Employees at Canada Post (a.k.a. the “Posties”) are trying to appeal a March 2024 ruling that saw their lawsuit struck, without an opportunity to amend. Rule 51 of the Federal Courts Rules allows for findings of Associate Judges to be reviewed by way of Motion. However, it wasn’t the Court that screwed them over, but their counsel.
They should have been advised from the beginning that filing the lawsuit in the first place was a dead end, with no chance of success. Or perhaps they were….
Backstory Of What’s Been Going On
For context: back in the Spring of 2022, an Arbitration Panel ruled against employees at Canada Post. The Union had challenged the new policy requirements for injections that the Federal Government had brought in. Understandably, many workers weren’t happy about it.
The Canadian Union of Postal Workers, or CUPW, is the group representing employees. There is, of course, a collective bargaining agreement that everyone is expected to follow. Article 9 specifies the grievance resolution process, and binding arbitration is the end. Arbitration is considered to be final, as it’s an alternative to going to Court. Although the CUPW did fight for its workers, they still lost. Arbitrator Thomas Jolliffe ruled against them.
However, if the process is unfair, there’s often a way to have it looked at. This is done by an Application for Judicial Review. It’s analogous to appealing an unfavourable ruling, if not handled properly. But that’s not what ended up happening.
Leighton Grey, an Alberta lawyer, apparently convinced a few hundred employees to ignore the decision of Arbitator Jolliffe, and the grievance process altogether. June 2022, he filed an 18 page Statement of Claim. Yes, he sued Canada Post, instead of asking the earlier decision to be reviewed.
The Claim itself was very poorly written, and lacked much of the necessary information to proceed. It pleaded no facts whatsoever about individual Plaintiffs — remember, it was only 18 pages — and didn’t provide the necessary particulars to support allegations of bad faith and malice. There was also the problem that while Canada Post was a Crown Corporation, legally, it was considered separate from the Government.
For the next year, and file was largely inactive. The Claim was later amended, and not for the better. Eventually, the Court ordered the case to advance, so the Defendants moved to have the case thrown out.
And the case was eventually struck, without Leave to Amend. Plaintiffs weren’t allowed to sue, just because they were unhappy with the Arbitration results. Moreover, the Claim wasn’t pleaded anywhere close to properly.
At least some of those clients now have a new lawyer, Jason Gratl. He’s now seeking an extension of time to file a Rule 51 Motion for Reconsideration. An included Affidavit also alleges Grey didn’t file Notice of Motion as expected.
Timeline Of Events Leading To This Point
This is a follow up to a March 2024 article on the Canada Post lawsuit. Even more background information is here, to help understand the chain of events. It’s important to note that the CUPW went through the full arbitration process — as required — prior to this lawsuit commencing.
Leighton Grey Implies Federal Court “Rigged” Outcome
In a post on Twitter, Grey comments about a case involving over 300 military veterans being struck. That too was struck for the 2 main reasons: (a) not following prescribed grievance scheme/lack of jurisdiction; and (b) failure to properly plead the Statement of Claim.
“Same judge”
“Same judgment”
“Same reasons”
“Same comments”
“Even the same costs”
“Is anyone else seeing a pattern?”
Yes, there obviously is a pattern. 2 grossly inept and incompetent lawyers — Grey and Catherine Christensen — filed claims when there was no jurisdiction to do so. Neither of them pleaded their cases with anywhere near the detail necessary to advance a suit anyway.
There’s also the issue raised that Canada Post, a Crown Corporation, is considered separate from the Government. While pedantic to many, it was raised at the hearing.
However, in the way this is presented, it looks as though Grey implies Associate Judge Coughlan has been deliberately fixing her decisions. Although careful not to state it directly, it’s the impression that his audience would be left with. He suggests that she, and perhaps the entire Federal Court, is corrupt.
Should lawyers be actively working to undermine trust and confidence in the Judiciary? That’s what it looks like Grey is deliberately doing.
Valour Legal Action Centre, the firm Christensen runs, tweeted out similar comments, implying that Associate Judge Coughlan fixed that one as well. These are very risky things to say, especially in light of the serious and legitimate errors raised in the respective cases.
