Category: Canadian Decisions

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Worse Than The Original: Galati/Action4Canada File Amended Notice Of Civil Claim

A word of advice: when a party to a lawsuit dies, it’s best to have their name removed. It can look pretty silly when this isn’t done, as is the case with former B.C. Premier, John Horgan.

Action4Canada has (surprisingly) filed their Amended Notice of Civil Claim, or NOCC. They, and their counsel, have decided to keeping spamming the Courts by resubmitting content similar to what’s been struck as “bad beyond argument”.

And “spamming” is how one can describe this.

It’s hard to imagine at this point that it’s being done in good faith. There’s only so many times the Courts — and online trolls — can explain the same points to “Canada’s top Constitutional lawyer”. 5 separate Courts have struck similar pleadings, yet the new one here is more of the same.

To be somewhat balanced, there are genuine improvements. The length has been cut from 391 pages down to 54. The claims about Bill Gates, Klaus Schwab, GAVI, the World Economic Forum, etc… have been removed. The allegations pleaded by the various Plaintiffs are better organized, and more readable. And since this is older content being refiled, the Statute of Limitations shouldn’t be much of a factor. Overall, this version is far easier to follow.

Briefly, here are the positions as alleged.

  1. Action4Canada: An advocacy group, with an interest in the rule of law
  2. “Jane Doe”: Mistreatment by the hospital for not honouring mask exemption
  3. Ilona Zink: Lost her business in 2020 due to forced shutdowns
  4. Valerie Ann Foley: Forced from Vancouver public transit, assaulted, over no mask
  5. Linda Morken: Refused service over no mask, arrested for refusing to leave
  6. Gary Morken: Fined over no mask, had to pick up Linda
  7. Pastor Randy Beatty: Church services disrupted over lockdown measures
  8. Brittany Wilson: Nurse, forced from her career over mask and vaccine requirements

Hard to believe, but there *might* be valid Causes of Action. That said, this is hardly the groundbreaking Claim we were all led to believe was coming.

True, there were initially other Plaintiffs, but they left in 2022, following the comically bad performance of Galati and the “bad beyond argument” decision.

That being said, the newer version goes considerably downhill in many ways, compared to the original. It introduces new errors that weren’t present in 2021, and leaves many older problems unfixed. The new errors were likely the result of copying portions of more recent claims.

One of the most comical screwups is that Action4Canada and the other Plaintiffs are still suing John Horgan. He died of cancer a month ago, and the story was national news. While other parties were removed from the Style of Cause (names at the top), Horgan is still there. It’s not his estate that’s being sued, it’s him personally, which is now impossible.

But don’t worry, it gets much, MUCH worse.

Galati Content Previously Struck By 5 Different Courts

For some additional context, here’s the recent Dorceus review, which outlined the frustration the Courts are feeling about Galati refiling the same cases.

(1) British Columbia Supreme Court (Justice Ross)
Action4Canada v British Columbia (Attorney General), 2022 BCSC 1507 (CanLII)
https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1507/2022bcsc1507.html

(2) British Columbia Court of Appeal (Justices Marchand, Dickson, Voith)
Action4Canada v. British Columbia (Attorney General), 2024 BCCA 59 (CanLII)
https://www.canlii.org/en/bc/bcca/doc/2024/2024bcca59/2024bcca59.html

(3) Federal Court of Canada (Justice Fothergill)
Adelberg v. Canada, 2023 FC 252 (CanLII)
https://www.canlii.org/en/ca/fct/doc/2023/2023fc252/2023fc252.html

(4) Federal Court of Appeal (Justices Gleason, Boivin, LeBlanc)
Adelberg v. Canada, 2024 FCA 106 (CanLII)
https://www.canlii.org/en/ca/fca/doc/2024/2024fca106/2024fca106.html

(5) Ontario Superior Court of Justice (Justice Koehnen)
Dorceus v. Ontario et al., 2024 ONSC 7087 (CanLII)
https://www.canlii.org/en/on/onsc/doc/2024/2024onsc7087/2024onsc7087.html

5 separate Courts: (a) 2 Federal Courts; (b) 2 British Columbia Courts; and (c) the Ontario Superior Court have all thrown out similar pleadings. Justice Chalmers, also in Ontario, took a hardline as well.

This is “Bank of Canada” level bad.

Now, what’s wrong with the current Action4Canada NOCC?

1. Galati STILL Seeks Relief Outside Civil Court Jurisdiction

Galati has been told REPEATEDLY by various Courts to seek only Relief that is within the jurisdiction of the Court. Different types of Courts have different roles, and they need to respect each other. This is obvious, and shouldn’t need explaining.

Except Galati does need to have this explained again and again. Once more, he seeks Relief surrounding: (a) Nuremberg Code; (b) Helsinki Declaration; (c) Criminal Code of Canada, (d) Convention on the Rights of the Child, and more. One has to suspect he simply doesn’t read decisions in his own cases.

2. “Relief Sought” Section Runs Nearly 13 Pages, Is Unworkable

Galati pleads the the section on Relief Sought from paragraph 96 (page 35) to paragraph 121 (page 47). This amounts to nearly 13 pages. Keep in mind, this isn’t 13 items he’s asking for. It’s 13 pages. It’s based largely on facts that aren’t pleaded, and expert evidence improperly listed.

Worth mentioning, the original A4C Claim had 44 pages of Relief Sought, and covered the same sorts of non-justiciable issues. While shorter, it hasn’t really improved in terms of quality.

3. Galati Again Using Pseudo-Legal Concepts To Argue Case

A problem that regularly creeps into his cases is that he cites authorities that don’t have a place in modern Canadian jurisprudence, such as the English Bill of Rights. From the CSASPP defamation case, Justice Chalmers had this to say:

[75] In the e-mail to Mr. Dicks, Mr. Gandhi states that lawyers who reviewed the Ontario claim, “said it was very poorly drafted” and “will most likely get struck”. I am of the view that there is justification for this comment. The Ontario pleading is prolix and argumentative. The claim advances pseudo-legal concepts and conspiracy theories that the pandemic was pre-planned and executed by the WHO, Bill Gates, the World Economic Forum and unnamed billionaires and oligarchs. The similarly drafted A4C claim was struck by Justice Ross. In doing so, he described the pleading as “bad beyond argument”.

Another of his favourites is the Magna Carta. While it’s recognized as a historical document, it simply isn’t used in modern times as a basis for law.

4. Relief Sought Over Torts No Plaintiff Pleaded

A common problem with the Amended NOCC is that it seeks Relief based on facts that no Plaintiff actually pleaded. This problem is persistent. While too numerous to list them all, here’s one:

Paragraph 107 seeks Declaratory Relief about the so-called “vaccine passports” being imposed by the Government. The issue here is that no Plaintiff pleads anything about it. Keep in mind, the original NOCC was filed in August 2021, before these were a thing.

