COVID vaccine mass law tort?

[Winds]

Once members of the CAF could avoid vaccinations because of religious reasons, high bar to reach or not, kicking people out over it became a weak argument.

My athiest ass would lose my career but you could keep yours if you could convince your CoC that Vishnu didn't approve? Silly.

And the reason that it was never argued as a "bona fide occupational requirement" or part of "universality of service".

 

[brihard]

Yes, and you too left out the part about them being a former Executive with experience across multiple government departments, that is what is being undersold.

I never said the description wasn't technically accurate, I said it came across as dismissive and disrespectful.

I wouldn’t consider executive experience to be particularly relevant in adjudication of human rights questions as a tribunal member. I’m leery of too easily diving deference just based on credentialism. I find her LL.M to be more compelling in that role than having been a PS exec.

It would be tricky to argue on one hand that her executive experience automatically lends her credibility, when the very issue at hand is contesting decisions made by senior public executives.

 

[Winds]

I wouldn’t consider executive experience to be particularly relevant in adjudication of human rights questions as a tribunal member. I’m leery of too easily diving deference just based on credentialism. I find her LL.M to be more compelling in that role than having been a PS exec.

It would be tricky to argue on one hand that her executive experience automatically lends her credibility, when the very issue at hand is contesting decisions made by senior public executives.

It is a committee so they don't reach their recommendations alone, and as I said the current Chairperson used to be the Director of the OJAG's administrative law division, so he has an extensive background in constitutional and public administrative law. The member you are referring to, Nina Frid, is a former Director General for Transport Canada and the only committee member without a military background. Arguably, it is of benefit to have members of various backgrounds on such committees, and having a former public servant is exactly that type of person you'd probably want perspective from when taking into consideration the actions of other senior public servants.

This is all beside the point though. As I previously stated, questioning the basis of the argument on their academic backgrounds is an Ad Hominem, and does nothing to substantively argue against what they wrote in their recommendation.

Also, are you suggesting then that McG's characterization of the Committee was fair, and that the degrees held by the committee members is the only thing of importance when weighing their "qualification" to make recommendations on CAF grievance cases... and their career experience as military members and public servants is irrelevant?

 

[brihard]

This is all beside the point though. As I previously stated, questioning the basis of the argument on their academic backgrounds is an Ad Hominem, and does nothing to substantively argue against what they wrote in their recommendation.

You’re playing very fast and loose with what constitutes an ad hominem. This ain’t it. There’s some skepticism that an administrative tribunal focused on military grievances is going to return a legally sound decision on something that in large part is being argued on a human rights basis.

Administrative tribunals are interesting beasts. They’re useful and absolutely essential; they allow decision making of a quasi-judicial nature to be delegated to a body that focuses on a narrower and more technical field. The courts generally aren’t as technically informed on this, that or the other subject, so a great deal of deference is given to the decisions of administrative tribunals. Our system needs this. But, they’re at their best when operating most squarely within the arcs of their raison d’être. When a tribunal needs to stray from the technical into broader issues such as applying human rights considerations, they may struggle a bit to get things right, legally. This is why judicial review mechanisms exist.

It’s neither unfair nor reasonable for someone, seeing a tribunal making pretty weighty decisions, citing human rights grounds, when that is not normally its thing, and to question whether the tribunal members have sufficient expertise in that to consider the decision a solid one. Certainly not an ad hominem fallacy.

 

[Eaglelord17]

Once members of the CAF could avoid vaccinations because of religious reasons, high bar to reach or not, kicking people out over it became a weak argument.

My athiest ass would lose my career but you could keep yours if you could convince your CoC that Vishnu didn't approve? Silly.

I have never understood the requirement to use religion as a defence. We also have the right to freedom of thought, opinion, and expression, which to me puts not wanting to get a vaccine because you don’t feel like you should at the same level as a religious exemption.

But this is Canada where you can ride motorcycles without helmets as long as your in a turban as your brains are magically defended by your faith in a god well the rest of us plebs just smear over the pavement.

 

[Winds]

You’re playing very fast and loose with what constitutes an ad hominem. This ain’t it. There’s some skepticism that an administrative tribunal focused on military grievances is going to return a legally sound decision on something that in large part is being argued on a human rights basis.

Administrative tribunals are interesting beasts. They’re useful and absolutely essential; they allow decision making of a quasi-judicial nature to be delegated to a body that focuses on a narrower and more technical field. The courts generally aren’t as technically informed on this, that or the other subject, so a great deal of deference is given to the decisions of administrative tribunals. Our system needs this. But, they’re at their best when operating most squarely within the arcs of their raison d’être. When a tribunal needs to stray from the technical into broader issues such as applying human rights considerations, they may struggle a bit to get things right, legally. This is why judicial review mechanisms exist.

