Transcription – English – James Kitchen

07. James Kitchen.mp4: Video automatically transcribed by Sonix

07. James Kitchen.mp4: this mp4 video file was automatically transcribed by Sonix with the best speech-to-text algorithms. This transcript may contain errors.

James Kitchen:
I'm here because I've been invited and I like to talk about this type of stuff. I, I started my own practice last July and July 2021, and I intentionally set out to do a lot of what I call Covid work. I anticipated the mandates coming, and so I wanted to fill that role. And yeah, so I'm going to talk about vaccine mandates at universities and colleges across the country. I dealt a lot with that last year, and I and I planned to I had done some university work in my years prior to Justice for Constitutional Freedoms, and I anticipated that there'd be very few lawyers who would be willing or able to help university students. And it's a difficult bunch to help because they don't have a lot of money. And it's kind of a unique area of the law, and it's just most people don't have any experience practicing it. So I noticed last August these mandates coming in, and I had a couple clients come to me right away trying to prepare and plan ahead. Of course, like so many of the mandates, they they came in soft at first and they were they were strong recommendations made it look like you might be excluded from certain activities or buildings, but you'd still be able to go to classes, etc..

James Kitchen:
And then quite quickly in arbitrarily, they changed in September to the point that by usually by October or November that the students who were still unvaccinated were facing expulsion from their courses. And I in total only helped probably about 30 or 40 students. That is a lot for one lawyer over over just a few months. But it's a tiny number for the probably thousands, maybe even tens of thousands of students that face just across the country. And I was inundated with requests for help. And it was really awful to have to turn a lot of people away, which which I did. I was able to help some people. I had some students in Ontario. I had a student in New Brunswick. I had some in BC, Saskatchewan, one in Manitoba. And it was it was very obvious to me that it was very arbitrary. Across the country, the rules were were very ad hoc, thrown together. There was obviously some sort of central playbook because a lot of the language was the same. But a lot of people, you could tell, were running around like chickens with their heads cut off. They didn't know what they were doing.

Trish Wood:
Can I just clarify something? When you say you were able to help people, does that mean that you you were able to. Get people who weren't vaccinated, some kind of an exemption. Is that what you were doing? I just want to be clear on what you're talking about.

James Kitchen:
I only got that probably for about a half of my students, maybe two thirds of most. When I say when I say help, I mean, I, I tried to help them. We fought for their rights. And in the eastern universities in particular, there was no there was no acknowledgment of human rights accommodations whatsoever. So most of my students were religious. Most of them were Christians. I had a couple of Jews, but most of them were Christians. And I had a few, obviously, that were not religious. And then we we tried to get exemptions otherwise through medical and whatnot. Those were universally rejected because the universities took the position that, look, unless you've got a reaction to the first shot that we could verify, you're not medically exempt. We don't care what your disability is. We don't care what your mental disability is. I had a student that I worked with for months. She she was tireless with trying to figure out how to make it work. She was a scholarship student. She she was playing basketball. She was in her fourth year. And she she had a documented mental disability that was relevant to the vaccine. But this was the University of Alberta. They rejected it and they said, no, no, which ones were accepting are ones that are a lot more severe than yours, which is just a blatant refutation of of what human rights is.

James Kitchen:
Right. It was it was a blatant rejection of the University of Alberta's human rights obligations. And, you know, a number of students at Queen's suffered. I tried to help about 20 students there. Some of them caved and took the shot. It was very sad. Some of them were were kicked out. Some of them first year students kicked out, lost a lot of money. One student had to had to experience another student in his dorm dying, likely because of the shot. All the symptoms were there. That was pretty dramatic for them. And now out west and not to not to praise these universities, but just to point out, it was it was really fascinating and ridiculous to watch that out west. Universities tended to actually acknowledge some of their human rights obligations and grant some of the religious exemptions that I told them they had to grant. And that's where I did have some success in Saskatchewan and Alberta in particular. In fact, I want to tell one particular story about the University of Calgary, and I don't want to praise the University of Calgary in this, but but is actually I think what they did was awful. So there was a particularly large number of university students at University of Calgary who didn't take the shot, a lot of them for religious reasons.