The closest is Brittany Wilson saying that she needed vaccination to work in health care. However, that came from her employer, not the Government — at the time.

There’s also Declaratory Relief sought that vaccine passports breach Section 6 (Mobility) Charter Rights. This was probably cut-and-pasted from the travel mandates cases. No Plaintiff pleads that they were citizens prevented from entering, remaining in, or leaving Canada. Nor do any plead that they were refused the right to move between Provinces, or to earn a livelihood elsewhere.

5. Relief Sought For NON-EXISTENT Minor Plaintiffs

Galati seeks Declaratory Relief regarding 12-17 year olds being offered vaccines. Problem is: NONE of the Plaintiffs are minors, nor are any seeking remedies for any children in their care or custody. For this to apply, at least one Plaintiff would have to be in this situation.

6. Relief Against NON-EXISTENT Municipal Defendants

In this section, Galati seeks various forms of Declaratory Relief against “Provincial and Municipal Defendants”. Problem is, there aren’t any Municipal Defendants. Perhaps this was just cut-and-pasted from another Claim.

7. Relief Sought Against NON-EXISTENT Curfews

In paragraph 97(e), Galati seeks relief surrounding various stay-at-home orders, curfews, and other lockdown measures. Thing is, these didn’t happen in B.C., where this Claim is filed. True, things were far worse in Ontario and Quebec, but this simply doesn’t apply in B.C.

8. Action4Canada Isn’t A Proper Party To This Lawsuit

The only information Action4Canada pleads is that it was co-founded in 2019 and that it “steps up” to advocate on behalf of the rule of law, the Constitution, and democratic governance. It specifically cites what happened starting in 2020.

The group seeks Charter damages pursuant to s.2 (fundamental freedoms),s.6 (mobility), s.7 (security of the person) and s.15 (equality). However, there’s no information pleaded that — even if true — would address any of these torts. There are no material facts at all. A4C clearly lacks Private Interest Standing.

Canada v. Downtown Eastside Sex Workers United, 2012 SCC 45 is the case which establishes the test for Public Interest Standing.

(a) Serious Justiciable Issue
(b) The Nature of the Plaintiff’s Interest
(c) Reasonable and Effective Means of Bringing the Issue Before the Court

In theory, A4C could argue this, but there would be serious problems, especially given that their style of litigation isn’t exactly “reasonable and effective”.

9. “Jane Doe” Isn’t A Proper Party To This Lawsuit

Something Galati routinely does is sue on behalf of anonymous Plaintiffs. This is obviously not allowed, as one has the right to confront their accusers in Court. While one may wish to not be associated with litigation, having an “open Court principle” makes this difficult.

In fact, the Dorceus ruling addressed exactly that. Justice Koehnen struck 2 “John Does” and 1 “Jane Doe” for refusing to use their real names in Court. No reason had been provided for any of them doing this. The Plaintiff in this case will meet the same fate.

10. Plaintiffs Plead No Facts About Federal Defendants (Except RCMP)

In the NOCC, it’s required for Plaintiffs to plead material facts (Rule 3-1(2)(a)), and plead particulars (Rule 3-7(17)). This is redundant, and covered many times before.

Problem is, the Plaintiffs don’t plead any facts whatsoever related to the Federal Defendants, with the exception of the RCMP. This includes:

  • Justin Trudeau, current Prime Minister of Canada
  • Theresa Tam, Canada’s Chief Public Health Officer
  • His Majesty the King in Right of Canada
  • Attorney General of Canada
  • Omar Alghabra, Federal Minister of Transport

While it’s true that details in a Claim are to be assumed true, at least initially, there’s nothing in the NOCC that suggested the Plaintiffs were harmed by any of them. Their grievances now are primarily with the Provincial Defendants. A Judge will almost certainly strike the above named.

Yes, the originally NOCC contained loads of irrelevant information, but at least that version pleaded some facts about the above Parties. That’s all gone now.

11. Pleading Evidence Instead Of Pleading Facts

Rule 3-7 — Pleadings Generally
Content of Pleadings
.
Pleading must not contain evidence
(1) A pleading must not contain the evidence by which the facts alleged in it are to be proved.

Virtually everything from paragraph 37 (page 17) until about paragraph 94 (page 34) should be struck. It gets into expert evidence, which is not the role of the NOCC. That comes much later. Galati has been told this many times before, and refuses to listen. It also mentions many people: (a) Peter McCullough; (b) Peter Hotez; (c) Michael Yeadon; (d) William Haseltine, etc… who aren’t parties, and whom the Defendants likely don’t know.

12. Arguing Caselaw In A Notice Of Civil Claim

Once more, Galati tries to argue caselaw throughout the NOCC. This is likely done in order to appear smart, but is a serious mistake. The initial pleadings are not the place to dive into the law, and it’s not supposed to look like a Factum. All of those areas should properly be struck.

Will There Be Leave (Permission) To Further Amend?

That’s actually tricky to answer. Despite the Amended NOCC being full of deficiencies, it is considerably cleaned up. Courts tend to prefer to give “that extra chance”. There are allegations raised which *potentially* would be valid Causes of Action. As such, as least some of the Plaintiffs could proceed.

On the other hand, Galati is (to a large degree) simply recycling his pleadings yet again. He seems to have mostly ignored the guidance of Justice Ross, and appealed for no real reason. This pleading has many of the same defects, and adds in new ones. The B.C. Supreme Court could simply decide to end it all at the next Application to Strike.

Action4Canada has stated on countless occasions that they have tens of thousands of pages of expert reports and evidence ready to go. It’s that true, then why mess around with screwed up pleadings? Why repeatedly sabotage your own cases?

In any event, this lawsuit will never get to Trial.

Remember: the best way to control the opposition is to lead it ourselves!

