Category: Civil

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Crown Appeals Payne: Class Action Under s.2(d), Which Survived Motion To Strike

No one should be surprised that a decision from earlier this month is being appealed. This is the ruling from Justice Southcott, which (mostly) dismissed a Motion to Strike. See the earlier piece for more background information.

This is one of the Proposed Class Actions from Umar Sheikh. The main thrust is that unilaterally imposing the “vaccine pass” on workers — even if unionized — amounts to imposing a new term or condition of employment without the opportunity for “meaningful consultation”. In short, it does an end run around any sort of collective bargaining agreement. As such, it violates people’s Section 2(d) Charter Rights of freedom of association.

How this Appeal ends will have significant impact on their other cases, including BCPSEF and FreeToFly. Those are based on substantially the same arguments.

As an aside, counsel for the Qualizza Plaintiff/Appellants has gotten wind of this. That was the clown show of a suit involving 330 current and former military personnel. That Notice of Appeal references the Payne case.

Government Says Case Should Have Been Struck Anyway

In their Notice of Appeal, counsel claims that the case should have been thrown out, as have so many others, under Sections 208 and 236 of the FPSLRA, or Federal Public Sector Labour Relations Act. For reference, s.208 states that all Federal workers have the right to grieve, while s.236 denies the right to sue in Court.

4. The Motion Judge erred in law in taking jurisdiction over this matter and not striking the action in accordance with s. 236 of the Federal Public Sector Labour Relations Act

However, the Plaintiffs had successfully convinced Justice Southcott that s.236 didn’t completely bar all claims for everyone, despite the case history.

(a) misunderstanding and misapplying Federal Court of Appeal jurisprudence, such as Adelberg v Canada, 2024 FCA 106, which determined that the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police, (COVID-19 policy) was an employment policy related to terms and conditions of employment and emphasized that it matters not the way the claim is characterized, whether as a Charter breach or tort;

The Attorney General references Adelberg, which was: (a) struck for Federal workers; (b) allowed with respect to travel claims; and (c) ultimately denied Leave by the Supreme Court. This was Galati’s infamous “bad beyond argument” Federal case. But as bad as it was, the FPSLRA didn’t completely shut the door on some claims, a point made at the Payne hearing.

One interesting part of the Notice is paragraph 7.

7. The Motion Judge erred in finding that the Statement of Claim disclosed a reasonable cause of action in tort for casual workers, students and RCMP members as there were no representative plaintiffs for any of these categories, nor had material facts necessary been pled and was based on a misapplication of the Federal Court of Appeal decision in McMillan v Canada, 2024 FCA 199.

Justice Southcott struck the malfeasance of public office tort. This was on the basis that it was covered by s.236 FPSLRA, and could have been potentially grieved, at least with regard to the 3 Representative Plaintiffs. The possibility was left open to find new Plaintiffs that it wouldn’t apply to.

On that note, the Attorney General argues that there shouldn’t be an opportunity to amend, given that none of the current Plaintiffs qualify, and no facts are included. The Court can respond to that in several ways.

The Respondents have served their Notice of Appearance.

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.

January 13th, 2025: Government files Notice of Appeal.

January 20th, 2025: Plaintiffs (Respondents) file Notice of Appearance.

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

The Appeal should be heard later this year.

Should s.2(d) be upheld as a way around grievance requirements, this will have enormous influence on injection pass cases, at least at the Federal level. This is why they want Justice Southcott’s decision overturned. Of course, the Statutes of Limitation will make it hard to bring any new cases.

PAYNE APPEAL DOCUMENTS:
(1) Payne Notice Of Appeal January 2025
(2) Payne Notice Of Appearance January 2025

PAYNE FEDERAL COURT DOCUMENTS:
(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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Measured Discussion on Multiculturalism is Apparently Off-Limits

Andrew Scheer (left) and Maxime Bernier (Right)

August 13, 2018 — Maxime Bernier, a Member of Federal Parliament in Canada (and a senior member of the Conservative Party), caused a stir when he sent off 6 tweets.  He questioned to what limits the push for diversity and multiculturalism should  go in Canada.

To disclose bias right away: political correctness gets us nowhere.  Truth and open discussion are valued over censorship anytime.  And Bernier was tweeting what many people believe, specifically that there has to be some limit to the push for ”endless diversity”.