James Kitchen:
A lot of Christian students there, a few of them around September found out about me. They contacted me. And so I helped as many of them as fast as I could. And what happened is they would all they all applied in September for combinations, and they were all denied and they were all given a one liner that didn't give any reasons. And it was it was a form letter. They all received the same thing and they all got it back within three days. It was very obvious there was no actual consideration of their case. And so what happened is at the University of Calgary, you had to appeal to the vice provost. So every one of these students that hired me, I'd write a letter to the vice provost, appealing the student's denial, and in every case it was granted. So I had about 15 in total, 15 University of Calgary students that were all initially denied and then on appeal were all initially granted when I was involved and manage their appeal and which I guess is good for those students. But what was awful was, was to see the games that were being played right. Because I heard from some of these clients, some of these students, that the other students who didn't have a lawyer were just there. Their appeals are being denied.

James Kitchen:
So it was. And when the appeals were approved, there was no reasoning. There was no reasons given. It was just, Dear Mr. Kitchen, your your client's been granted. Have a nice day. And which was again was great for my clients. And I was able to do that quick and easy. I didn't charge them a lot. It was something that even students were able to to afford. So that was good that I like doing that. But it was awful to see the games that were being played. I'll give an example of what this looks like. There was a PhD student at University of Calgary. She'd hired a typical lawyer $800 an hour. She'd spent over $6,000 on this lawyer through the fall of 2021 and then gave up because she ran out of money. And then towards the end of the fall, she found out about me, contacted me. I conducted a sort of a second appeal for her, and then it was just immediately granted, no reasons given. And I charged her 500 bucks. And I thought how how absurd and ridiculous and sad and pathetic that, you know, this this PhD student has to have all these games played with her, has to spend all this money and go through all of this just to be able to finish her PhD.

Trish Wood:
And so so what I'm getting from you, I want to get this over to the panel before we run out of time. But you're saying that it's random that that there doesn't seem to be or didn't seem to be any rhyme or reason about what which ones were granted and which ones were not granted. Is that correct? Is that the gist of what you're.

James Kitchen:
Yes. Which which is predictable. When you remove the rule of law, it's replaced. Arbitrary rule. It's replaced by power. Right. So some some bureaucrat says, I don't want to deal with Mr. Kitchen. I'm going to grant this now because I care about the law, not because they recognize my duty to accommodate, not because I want to do what's right, because I just want to deal with Mr. Kitchen. And that's that's exactly what you get. We took out the rule of law with these vaccine mandates, whether it's at university or the other context. We forgot about 40 years of history of human rights. We forgot about constitutional rights, where students, by the way, do have constitutional rights when they attend a public university, they have charter rights. And we just forgot about all that. We said we're going to throw it out. We don't care. We're going to do whatever we want during COVID. No rule of law, just arbitrary rule. And that's why you get this random some universities granted, some don't. Some bureaucrat grants them to some depending on who their lawyer is, some don't. That's what you get when you remove the rule of law. And that's what we saw with COVID generally is is the the the evisceration of the rule of law. And this is what you get. And some people have suffered arbitrarily and randomly just because they happen to be at the wrong place at the wrong time.

Trish Wood:
Okay. I want to turn it over to the panel, please.

Dr. Susan Natsheh:
I just want to say thank you, Mr. Kitchen. That was very informative. I have a couple of questions. Did you have any students who try to get exemptions based on naturally acquired immunity? And where's that successful?

James Kitchen:
We some- I have a lot of students that wanted me to take that route. We often mentioned it in the letters I would write, I would mention it right. But my tact was usually based on protected or guaranteed characteristics or grounds on the various human rights legislation. Right. So the only ones that are relevant to to COVID vaccines would be mental disability, physical disability and religion. And like I said, most of my clients were religious, and that's the ground we went after. So fear of vaccines or natural immunity or any of those things, none of those are protected grounds. So there is no duty to accommodate on the part of a university unless we trigger the duty. In order to do that, we have to we have to link to a protected characteristic like religious belief or physical disability. So I think that was relevant and I often brought it up, but I couldn't make that as the sole basis for my claim because otherwise I had no actual legal claim, even if I had one sort of in common sense, I didn't have one legally.

