At the end of April, 2 groups are expected to begin their certification hearings at the British Columbia Supreme Court. These are: BCPS Employees for Freedom Society, and UHCWBC, the United Health Care Workers of BC. These are Proposed Class Action lawsuits filed in October 2023 challenging the injection mandates.
The idea behind Class Actions is simple: it can reduce a significant amount of time and expense to “bundle” related litigants into a single challenge.
The lawyers, Umar Sheikh and Angela Wood, are trying to convince the Court that their clients’ Section 2(d) Charter Rights were infringed. This is — of course — freedom of association — and it’s become their signature tort. They’ve had some success so far.
It’s worth mentioning that there’s strong parallels between these suits and the Payne and Hill cases. They were filed by the same lawyers, and make essentially the same arguments. Both of those survived an initial challenge, although Payne is currently under Appeal. All of them are Proposed Class Actions.
| CASE NAMES | PAYNE/BCPSEF | HILL/UHCWBC |
|---|---|---|
| Government Workers? | Yes | No |
| Filed Federally? | Payne | Hill |
| Filed in B.C.? | BCPSEF | UHCWBC |
| Wrongful Termination by Gov’t? | Yes | No |
| Inducement to Breach Contract? | No | Yes |
| Breach s.2(d) Charter Rights? | Yes | Yes |
| Malfeasance of Public Office? | Yes | Yes |
Collective bargaining agreements are typically fatal, due to the issue of whether or not the Court has jurisdiction. Usually, Arbitration is called for. But that doesn’t apply when the party being sued isn’t the employer. In the Hill and UHCWBC cases, the respective Governments are accusing of meddling with other people’s employment.
This removes the potentially strongest initial challenge.
BCPS Employees for Freedom Society, Wrongful Termination
54. The Plaintiff’s plead that the Order constitutes an improper and unjustified imposition by the Defendant of a new term and condition of employment absent collective bargaining memoranda of agreement, consideration, or consent to their existing and freely negotiated employment agreements and as such violates their protected right under s. 2d of the Charter.
It’s been a longstanding defence raised by various Governments in wrongful termination cases: there’s a grievance option available, therefore, the Court has no jurisdiction. That said, the argument here is that any grievance process was circumvented by unilaterally imposing changes of employment agreements. If there’s no opportunity for meaningful consultation, how can the internal processes be used?
Up until Payne, various Governments had been entirely successful arguing that there was no way around those agreements. But the logic applied here seems so basic.
Both cases here also argue that the Plaintiffs’ freedom of association rights were violated, and it applies whether or not the Government is the employer.
United Health Care Workers, Inducement To Breach Contract
58. The Plaintiffs and Class Members allege that the Defendants intended to and caused and/or induced the Employers to breach contractual employment agreements by their actions in relation to: the disclosure of private medical information; imposition of a leave without pay; and/or unlawful termination by ordering the Employers to enforce the Orders absent justification. The breaches of contractual employment agreements are therefore a direct result of the unlawful inducement of the breach as herein before particularized and as a result of unlawful interference by the Defendants in the contractual relationship between the Plaintiffs, Class Members and their Employers.
This differs from the above case since the health care workers aren’t directly for the Government. Instead, they had their employment terminated by their employers such as hospitals, because of the injection mandates that were handed down. This is a subtle, but important distinction.
Certification Hearings To Determine Viability Of Class Action(s)
A common misconception is that these hearings are to determine the merits of the Plaintiffs’ respective cases. That’s not really accurate.
Instead, the purpose is to determine whether or not there’s an overall interest in proceeding with such a case. Essentially, the lawyers have to “sell” the idea that they have the ability and plan to see it through. It’s more about the nuts and bolts of such an undertaking, rather than trying the matter. The ability to finance and sustain a prolonged lawsuit will also be an issue.
The Representative Plaintiffs (a.k.a. Token Plaintiffs) are taking a significant risk as well. Should a Claim not be certified, they can be held personally responsible for Court costs. Those can be expensive.
Should either case be certified, it would pretty much close off opportunities to bring related claims for similar classes of people. This is partly why the Court needs to ensure these ones are serious.
Applications to Strike have also been filed in both cases, which is not a surprise. Those presumably will be heard at the same time.
BCPSEF and UHCWBC have both brought forward their Notices, and more documents are expected to be filed.
Hopefully, it goes more efficiently than the CSASPP hearings. Decisions on Certification, and an Application to Strike have been under reserve for nearly 2 years now.
BCPS EMPLOYEES FOR FREEDOM COURT DOCUMENTS:
(1) BCPS Notice Of Civil Claim October 2023
(2) BCPS Amended Notice Of Civil Claim April 2024
(3) BCPS Response To Civil Claim May 2024
(4) BCPS Requisition Case Management August 2024
(5) BCPS Notice Of Application Certification October 2024
(6) BCPS Notice Of Application To Strike October 2024
(7) BCPS Response To Application To Strike November 2024
(8) BCPS Consent Order Scheduling Of Materials January 2025
UHCWBC COURT DOCUMENTS:
(1) UHCWBC Notice Of Civil Claim October 2023
(2) UHCWBC Amended Notice Of Civil Claim April 2024
(3) UHCWBC Response To Notice Of Civil Claim May 2024
(4) UHCWBC Amended Response To Notice Of Civil Claim May 2024
(5) UHCWBC Requisition For Case Management Scheduling August 2024
(6) UHCWBC Notice Of Application For Certification October 2024
(7) UHCWBC Response To Application For Certification October 2024
(8) UHCWBC Notice Of Application To Strike Claim October 2024
(9) UHCWBC Consent Order Scheduling October 2024
(10) UHCWBC Response To Application To Strike November 2024
GENERAL LINKS:
(1) https://bcpsforfreedom.com/
(2) https://bcpsforfreedom.com/media-release-plaintiff-launches-class-action-lawsuit/
(3) https://x.com/bcpsef
(4) https://unitedtogether.ca/
(5) https://unitedtogether.ca/faq-classaction/
(6) https://x.com/UHCWBC