Accusing the Federal Court, and Associate Judge Coughlan, of “hiding behind the grievance system”, amounts to an allegation of corruption. Is this wise to post on Twitter?
Grievance/Arbitration Requirement Bars Court Action
Canada Post is a unionized workplace, and there are systems in place to handle grievances. This is spelled out in Article 9 of the collective bargaining agreement. Most relevant is the requirement to seek arbitration if other, lesser methods fail. An Arbitrator’s ruling is to be considered final. There is no inherent right to sue.
As for the Canadian Government itself, legally, it’s distinct and separate from the Crown Corporations — yes, unfair — despite Canada Post obeying its orders to force injection mandates.
Arbitration didn’t go the way the workers wanted, so Grey sued the company anyway. Having the case struck for lack of jurisdiction was entirely predictable. However, he implies that the Federal Court had predetermined the outcome.
Grey also filed lawsuits against: (a) Canadian National Railway; and (b) Purolator in recent years. He’s well aware of this issue, as counsel in those cases have raised it as well.
As for the new lawyer, Jason Gratl, he’ll have a difficult time with his Rule 51 Motion, assuming he gets the time extension. In theory, a competent lawyer could plead a new Statement of Claim properly. That said, the lack of jurisdiction is fatal. No amount of pleading facts or detail will get around this, which makes one wonder why he’s doing this at all.
Rule 51 Motions are meant to correct errors made by the Associate Judge. They’re not a way to fix a mess created by incompetent counsel.
Statement Of Claim Not Pleaded Properly, Once Again
Material facts
174 Every pleading shall contain a concise statement of the material facts on which the party relies, but shall not include evidence by which those facts are to be proved.
Particulars
181 (1) A pleading shall contain particulars of every allegation contained therein, including
(a) particulars of any alleged misrepresentation, fraud, breach of trust, willful default or undue influence; and
(b) particulars of any alleged state of mind of a person, including any alleged mental disorder or disability, malice or fraudulent intention.
Regular readers on this site will have heard of Rules 174 and 181 of the Federal Court Rules. Similar provisions exist in all Provincial Courts as well.
However, Grey doesn’t do this at all. The Statement of Claim is just 18 pages, and there’s no information pleaded about any specific Plaintiff. “Facts” is supposed to include the who, what, where, when and how of events unfolding. There has to be enough detail about each Plaintiff that the Defendants can respond.
Grey doesn’t plead any facts that would establish any Charter breaches either. There are specific requirements that have to be met for each tort that each Plaintiff is raising.
(1) that he or she sincerely believes in a practice or belief that has a nexus with religion, and
(2) that the impugned state conduct interferes, in a manner that is non‑trivial or not insubstantial, with his or her ability to act in accordance with that practice or belief
https://www.canlii.org/en/ca/fct/doc/2017/2017fc1092/2017fc1092.html#22
(1) plaintiff must plead facts to establish a deprivation of their right to life, right to liberty or right to security of the person.
(2)The claim must then set out facts to show that any deprivation of these rights was effected in a manner contrary to the principles of fundamental justice.
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc2732/2022onsc2732.html#par69
(1) on its face or in its impact, the state action creates a distinction based on a prohibited ground (either enumerated or analogous); and
(2) the state action imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage
| ENUMERATED GROUND | ANALOGOUS GROUND |
|---|---|
| Explicitly In Charter | Recognized By Courts |
| Race | Sexual Orientation |
| National/Ethnic Origin | Marital Status |
| Colour | Off-Reserve Band Member |
| Religion | Citizenship |
| Sex | – |
| Age | – |
| Mental/Physical Disability | – |
However, “vaccination status” has never been recognized as an analogous ground.
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc2732/2022onsc2732.html#par80
(i) establish whether there has been a Charter breach;
(ii) show why damages are a just and appropriate remedy, having regard to the related functions of compensation, vindication of the right (in question), and/or deterrence of future breaches;
(iii) if the plaintiff is successful in meeting these two steps, the state then has the opportunity to demonstrate that damages are inappropriate or unjust; and
(iv) if the state is unsuccessful, assess the quantum of damages
https://www.canlii.org/en/mb/mbca/doc/2012/2012mbca64/2012mbca64.html#11
And again, Grey would have to plead sufficient facts about each Plaintiff who was invoking these rights. However, there’s no information provided about any of them. No wonder the case was struck. It’s impossible to establish there’s been a Charter breach (part i), when there are no facts pled to even theoretically support such a claim.
