TURMEL: Submissions on costs for air travel ban challenge
On May 18 2022, Judge Trent Horne offered the self-
plaintiffs who filed challenges to the air travel ban under
the S.6 Charter Right to Mobility were given 30 days to
decide whether they wanted to continue the right on their
own after I'd been dismissed. Of course not.
http://SmartestMan.Ca/c19cd1.pdf
Date: 20220518
Dockets: T-693-22
T-694-22
T-695-22
T-705-22
T-710-22
T-827-22
T-828-22
T-929-22
Toronto, Ontario, May 18, 2022
PRESENT: Prothonotary Trent Horne
Docket: T-693-22
BETWEEN:
JOSHUA FUDGE et al
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
and
Docket: T-694-22
ALIM MANJI
Docket: T-695-22
RENE BEAULIEU
Docket: T-705-22
ANGELA COLELLA KROEPLIN
Docket: T-710-22
ROSA TAMM
Docket: T-827-22
ROGER W GERVAIS
Docket: T-828-22
SHELLEY R GERVAIS
Docket: T-929-22
KATHERINE WRIGHT
ORDER
I. Overview
[1] The Court is case managing a group of nine actions in
which the self-represented plaintiffs seek relief related to
the federal Government's Covid-19 mitigation measures,
including a declaration that the Minister of Transport's
January 15, 2022 decision to make an interim order in the
form of an Interim Order Respecting Certain Requirements for
Civil Aviation Due to Covid-19, No. 52 violates their
Charter rights.
[2] The statements of claim in each action are almost
identical, and are based on a "kit claim" made available on
the internet by John Turmel, the plaintiff in T-277-22.
[3] Mr. Turmel commenced an earlier proceeding related to
the federal Government's Covid-19 mitigation measures, which
was assigned Court file no. T-130-21. As in this action, he
made a "kit claim" available on the internet, and encouraged
others to commence their own identical proceedings.
[4] By order dated April 8, 2021, prothonotary Aylen (as she
then was) stayed the "kit claim" proceedings pending the
final determination (by judgment or order) in T-130-21 and
any appeals therefrom.
[5] On April 12, 2022, I issued the following direction in
T-693-22, T-694-22, T-695-22, T-705-22, and T-710-22:
The statements of claim in T-693-22, T-694-22, T-695-22,
T-705-22 and T-710-22 appear to be essentially the same
as the statement of claim in Court file no. T-277-22. As
such, the Court proposes that the proceedings in T-693-
22, T-694-22, T-695-22, T-705-22 and T-710-22 be stayed
pursuant to section 50(1)(b) of the Federal Courts Act
pending the final determination of the proceedings in
T277-22 (Mr. John Turmel's claim). Following the final
determination in T-277-22 (which includes any appeals
therefrom), a plaintiff would then be entitled to
request that the stay of their proceeding be lifted on
the basis that they are differentially situated than Mr.
Turmel.
The Court requires that any plaintiff in T-693-22, T-
694-22, T-695-22, T-705-22 and T-710-22 who does not
consent to a stay of their action based on the proposal
above so advise the Court by no later than April 20,
2022 and provide, by that date, any submissions as to
why their action should not be stayed. The Crown shall
serve and file any responding submissions by no later
than April 27, 2022. Any plaintiff opposing a stay of
their action shall file any reply submissions by no
later than May 2, 2022.
[6] Identical responses were received from each of the
plaintiffs, which included:
I do not wish to be stayed pending the result of an
action for a Lead Plaintiff that could be dismissed not
on the merits. Mr. Turmel has indicated that he does not
want to be Lead Plaintiff for these actions and may
abandon his action if it is in the way of having our
claims adjudicated on the merits.
Of course, should the Respondent withdraw the demand for
security for costs, then I would be prepared to be
stayed pending the result of the Turmel action.
[7] The defendant filed a response on April 26, 2022,
submitting that concerns relating to security for costs
could be easily addressed by staying the other claims now,
and designating a new lead claim if and when Mr. Turmel is
ordered to provide security for costs and fails to provide
this security. The defendant also submitted that this
approach would conserve judicial and party resources, would
not result in injustice to any party, and would be far
preferable to having multiple, substantially identical
claims proceed in parallel.