It’s neither unfair nor reasonable for someone, seeing a tribunal making pretty weighty decisions, citing human rights grounds, when that is not normally its thing, and to question whether the tribunal members have sufficient expertise in that to consider the decision a solid one. Certainly not an ad hominem fallacy.

The MGERC makes recommendations to the CDS, it doesn't make decisions. That's an important distinction I've already made. The CDS can ignore the recommendation, and it wouldn't surprise me if he did. Then it would be a question of if the arguments made sway the judiciary during probable litigation to follow.

I also specifically pointed out that the Chairperson is not just a "former CAF lawyer" but a retired OJAG Colonel that was in charge of the Directorate of Administrative Law. That's the same directorate that would have advised the CDS on the legality of this policy... and we already know that the legal opinion provided before the policy was implemented questioned its legality and was ignored. You're suggesting that he is not qualified to write opinions on the constitutionality of CAF policies? Administrative Tribunals, including this one, often make decisions involving human rights complaints, by the way... if the ruling is unsound, a court may hear the appeal. That's how it works.

It is an Ad Hominem attack because it is jumping straight to questioning the qualifications of the committee members and flippantly characterized the Chairperson as little more than "a former CAF lawyer" in the critique, rather than debating the legal soundness of the analysis itself. Does that seem like a fair and reasonable characterization to you?

 

[Bruce Monkhouse]

Yes

 

[Spencer100]

Hey to me with over 1500 employees....I just went with if feels, sounds and smells wrong don't do it.....and I'm so glad I did. I will meet my maker happy with that knowledge.

If you have to go deep and parse language and law....its wrong. And I think most people in their deepest of hearts ...know it too.

 

[brihard]

The MGERC makes recommendations to the CDS, it doesn't make decisions. That's an important distinction I've already made. The CDS can ignore the recommendation, and it wouldn't surprise me if he did. Then it would be a question of if the arguments made sway the judiciary during probable litigation to follow.

I also specifically pointed out that the Chairperson is not just a "former CAF lawyer" but a retired OJAG Colonel that was in charge of the Directorate of Administrative Law. That's the same directorate that would have advised the CDS on the legality of this policy... and we already know that the legal opinion provided before the policy was implemented questioned its legality and was ignored. You're suggesting that he is not qualified to write opinions on the constitutionality of CAF policies?

It is an Ad Hominem attack because it is jumping straight to questioning the qualifications of the committee members and flippantly characterized the Chairperson as little more than "a former CAF lawyer" in the critique, rather than debating the legal soundness of the analysis itself. Does that seem like a fair and reasonable characterization to you?

Yes it does. He’s a former CAF lawyer. That’s accurate. Nobody’s obligated to pump his tires for him in their replies. You appear to be defaulting to taking vicarious offense. It’s obvious this is a subject you feel very strongly about.

The members of the MGERC appear qualified to constitute such a tribunal. That doesn’t make them or their decisions in any way infallible. It remains to be seen if there will be further legal treatment of this matter, or if it will simply end with CDS exercising his right to shrug and disregard recommendations made. At present, we have a decision by a committee that includes one lawyer and an handful of other executive level government workers.

Either way we don’t get to see this subject to any rigorous binding legal analysis unless it goes to judicial review. I’ll wait to see if that happens, and if so, what it says. Or we may not specifically get that, and instead be left to draw inference from relevant public sector employer vaccine mandates that are presently winding their way through the courts.

 

[Winds]

Yes it does. He’s a former CAF lawyer. That’s accurate. Nobody’s obligated to pump his tires for him in their replies. You appear to be defaulting to taking vicarious offense. It’s obvious this is a subject you feel very strongly about.

The members of the MGERC appear qualified to constitute such a tribunal. That doesn’t make them or their decisions in any way infallible. It remains to be seen if there will be further legal treatment of this matter, or if it will simply end with CDS exercising his right to shrug and disregard recommendations made. At present, we have a decision by a committee that includes one lawyer and an handful of other executive level government workers.

Either way we don’t get to see this subject to any rigorous binding legal analysis unless it goes to judicial review. I’ll wait to see if that happens, and if so, what it says. Or we may not specifically get that, and instead be left to draw inference from relevant public sector employer vaccine mandates that are presently winding their way through the courts.

Yes it does. He’s a former CAF lawyer. That’s accurate. Nobody’s obligated to pump his tires for him in their replies. You appear to be defaulting to taking vicarious offense. It’s obvious this is a subject you feel very strongly about.