As for “pleading particulars”, Rule 181 of Federal Court Rules, Grey makes all kinds of allegations of malice, conspiracy, and malfeasance of public office. He needs to explain the who, what, where, when and how that all of this happened.
Grey includes allegations such as Criminal Code violations — which would get the Claim immediately struck — because a Civil Court has no jurisdiction to hear them.
In fact, there’s no shortages of torts listed, but there are no facts or particulars included that would support a claim for any of them, in favour of any Plaintiff. It’s “Mr. Bad Beyond Argument 2.0”.
A proper Statement of Claim with this many Plaintiffs would be hundreds of pages long. It’s not something that Grey — or this new lawyer — can fix with amendments.
What Happens Now?
The Plaintiffs seeking to have the decision reviewed — which is not all of them — first need to convince the Court to grant an extension of time to have their main Motion heard. The first is a procedural Motion, and in theory, is doable.
Then, they need to be persuasive that Associate Judge Coughlan shouldn’t have thrown the case out completely, that she should have at least given Leave to Amend. This will be difficult, especially with: (a) Court not having proper jurisdiction; and (b) the Statement of Claim being so deficient of necessary information. It seems extremely unlikely for a review to be successful.
Arbitator Jolliffe’s ruling is considered binding.
To be honest, Jason Gratl would have far better luck suing Grey for incompetence, negligence, and malpractice. His performance falls far short of what one should expect from a senior lawyer. At least his clients would get some of their money back.
We’ll have to see how this plays out.
LITIGATION:
(1) Canada Post Statement Of Claim July 2022
(2) Canada Post Amended Statement Of Claim June 7 2023
(3) Canada Post Order Timetable July 2023
(4) Canada Post Defendants Motion Record October 2023
(5) Canada Post Decision Striking Amended Pleading
(6) Canada Post Notice Of Change Of Solicitor November 2024
(7) Canada Post Affidavit of Karine Solakian November 2024
(8) Canada Post Notice Of Motion November 2024
TWITTER:
(1) https://x.com/GreyMatterConvo/status/1858612823900770492
(2) https://x.com/GreyMatterConvo/status/1858635451839508580
(3) https://x.com/GreyMatterConvo/status/1858635720052584917
(4) https://x.com/ValourLegal/status/1858178030369186289
ARBITRATION:
(1) https://www.cupw.ca/sites/default/files/urb-ja-31-2022-ca-en.pdf
(2) Canada Post Collective Bargaining Agreement 2022
(3) Canada Post Arbitration update, February 2022 (removed)
(4) Wayback Machine Archive
(5) CUPW On Some Updates On Arbitration
(6) Wayback Machine Archive On Arbitration Updates
(7) https://www.cupw.ca/en/last-days-arbitration-vaccination-practice-grievance
(8) Wayback Machine Archive Of April 1st, 2022 Update
(9) https://www.cupw.ca/en/arbitrator-dismisses-grievance-against-canada-post%E2%80%99s-mandatory-vaccination-practice
(10) Arbitration Decision (Removed)
(11) Canada Post Arbitration Ruling, Full Text
(12) Wayback Machine Archive Of Arbitration Decision
(13) https://www.fct-cf.gc.ca/en/court-files-and-decisions/court-files#cont
OTHER LAWS AND DECISIONS
(1) https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1507/2022bcsc1507.html#par52
(2) https://www.canlii.org/en/ca/fct/doc/2023/2023fc252/2023fc252.html#par51
(3) https://www.canlii.org/en/ca/fca/doc/2015/2015fca20/2015fca20.html
(4) https://www.canlii.org/en/ca/fct/doc/2017/2017fc786/2017fc786.html#par32
(5) https://laws-lois.justice.gc.ca/eng/regulations/sor-98-106/index.html
(6) https://laws-lois.justice.gc.ca/eng/acts/F-7/FullText.html
(7) https://laws-lois.justice.gc.ca/eng/acts/P-33.3/