Category: Canadian Decisions

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Federal Proposed Class Action (Injection Mandates) Survives: Is s.2(d) The Way Forward?

With all of the horrible cases that have been covered, it’s rare (but refreshing) to see one that’s actually well put together. Last week, Federal Court Judge Southcott dismissed (most) of a Motion to Strike, allowing the case to proceed.

A Proposed Class Action for Federal workers was filed in October 2023 by B.C. lawyers Umar Sheikh and Angela Wood. It was on behalf of 3 Representative Plaintiffs who were forced out of their positions. They had been employed by:

  • Department of National Defence (Payne)
  • Correctional Services Canada (Harvey)
  • Federal Economic Development Agency for Southern Ontario (Molaro)

Many of the cases involving injection passports filed in recent years were sloppy, and didn’t properly plead any tort or Charter violations. One of the most infamous was the “bad beyond argument” Adelberg case, and Appeal. Interestingly though, since Adelberg didn’t quite result in all claims being thrown out for good, it served as leverage for this case.

But what Sheikh and Wood did was quite different. They argued just 2 torts, and at least one of them never tried in a serious way in these cases.

  • Section 2(d) of the Charter: Freedom of Association
  • Malfeasance of Public Office

The Malfeasance of Public Office tort was struck regarding the 3 Plaintiffs here. The reason being that all 3 apparently had some right to grieve under the Federal Public Sector Labour Relations Act. But the Judge did allow for the possibility of new Plaintiffs — it is a Class Action — whom might qualify.

As for the Section 2(d) allegations: they are allowed to proceed.

Sections 208/236 FPSLRA Typically Bar Workers From Court

Right of employee
208 (1) Subject to subsections (2) to (7), an employee is entitled to present an individual grievance if he or she feels aggrieved
(a) by the interpretation or application, in respect of the employee, of
(i) a provision of a statute or regulation, or of a direction or other instrument made or issued by the employer, that deals with terms and conditions of employment, or
(ii) a provision of a collective agreement or an arbitral award; or
(b) as a result of any occurrence or matter affecting his or her terms and conditions of employment.

No Right of Action
Disputes relating to employment
.
236 (1) The right of an employee to seek redress by way of grievance for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute.

The main obstacle to Government workers suing is the Federal Public Sector Labour Relations Act, or FPSLRA. Section 208 gives everyone the right to grieve, while Section 236 prohibits Actions (or lawsuits). This is similar to unionized private employers, and there are plenty of rulings striking such cases.

But what happened here is rather clever. By using union arguments about meaningful consultation, the Judge was persuaded that there was no valid grievance process, or at least that it was arguable.

Section 2(d) Of Canadian Charter: Freedom Of Association

44.The Plaintiffs’ and Class Members plead that s. 2d of the Charter provides for Freedom of association which guarantees the right of employees to meaningfully associate in the pursuit of collective workplace goals, which includes a right to collective bargaining. As such Laws or state actions that prevent or deny meaningful discussion and consultation about working conditions between employees and their employer may substantially interfere with the activity of collective bargaining, as may laws that unilaterally nullify significant negotiated terms in existing collective agreements.

45. The Plaintiffs and Class Members all had freely negotiated, valid, and binding contractual employment agreements with the Treasury Board.

46. None of the Plaintiffs or Class Member contractual employment agreements called for disclosure of Covid-19 vaccination status nor mandatory Covid-19 vaccination.

47. The Plaintiffs’ and Class Members plead that the Policy was a new term and condition placed upon their employment by the Treasury Board absent collective bargaining, memoranda of agreement, consideration, or consent.

48. The Plaintiffs’ and Class Members plead that the imposition by Treasury Board of a new term and condition of employment absent collective bargaining, memoranda of agreement, consideration, or consent violates their protected right under s. 2d of the Charter.

49. The Plaintiffs’ and Class Members plead that the action of the Treasury Board in imposing a new term and condition of employment absent collective bargaining, memoranda of agreement, consideration, or consent is not saved by s.1 of the Charter as the Treasury Board did not possesses the requisite justification based upon the objectives espoused by the Policy.

(This is from paragraphs 44 to 49 in the Statement of Claim.)

To understand why the Motion to Strike failed, consider what is actually being argued. No one contests that the terms of employment were changed. Instead, the challenge is brought over lack of consideration and meaningful consultation. It’s not entirely that injection mandates were introduced into Government employment. It’s that there was no proper protocol in implementing it.

Section 2(d) had been mentioned — in passing — in other injection pass cases. But Sheikh and Wood may be the first to actually have used it successfully.