[8] Pursuant to paragraph 50(1)(b) of the Federal Courts Act
RSC 1985. C. F-7, the Court may, in its discretion, stay its
own proceedings where it is in the interests of justice to
do so. In considering a request for a stay under paragraph
50(1)(b), the tri-partite test set out in RJR Macdonald Inc
v Canada (Attorney General), [1994] 1 SCR 110 does not
apply. Rather, the question is whether it would be in the
interests of justice for a stay to be granted (see Clayton v
Canada (Attorney General), 2018 FCA 1 at para 24
("Clayton").
[9] The interests of justice test is a wide-ranging test
that can embrace many elements, and the Court must consider
the totality of the circumstances of a particular case when
considering whether to exercise its discretion to stay its
proceedings. The Court should be guided by certain
principles, including securing the just, most expeditious
and least expensive determination of every proceeding on its
merits, as expressly provided in Rule 3 of the Federal
Courts Rules, SOR/98-106, and the fact that as 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. The Court should
also take into consideration the public interest in moving a
proceeding forward fairly and with due dispatch (Jensen v
Samsung Electronics Co Ltd, 2019 FC 373 at para 10
("Jensen"); Coote v Lawyers' Professional Indemnity Co, 2013
FCA 143 at para 13; Clayton)
[10] As stated by the Court in Jensen at para 14, the case
law establishes that the interests of justice test is
anchored in three overarching principles: (1) a flexible
approach aimed at protecting the interest of a just, fair
and efficient resolution of a proceeding; (2) the existence
of some form of prejudice, harm or injustice, as opposed to
simple inconvenience, to be suffered by he moving party in
the absence of a stay; and (3) the determinative place of
the particular factual circumstances presented to the Court.
[11] I am satisfied that there will be no prejudice or harm
to the plaintiffs if their proceedings are stayed pending
the determination of the proceeding in T-277-22. None of the
plaintiffs took issue with the Court's observation that
their claims are essentially the same as the statement of
claim in T-277-22. None of the plaintiffs have submitted
that they are differently situated than Mr. Turmel. Further,
staying the "kit claims" would be consistent with the manner
in which the Court managed the multiple proceedings that
were based on or copied from the statement of claim in T-
130-21.
[12] Considerations of judicial resources, efficiency and
the orderly conduct of multiple proceedings all support a
stay. I am therefore satisfied that it is in the interests
of justice to stay these proceedings pending a final
determination of T-277-22 and any appeals therefrom.
Proceeding in this manner will ensure the just, most
expeditious, and least expensive determination of the issues
raised in the statements of claim.
[13] To the extent the proceedings in T-277-22 are abandoned
or dismissed on procedural grounds, the remaining plaintiffs
will be given an opportunity to distinguish their
proceedings from T-277-22, and/or to designate a new lead
claim. If T-277-22 is determined on the merits, it will
remain open to the plaintiffs to request that the Court
permit their claims to proceed following the final
determination of T-277-22 if they can demonstrate that they
are differently situated than T-277-22 such that they should
not be bound by any final determination made in that case.
[14] After my direction was issued on April 12, 2022,
further statements of claim were issued in T-827-22, T-828-
22, and T-929-22. Each of these statements of claim are
substantially the same as the one in T-277-22. For the above
reasons, these proceedings will also be stayed, as well as
any new statement of claim filed subsequent to the date of
this order which is substantially identical to those filed
in T-277-22, T-693-22, T-694-22, T-695-22, T-705-22, T-710-
22, T-827-22, T-828-22, and T-929-22.
THIS COURT ORDERS that:
1. The actions bearing Court file nos. T-693-22, T-694-22,
T-695-22, T-705-22, T-710-22, T-827-22, T-828-22, and T-929-
22 are hereby stayed pending the final determination (by
judgment or order) in T-277-22 and any appeals therefrom.
2. The Registry shall provide a copy of any final
determination in T-277-22 to each of the plaintiffs in T-
693-22, T-694-22, T-695-22, T-705-22, T-710-22, T-827-22, T-
828-22, and T-929-22.
3. In the event that any party in T-693-22, T-694-22, T-695-
22, T-705-22, T-710-22, T-827-22, T-828-22, and T-929-22
takes the position that their action is differently situated
than T-277-22 such that the final determination in T-277-22
(and any appeals therefrom) should not apply to their
action, that party shall, within 30 days of the final
determination in T-277-22 and any appeals 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 ate of this order which is
substantially identical to those filed in T-277-22, T-693-
22, -694-22, T-695-22, T-705-22, T-710-22, T-827-22, T-828-
22, and T-929-22.
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.
"Trent Horne"
blank Prothonotary
JCT: So they're all stayed.