief: A) a Declaration pursuant to S.52(1) of the Canadian Charter of Rights and Freedoms ("the Charter") that the Government of Canada's ("Canada") Covid-mitigation restrictions are arbitrary and constitutionally unreasonable restrictions on the Charter S.2 right to freedom of peaceful assembly and association, S.6 right to mobility, S.7 right to life, liberty and security, S.8 right to be secure against unreasonable search or seizure, S.9 right to not to be arbitrarily detained or imprisoned, S.12 right to not be subjected to any cruel and unusual treatment or punishment not in accordance with the principles of fundamental justice and not saved by s.1 of the Charter. B) an Order pursuant to S.24(1) of the Charter for an Injunction prohibiting any federal Covid-mitigation restrictions that are not imposed on the deadlier Flu; or C) a permanent constitutional exemption from any Covid mitigation restrictions; D) an Order for unspecified damages for pain and losses incurred by such unconstitutional restrictions on rights; E) any Order abridging any time for service or amending any error or omission as to form or content which the Honourable Court may allow. [4] Prothonotary Aylen found several deficiencies in the claim. At paragraph 25, she found with respect to the alleged Charter violations that "the Statement of Claim fails to plead the material facts to satisfy the essential elements of any of the specific Charter infringements alleged and does not allege or particularize how the Plaintiff's Charter rights have been infringement [sic]." At paragraph 28, she found that "the Statement of Claim contains bare assertions of Charter breaches without sufficient material facts to satisfy the criteria applicable to each of the Charter rights alleged to have been violated." JCT: This is constant: insufficient facts! But not yet suggesting what would satisfy her. Luckily, you can read the Statement of Claim for yourself and judge whether there were sufficient facts to ask for exemption from restrictions based on being tricked by the Hundredfold Hyped Mortality Rate! Zinn J: [5] She therefore concluded that the Statement of Claim discloses no cause of action. JCT: If she made sure to see nothing, what else could she conclude? Zinn J: [6] She also found at paragraph 29 that the Statement of Claim should be struck as an abuse of process "as it pleads bare assertions without the necessary material facts on which to base those assertions, such that the Defendant cannot know how to answer it, is replete with lengthy diatribes and makes scandalous and extreme allegations that are unsubstantiated, such as alleged cover- ups and conspiracies." JCT: I've mentioned in every pleading that it would be nice to cite one "bare assertion without fundamental facts" and they can't. And here again, it's a bare assertion that WHO Apple Oranged us into unconstitutional deprivation of rights and freedoms. Zinn J: [7] The Plaintiff submitted, in part, that these deficiencies, and the lack of evidence that he personally had been subjected to certain of the COVID-19 mitigation measures would be found in the more than 70 additional claims apparently based on a kit he made available online. The Prothonotary held that the Plaintiff could not rely on facts applicable to other plaintiffs to support his own alleged Charter breaches. JCT: I wish he'd mention how she stayed the others so they could not be there with me in the hearing when the Crown can't say none of you suffered such and such deprivation even when Turmel did not. Zinn J: II. Test on Appeal and Issue [8] In Hospira Healthcare Corp v Kennedy Institute of Rheumatology, 2016 FCA 215, the Court of Appeal held that intervention by this Court on an appeal of a decision of a prothonotary is justified where a prothonotary has made an error of law, has exercised her discretion on wrong principles, or where has misapprehended the evidence such that there is a palpable and overriding error. [9] The sole issue on this appeal is whether Prothonotary Aylen erred in striking the claim without leave to amend. III. Discussion and Analysis [10] In paragraph 2 of his submissions, the Plaintiff states: "In a motion to strike, no cause of action must be shown despite the facts in the claim being presumed to be provably true." That is not correct. It has always been the case that when one considers the merits of a motion to strike, one presumes the facts as alleged to be true. The question one then addresses is whether the claim as written discloses any cause of action. Contrary to the Plaintiff's submissions, this is precisely the approach taken by the Prothonotary. JCT: I left out the quotation marks permitting ambiguity. NO CAUSE OF ACTION was taken as no "cause of action" must be shown by me when I meant it to be "no "cause of action" must be shown by them! They must explain why there is no cause of action given the presumed facts when I've stated my cause of anger and action from the presumed facts. "In a motion to strike, "no cause of action" must be shown despite the facts in the claim being presumed to be provably true." [11] The Plaintiff argued that the absence of relevant facts would be overcome if and when the Court considered the similar facts alleged in the additional similar claims that were stayed by the Court pending disposition of this action. He suggested that this was an approach used in another matter by Justice Phelan in 2015. I believe that the Plaintiff may be referring to John Doe v Canada, 2015 FC 916; No. a search of the court web site will not find it. it was buried under the Style of Cause