ACTION4CANADA AMENDED CLAIM:
(1) A4C Amended Notice Of Civil Claim

ACTION4CANADA APPEAL DOCUMENTS:
(1) A4C Notice Of Appeal September 28 2022
(2) A4C Appeal – Notice Of Appearance – VIHA
(3) A4C Appeal – Notice Of Appearance – BC Defendants
(4) A4C Appeal – Notice Of Appearance – Attorney General of Canada
(5) A4C Appeal – Notice Of Appearance – Peter Kwok, Translink
(6) A4C Appeal – Notice Of Appearance – BC Ferries, Brittney Sylvester
(7) A4C Appeal – Appeal Book – Appellant
(8) A4C Appeal – Appeal Book – Respondent VIH And PHC
(9) A4C Appeal – Appeal Record – Stand Alone Respondents VIHA
(10) A4C Appeal – Appeal Record – Stand Alone
(11) A4C Appeal – Factum – Appellant
(12) A4C Appeal – Factum – Respondent Attorney General Of Canada
(13) A4C Appeal – Factum – Respondent BC Ferries and Brittney Sylvester
(14) A4C Appeal – Factum – Respondent HMK -Provincial Defendants
(15) A4C Appeal – Factum – Respondent Peter Kwok and Translink
(16) A4C Appeal – Factum – Respondent VIHA and Providence Health
(17) A4C Appeal – Consent Order – Factum, Time Limits
(18) A4C Appeal – Change In Representation – BC Defendants
(19) A4C Appeal – Notice Of Hearing February 2024
(20) CanLII Decision In Action4Canada Appeal

ACTION4CANADA BCSC DOCUMENTS:
(1) A4C BCSC – Notice Of Civil Claim
(2) A4C BCSC – Response to Civil Claim (Health Authority Defendants)
(3) A4C BCSC – Response to Civil Claim (Provincial Defendants)
(4) A4C BCSC – Affidavit No 1 of Rebecca Hill
(5) A4C BCSC – Notice of Application (AG and RCMP applies to strike)
(6) A4C BCSC – Notice of Application (Provincial Defendants applies to strike)
(7) A4C BCSC – Notice of Application (Translink applies to strike)
(8) A4C BCSC – Application Response (Health Authority Defendants consent to strike)
(9) A4C BCSC – Application Response (BC Ferries consents to strike)
(10) A4C BCSC – Application Response (AG and RCMP consent to Prov. strike application)
(11) A4C BCSC – Application Response (Translink consents to HA Defendants strike application)
(12) A4C BCSC – Application Response (Translink consents to Prov. strike application)
(13) A4C BCSC – Affidavit No 2 of Rebecca Hill
(14) A4C BCSC – Application Record (to strike)
(15) A4C BCSC – Application Response (all plaintiffs)
(16) A4C BCSC – Amended Application Response (all plaintiffs)
(17) A4C BCSC – Transcript Application To Strike
(18) A4C BCSC – Reasons For Striking NOCC In Its Entirety
(19) A4C BCSC – Order striking pleadings
(20) A4C BCSC – Order striking pleading in its entirety with costs payable forthwith
(21) A4C BCSC – Appointment to assess bill of costs for Kwok and Translink
(22) A4C BCSC – Notice of Discontinuance (Kimberly Woolman & Estate of Jaqueline Woolman)
(23) A4C BCSC – Notice of Discontinuance (Amy Muranetz)
(24) A4C BCSC – Notice of Discontinuance (Federico Fuoco & Fire Productions Ltd.)

OTHER:
(1) https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1507/2022bcsc1507.html
(2) https://www.lawsociety.bc.ca/Website/media/Shared/docs/becoming/material/civil.pdf
(3) https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/168_2009_01#rule3-1
(4) https://justice.gov.bc.ca/cso/index.do
(5) https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/120_2022a#division_d0e3656
(6) https://www.canlii.org/en/bc/bcca/doc/2022/2022bcca450/2022bcca450.html#par10

ACTION4CANADA FINANCIAL DOCS:
(A) A4C Docs Profits And Losses 2021-2022
(B) A4C Docs Balance Sheet 2021-2022
(C) A4C-Docs-General-Ledger-2021-2022

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5th Galati Pleading Struck As “Abuse Of Public Resources”, $190,000 Costs Ordered In Dorceus

[53] I have the distinct impression from reading the Amended Claim as a whole that its object is not to vindicate the employment rights of the plaintiffs so much as it is to mount a political crusade in which the court will be used as a grandstand to conduct an inquiry into the effectiveness of vaccines and the effectiveness of government measures in response to the Covid-19 pandemic by opponents of those measures.

[154] …. If this was not clear from the outset, it should have become clear by the time the British Columbia Supreme Court, the British Columbia Court of Appeal, the Federal Court, and the Federal Court of Appeal struck out similarly drafted statements of claim prepared by the same lawyer. While the interests of a free and democratic society may warrant leeway with respect to the pursuit of unconventional claims at the outset, when such claims continue to be pursued after being struck out by four courts, they amount to an abuse of public resources.

[157] …. Plaintiffs’ counsel is a sole practitioner with a different cost structure than that of counsel for the Non-Governmental Defendants and that this is the fifth time that Plaintiffs’ counsel has litigated a motion to strike with respect to a claim of this nature. I expect having done this four times before, that there were significant cost efficiencies for Plaintiffs’ counsel, especially with respect to the factum.

-Justice Koehnen, Ontario Superior Court Judge

This week, 473 Plaintiffs, who are current and former health care workers, saw their Statement of Claim struck completely. This was partly because it was so poorly crafted, but also because most had collective bargaining agreements which prohibited lawsuits. Of those litigants, 395 belonged to some sort of union, while the other 78 did not. They had been employed all across Ontario.

If this sounds familiar, it should. It’s yet another scam lawsuit that has come crashing down on duped litigants. And this will cost them $190,000 for doing so.

Interestingly, one Plaintiff decided to retain a real lawyer and have a proper Claim drafted. That person was given permission to file. More on that later.

Previous Critique On Galati Case Aged Very, Very Well

Back in July, this review was posted about the numerous defects in the Statement of Claim. And as predicted, jurisdiction was a fatal law, at least for the unionized Plaintiffs.

While the Statute of Limitations wasn’t really a concern of the Court here, it may be if Plaintiffs decide to try their luck elsewhere. However, every other item on this list made its way into Justice Koehnen’s ruling in some form.

  1. Failure To establish Jurisdiction of the Court
  2. Failure to seek Relief within Jurisdiction of the Court
  3. Failure to plead concise set of material facts
  4. Failure to keep evidence out of Claim
  5. Failure to remove argument from Claim
  6. Failure to plead facts which would support conclusions of law
  7. Failure to give Claim particulars
  8. Failure to specify who should pay damages
  9. Failure to properly plead s.2 (fundamental freedoms) Charter breaches
  10. Failure to properly plead s.6 (mobility rights) Charter breaches
  11. Failure to properly plead s.7 (security of the person) Charter breaches
  12. Failure to properly plead s.15 (equality) Charter breaches
  13. Failure to properly plead tort of intimidation
  14. Failure to properly plead tort of conspiracy
  15. Failure to properly plead tort of malfeasance
  16. Failure to state a Cause of Action
  17. Failure to appreciate Statute of Limitations
  18. Claim just a duplicate of other cases

Perhaps most notably, the Court finally called Galati out for recycling his earlier cases. It’s long overdue for this to happen.

