Cases of Interest
Ontario College of Teachers Investigation
The Democracy Fund represents Chanel Pfahl, a high school teacher who is being investigated by her professional regulator for comments she made about critical race theory. The comments were made in a private Facebook group for teachers discussing ideas for Black History Month. Ms. Pfahl urged her fellow teachers to model kindness and speak out against all forms of discrimination. At the same time, she stated that children should not be indoctrinated with critical race theory and that schools should be nonpartisan. She pointed out that in some places, like Britain, it is illegal to teach critical race theory without offering a balanced opposing view. These remarks caused another teacher to make a complaint to the Ontario College of Teachers.
Update: Ms. Pfahl’s comments were neither racist nor offensive. The Democracy Fund has made submissions to the Ontario College of Teachers that the complaint fails to disclose any misconduct and that the college should close its investigation. Should this matter be referred to the disciplinary committee, The Democracy Fund is prepared to represent Ms. Pfahl at a hearing.
CONSTITUTIONAL CHALLENGE IN THE PROVINCIAL COURT OF NEW BRUNSWICK
Philip James Hutchings and Keith Cody Butler are pastors at His Tabernacle Family Church located in Saint John, New Brunswick. They were charged under New Brunswick’s Revised Mandatory Order on allegations that they held church services without ensuring that all participants were vaccinated against COVID-19.
Update: On May 3, 2022, TDF’s lawyer in New Brunswick filed a Notice of Motion Seeking a Declaration of Unconstitutionality to challenge the provisions of the Revised Mandatory Order under which these pastors were charged. The grounds are that the provisions are inconsistent with fundamental freedoms and privacy rights, which are protected by the Charter.
CHALLENGE IN THE COURT OF QUEEN'S BENCH ALBERTA TO CALGARY'S "BELTLINE INJUNCTION"
On April 22, 2022, TDF’s lawyers filed an application in the Court of Queen’s Bench Alberta challenging the constitutionality of the “beltline injunction” which severely limits the manner in which protests and other assemblies can occur in the City of Calgary. This injunction was obtained by the City of Calgary on an ex parte basis in response to ongoing public protests against COVID-19 health measures in the City of Calgary.
Update: On April 26, 2022, mere days after TDF filed its challenge, the City of Calgary discontinued its application and the court vacated the injunction.
TRIAL IN THE PROVINCIAL COURT OF SASKATCHEWAN SITTING IN OUTLOOK
Christine Brown and six other accused were charged with failing to comply with a public health order after they allegedly attended an outdoor public gathering exceeding 10 persons, beside the Milden Hotel in Outlook, Saskatchewan. The Democracy Fund continues to retain Luke Coupal of Caritas Law to defend Ms. Brown and others like her in Saskatchewan.
The trial is scheduled to start initially with three days commencing April 25, 2022. Counsel for The Democracy Fund has served Notice of Constitutional Question challenging the public health order on jurisdictional grounds, and under the Canadian Charter of Rights and Freedoms in consideration of liberty rights, rights of association, and rights to gather. Three medical experts are expected to testify at this trial.
Update: TDF’s lawyer was in trial on the week of April 25, 2022, defending Christine Brown against allegations that she attended an outdoor public gathering exceeding 10 persons in Outlook Saskatchewan, contrary to a public health order. Evidence from the RCMP’s surveillance videos showed people laughing, shaking hands, hugging and speaking about the role of non-violent action in the face of tyranny.
The trial is scheduled to resume on October 4, 2022, for the hearing of expert evidence on COVID-19 and the effectiveness of government restrictions.
TRIAL IN THE PROVINCIAL COURT OF ALBERTA
Tracy Fortin is a pastor at Church in the Vine in Edmonton, Alberta. She was charged with three counts of obstruction under Alberta’s Public Health Act for refusing to allow a government inspector entry into the sanctuary of her church. The inspection was related to restrictive COVID-19 public health orders.
TDF has hired James Kitchen to defend Pastor Fortin. A three-day trial has been scheduled to commence on April 19, 2022, where TDF’s lawyer will argue that the charges were issued in breach of the Charter.
Update: TDF is disappointed to learn that the court summarily dismissed Pastor Fortin’s Charter Application and found her and the church guilty of obstruction. The crown was seeking $120,000 in fines. Pastor Fortin was fined $15,000 and the church was fined $65,000. TDF has retained James Kitchen to conduct an appeal.
TRIAL IN THE NEW BRUNSWICK PROVINCIAL COURT
Wendy Kirkland was asked to leave a store in Woodstock, New Brunswick, for refusing to wear a mask despite the fact she had an exemption. The store owner called the police who attended at the scene and told Wendy to leave, which she did. Wendy was then unlawfully arrested by the police for obstruction of justice after she refused to provide them with her name. Wendy was not under detention or arrest when she was asked for her name. The arrest caused her to sustain physical injuries.
Update: TDF has retained counsel to fight this criminal charge for Wendy Kirkland at a three-day trial, which is scheduled for January 25-27, 2023.
