Category: Canadian Decisions

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.

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.

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 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.

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.

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

Time to close the case on yet another one. The infamous 600+ Plaintiff suit, Adelberg, is before the Supreme Court of Canada with an Application for Leave. What this means is that the Applicants are asking for permission to have an Appeal heard. This will almost certainly be denied.

See parts 1, 2, 3, 4, 5, 6, 7, 8 and 9 for complete coverage.

The main concern for litigants here is that they were forced out of their jobs back in 2021/2022, when the conditions of their work suddenly required multiple injections. These were the “vaccine passports” that became so notorious. Workers were rightfully angry that the rules were being retroactively changed.

What do the Courts call this? Constructive Dismissal.

By unilaterally changing the terms and conditions of employment, the Federal Government has effectively repudiated the employment contracts of their workers. They’re entitled to notice (at a minimum) and to be paid out fully in accordance with any other agreements they have.

As for third parties (Federally regulated employers) who’ve had to implement injection passports, they too have constructively dismissed their workers. The fact that Ottawa forced them to do it is irrelevant.

Instead of taking their problems to the appropriate forum — Arbitration for most — extremely incompetent counsel crashed all of this into the ground.

Contrary to the postings of “the marketing arms“, such as Police On Guard, this isn’t a complex case. A May 2022 lawsuit involving over 600 Plaintiffs was struck for a variety of reasons. The most embarrassing one was the completely shoddy and inadequate quality of the pleadings.

Justice Fothergill called it “bad beyond argument“.

There were a few passing mentions of Plaintiffs having their travel rights restricted, but at the heart of it, this was about employment.

To help make sense of these 600+ Plaintiffs, it’s important to note that the Court classified them into 2 groups for clarification. These are as follows.

Schedule “A” Plaintiffs, Employees Of Federal Government: These litigants had their employment claims struck in their entirety, without the chance to fix the lawsuit. The reason is that they were entitled to grieve employment claims, but not to litigate. This is explained by Sections 208 and 236 of the Federal Public Sector Labour Relations Act, or FPSLRA. In essence, the Federal Court lacked jurisdiction. This comprised approximately 2/3 of them.

Schedule “B” Plaintiffs, Employees Of “Federally Regulated” Employers: These litigants at least in theory would be able to sue the Government. However, the Statement of Claim was so poorly drafted that it would have to be redone anyway. This was the other 1/3 of Plaintiffs.

The Federal Public Sector Labour Relations Act, or FPSLRA, is the key to understanding why the Schedule “A” Plaintiffs are completely out of luck. Since they don’t have the right to sue, the Court has no jurisdiction to hear their case, even if it were competently pleaded.

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.

Application
236(2) Subsection (1) applies whether or not the employee avails himself or herself of the right to present a grievance in any particular case and whether or not the grievance could be referred to adjudication.

Section 208 of the FPSLRA gives Federal employees the right to grieve, and that often ends in arbitration. This is similar to how workers in unionized environments, or ones with collective bargaining agreements. Section 236 is the prohibition on seeking remedies in the Courts via lawsuits. This is referred to as a lack of jurisdiction, or an “explicit ouster” from the Court.

Counsel takes issue with the Federal Court (and later the Court of Appeal) not considering the employment contracts of the Schedule “A” workers prior to striking their claims. But this misses the point. Section 208 FPSLRA gives all Federal employees the right to grieve, and none of them the right to sue. This is regardless of any collective agreements in place. In this sense, the entire Federal Government acts as a giant union.

It’s unclear why counsel keeps citing Weber, the 1995 Supreme Court case, when it effectively shuts down the ability to bring cases to Court if alternative resolution mechanisms are available.

For their response, the Government reiterates that this case (at its heart) is about changes to the terms of their employment agreements. Really, this is constructive dismissal.

In theory, a case could still be brought if each of the Plaintiffs had diligently tried to exercise other options to resolve their case. It would involve overhauling the Statement of Claim, with each person describing what efforts they took. They’d have to provide specifics, and be prepared to submit Affidavit evidence when jurisdiction would inevitably be challenged. They’d have to convince a Judge that there was no other option than to sue. Even then, there are no guarantees, and it could still be tossed out.

173 (1) Pleadings shall be divided into consecutively numbered paragraphs.
Allegations set out separately
(2) Every allegation in a pleading shall, as far as is practicable, be set out in a separate paragraph.

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.

Pleading facts refers to spelling out the who, what, where, when and how that events have transpired. There must be sufficient detail that Defendants are able to at least address the allegations.

Pleading particulars refers to detailing any acts of malice, bad faith, conspiracy, malfeasance, etc… The events must be described in enough detail that they can be responded to.

In spite of the Statement of Claim being 50 pages long, there is stunningly little material.

• The first 15 pages are just the Style of Cause (naming Parties)
• The next 9 pages are the Relief Sought (what is asked of the Court)
• There are 2 pages of background information on the defendants
• There are 5 pages of “facts”, which are actually potential expert evidence, and don’t belong at this stage of the proceeding
• There are 6 pages of stating torts, but without pleading necessary facts or particulars
• The Statement of Claim then just devolves into a Factum, arguing endlessly, but without providing the information needed to respond to by the Defendants

There’s no facts or background pleaded about the Plaintiffs, and only a handful are even named at all.