in an early case management order: Date: 20140507 Ottawa, Ontario, May 7, 2014 PRESENT: The Honourable Mr. Justice Phelan BETWEEN: In the matter of numerous filings seeking a declaration pursuant to s. 52 (1) of the Canadian Charter of Rights and Freedoms ("The Charter"); and In the matter of numerous motions requesting interim or interlocutory relief pursuant to s. 24(1) of The Charter with regards to changes to the Marihuana Medical Access Regulations ("MMAR") and the Marihuana for Medical Purposes Regulations ("MMPR".) But I found judgment given by Justice Phelan Jan 11 2017it under "Reference re subsection 52(1) of the Canadian Charter of Rights and Freedoms" at: https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/218251/index.do however, it was a proposed class action and was therefore subject to the Rules regarding class proceedings. These include requirements for notice to class members and that there be a representative plaintiff who would fairly represent the interests of the class. In the present case, not only has the Plaintiff not chosen to proceed as a class action, but he has actively encouraged the creation of individual lawsuits. In doing so, he and the other plaintiffs have denied themselves any strategic advantages of class proceedings, including the ability to rely on common fact between them. JCT: Agreed that if we had joined into a class action rather than all on their own their personal evidence would have been available to me in the class. But had they not stayed all the other claimants and let them participate as plaintiffs had participated in the "Numerous Filings" case, it would have had the same effect of allowing each plaintiff to add to the general hearing of the issues. [12] Regardless, the Order of this Court staying the other similar actions was upheld on appeal by Justice Favel (see Ethier v Her Majesty the Queen (May 7, 2021), T-171-21 (FC)). The Federal Court of Appeal dismissed a motion to extend time to appeal his decision, noting that "the applicant has failed to establish that his proposed appeal has any merit as he has failed to identify any relevant argument in support of setting aside the decision of the Federal Court": (Ethier v Her Majesty the Queen (August 9, 2021), 21-A-14 (FCA)). Therefore the procedure adopted by the Prothonotary is not an issue of any relevance. JCT: The other appeal had nothing to do with this appeal. It was about being denied the right to participate and add his data to mine. No one says the Prothonotary did not have the power to stay his claim, we're saying the lack decried by the Crown would not be there but for the others being stayed. [13] Much of the Plaintiff's oral submissions on this appeal were directed to his view that the data and statistics have been misinterpreted or exaggerated and this has led Canada to impose measures breaching his Charter rights. He stated that had the Prothonotary accepted these "facts" as true, they did establish his cause of action. JCT: Cause of Anger better explains. Do I have a Cause of Anger at being tricked into lockdowns and mandatory vaccines by an Apple Orange hoax? So why would a valid Cause of Anger not be a valid Cause of Action. Cours don't do causes that auger? [14] I agree with the submissions of Canada that the Prothonotary did indeed consider the statistics on which he relies: see paragraph 3 of her Reasons. However, she found that those facts were insufficient to establish that the Plaintiff's personal Charter rights were breached. At paragraph 25 of her Reasons, the Prothonotary sets out and analyzes each of the Plaintiff's alleged Charter breaches. JCT: Insufficient facts! Greatest of judicial cop-outs. [15] Regarding section 2(c) of the Charter, the right of peaceful assembly, she writes: "the pleading does not identify a federal measure that has directly prevented the Plaintiff from peaceful assembly with others and what specific assembly the Plaintiff was prevented from undertaking." JCT: Anybody else? Go file a Statement of Claim and mention it in the last paragraph of how you've been harmed. It's going to take a year for me to get back from the Supreme Court when you'll have to decide whether you'll quit because I lost after paying $2 for your Gold Star Statement of Claim trophy or whether you want to continue on your own with your particular beef. Somehow, I think by next year there might be plenty of victims of new restrictions to make their own cases. [16] Regarding section 2(d) of the Charter, the right to freedom of association, she first sets out the activities protected by this section and then writes: "The pleading does not identify a federal measure that has directly prevented the Plaintiff from engaging in any of these activities, nor has the Plaintiff particularized any such activities that he was specifically prevented from engaging in." JCT: Did I forget to mention how I was given an $800 ticket for participating in the March Brantford Demonstration. Oops, filed the Statement of Claim in January. So couldn't mention it when I filed. [17] Regarding section 6 of the Charter, the right to move within Canada, and to enter and leave Canada, she writes: "While the pleading does refer to the federal pre-flight testing and 14-day quarantine requirements, the Plaintiff has not alleged that he has personally been subject to any such measures." JCT: Wish someone who had had been there with me. [18] Regarding section 7 of the Charter, the right to life, liberty, and security of the person, she writes: "While the 14-day quarantine measure arguably engages an individual's liberty