Action4Canada vs. Bonnie Henry et al. case has merit, the defendants have failed!

Legal Update

Action4Canada v Bonnie Henry et al

Good News

As many of you are undoubtedly aware, Justice Ross of the B.C. Supreme Court, recently ruled upon the Defendant’s application to strike the Claim of Action4Canada. This Judgment requires clarification to dispel any myths that usually get promulgated shortly after such judgments – as well as intentionally, improperly worded and biased MSM articles.

The Defendants applied to strike this Claim in its entirety, without leave (permission) to amend, thus stopping the case dead in its tracks. To that end, the Defendants failed!

A motion to strike is just that – to obtain a court order to strike whatever other court action/document that has been filed. In almost all cases, it is because of some defect in substance or procedurally, ie: because it fails to comply with a rule of pleading, or facts that are required to be pleaded to support a claim, are not in the document and thus the relief cannot be granted even if it went to court.

On other occasions, actions are struck as being frivolous, vexatious or an abuse of process. This occurs when the defects amount to harassment of other parties with claims that have no merit, or are filed for improper purposes, or are tying to use the court procedures to harm someone.

Judge Ross did not agree with the position of the Defendants that the claim was an abuse of process, frivolous or demonstrated no cause of action. Their claims on this basis were solidly rejected.

Further, in this case, the Claim by Action4Canada was NOT struck for being without merit. On any motion to strike, the facts pleaded in the Claim are assumed to be true and if proven, would grant the relief sought. The judge is not permitted, and in this judgment correctly did not weigh the case to decide if they might win or lose at trial. However, the Judge did rule that Action4Canada did have merit to their case in substance, just not in form.

Put another way, the Judge at no time made any findings that the case by Action4Canada had no merit to it. In fact, the Judge admitted that there is merit if only formatted correctly.

The primary reasons the Claim was struck are three-fold:

  1. The Claim was simply far too long;
  2. The Claim was seeking to have the judge be an arbiter of science between the parties;
  3. Some issues are non-justiciable (ie: the Court has no power to rule on them). For example, claims that the Defendants committed criminal offences, are not proper for this type of pleading. Criminal allegations are in Provincial Court for the most part. Nuremberg Code violations are also not proper pleadings.

Without doubt, the claim was lengthy. Most claims are 20-40 pages, maybe on occasion, 50 or so, but that is rare. Many cases are 10-20 pages. The Rules simply require that pleadings filed are to be “concise” in the facts and law that are pleaded. The claim filed was ruled to be so long that the Defendants simply would not know what they should plead to.

Keep in mind…we do not know the strategy employed for this filing and my understanding is that there was strategy involved – just like a chess game.

The Judge somewhat ruled that the science is what should support the Charter breaches and/or tort claims (ie: negligence, fraud, etc.) and the Claim itself, as opposed to having the Judge prefer one science over another. For example, claiming that Bonnie the Commie committed fraud by posting false statistics in support of her actions, may be a claim. Advancing a claim solely on the basis that her stats are wrong and ours are correct, would be worded in a non-judiciable manner. This will be a definite ground of appeal. Courts must in fact, decide which science is correct or how can the case be decided?

Also, claims of violations of the Nuremberg Code were considered to be not proper pleadings. Though not stated by Judge Ross, the reason for this, as I learned 25 years or so ago in Winnipeg Court of Queen’s Bench, is that this was never passed by Parliament into Canadian law. It is merely an agreement and joint recognition of certain actions that we refuse to recognize. The nature of those actions will underscore our own Constitutional provisions, for sure, and this can eventually be

put forth. But direct violations of Nuremberg is not a proper pleading.

So, this is essentially what the Judgment this week really means. It all comes down to length, and proper wording – NOT substance. Judge Ross at no time said that there was no valid claim and I emphasize this. Action4Canada was given permission to re-file their Claim which is good, and means that there is merit to their Claim. If there was no merit, it would have been struck entirely without leave to re-file.

As a local lawyer told me, the first step is to deny. Make sure a claim never gets heard…if it is not heard, you win automatically. If that doesn’t work, then delay. The Defendants attempted to deny the Claim in its entirety. They failed. It will delay the proceedings for sure, unfortunately. But once a properly drafted Claim is filed, it will eventually get heard.

Though Action4Canada was assigned costs, it is not the entire legal costs that they must pay – that is called solicitor-client costs and means the entire legal bill the other party’s lawyers charged. That rarely happens and only where there is evidence of improper actions by the lawyers. In this case, it is on a partial indemnity basis, ie: only a portion of the lawyer’s bills are required to be paid. At this point, I am unsure how much this would be, but it won’t be that high to prevent the case from moving forward, in my opinion.

Notwithstanding the above, this judgment is likely to be appealed – especially on the issue of costs, and errors of law with respect to what remedies can be sought and granted by the Court.

So, I remain very much optimistic and urge everyone else to be as well. A new claim will be filed. Despite all the negative attention, many other cases have actually been lost, and nary a word has been said about the lawyers involved or the nature of their claims, or their financial relationships.

A significant amount of time and energy has gone into this case and I hope and pray for success in the near future. We are at war – and the enemies will try their best to prevent the best cases from being heard. We won the first round! I think the substance of Action4Canada’s Claim has lots of merit, and now we just need to overcome this hurdle. An amended Claim will be filed.

In freedom

By piotrbein