The members of the MGERC appear qualified to constitute such a tribunal. That doesn’t make them or their decisions in any way infallible. It remains to be seen if there will be further legal treatment of this matter, or if it will simply end with CDS exercising his right to shrug and disregard recommendations made. At present, we have a decision by a committee that includes one lawyer and an handful of other executive level government workers.

Either way we don’t get to see this subject to any rigorous binding legal analysis unless it goes to judicial review. I’ll wait to see if that happens, and if so, what it says. Or we may not specifically get that, and instead be left to draw inference from relevant public sector employer vaccine mandates that are presently winding their way through the courts.

The question was not whether the statement was accurate, it was whether or not it was a fair and reasonable characterization when questioning the committees qualification. Saying the committee was comprised of 3 men and 1 woman would also be accurate, but I would not consider it a sufficient depiction to try to disparage them off of. It's not about pumping people's tires, I stated that I believed the statements to be flippant and to come off as a weak ad hominem attack. The point was not to lend more credit to the background of the committee members but rather to call out a comment that was attempting to disparage the analysis through a disrespectful, off-hand comment (aka being flippant).

Further, your statement that "we have a decision by a committee that includes one lawyer and an handful of other executive level government workers" is incorrect, unless you think it proper to categorize military members as "government workers". The current board consists of one former public servant and 3 former CAF members.

Of course their decisions are not infallible, but if you think that they their analysis is questionable in some way, why don't you explain such an opinion?

 

[brihard]

The question was not whether the statement was accurate, it was whether or not it was a fair and reasonable characterization when questioning the committees qualification. Saying the committee was comprised of 3 men and 1 woman would also be accurate, but I would not consider it a sufficient depiction to try to disparage them off of. It's not about pumping people's tires, I stated that I believed the statements to be flippant and to come off as a weak ad hominem attack. The point was not to lend more credit to the background of the committee members but rather to call out a comment that was attempting to disparage the analysis through a disrespectful, off-hand comment (aka being flippant).

Further, your statement that "we have a decision by a committee that includes one lawyer and an handful of other executive level government workers" is incorrect, unless you think it proper to categorize military members as "government workers". The current board consists of one former public servant and 3 former CAF members.

Of course their decisions are not infallible, but if you think that they their analysis is questionable in some way, why don't you explain such an opinion?

In this context it’s absolutely proper to characterize former executive level CAF members as ‘executive level government workers’. And yes, all CAF members essentially work for the government. The more one moves into bureaucratic and institutional roles, the more pronounced that is.

I’ve not taken a close enough look at the grievance decisions to have an informed enough opinion to weigh in on. I’ve been clear enough on that. I’ve seen a few other more knowledgeable people than I making remarks about weaknesses in them, and I know such a definitive human rights based decision is an unusually strong reaction from a tribunal that doesn’t usually work in that realm. That’s enough that I’m content to adopt a ‘wait and see’ on how the legal system handles this and/or other cases.

 

[Winds]

In this context it’s absolutely proper to characterize former executive level CAF members as ‘executive level government workers’. And yes, all CAF members essentially work for the government. The more one moves into bureaucratic and institutional roles, the more pronounced that is.

I’ve not taken a close enough look at the grievance decisions to have an informed enough opinion to weigh in on. I’ve been clear enough on that. I’ve seen a few other more knowledgeable people than I making remarks about weaknesses in them, and I know such a definitive human rights based decision is an unusually strong reaction from a tribunal that doesn’t usually work in that realm. That’s enough that I’m content to adopt a ‘wait and see’ on how the legal system handles this and/or other cases.

It's also improper to characterize the tribunal as "a committee that includes one lawyer and an handful of other executive level government workers" given that none of the members are currently in any executive role. When questioning whether or not someone is qualified to hear military grievance cases, I think it may be important to note that they have decades of military experience... you seem to think it's fine to refer to veterans, including former Wing Commanders, as "government workers" in order to question their competence, I obviously disagree.

As well, this is the appropriate tribunal to make recommendations regarding CAF grievances involving potential human rights violations by the employer, just as the Federal Public Sector Labour Relations Board adjudicates on such grievances for public servants. Do you think this is the first grievance the committee has weighed in on where human rights were at question?

And if you've read insightful legal critiques on the finding, do you care to share them to add to the discussion?

 

[brihard]

It's also improper to characterize the tribunal as "a committee that includes one lawyer and an handful of other executive level government workers" given that none of the members are currently in any executive role. When questioning whether or not someone is qualified to hear military grievance cases, I think it may be important to note that they have decades of military experience... you seem to think it's fine to refer to veterans, including former Wing Commanders, as "government workers" in order to question their competence, I obviously disagree.