APPEAL TO THE ONTARIO COURT OF APPEAL
In October 2021, Sinai Health System gave an ultimatum to their 15,000 employees to get vaccinated or get fired. Several employees represented by the National Organized Workers Union were concerned about this coercive policy and they complained to their union. The union filed a grievance with the Labour Relations Board, but the grievance could not be heard before the policy came into effect. The concerned employees therefore asked the court for an injunction to stay the mandatory vaccination policy pending the grievance. This request for an injunction was refused.
Update: TDF lawyer Mark Joseph is partnering with Perrys LLP to appeal this decision to the Ontario Court of Appeal. The appeal has been perfected and is expected to be heard later this year.
APPEAL OF CONTEMPT ORDER TO THE NEW BRUNSWICK COURT OF APPEAL
Pastor Philip James Hutchings was placed in solitary confinement for one week in October 2021 after he asked the court for an adjournment during a contempt hearing in which it was alleged that he breached a court order by holding a church service, which did not comply with masking and social distancing requirements. On his return to court, he was allegedly pressured by the judge to sign an undertaking as a condition of his release from jail.
Update: TDF’s lawyer in New Brunswick is appealing the undertaking as a final sentence in the New Brunswick Court of Appeal on the grounds that, among other things, there was a reasonable apprehension of judicial bias, the undertaking was made under duress, and that there was a denial of natural justice.
MOTION FOR LEAVE TO APPEAL TO THE ONTARIO COURT OF APPEAL
TDF lawyers were granted intervenor status as friends of the court in this application, which sought an injunction restraining anyone from blockading the Ambassador Bridge in Windsor, Ontario. The injunction was made permanent on February 18, 2022. In addition to prohibiting anyone from blockading the Ambassador Bridge, the injunction restrains anyone in the City of Windsor from breaching certain municipal bylaws, including noise and parking bylaws. The injunction was issued after days of Freedom Convoy protests in the City of Windsor.
Update: TDF lawyers have filed a Notice of Motion with the Ontario Court of Appeal. They are asking the court to exercise its inherent jurisdiction to allow them to appeal the injunction, even though they were not parties to the motion. TDF lawyers argue that the injunction was not issued in accordance with the ordinary rules of procedure that are designed to make hearings fair. They also say that the reach of the injunction is too far as it extends to bylaws anywhere in the city.
CONSTITUTIONAL CHALLENGE AT THE COURT OF QUEEN’S BENCH OF ALBERTA
Our lawyers brought this lawsuit on behalf of unionized firefighters and one paramedic employed by the City of Lethbridge. The lawsuit challenged Alberta Health Service’s “Immunization of Workers for COVID-19” policy, which required certain workers to get vaccinated or go on leave without pay.
Update: Our lawyers filed our Statement of Claim on December 16, 2021. Alberta Health Services has since changed its policy to permit unvaccinated workers to undergo periodic rapid testing as an alternative to vaccination.
Leigh Anne Eliason et al v. The Attorney General of British Columbia and The Provincial Health Officer of British Columbia
CONSTITUTIONAL CHALLENGE IN THE SUPREME COURT OF BRITISH COLUMBIA
Our lawyers have filed a Court Petition challenging the constitutional validity of public health orders that require proof of vaccination to attend gatherings in business, social and recreational settings.
Update: Within days of starting this case on March 8, 2022, the BC government has announced that proof of vaccination will no longer be required under public health order to access businesses, events and services. We’re not giving up just because the government changed their minds. The hearing is scheduled for May 10, 2022.
JUDICIAL REVIEW AT FEDERAL COURT OF CANADA
Our lawyers have filed a Notice of Application with the Federal Court of Canada to review a decision made by the Canada Industrial Relations Board, which held that CUPE (Air Canada) was not required to grieve Air Canada’s mandatory vaccination policy.
Update: Since bringing this case, CUPE (Air Canada) has agreed to grieve Ms. Watson’s case. Since bringing our Notice of Application, CUPE (Air Canada) has announced that it will be filing a policy grievance contesting Air Canada’s decision to terminate non-vaccinated employees by May 2, 2022.
APPEAL TO THE FEDERAL COURT OF CANADA
Our lawyers have filed a Notice of Appeal with the Federal Court of Appeal challenging federal government restrictions made under the Quarantine Act requiring international air travellers to stay in government-approved facilities while awaiting COVID-19 test results, and then to isolate or quarantine for 14 days.
Update: These restrictions are no longer in place. Our lawyers are urging the court to hear the appeal. Governments should not be able to avoid judicial scrutiny just because their orders expire.
TRIAL AND CONSTITUTIONAL CHALLENGE
Artur Pawlowski is well known to supporters of The Democracy Fund as a Christian pastor who has been repeatedly jailed and punished by the courts because of COVID-19 restrictions. One of the allegations against him is that he failed to comply with a public health order after attending a public protest on December 20, 2021.
Update: Our lawyers will be contesting Artur Pawlowski’s charges in a three-day trial starting on June 6, 2022. They have also filed a Notice of Application and Constitutional Issue arguing that the public order infringes on Pawlowski’s Charter rights to freedom of religion, freedom of expression, and freedom of peaceful assembly.