Galati Called Out For REPEATEDLY Wasting Court Resources

(1) British Columbia Supreme Court (Justice Ross)
Action4Canada v British Columbia (Attorney General), 2022 BCSC 1507 (CanLII)
https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1507/2022bcsc1507.html

(2) British Columbia Court of Appeal (Justices Marchand, Dickson, Voith)
Action4Canada v. British Columbia (Attorney General), 2024 BCCA 59 (CanLII)
https://www.canlii.org/en/bc/bcca/doc/2024/2024bcca59/2024bcca59.html

(3) Federal Court of Canada (Justice Fothergill)
Adelberg v. Canada, 2023 FC 252 (CanLII)
https://www.canlii.org/en/ca/fct/doc/2023/2023fc252/2023fc252.html

(4) Federal Court of Appeal (Justices Gleason, Boivin, LeBlanc)
Adelberg v. Canada, 2024 FCA 106 (CanLII)
https://www.canlii.org/en/ca/fca/doc/2024/2024fca106/2024fca106.html

Now we have this gem, the 5th pleading to be struck:

(5) Ontario Superior Court of Justice (Justice Koehnen)
Dorceus v. Ontario et al., 2024 ONSC 7087 (CanLII)
https://www.canlii.org/en/on/onsc/doc/2024/2024onsc7087/2024onsc7087.html

Worth noting: Justice Chalmers of the Ontario Superior Court weighed in a year ago when CSASPP was sued for defamation. He dismissed that case under anti-SLAPP laws, and awarded $132,000 in costs. He was scathing in his decision.

[74] In the e-mail to Mr. Dicks dated January 29, 2022, Mr. Gandhi supported the statement with hyperlinks to support the statements. The statements made in the FAQ are also supported by hyperlinks that provides that factual support for the statements. The statements made in the e-mail to Mr. Dicks and in the FAQ, that the Plaintiff has been criticized by the courts in other cases, is supported by the following decisions: Sivak v. Canada, at para. 55, Galati v. Harper, at para. 35, Da Silva Campos v. Canada, at para. 12, Wang v. Canada, 2016 FC 1052, at para. 31, and Al Omani v. Canada 2017 FC 786, at para. 94-95.

[75] In the e-mail to Mr. Dicks, Mr. Gandhi states that lawyers who reviewed the Ontario claim, “said it was very poorly drafted” and “will most likely get struck”. I am of the view that there is justification for this comment. The Ontario pleading is prolix and argumentative. The claim advances pseudo-legal concepts and conspiracy theories that the pandemic was pre-planned and executed by the WHO, Bill Gates, the World Economic Forum and unnamed billionaires and oligarchs. The similarly drafted A4C claim was struck by Justice Ross. In doing so, he described the pleading as “bad beyond argument”.

[88] Here, the action commenced in Ontario by the Plaintiff is prolix and contains bizarre conspiracy theories. The action he commenced in British Columbia is similar. I am of the view that “what is really going on” in this case is an attempt by the Plaintiff to stifle public criticism about a class action claim that is not properly pleaded and improperly asserts bizarre conspiracy theories that are ineffective and have little or no chance of success.

Factoring in Justice Chalmers, 10 different Judges in 6 separate Court hearings have made determinations that this type of litigation is frivolous, an abuse of the Court system, improperly pleaded, and has little to no chance of success.

Keep in mind, this list would be a lot longer, if not for several cases that were dropped. These include: (a) Vaccine Choice Canada; (b) Katanik / Take Action Canada; (c) Children’s Health Defense Canada; and (d) Sgt. Julie Evans / Police on Guard.

Arbitration/Grievance Requirement Bars Unionized Workers

[13] The plaintiffs’ core complaint is that their employment was suspended or terminated as a result of their employer’s COVID-19 vaccination policy. Suspension and termination are core elements within the jurisdiction of labour arbitrators under the labour relations regime. The fact that the plaintiffs also go on to characterize their claims as ones for conspiracy, intimidation, intentional infliction of mental anguish and breach of the Charter does not change the analysis. All of those complaints remain rooted in the employment relationship and its suspension and termination.

Despite attempts to frame this (Dorceus) as conspiracy, intimidation, and a variety of other torts, Justice Koehnen stated that this is really about litigants having their employment conditions altered to require these vaccines. This was essentially constructive dismissal.

This finding was fatal to the unionized Plaintiffs, who were barred from the Courts.

Once Again, No Material Facts Or Particulars Pleaded

Rules of Pleading — Applicable to all Pleadings
Material Facts
.
25.06 (1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.

Rules of Pleading — Applicable to all Pleadings
Nature of Act or Condition of Mind
.
25.06(8) Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.

Regular readers will have heard the terms “pleading facts” and “pleading particulars”. While the numbering systems differ, the Rules are the same across Canada.

JURISDICTION PLEAD FACTS PLEAD PARTICULARS
Federal Court Rule 174 Rule 181
British Columbia Rule 3-1(2)(a) Rule 3-7(17)
Manitoba Rule 25.06(1) Rule 25.06(11)
Ontario Rule 25.06(1) Rule 25.06(8)
Nova Scotia Rule 38.02(2) and (3) Rule 38.03(3)

From the ruling, we get this information:

[49] The Amended Statement of Claim is, at best, unusually drafted. A statement of claim is supposed to contain material facts on which the action is based. The Amended Statement of Claim contains few material facts about the employment of any of the 473 plaintiffs or the circumstances of their suspension or termination. Mr. Galati explained in oral argument that if the claim contained such facts, it would run into the hundreds of pages and would be challenged as unwieldly. That perhaps speaks to the advisability of pleading this as a consolidated claim.

Galati sued on behalf of nearly 500 people. He was required to plead facts about each Plaintiff that would establish a case for everyone. He had to plead facts about all the (alleged) Charter violations for each Plaintiff. A proper suit for so many people would have been several hundred pages in length. Other than naming their specific employers, he provided no detail about any of them.

Instead, it was the Defendants who compiled a 13,000 page, 23 volume Motion Record in preparing their Motion to Strike.

Even if this was a Class Action — which it wasn’t — sufficient facts would still have to be pleaded for every Representative Plaintiff.

Another missing part was particulars. When alleging malice, bad faith, malfeasance, or a host of other torts, they must be spelled out in detail. Procedurally, Defendants cannot be left guessing what the case against them is.

Plaintiff Beth Ann Dick Goes Her Own Way

[146] The plaintiff Beth Ann Dick provides an example of the sorts of considerations at issue here when determining whether leave to amend should be granted. Ms. Dick was initially represented by Mr. Galati. She says that she was not informed about the specific claims that Mr. Galati made on her behalf, did not speak with him, and did not meet him to discuss the individual circumstances of her claim, nor was she aware of the types of legal argument that would be made on her behalf.