And if you've read insightful legal critiques on the finding, do you care to share them to add to the discussion?

We’ll have to agree to disagree, and no, I didn’t save them and I’m not going to go and try to dig back up stuff I saw and moved on from. I entered the discussion to raise one point about something you said, and I’ve said my bit. You appear to be looking for more than I’ve chosen to bring to the table; sorry to disappoint.

 

[McG]

I find it odd that you characterized the committee Chairperson, a retired Colonel who served as Director of the OJAG's Administrative Law Division as "a retired CAF lawyer". That's kind of like calling a former army commander a "retired CAF officer". It's also a Governor in Council (Governor General) appointed position. This, along with your characterization of the other committee members, comes across as flippant.

Not flippant at all. The fact that the retired CAF lawyer reached a lofty height of Col and filled the position of director of administrative law does not change my question of the competency of the “tribunal” to rule on what is or is not constitutional. He is still the only actual lawyer in the group, his background is not constitutional law, and he was not a judge.

The members of the MGERC have a lot of training, education, and experience in administrative law because that is their part ship. I believe they stepped outside their qualifications in delivering a ruling that actual experts have already identified would not be accepted by a competent court.

 

[Winds]

Not flippant at all. The fact that the retired CAF lawyer reached a lofty height of Col and filled the position of director of administrative law does not change my question of the competency of the “tribunal” to rule on what is or is not constitutional. He is still the only actual lawyer in the group, his background is not constitutional law, and he was not a judge.

The members of the MGERC have a lot of training, education, and experience in administrative law because that is their part ship. I believe they stepped outside their qualifications in delivering a ruling that actual experts have already identified would not be accepted by a competent court.

They didn't make any rulings, I'm not sure where you are getting that from. They conducted an analysis, presented their conclusion along with a recommendation to the final grievance authority... exactly how is that stepping out of their bounds?

And please explain how Military Administrative Law is not intrinsically tied to Constitutional and Labour Law, and how these are somehow outside of the lanes for this tribunal to make recommendations on... exactly who should be providing recommendations on military grievances that claim human rights violations then? Are you suggesting that they should appoint former judges to make grievance recommendations that are not legally binding?

And again, if you insist that "actual experts", in your opinion, have presented convincing counter arguments, do you care to share them? You haven't provided much of substance yet, aside from perhaps your statement that you think the terms "tribunal" and "powers" seem "grandiose" in the official description of the MGERC.

 

[Bruce Monkhouse]

This is kinda funny......judging by post history I'm pretty sure if they had decided the other way you'd be calling them the CDS's lackeys.

 

[McG]

CTV interviewed more broadly than CBC in its review of the story. You can see the comments on what the actual trend in case law has been for similar.

'Never seen anything like it': Sniper who left military over COVID-19 policy since found 'unconstitutional'

The non-binding decision made by a Canadian military tribunal could result in a flood of new lawsuits against the federal government and reopen a divisive debate over vaccine mandates, a legal expert says.

www.ctvnews.ca

 

[Winds]

This is kinda funny......judging by post history I'm pretty sure if they had decided the other way you'd be calling them the CDS's lackeys.

I think if you actually read my post history you'll see that I typically explain my position and am open to debate. That's not the type of statement I'd make.

 

[Winds]

CTV interviewed more broadly than CBC in its review of the story. You can see the comments on what the actual trend in case law has been for similar.

'Never seen anything like it': Sniper who left military over COVID-19 policy since found 'unconstitutional'

The non-binding decision made by a Canadian military tribunal could result in a flood of new lawsuits against the federal government and reopen a divisive debate over vaccine mandates, a legal expert says.

www.ctvnews.ca

By "more broadly" I assume you mean one professor from uOttawa, unless you are referring to the lawyer representing the class action as well. I guess Erol Mendes is an "actual expert", despite having no background on the military's administrative framework, compared to someone like Rory Fowler, who the CBC quoted.

 

[Winds]

For those interested, Rory Fowler has released his first blog post discussing the recent MGERC findings. Although he does not go into analysis of the findings themselves, he goes into significant detail into the relationship between the MGERC and the Final Authority, building on his brief comments in the report from the Canadian Press.

MGERC Findings & Recommendations: Myths & Misconceptions

MGERC Findings & Recommendations: Myths & Misconceptions Many of you may be aware of the recent Findings and Recommendations (F&R) offered by Nina Frid, a Full-Time member of the Military Grievances External Review Committee (MGERC), in relation to a series of grievances by Canadian Forces...

roryfowlerlaw.com