If all of this sounds like a union argument, it is. Sheikh is former counsel for the British Columbia Nurses’ Union (BCNU), and for a time, was the C.E.O. This case was written from the perspective of someone who expects employers to deal in good faith with workers.

Of course, this is nowhere near the end. The case still needs certification, and even then, there are many steps before Trial. That said, at least the case is still alive.

What Tipped The Scales For The Plaintiffs?

[35] In my view, the authority that carries the day for the Plaintiffs in the context of this motion is the decision of the Supreme Court of Canada [SCC] in Morin. That case considered whether a labour arbitrator’s exclusive jurisdiction granted by provincial statute applied to an argument that a collective agreement was negotiated in a discriminatory manner, so as to include a discriminatory term, and thereby contravened the Québec Charter of Human Rights and Freedoms…. The SCC found that the dispute did not concern how the relevant term in the collective agreement would be interpreted and applied but rather whether the process leading to the adoption of the alleged discriminatory clause violated the Québec Charter such that the term was unenforceable (at paras 23-24).

And that parallels what happened here. It wasn’t necessarily bringing in injection mandates themselves, but the way which it was implemented.

On some level, it’s an absurd argument, but it got past a Motion to Strike.

Brief Timeline Of Major Events In Case

October 6th, 2023: Statement of Claim is filed on behalf of 3 Representative Plaintiffs.

November 9th, 2023: Government responds with their Notice of Intent.

May 31st, 2024: Government sends notice that it intends to bring Motion to have the case struck (thrown out) in its entirety.

June 6th, 2024: Prothonotary Ring gives directions that there be case management.

June 10th, 2024: Chief Justice Crampton directs (a) Justice Southcott and (b) Prothonotary Ring to be assigned manage the proceeding.

July 1st, 2024: Prothonotary Ring issues schedule for documents to be served for Motion to Strike.

August 19th, 2024: Government brings its Motion to Strike.

October 1st, 2024: Plaintiffs file responding arguments as to why case shouldn’t be struck.

December 13th, 2024: Motion to Strike is argued before Justice Southcott.

January 1st, 2025: Justice Southcott partially grants the Motion to Strike. The tort of Malfeasance of Public Office is struck, but with Leave if eligible Plaintiffs are identified. The Section 2(d) claims are allowed to proceed.

Section 2(d) Superior To Common 2(a)/7/15 Challenges

Typically, the “freedom lawyers” have cited the standard s.2(a), s.7, and s.15 when it comes to challenging injection requirements. And predictably, they always fail. They never plead the necessary facts, and hence, these claims are routinely tossed.

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 –

https://www.canlii.org/en/on/onsc/doc/2022/2022onsc2732/2022onsc2732.html#par80

  • Section 2(a) – freedom of religion – may allow for individual exemptions, depending on what is actually in the specific injections. It doesn’t, in any way, permit religion to be generally used to circumvent mandates.
  • Section 7 – security of the person – fails since the Courts have repeatedly said there’s no “right” to have a certain profession. Nobody was actually forced to take these shots, although there were certainly consequences.
  • Section 15 – equality – does not apply at all, since “vaccination status” isn’t in the Charter (enumerated), and hasn’t ever been recognized (analogous).

Other injection passport challenges have included: Section 8 (search and seizure); Section 9 (arbitrary detention); and Section 12 (cruel and unusual punishment). In fairness though, they have been extremely half hearted attempts.

Yes, one could plausibly conclude that the Charter is worthless, since it doesn’t protect people outside of narrow grounds. And they’re right.

However, plenty of lawyers still take large amounts of money from clients knowing that these portions offer no protection whatsoever.

The Section 2(d) method described above may be about the only way around a largely useless and defective Charter. By challenging not the mandates themselves, but how they were implemented, there’s at least one pathway. Without having meaningful consultations about retroactive changes to their contracts, people are denied their right to freely associate in the context of employment.

The Federal Government may very well try to appeal this decision. After all, it’s taxpayer money anyway. But for now, Section 2(d) challenges seem to be realistic method, at least for litigants who don’t normally have the right to sue.

Sheikh and Wood have a similar case on reserve in B.C., based on the same arguments. We’ll have to see how this ruling impacts that one.