Recent ”diversity” moves include: (a) gender quotas for filling cabinet positions; (b) letting terrorists with dual citizenship keep their Canadian citizenship; (c) marching in gay pride parades while endorsing religions who want to slaughter gays; (d) calling it offensive to label honour killings as ”barbaric”; (e) Motion M-103, the anti-blasphemy legislation; (f) publicly saying that Canada has and should have no core identity; (g) altering the national anthem to make it ”gender neutral”; (h) making it mandatory for MPs to support abortion, but taking no position on sex-selective abortions, which target female babies; (i) comparing ISIS fighter to Italian, Polish and Chinese immigrants; (j) refusing to denounce religious and cultural practices which are incompatible with a free and equal society,  and so on…..

In all fairness to Bernier, he never called for anyone to be prohibited from entering the country, to be mistreated, or suggested that people are not equal.  He did question: (1) dividing Canadians into ever smaller groups and ”Balkanizing” the country; (2) accepting ideologies which are truly incompatible with Western societies; and (3) obsession with identity politics does nothing to unify a country.  All of these things seem very reasonable.

Left leaning Liberals and the NDP had a field day, calling Bernier a bigot and calling for his ouster from the parties.  That is no surprise.  Virtue signalling is how the left operates these days.

The more right leaning Canadian Nationalist Party enjoyed it as well, albeit for different reasons.  Members took it as proof that the Conservatives are too weak to stand up for a strong unified Canada. Here is an article from the Nationalist Party of Canada.

The real surprise (at least to me), was how reluctant fellow Conservatives were to support him.  They claim to be against political correctness and the silencing of open discussion, but showed true hypocracy here. The media condemned Bernier here, here, here, and here.

Outside Parliament and the mainstream media however, there has been large public support for Bernier and his having the courage to at least address a difficult topic.

It seems unlikely that Maxime will be kicked out of the party, if for no other reason than it will destroy any claim that Conservatives value free speech.  However, the damage seems to be already done.

And another observation: go to almost any ”multi-culture” city and you will find it segregated along cultural and ethnic lines.  This is not the government’s doing, but rather people doing it voluntarily.

Final Thoughts: Most don’t have a problem with people of other races, and (for to a degree) cultures living in Canada.  Where the line should be drawn is: (i) when the goal seems to actually be to break the country down; (ii) the cultures are truly incompatible; (iii) when asking valid questions becomes hate speech.

People are equal.  Ideas are not.  Ideas should be openly discussed, including ones that involve the direction the country is going.

Here is Maxime Bernier’s Twitter account, and specifically, here are the INFAMOUS 6, which caused the stir.

Update to the Story
Maxime Bernier left the Conservative Party on August 23. Bernier talked about many policy differences, while Scheer cited some personal differences. Bernier founded the (Communist sounding) People’s Party.

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Supreme Court of Canada Affirms Protections for Self Represented People

April 23, 2017 — The Supreme Court of Canada has affirmed the protection for self represented persons and accused people

Based on the 2006 Statement of principles from the Canadian Judicial Council, the SCC has enshrined these principles into law. See here, here, here, and here.

STATEMENT:
Judges, the courts and other participants in the justice system have a responsibility to promote
access to the justice system for all persons on an equal basis, regardless of representation.

PRINCIPLES:
1. Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.

  1. Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case.

  2. Where appropriate, a judge should consider engaging in such case management activities as are required to protect the rights and interests of self-represented persons. Such case management should begin as early in the court process as possible.

  3. When one or both parties are proceeding without representation, non-prejudicial and engaged case and courtroom management may be needed to protect the litigants’ equal right to be heard. Depending on the circumstances and nature of the case, the presiding judge may:

(a) explain the process;
(b) inquire whether both parties understand the process and the procedure;
(c) make referrals to agencies able to assist the litigant in the preparation of the case;
(d) provide information about the law and evidentiary requirements;
(e) modify the traditional order of taking evidence; and
(f) question witnesses.

This is great news, as Justices/Judges/Masters/JP are now obligated to go the extra mile in assuring fair process for those accused and self representing.

Self representing is an intimidating process, but levelling the field should go a long way to ensure better access to justice.  It should not be only for those who can spend lots of money on a lawyer, or who are able to spend huge amounts of time learning the law.

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