[147] She has since retained Mr. R. P. O’Connor who has delivered a more conventional fresh as amended statement of claim. It narrows the claim to solely that of Ms. Dick against her former employer, removes the allegations of Charter breaches, removes outlandish allegations of false pandemics and crimes against humanity, and clearly pleads the necessary facts underlying causes of action in tort, contract, and breach of statute that she advances.

[148] Mr. O’Connor’s proposed amended statement of claim is an example of a pleading that survives a challenge under Rule 21. I grant leave to Ms. Dick to file the amended pleading she proposes.

Beth Ann Dick was a Plaintiff in the original case, but bailed out and retained a real lawyer. Her new counsel, R.P. O’Connor sent in a proposed Amended Statement of Claim that actually pleaded valid Causes of Action. It is (more or less) straight breach of contract.

If other Plaintiffs had been represented by a competent lawyer, things could very well have ended differently for them.

While the non-unionized Plaintiffs were granted Leave to Amend, any who want to will likely need to hire a better lawyer.

Missed Opportunity: Bill Galati For The $190,000 In Costs

While the Plaintiffs were hit with $190,000 in Court costs, this could have ended differently. If Justice Koehnen was serious about lawyers not abusing the Court process with duplicate Claims, he could have ordered Galati himself to pay. Rest assured, such baseless litigation would virtually disappear if lawyers were personally responsible for what they file.

Instead, it’s always the clients who have to pay, regardless of how badly (or how often) their counsel screws up.

And on a final note, Action4Canada eventually submitted their Amended Notice of Civil Claim (NOCC), nearly a year after the Court of Appeal laughed them out of Court. While much shorter, it contains many of the same defects that Justice Ross mentioned, and adds new ones in. Expect another Application to Strike.

DORCEUS DOCUMENTS:
(1) Grifters Main Page
(2) https://www.canlii.org/en/on/laws/regu/rro-1990-reg-194/latest
(3) https://www.ontario.ca/page/search-court-cases-online
(4) Dorceus Statement Of Claim
(5) Dorceus Amended Statement Of Claim
(6) Dorceus Defendant Moving Party Factum SJM Government
(7) Dorceus Defendant Moving Party Factum SJM Hospitals
(8) Dorceus Plaintiff Responding Factum SJM
(9) https://www.canlii.org/en/on/onsc/doc/2024/2024onsc7087/2024onsc7087.html

PREVIOUS DECISIONS:
(1) https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1507/2022bcsc1507.html
(2) https://www.canlii.org/en/bc/bcca/doc/2024/2024bcca59/2024bcca59.html
(3) https://www.canlii.org/en/ca/fct/doc/2023/2023fc252/2023fc252.html
(4) https://www.canlii.org/en/ca/fca/doc/2024/2024fca106/2024fca106.html

ACTION4CANADA:
(1) A4C Amended Notice Of Civil Claim

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Citizens Alliance Of Nova Scotia (CANS) Mootness Motion To Be Heard Friday

On Friday, Citizens Alliance of Nova Scotia (CANS) will argue against a Motion to have their case declared “moot” in a Yarmouth Court. This isn’t a determination on the merits, but to get the it thrown out regardless. This comes after the organization was denied public interest standing earlier this year.

Interestingly, CANS is doing this without formal representation. Their papers are being drafted by a few of their members, which is quite impressive. At the hearing for public interest standing, William Ray — author of the Stormhaven website — presented their case. The other co-Applicant, J.M., is a minor who does have a lawyer.

The Attorney General’s office is claiming that it’s a waste of time and money, as so long has elapsed, and there are no live issues. The usual “scarcity of judicial resources” justification has been pleaded. Unsurprisingly, CANS opposes the Motion, in part because Robert Strang is still in office. Part of CANS’ mission is to ensure this type of activity never happens again. The Briefs are well worth reading.

To support their Motion, the Government included an Affidavit from Tara Walsh, Senior Executive Director at Public Health. CANS filed Affidavits sworn by Chris Milburn and Shelly Hipson, along with her extensive research. J.M. didn’t submit one, which the lawyer is using to demonstrate that there’s no live issue to try.

In its current form, the case is an Application for Judicial Review. In theory, even if declared “moot”, it may still be okay to refile as an Action, with a Statement of Claim. There is far more latitude with those kinds of proceedings, whereas Applications are more restrictive. That is, after all, what happened with the travel mandates cases — although the idiot lawyers appealed.

The Friday hearing is to be available virtually. Anyone wishing to watch the hearing can contact the Court, or CANS directly. Information is also in their pinned Tweet.

COURT DOCUMENTS (MOOTNESS MOTION):
(1) CANS Walsh Affidavit Mootness Motion
(2) CANS Milburn Affidavit Mootness Motion
(3) CANS Hipson Affidavit Mootness Motion
(4) CANS Hipson Affidavit Mootness Motion More Attachments
(5) CANS Government Arguments Mootness Motion
(6) CANS Applicants Arguments Mootness Motion
(7) CANS Government REPLY Arguments Mootness Motion

COURT DOCUMENTS (PUBLIC INTEREST STANDING):
(1) CANS Applicants Brief For Public Interest Standing Augst 25 2023
(2) CANS Applicants Book Of Authorities August 25 2023
(3) CANS Respondents’ Brief respecting Public Interest Standing Motion
(4) CANS Applicants Rebuttal Brief For Public Interest Standing Motion November 20 2023
(5) CANS Applicants Book Of Documents Volume 1 Of 2 December 11 2023
(6) CANS Applicants Book Of Documents Volume 2 Of 2 December 11 2023
(7) https://www.canlii.org/en/ns/nssc/doc/2024/2024nssc253/2024nssc253.html

ABOUT THE GROUP:
(1) https://www.thecans.ca/
(2) https://www.thecans.ca/call-to-action-letters-of-support/
(3) Citizens Alliance Of Nova Scotia Quick Fact Sheet (pdf)

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Canada Post Employees Appeal Dismissal Over Arbitration Requirements, Faulty Pleadings

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, the 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 maliciously 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 intentionally 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” are 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.

Facts Required For Section 2a (Religion) To Be Considered

(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

Facts Required For Section 7 (Security) To Be Considered

(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

Facts Required For Section 15 (Equality) To Be Considered

(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

General Formula For Charter Damages Under Section 24

(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 Plaintiff Responding Motion Record January 2024
(6) Canada Post Plaintiff Responding Motion Record CP February 2024
(7) Canada Post Further Amended Statement Of Claim February 2024
(8) Canada Post Decision Striking Amended Pleading
(9) Canada Post Notice Of Change Of Solicitor November 2024
(10) Canada Post Affidavit of Karine Solakian November 2024
(11) 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/

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Military Veterans’ Injection Pass Case Thrown Out Over Grievance Requirement, Poor Pleadings

Recently, Associate Judge Coughlan of the Federal Court of Canada struck a lawsuit brought by over 300 current and former members of the military. This case had to do with the injection requirements that came into effect in late 2021. This is yet another one that would never be heard on its merits.