(1) Payne Statement Of Claim October 2023
(2) Payne Notice Of Intent To Defend November 2023
(3) Payne Letter Intent To Strike May 2024
(4) Payne Defendant Motion Record To Strike August 2024
(5) Payne Plaintiff Responding Motion Record October 2024
(6) https://www.canlii.org/en/ca/fct/doc/2025/2025fc5/2025fc5.pdf
(7) https://www.canlii.org/en/ca/fct/doc/2025/2025fc5/2025fc5.html

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Is The Military Veterans’ Injection Pass Appeal Already Time Barred?

Back in mid-November, this site covered the 2023 case of some 330 members of the Canadian Forces, which had been struck by Associate Judge Catherine Coughlan.

The case was full of serious problems, including: (a) Statement of Claim not pleaded properly; (b) Evidence not being properly pleaded; and (c) Section 29 of the National Defence Act, or N.D.A.

The N.D.A. specified a grievance process was to be used, as opposed to suing in Court. This is common in most unionized and Government workplaces in Canada. Even though the lawyer was trying to argue around that requirement, over 100 of her clients were concurrently trying to grieve.

Worse, the Plaintiff’s lawyer, Catherine Christensen, had been told by the Federal Court back in late 2021 that clients couldn’t bypass the N.D.A. She knew, or at least should have known, that this problem would come up again.

Since the pleading was struck by an Associate Judge, as opposed to a Judge, there is a Rule which allows a Motion to be filed to ask for a review of the decision. However, counsel’s handling of this was comically bad, and very negligent.

This “Lionel Hutz” episode would be funny, except for the real world consequences.

Christensen Missed The Deadline To File Notice Of Motion

The case notes on the Federal Court website list November 12th as the date of the ruling. CanLII gives it as November 13th. Here, it doesn’t really matter, since there was no notice for a month.

There are actually 2 different types of Appeals within the Federal Courts, and those are addressed below. The one that the Plaintiffs here wanted had a time limit of just 10 days. Counsel took 29 to respond. One has to wonder if she got them mixed up initially, and only realized the error later.

Had she sought an extension of time right away, this headache could have been avoided. Similarly, if a Notice of Motion (for the Appeal) was filed, followed by seeking an extension, it would be okay. But that’s not what ended up happening.

A Motion for an extension of time was filed on December 12th, with the Government responding on December 16th.

Granted, Courts often will allow for filings beyond the limitations period, if there are good reasons provided. However, this is far from counsel’s only error.

Appealing WITHIN Federal Courts V.S. Appealing BETWEEN Them

APPEAL RULING FROM PROTHONOTARY JUDGE
Appeal Goes Where Federal Court Federal Court Of Appeal
Appeal Ruling To Single Judge (FC) Panel of Justices (FCA)
Rules of Procedure Rule 51 Rules 335 to 357
Time Limit For Notice 10 Days 30 Days
Initial Document Notice Of Motion Notice Of Appeal
Procedure Motion Appeal
New Evidence Allowed? No With Leave, Rule 351

Note: Prothonotary and Associate Judge are the same thing.

Many will find this nitpicky and boring. But procedurally, there are very different rules to follow depending on who one wants to appeal to. As stated, this would be a Rule 51 Appeal, and the time limit is just 10 days to serve and file a Notice of Motion.

Had the case been struck by a Judge initially, then going to the Federal Court of Appeal would have been the only recourse. Rule 51 doesn’t allow Judges to overturn each other.

Mixing Up “Moving Parties” And “Applicants” Repeatedly

This may seem petty, but is worth mentioning:

Action: This is brought by filing a Statement of Claim. The people who initiate it are called the Plaintiffs, and the people who respond are the Defendants.

Application: This is brought by filing a Notice of Application, seeking Judicial Review of an Order or decision. The people who initiate it are called the Applicants, and the people who respond are called the Respondents.

Appeal: This is brought by filing a Notice of Appeal, seeking to challenge another Court decision. The people who initiate it are the Appellants, and the people who respond are the Respondents.

Motion: This is brought to by filing a Notice of Motion, to initiate steps within, or related to an Action, Application, or Appeal. The people who initiate them are the Moving Parties, and the people who respond are the Respondents.

Since Christensen filed a Motion seeking permission for an extension of time, her clients, at this point, would be considered MOVING PARTIES. But she repeatedly refers to them as “Applicants”, even though they never were. Even calling them “Plaintiffs” would be more accurate.

She also cites the “Federal Courts Act” at times when she really means the “Federal Court Rules”. Those are 2 completely different things. Still, the Court will know what the references are.

Motion Brought Under Wrong Rule (Should Be Rule 8, Not 51)

TAKE NOTICE THAT the Applicants will make a motion to the Court in writing under Rule 51(1) of the Federal Courts Rules.