The Claim also makes allegations of: (a) Criminal Code of Canada violations; (b) breaches of the Nuremberg Code; (c) crimes against humanity; (d) violations of the Helsinki Declaration; and (e) reference the International Criminal Court in the Hague. All of this helped get the case struck, since there’s no jurisdiction for a Civil Court to hear any of it.

Remember, these defects also apply to the Schedule “A” Plaintiffs.

The Schedule “B” Plaintiffs might have had a fighting chance if counsel had argued that the injection mandates amounted to an inducement to breach, or interfere with their employment. That was one path forward. But that would require a competent lawyer.

In a strange turn of events, the Federal Court of Appeal did allow for travel claims to still be brought forward by all Plaintiffs. This applies to both Schedules “A” and “B”. However, these claims weren’t properly pleaded (as always) and are probably moot anyway.

Each of the more than 600 Plaintiffs had to pay $1,000 retainer in order for the Statement of Claim to be filed in the first place. Then, when it was struck, counsel demanded another $1,000 from everyone. This totals well over a million dollars. And for what?

Regardless of what happens at the Supreme Court, the Plaintiffs are likely out of luck anyway. It’s not just that the Statement of Claim itself has to be filed within 2 years. Any new allegations in an amended version — that occurred over 2 years ago — are typically barred as well. Since nothing was correctly pleaded in 2022, the time has run out to do it properly.

At least this time, the gross deficiencies of the pleadings themselves aren’t being questioned. This includes the lack of facts and particulars included.

While it may sound impressive to be at the Supreme Court, consider the context. This isn’t the conclusion of some long, complex case. It’s about appealing, once again, a Statement of Claim that was struck for lack of jurisdiction. It’s still at the initial stages, and we’re almost into 2025.

We’re close to the end of the “bad beyond argument” Covid cases. The only major one left is Dorceus, which is out on a Motion to Strike in Ontario. Here are 18 reasons that case will be thrown out.

FEDERAL LAXX PASS CHALLENGE (SCC LEAVE APPLICATION)
(1) Adelberg SCC Leave Application Volume 1
(2) Adelberg SCC Leave Application Volume 2
(3) Adelberg SCC Leave Application Volume 3
(4) Adelberg SCC Written Submissions Applicant
(5) Adelberg SCC Leave Application Volume Respondents
(6) Adelberg SCC Leave Application Reply Submissions

FEDERAL VAXX PASS CHALLENGE (APPEAL)
(1) FCA Adelberg V. HMTK A-67-23 Notice Of Appeal
(2) FCA Adelberg V. HMTK A-67-23 Appeal Book
(3) FCA Adelberg V. HMTK A-67-23 Appellants MFL
(4) FCA Adelberg V. HMTK A-67-23 Respondents MFL

FEDERAL VAXX PASS CHALLENGE
(1) https://policeonguard.ca/wp-content/uploads/2022/06/Filed-SOC.pdf
(2) Federal Court Vaccine Mandate Challenge
(3) Federal Vaccine Passport Challenge Retainer Agreement
(4) Federal Court Vaccine Mandate Challenge Motion To Strike
(5) Federal Court Vaccine Mandate Challenge Affidavit Of Service
(6) Federal Court Vaccine Mandate Challenge Responding Motion Record
(7) Federal Court Of Canada Rules
(8) Federal Court Decision On Motion To Strike (Archive)
(9) https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/522970/index.do
(10) https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1507/2022bcsc1507.html
(11) https://laws-lois.justice.gc.ca/eng/regulations/sor-98-106/page-9.html#h-1013947
(12) https://www.laws-lois.justice.gc.ca/eng/acts/P-33.3/page-13.html#h-406405

PRECEDENTS CREATED
(1) https://www.canlii.org/en/ca/fct/doc/2023/2023fc280/2023fc280.html#par85
(2) https://www.canlii.org/en/ca/fct/doc/2023/2023fc929/2023fc929.html#par17
(3) https://www.canlii.org/en/bc/bcsc/doc/2023/2023bcsc1701/2023bcsc1701.html#par30
(4) https://www.canlii.org/en/ca/fct/doc/2023/2023fc1752/2023fc1752.html#par24
(5) https://www.canlii.org/en/ca/fct/doc/2024/2024fc137/2024fc137.html#par44

MONEY
(1) Letter to Federal Worker Plaintiffs
(2) Federal Workers Action Donation Link For PayPal
(3) Ontario First Responders Action Donation Link For PayPal
(4) School Action Donation Link For PayPal
(5) Police Officer Action Donation Link For PayPal
(6) https://www.web.archive.org/web/20220526170932/https://www.constitutionalrightscentre.ca/
(7) Federal Workers Retainer Agreement
(8) Ontario First Responders Retainer Agreement
(9) Donate To Public Citizens Inquiry
(10) Donations For Supposed B.C. Doctors Action