To be fair, the Statement of Claim does plead some facts and background information about each Plaintiff, including position, rank, length of service, and duties. It also listed who took the shots, and who tried to get exemptions. Information about family situations are given, and each Plaintiff states whether or not they’re still with the military.

Many cases don’t even give this data, so it’s a step up.

A variety of Charter violations are alleged, including:

  • Section 2(a) – Freedom of Religion
  • Section 2(d) – Freedom of Association
  • Section 7 – Security of the Person
  • Section 8 – Privacy, Search and Seizure
  • Section 15(1) – Equality

Problem is, while a variety of Charter violations are listed, none of them are properly pleaded. The requirements for each are very specific, but it doesn’t seem to have happened — for ANY Plaintiff.

The Judge also took issue with material being filed late, and some Affidavits being sworn before the proceedings commenced.

However, the most damning problem was that counsel filed the case in the wrong venue. The military is governed by the National Defence Act, or NDA, which covers legal affairs within the Canadian Armed Forces. The process for grieving is outlined in Section 29. Notably, it gives everyone the right to grieve, but not the right to sue.

Even worse, counsel Catherine M. Christensen had been warned about all of this previously.

National Defence Act, S.29: Grievance The Required Option

Like so many “vaccine passport” lawsuits covered on this site, jurisdiction is a serious issue. Why here? It’s because Section 29 of the National Defence Act specifies that there is a grievance process that members of the Canadian Armed Forces are expected to follow. There’s nothing listed that allows for a lawsuit to be filed.

Right to grieve
29(1) An officer or non-commissioned member who has been aggrieved by any decision, act or omission in the administration of the affairs of the Canadian Forces for which no other process for redress is provided under this Act is entitled to submit a grievance.

No penalty for grievance
29(4) An officer or non-commissioned member may not be penalized for exercising the right to submit a grievance

Authorities for determination of grievances
29.1 (1) The initial authority and subsequent authorities who may consider and determine grievances are the authorities designated in regulations made by the Governor in Council.

Final authority
29.11 The Chief of the Defence Staff is the final authority in the grievance process and shall deal with all matters as informally and expeditiously as the circumstances and the considerations of fairness permit.

Decision is final
29.15 A decision of a final authority in the grievance process is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal or to review by any court.

In fairness, s.29.15 does allow for a Judicial Review to be filed if the grievance process is unsatisfactory. This would be analogous to appealing. But it’s not the same thing as filing a Statement of Claim.

Why is this important? It’s because Christensen, counsel for the Plaintiffs, didn’t follow the National Defence Act. She filed a lawsuit, instead of using the pathway available. And it’s not the first time the Federal Court has had to explain it to her.

Previous Case Saw Interlocutory Injunction Application Denied

An Application filed in late 2021 sought to prevent several members of the Canadian Armed Forces from facing consequences for refusing the injections. An Interlocutory Injunction was sought, with the plan to get a permanent one later.

November 29th, 2021 – Notice of Application is filed in Federal Court.

December 1st, 2021 – Notice of Appearance is filed by the Government.

December 6th, 2021 – Motion is filed for Interlocutory (temporary) Injunction to prevent members of the Armed Forces from having to take the injections.

December 12, 2021 – Federal Court books hearing on the 15th.

December 15th, 2021 – Court has hearing on the Application.

December 16th, 2021 – Court denies the Application for Injunction, but does so without costs.

January 9th, 2022 – Case is discontinued altogether.

In the reasons released on December 17th, Justice Fuhrer outlines the reasons the Application was denied. He notes that this wasn’t the proper forum to bring the challenge anyway.

[40] Under the NDA s 29(1) and chapter 7 of the Queen’s Regulations and Orders Volume 1 – Administration [QR&O], a CAF member can grieve the denial of an accommodation request, the initiation of a remedial measure or a release decision resulting from the application of the CAF Vaccination Policy, among other decisions, acts or omissions in the administration of the affairs of the CAF. According to the affidavit of Gordon Prieur, a senior policy analyst with DND, the grievance must be submitted within three months after the day when the grievor knew or reasonably ought to have known of the decision, act or omission for which the grievance is submitted. Grievances submitted after this period nonetheless may be considered if it is in the interests of justice to do so.

[41] The CAF grievance process consists of two levels of authority, the Initial Authority [IA] and the Final Authority [FA]. The IA can be the grievor’s commanding officer or next superior officer, while the FA is the CDS, who can delegate this role in certain circumstances. In addition, certain grievances are to be referred to the Military Grievance External Review Committee [MGERC], an independent, arm’s-length entity that reviews grievances and makes recommendations to the CDS. The CDS is not bound, however, by MGERC’s recommendations but he must provide reasons if he does not act on them.

[42] As noted above, Charter claims can be considered in the grievance process.

While the Interlocutory Injunction Application had been denied, litigants could (in theory) go ahead trying to get a permanent one. But they decided not to. The fact that this should have been grieved in the first place likely influenced this decision.

There were also concerns that counsel didn’t plead the case properly.

This 2021 ruling is important because Christensen makes the same mistakes again, but with a much larger case. Her next one would involve over 300 Plaintiffs.

Current Lawsuit Thrown Out Over Jurisdiction, Pleadings

This case was an Action, which is initiated by filing a Statement of Claim. The procedures are different than those for filing an Application, but the same problems came up.

June 20th, 2023 – Statement of Claim is filed in Federal Court on behalf of 330 Plaintiffs.

July 28th 2023 – Amended Statement of Claim is filed.

August 7th, 2023 – Notice of Intention to Respond is filed by the Government.

September 11th, 2023 – Statement of Defence is filed by the Government.

September 22nd, 2023 – Reply to the Statement of Defence is filed.

January 30th, 2024 – Court compels Defence to file their Affidavit of Documents.

March 3rd, 2024 – Court orders case management for the lawsuit.

April 29th, 2024 – Court gives a schedule of events to unfold.

  • Defendants shall serve and file their motion to strike by July 12th, 2024.
  • The Plaintiffs shall serve and file their motion in response by August 9th, 2024.
  • Hearing of motion to strike to be in-person at the Federal Court August 20th, 2024.

June 26th, 2024 – Plaintiffs contact Court, ask for hybrid setup so that Plaintiffs can attend the proceedings remotely.

July 11th, 2024 – Government files Motion to Strike the case.

August 12th, 2024 – Court contacted to request permission to file materials.

