Category: Employment

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Justice For EI Misconduct, Part 1: Court Of Appeal Dismisses Case

The Federal Court of Appeal dismissed an Application for Judicial Review on Wednesday. This challenged the decision of the Social Security Tribunal (S.S.T.) to refuse a man employment insurance (E.I.) for not taking the injections in late 2021.

While the issue of people suing or grieving after losing their jobs has been covered here extensively, E.I., has not been addressed nearly enough.

Until recently, it was normal that a person would be considered “constructively dismissed” if the employer made significant changes, or imposed new conditions. It would be seen as a repudiation of the employment contract. He or she would be able to walk away.

But that effectively ended in 2021. Suddenly, refusing experimental shots was to be viewed as “misconduct” and “insubordination”. The S.S.T. would treat it as such, instead of evaluating cases individually. They realized that the fund could not afford tens (or hundreds) of thousands of people walking away from their jobs, and getting benefits.

Appellate Court Saw Nothing Wrong With S.S.T.’s Reasons

In dismissing the case, the Court of Appeal agreed with the S.S.T. in several areas.

A: Misconduct for purposes of the EI Act does not imply that the conduct in question was the result of wrongful intent; it is sufficient that the misconduct be conscious, deliberate or intentional (paragraph 20 of the Decision).

B: The General Division’s role was to assess (i) whether Mr. Arnold was guilty of misconduct, and (ii) whether that misconduct led to his dismissal (paragraph 21 of the Decision).

C: It was not for the General Division to focus on the conduct of the employer or to consider whether the Vaccination Policy was reasonable or whether the imposition of the Vaccination Policy violated the employment law relationship because those concerns fall outside of EI law; the General Division had to focus on Mr. Arnold’s conduct (paragraphs 34, 36, 37 of the Decision).

D: Any question of accommodation, violation by Purolator of the law or the collective bargaining agreement in imposing the Vaccination Policy, or any violation of Mr. Arnold’s human or constitutional rights, is a question for another forum (paragraphs 38 and 40 of the Decision)

In short, the S.S.T. has no jurisdiction to look at: (a) intent; (b) the employer’s conduct; (c) whether the changes violated the contract; (d) violation of collective bargaining agreements; (e) human rights; or (f) constitutional rights. Any of these should have been sufficient to at least consider whether or not there was justification.

How Does This Case Differ From Other E.I. Ones?

This case went into significantly more detail than similar ones, and raises real questions about fairness, impartiality, and possible corruption. Other former workers just wanted to be compensated.

(a) First, the Applicant alleges that the rules had been altered specifically to make it “misconduct” to refuse an employer’s demand for employee vaccination.

(b) Second, that the decisions had prepared ahead of time with various “templates” depending on which grounds workers cited in refusing the shots.

(c) Third, that it was a “business decision” to mass refuse applications, since the E.I. fund was legally required to be revenue neutral. It simply did not have the funds to pay out anywhere near the full amount of employees.

(d) Fourth, the Applicant went into some of the data about the rates of applying, and getting approved for E.I. in 2021/2022, compared to other years in the same time period.

More to follow in subsequent articles.

Timeline Of Proceedings With Federal Court Of Appeal

There were significant delays in 2024, due largely to the volume to material that had to be prepared, and filed. Being self-represented was another setback.

February 8th, 2024: Notice of Application is filed with the Federal Court of Appeal.

February 19th, 2024: Attorney General’s office files a Notice of Appearance.

March 6th, 2024: Attorney General consented to an extension of time to bring the Application Record. The quantity of material had led to delays.

April 16th, 2024: Justice Monaghan Matter gave an order that an outstanding Affidavit be completed by April 23rd, 2024.

June 24th, 2024: A further extension was granted, to July 25th, but with the instructions that no more extensions would be, absent exceptional circumstances.

May 5th, 2025: The Court rejects some of the Applicant’s papers on procedural grounds.

June 6th, 2025: Applicant send in the Book of Authorities (case law), along with the Record (evidence), finally completed.

January 20th, 2026: Hearing is finally scheduled for February.

February 18th, 2026: Applicant sent a letter to the Court asking that his nephew be allowed to join him as a support person. The request was granted.

Feburary 25th, 2026: Hearing takes place at Federal Court of Appeal.

Feburary 25th, 2026: Without even hearing the Attorney General’s arguments, Justices Locke, LeBlanc and Walker dismiss the Application. It’s done without costs.

While the proceedings took a lot longer than they should have, it was eventually heard. However, the Court apparently was unconcerned with what was being presented.

***Note: There’s a lot more going on than simply 1 person demanding E.I. after being forced out of work. It’s much bigger, and will take several articles to properly cover.