interest under section 7, the Statement of Claim does not plead that the Plaintiff has personally been subjected to that measure." She continues: "With respect to the Plaintiff's security of the person, the Statement of Claim pleads no material facts concerning any psychological impact of the federal COVID-19 measures on the Plaintiff, yet alone any serious and profound effects on the Plaintiff's psychological integrity" [emphasis in original]. She concludes: "I find that the Statement of Claim pleads no material facts capable of demonstrating that a federal COVID-19 measure deprives the Plaintiff of his section 7 rights, nor that any such deprivation is inconsistent with the principles of fundamental justice." JCT: They're sure taking great advantage of having cut out the others plaintiffs who might have suffered those harms. [19] Regarding section 8 of the Charter, the right to be secure against unreasonable search or seizure, she writes: "the Statement of Claim does not identify any federal COVID- 19 measure that authorizes a search or seizure, nor does it plead that the Plaintiff himself has been subjected to any such search or seizure." JCT: A declaration against any restrictions might help if they do. [20] Regarding section 9 of the Charter, the right to be free from arbitrary detention or imprisonment, she writes: "the Statement of Claim does not allege that the Plaintiff has been detained or imprisoned as a result of any federal COVID-19 measure, nor does the pleading particularize how any specific federal COVID-19 measure amounts to significant physical orpsychological restraint." JCT: Yet. But it looks like it's going to be soon, doesn't it? [21] Regarding section 12 of the Charter, the right to be free from any cruel or unusual treatment or punishment, she writes: "the Statement of Claim does not plead facts capable of demonstrating that any of the federal COVID-19 measures constitute punishment or treatment that is grossly disproportionate in the sense that it outrages standards of decency and are abhorrent or intolerable in society [.]. Moreover, the Ontario Superior Court of Justice has held that a claim that quarantine is arbitrary detention or cruel and unusual punishment is frivolous and I agree with that finding [see Canadian Constitution Foundation v Attorney General of Canada, 2021 ONSC 2117 at para 39]." JCT: I couldn't care about how minor the harm, I care about how major the deception to trick us into even the minor harm. [22] Having reviewed the Statement of Claim myself, I find that the observations of the Prothonotary regarding the lack of facts necessary to support these claims are accurate. JCT: That WHO compared CFR to IFR isn't fact enough. That Wuhan had zero asymptomatic transmission in 10 million tested isn't fact enough. That CTV deleted that 166 Canadians not in long-term-care died isn't fact enough. That PCR tests were set too sensitive to generate false positives isn't fact enough. That CDC changed Death Certificate guidelines to up "with Covid" over "with bullet in the head" or "with lightning strike!" isn't fact enough. That Lancet and NEJM blew their cred with a bogus survey to discredit HCQ, a successful alternative that would not allow their Emergency Use Authorization for the novel spike injection isn't fact enough! Sad when lawyers do judging. [23] Her decision that this claim fails to disclose a cause of action for the Plaintiff is reasonable on the facts and her observations on the law are correct. JCT: Remember, we still don't know why all those facts aren't facts. We're just told they're not facts. You decide. [24] I further agree with the Prothonotary that the claim as drafted is an abuse of process. The Plaintiff pleads bare assertions but not the necessary material facts on which to base those assertions. It is, as she notes, "replete with lengthy diatribes and makes scandalous and extreme allegations that are unsubstantiated, such as alleged cover- ups and conspiracies." JCT: He can't cite one "bare assertion" either. She couldn't, Crown couldn't, we heard these learned law graduates tell us the data is bare assertion without once explaining why. [25] While a self-represented litigant may expect to be granted some leniency by a court, he must still draft a claim that discloses a cause of action to which the defendant can respond. This Statement of Claim falls well short of that requirement. JCT: Wonder if the judge is going warn his grand-children not to take the vaccine? [26] For these reasons, the appeal is dismissed. Canada proposed that if successful, it be awarded costs of $500.00. In my view, that is more than a reasonable sum. Had more been sought, it would have been awarded. JCT: So now I have until the 28th to file an appeal to the Court of Appeal. As long as I can say a judge had the power to save the planet and did not, that's enough punishment dished out for me. Watch my facebook page for regular denunciations of Judge Aylen every time someone died who wouldn't have died if she'd not suppressed Covid Mortality Hyped Hundredfold https://www.amazon.com/dp/b09dfgld8d by a comparison of the Covid 3.4% CFR Apple to the Flu 0.1% IFR Orange. For some reason, even though Judge Aylen had ruled that the stayed plaintiffs would not be kept apprised of what was going on, someone decided to do as we had asked and email you all a copy of the decision. I just wanted you to get a copy of everything but someone figured you had to know I had lost my first appeal. Doesn't matter, two more triplets of judges to go before you will be asked whether to take your $2 loss or go on.