Dr. Susan Natsheh:
Sorry. Thank you. And you actually answered my second question in your answer there. So thank you very much.

Preston Manning:
Yeah. James, thank you for this. Coming back to your theme of more rigorous application of the rule of law would be helpful here. As you know, these provincial education statutes, the health statutes always have a clause that the lieutenant governor and council will grant the ability to make regulations. All those statutes have a regulation, and the regulation thing is very loose and very unspecified. And so you get these bureaucratic people making the regulations, delegating even regulatory power down to the universities and whatever. Is there some way of strengthening those granting of the regulatory power to to to make it less arbitrary, less room for the abuses that you have talked about? Is that one way to kind of reestablish the rule of law in relation to this type of an issue?

James Kitchen:
I think that would involve more government oversight of universities. And I don't know if whether or not that's that's a good thing or a bad thing. I generally I generally oppose more government oversight of anything because I think one of the core philosophical issues with this whole thing is, is the extent of the administrative state. It's the extent of government's fingers in everything and controlling everything that you can pull something like this off. If you go back to the 1960s, Canada, could you have could they have pulled something like this off, you know, just with how much smaller and how much less powerful the state was? So, yeah, I think you could have more regulation under the Post-Secondary Education Act about about government. The education minister actually overseeing what universities are doing, enforcing the fact that they're there, granting accommodations, human rights accommodations. I mean, you see this with Doug Ford's legislation. Prior to COVID, we had the whole free university free speech legislation, which again, putting aside the conceptual problem with more government overreach on universities. I don't necessarily like that, but a good idea in the sense that, yeah, you have the government stepping in and saying, okay, university is supposed to be a bastion for free speech. You're actually the opposite. Let's bring in legislation to force you to do what you're supposed to be doing. And it's the same thing with human rights. I mean, normally universities are parading the fact that they're all human rights accommodations. Clearly it was all just for show. We saw with Cove, it was politically inconvenient to to grant accommodations and to respect human rights. They throw it out the window. So, yeah, the government could respond by coming in and saying, okay, clearly you weren't actually doing what you're supposed to be doing with human rights. We're going to come in and make sure you do. Yeah. That is a way to do it. If you're okay with more government interference in the operation.

Preston Manning:
I was thinking more of requiring if you in certain areas, if you make a regulation, you've got to do an impact assessment with in conjunction with that regulation to at least know what you're doing. Because a lot of these regulations are imposed without any assessment of of impacts at all. But my second question is, what's the prospects legally of any of these students being able to take legal action to recover the costs that have been imposed upon them by these regulations? Is there any prospect of cost recovery, legal action to recover costs?

James Kitchen:
Well, there would be if we had an adjudicative system that itself had a high regard for the rule of law. The problem is that I think, as you've probably seen, you're probably hear through throughout this panel, the human rights commissions and the courts in this country have really gone along with the fear and the narrative and also really abandoned a lot of the case law that prior to COVID would have made this this obviously unlawful. And we've lost almost all COVID litigation in this country. So I have a number of cases that I've started, and I'm going to start on behalf of students and employees. And I've told these clients, look, the law is on your side, the science and facts are on your side, but you don't have a great chance of winning, really, because when it comes to the Human Rights Commissions, let's face it, they're pretty woke. And the woke thing to do is to kick students out of university if they don't take the shot, regardless of their reasons. So I don't have I honestly don't have high hopes of of of winning. I think we should litigate, nonetheless. But I think we need to be realistic about the fact that we are dealing with woke decision makers across the board in this nation. And they are going to for the most part, they're going to they're going to toe the party line when it comes to their views of things. And we're not going to get a whole lot of justice in the end.

Trish Wood:
Yeah, it seems very much to be in some places. Narrative driven is another way to say what you're saying. There is an accepted narrative. Thank you very much, Mr. Kitchen, for doing this. Could you affirm for us that what you testified today is true to the best of your knowledge?

James Kitchen:
Yes, absolutely.

Trish Wood:
Thank you very much. Thanks for doing this.

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