Extension or abridgement
8(1) On motion, the Court may extend or abridge a period provided by these Rules or fixed by an order.

When motion may be brought
8(2) A motion for an extension of time may be brought before or after the end of the period sought to be extended.

This is already wrong. While the ultimate goal is to appeal the decision of Associate Judge Coughlan, first, an extension of time needs to be granted. In reality, this Motion should state Rule 8. True, the Court would still understand what she’s trying to do, but missing the deadline now means filing another Motion.

The written submissions make clear the extension is sought under Rule 8, but the Notice of Motion still needed to be fixed.

Christensen explains that the delay was caused by the difficulties of corresponding with over 300 clients. The Government responded that that the Notice of Motion could have been filed anyway, with the option to discontinue, or even just a Notice to ask for an extension. It would have cost just $20.

Motion Asks For Written Representations…. In Court Of Appeal?

leave for the Motion to be heard with written representations under Federal Courts Act Section 369.2(1);

Written representations only — Federal Court of Appeal
369.2 (1) Unless otherwise ordered by the Court and subject to subsection (2), all motions brought in the Federal Court of Appeal shall be decided on the basis of written representations.

Christensen asks that the Judge determine the Motion with written representations, as opposed to having an oral hearing. This is common for simple Motions, and by itself, is not unreasonable.

However, Rule 369.2(1) applies to the Federal Court of Appeal. If she intends to appeal the decision of an Associate Judge, it remains within the Federal Court.

Unnecessarily Asking For Leave To Appeal?

2. leave for an extension of time to apply for Appeal of a prothonotary order;

3. leave to commence an application for Appeal under Federal Courts Act Section 51(1);

Appeals of Prothonotaries’ Orders
51 (1) An order of a prothonotary may be appealed by a motion to a judge of the Federal Court.

Service of appeal
(2) Notice of the motion shall be served and filed within 10 days after the day on which the order under appeal was made and at least four days before the day fixed for the hearing of the motion.

Items #2 and #3 don’t make any sense. Rule 51 is very short, and there’s no Leave (permission) needed to appeal a decision of a Prothonotary or Associate Judge. You just file a Notice of Motion. It’s also unclear what “apply for an appeal” means, but perhaps it’s a reference to Leave, which isn’t required.

And again, Christensen mixed up “Motion” with “Application”.

Christensen Improperly Swears Her Own Evidence

Use of solicitor’s affidavit
82 Except with leave of the Court, a solicitor shall not both depose to an affidavit and present argument to the Court based on that affidavit.

There’s a practice that lawyers aren’t suppose to argue their own evidence, as it tends to blur the lines between witness and counsel. Typically, an associate, clerk or client will swear it out. A Judge “may” allow it, but there are no guarantees.

Missing the deadline was bad enough. This is just a procedural Motion, seeking an extension of time, and it’s full of very basic mistakes.

Did Plaintiffs Always Intend To Appeal?

One thing the Government brought up is that the Motion says that the parties agreed to appeal, but not that they always intended to do so. This seemingly trivial choice in wording may sink the Motion, depending on how lenient the Judge is.

Motion Doesn’t Specify How Appeal May Be Successful

On paragraph 20 of their submissions, the Government lawyer states that the Plaintiffs offer no insight as to how an Appeal would theoretically be successful, assuming they were granted a time extension.

Paragraphs 7 through 16 of the Notice of Motion very broadly list a series of errors, but none of it is specified. Perhaps a better idea would have been to attach a draft version of the submissions they intended to use — except they weren’t done.

This could have been avoided if a request for a time extension had been filed right away. Seriously, it would have cost just $20, and their position would be a lot better.

Timeline Of Major Events In This Lawsuit

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.

December 12th, 2024 – Plaintiffs serve Notice Of Motion to extend time limits

December 17th, 2024 – Government responds, saying time extension shouldn’t be granted.

Now, the Court may very well grant an extension to file the Rule 51 Motion papers. There has been a longstanding aim of not using procedural rules unjustly to hinder litigation.

That being said, the Plaintiffs are far from guaranteed any success with this Appeal, even if it were heard. The Statement of Claim had many defects, as outlined in the last article. It’s unclear how any of it could be fixed.

For just a $20 fee, Christensen could have asked for an extension right away. She could have explained that some clients wanted to appeal, while others had not yet responded. Such a request would have been difficult to refuse.

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
(6) Qualizza Plaintiffs Motion To Extend Time To Appeal December 2024
(7) Qualizza Defendants Respond To Motion To Extend Time To Appeal December 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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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/