August 14th, 2024 – Court allows Plaintiff Motion materials to be filed, despite them not complying with the rules and procedure laid out.

August 14th, 2024 – Motion Record with 35 Affidavits filed by Plaintiffs

August 20th, 2024 – Court adjourns Motion to Strike hearing until September 19th.

September 19th, 2024 – Motion to Strike heard in Court.

November 12th, 2024 – Statement of Claim is struck without Leave to Amend. $5,040 in costs ordered.

The initial filing was covered by the National Post, but it doesn’t appear that there was any follow up done afterward.

Anyhow, the ruling was pretty brutal. It cited a variety of errors, including: (a) failure to properly plead Charter violations; (b) failing to comply with rules when submitting evidence; and (c) lack of jurisdiction, given the grievance scheme available.

[58] Given my conclusion that the action should be struck without leave to amend, there is no need for me to consider whether the Court should exercise its discretion to take jurisdiction over the proceeding. However, for the sake of completeness, I will address that issue briefly.

[59] In support of its motion, Canada filed the affidavit of Ann-Marie De Araujo Viana (the “Viana affidavit”), Manager Professional Policies–Grievances, Canadian Armed Forces Grievance Authority. The Viana affidavit sets out the statutory and regulatory framework for the CAF grievance process established by sections 29-29.15 of the National Defence Act [NDA] and regulations. That framework is supplemented by the DAOD, specifically, DAOD 2017-0 Military Grievances and DAOD 2017-1 Military Grievance Process.

[60] Pursuant to subsection 29 of the NDA, CAF members who are aggrieved by any decision, act, or omission in the administration of the affairs of the CAF, for which no other process for redress is provided under the NDA, may submit a grievance. As set out in the Viana affidavit, the CAF grievance process has two levels of authority, the Initial Authority [IA] and the Final Authority [FA]. The CDS is the FA. In some circumstances there may be an independent review of the grievance by the Military Grievance External Review Committee [MGERC]. However, the CDS remains the final authority and is not bound by any findings or recommendation of the MGERC.

[61] Following a decision of the FA, dissatisfied CAF members may seek judicial review of the decision in this Court, including any appeal rights deriving therefrom.

[62] As this Court has noted on a number of occasions, the grievance process available under the NDA is broadly worded and comprehensive, capturing a wide range of issues and allowing members to seek redress for virtually any issues arising during the course of their service: Jones v Canada, (1994) 87 FTR 190 at paras 9-10 (TD); Fortin v Canada (Attorney General), 2021 FC 1061 at paras 25-26; Jones v Canada (Chief of Defence Staff), 2022 FC 1106 at para 21.

Christensen had been warned by the Federal Court about exactly this issue, just a few years ago. But she filed this lawsuit anyway.

The Court noted that she hadn’t come anywhere close to convincing that the grievance scheme was corrupted or unworkable. And it would be a very tough sell indeed.

The Judge noted at paragraph 67 that over 100 of the Plaintiffs had filed grievances anyway. This is yet another problem that would derail this case. Parallel or simultaneous proceedings are not allowed. Considering the grieving was the correct option, this lawsuit would have been stayed.

The Statement of Claim had other serious errors. Specifically, none of the Charter violations were pleaded sufficiently. It’s not enough to simply list the different sections. Paragraphs 18 to 41 outlined exactly what was wrong.

Serious question: While it’s nice to see people standing up for their rights, what good is it when counsel can’t follow basic directions on how to proceed? If they can’t understand grievance rights, or how to plead a claim, how does this help anyone?

Of course, Christensen still probably got paid for her “work”.

No matter how much, or how often, a lawyer screws up a case, it’s the clients who pay.

Note: All of the dates listed can be confirmed by searching the respective cases on the Federal Court website. It keeps a detailed listing of all significant events.

COURT DOCUMENTS:
(1) Qualizza Statement Of Claim June 2023
(2) Qualizza Amended Statement Of Claim July 2023
(3) Qualizza Statement Of Defence September 2023
(4) Qualizza Reply To Statement Of Defence September 2023
(5) Qualizza Defendants Motion To Dismiss Claim July 2024

OTHER:
(1) https://www.laws-lois.justice.gc.ca/eng/acts/n-5/
(2) https://www.laws-lois.justice.gc.ca/eng/acts/n-5/page-3.html#h-374837
(3) https://www.fct-cf.gc.ca/en/court-files-and-decisions/court-files#cont
(4) https://www.canlii.org/en/ca/fct/doc/2021/2021fc1443/2021fc1443.html
(5) https://www.canlii.org/en/ca/fct/doc/2024/2024fc1801/2024fc1801.html
(6) https://nationalpost.com/news/canada/hundreds-of-military-part-of-lawsuit-over-mandatory-covid-vaccine
(7) https://valourlegalactioncentre.org/
(8) https://www.youtube.com/watch?v=hifDPBW4r0w

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Purolator Injection Pass Lawsuit Dropped in 2023, While Arbitration Succeeded

Purolator is one of the companies that forced employees to make the decision about getting the injections (vaccine passports) in 2021, or risking their employment. The outcome is a year old, but worth reviewing.

Being a unionized employer, there are set procedures to handle grievances. Not following those rules can cause headaches for everyone involved. While many workers objected to this new requirement for injections, they handled it in different ways.

Pathway #1: David Reynolds and Riley Kearns, counsel for the Union, Teamsters Local No. 31, took their case to Labour Arbitration. They brought in their experts to counter the narrative that the shots were necessary. They successfully persuaded Arbitrator Nicholas Glass of the validity of their concerns. In December 2023, he ordered backpay for wages, benefits, and other compensation.

Pathway #2: Leighton Grey, counsel for over 200 Plaintiffs, filed a lawsuit in Federal Court in June 2022. It was amended in December 2022. Despite a few brief Court appearances, nothing ever happened, and opposing counsel threatened to bring a Motion to Strike. The case was discontinued in April 2023.

This article also demonstrates that having a horrible lawyer can ruin the outcome.

Reynolds and Kearns chose the correct path (Arbitration), and pursued the case diligently. They clearly put the work in. On the other hand, Grey chose a method (Court) which wasn’t allowed, and then did nothing to advance it.

The employees who the Union grieved for were compensated for their losses. The employees who went to Court ultimately got screwed over.

It’s unclear from the Arbitration ruling if the Purolator employees who sued would still be eligible for backpay given Arbitration was successful. Either way, going to Court was a complete waste of time and money.

How Canadian Government Defines “Constructive Dismissal”

This is quoted with the disclaimer that yes, the Government did mess around with EI for people who were terminated. Suddenly requiring the injections IS a retroactive change in the conditions of employment. However, this page is still helpful to read for general information.

Definition of constructive dismissal

The phrase “constructive dismissal” describes situations where the employer has not directly fired the employee. Rather the employer has:

  • failed to comply with the contract of employment in a major respect
  • unilaterally changed the terms of employment, or
  • expressed a settled intention to do either thus forcing the employee to quit

Constructive dismissal is sometimes called “disguised dismissal” or “quitting with cause”. This is because it often occurs in situations where the employer offers the employee the alternative of:

  • leaving, or
  • submitting to a unilateral and substantial alteration of a fundamental term or condition of their employment

Whether or not there has been a constructive dismissal is based on an objective view of the employer’s conduct. It is not merely on how the employee perceives the situation.

It is the employer’s failure to meet its contractual obligations that distinguishes a constructive dismissal from an ordinary resignation. The seriousness of the employer’s failure as well as the amount of deliberation apparent in its actions are also important factors.

The employer’s action must be unilateral, which means the employer must do it without the consent of the employee. If it is not unilateral, the variation is not a constructive dismissal but merely an agreed change to the contract of employment.

If the employee clearly indicates non-acceptance of the new conditions of employment to the employer, there has been a constructive dismissal. However, this is only if the employee leaves within a reasonable period (usually short). By not resigning, the employee indicates he accepts the new conditions of employment.

There have been cases where courts have held that there has been a constructive dismissal even though the complainant remains in the employ of the employer. This includes, for example, cases where the employee:

  • continues to work under the new conditions in order to mitigate damages, and
  • either protests the new conditions explicitly or makes it clear that he still reserves the right to take legal action

Unilaterally changing the terms and conditions of employment is constructive dismissal, no matter how politicians like to frame things. And this is exactly the kind of problem that a union should be challenging.

In the case of Teamsters Local No. 31, they did just that.

Teamsters Collective Agreement Mandates Arbitration

Teamsters is the Union representing Purolator employees. And it includes Local No. 31, which is the branch that successfully grieved against the company at a Labour Arbitration. Article 6 of the Collective Bargaining Agreement very clearly spells out the grievance process. And 6.2(d) goes on to state:

6.2(d) “Should the parties fail to reach satisfactory settlement in the preceding steps, the final settlement of the grievance may be submitted to the Arbitration Board as outlined below.”

The next several pages of the document go on to outline the process involved in the grievance process, including deadlines to commencing future step. Suing the employer, or going to Court, is not mentioned anywhere.

Teamsters Union Won At Labour Arbitration

While much of the content on this site covers losses, this one was a win. And it was nice to see employees getting some justice for what had been done to them. Read the entire decision.

569. The hourly paid grievances are upheld. The group grievance is upheld. The grievors are entitled to be compensated for their losses which will include any lost wages and benefits, between July 1, 2022 and their first day of work following May 1, 2023.

570. The owner operators’ grievances are upheld. They are entitled to be compensated for their losses commencing the first date that they lost revenue from being denied the use of a vaccinated relief driver. There is no common end date for their losses at this point. The losses are yet to be determined.

571. Dan Moes’ grievance is upheld with full compensation from the first day of his dismissal, or first loss of revenue from being denied use of a relief driver, whichever came first.

572. The administrative non-attestation termination grievances, either individually or as part of the group grievance, are upheld. These grievors are entitled to the same level of compensation as the other grievors in their category.

573. The res judicata preliminary objection is dismissed.

574. I reserve jurisdiction to determine quantum with respect to all grievances.

575. I reserve jurisdiction on any other matters arising, including interpretation, or implementation with respect to this award.

Teamsters Local No. 31 went to bat for their members at a Labour Arbitration hearing and won. Not all unions backed members, but this one did. And they did it successfully. Lost income was to be paid back.

Plaintiffs In Civil Claim Got Screwed Over

This lawsuit had problems from the very beginning, and this was predictable. Here are the more obvious ones to consider:

  1. Failure to plead necessary material facts
  2. Failure to keep evidence out of the Claim
  3. Failure to properly plead necessary particulars
  4. Failure to properly plead Charter violations
  5. Seeking Relief a CIVIL Court cannot grant
  6. Failure to understand labour law and jurisdiction

These cases: (a) Canada Post; (b) Canadian National Railway; and now (c) Purolator, all came from the same lawyer. They have the same serious defects, and none of them ever went anywhere. Canada Post, a.k.a. “The Posties”, was thrown out on a Motion to Strike, while both CNR and Purolator were dropped. It doesn’t look like anyone received a refund.

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.

Rule 174 of the Federal Court Rules is a requirement to plead facts, and it includes pleading facts about all Plaintiffs. There were over 200 (214, if counted right). Instead, there were a handful of sweeping declarations in Claim to cover everyone, and that’s it.

This is paired with Rule 181, a requirement to plead particulars. Grey is claiming that the Government conspired, acted with malice, and intentionally inflicted all kinds of mental and psychological harm. All of this needs to be spelled out in detail, but isn’t done.

And, as outlined above, the Federal Court has no jurisdiction to hear the case at all. The collective bargaining agreement spells out Arbitration. The Courts typically refer to this as the “explicit ouster”, and will routinely throw them out. Grey should know this.

Grey also once again asks the Court for CRIMINAL remedies in a CIVIL Court. This is not allowed. Each type of Court is only set up to hear certain kinds of disputes. There’s also allegations that the Genetic Non-Discrimination Act was violated (despite that being about race and ethnicity).

The probable reason for pleading Criminal Code violations (and others) is to get around the lack of jurisdiction of the Federal Court. If Grey were to simply argue that his clients were wrongfully forced out of their job, or that they were constructively dismissed, the suit would be tossed immediately. So he tries to turn it into something else.

If all of this sounds familiar, it should. “Mr. Bad Beyond Argument’s” cases are filled with these same defects. Although Grey tends to “tone it down” somewhat when drafting pleadings, the similarities are striking. And both lawyers simply recycle their claims, just making minor edits.

Grey’s clients got nothing of value from his work. They (presumably) paid retainers just to have him drop the case 10 months later. They got screwed over. Had they simply allowed their union to represent them at Arbitration, all of this could have been avoided. True, there were no guarantees at Arbitration, but there was always a chance, as opposed to filing a lawsuit.

Why are all the “freedom lawyers” complete idiots?

(1) https://www.canada.ca/en/employment-social-development/programs/laws-regulations/labour/interpretations-policies/constructive-dismissal.html
(2) https://teamsters362.com/wp-content/uploads/2021/07/UPS-2020-2025.pdf
(3) https://www.canlii.org/en/ca/cala/doc/2023/2023canlii120937/2023canlii120937.html
(4) Purolator T-1267-22 Statement Of Claim
(5) Purolator T-1267-22 Amended Statement Of Claim
(6) Purolator T-1267-22 Notice Of Discontinuance