Justice For EI Misconduct Website:
(1) https://blog.justice4eimisconduct.com/

COURT DOCUMENTS:
(1) https://www.canlii.org/en/ca/fca/doc/2026/2026fca41/2026fca41.html

FEDERAL COURTS:
(1) https://www.fct-cf.ca/en/court-files-and-decisions/court-files#cont

RUMBLE:
(1) https://rumble.com/v74raiu-s4t-friday-zoom-jan-23rd-ei-misconduct-case-update.html
(2) https://rumble.com/v76dqbc-s4t-friday-zoom-feb-27-ei-misconduct-ruling.html

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Adam Skelly, Part 6: The Final Arguments

It’s been years, but the long overdue challenge from Adam Skelly of the Reopening Ontario Act (R.O.A.) is finally set to be heard at the Ontario Superior Court in Toronto.

Currently, he’s awaiting sentencing on criminal charges that resulted from keeping his restaurant open in late 2020. This was done in defiance of the dictates of Ontario Premier Doug Ford, and Medical Officer of Health, Eileen De Villa. What happens next week in Civil Court will impact that.

If the challenge is upheld, then presumably the criminal charges will be stayed or dismissed.

If this case is thrown out, then sentencing goes ahead

See parts 1, 2, 3, 4 and 5 for background information.

We get to the various Factums, or final arguments of the parties: (a) Skelly; (b) Ontario; and (c) Toronto and Eileen De Villa. While there are plenty of other documents filed, these provide a snapshot of how the case is supposed to play out.

Skelly: Measures Were Heavy-Handed, No Scientific Basis

  • 6 expert witnesses are here to back up his position
  • No evidence that closing restaurants or prohibiting peaceful assembly would have meaningfully reduced COVID-19 transmission
  • City and Province were giving conflicting directions in 2020
  • Police illegally blocked peaceful protests and demonstrations
  • Court shouldn’t “take on faith” that these were necessary
  • No effort made to examine Charter consequences of lockdowns
  • De Villa didn’t actually have the authority to issue trespass order
  • Heavy police presence and fines were designed to “crush”
  • Ad-hoc, or after-the-fact justifications cannot withstand scrutiny
  • It’s not just this case, but a challenge to the R.O.A. itself, passed in 2020

Of course, this isn’t everything, but addresses some of the major points in Skelly’s Factum that are to be brought up at the hearing.

Ontario Wants Case Thrown Out On Procedural Grounds

  • Application amended frequently, and now hard to deal with
  • This is a collateral attack (repeat challenge) to administrative orders
  • Skelly has private standing to bring case, but not public interest standing
  • Skelly is (also) challenging provisions that didn’t apply to him
  • Challenge should have been via Health Services Appeal and Review Board
  • R.O.A. is permitted under broader Quarantine Act (which is Federal)
  • R.O.A was not vague, arbitrary, overbroad or grossly disproportionate
  • No Charter violations for Skelly took place
  • If Skelly’s rights were violated, it was justified under s.1 of the Charter

The arguments from the Ontario Government are an interesting contrast to those of Adam Skelly. Instead of presenting evidence for justification, there are typical grounds raised to dismiss over procedural concerns.

City Of Toronto Raises Similar Objections As Ontario

  • Application is a repeated challenge to settled matters (abuse of process)
  • Judicial Review brought in wrong Court
  • Judicial Review filed too late, and out of time
  • None of this actually violated Skelly’s Charter rights
  • Evidence presented doesn’t establish breaches of most Charter rights
  • If rights were violated, then s.1 justifies it
  • Under existing legal framework, measures were legal and reasonable

Just like with the Provincial counterpart, the City of Toronto and Eileen De Villa largely avoid the case that Skelly has brought. The Factum asks the Court to dismiss for other reasons.

Anyhow, that is how things are shaping up. We have an Applicant with potentially a very strong case, facing Respondents who would prefer to talk about other things. The hearing is to take place over 3 days, and should be interesting.

It would also be nice to finally deal with former counsel, Michael Swinwood. He is almost singlehandedly the reason this case was not heard in 2021.

COURT DECISIONS:
(1) Skelly – Restraining Order Deferred Matter
(2) Skelly – Restraining Order Decision, December 2020
(3) Skelly – Criminal Court Limits What He Can Post Online
(4) Skelly – Judge Lacks Jurisdiction To Hear Case, June 2021
(5) Skelly – Costs Of $15,000 Ordered For Failed Motion
(6) Skelly – Costs From 2020 Kimmel Decision, Previously Deferred
(7) Skelly – Motion For Security For Costs Decision, September 2023

2020/2021 COURT DOCUMENTS:
(1) Skelly – Application Record Restraining Order (Michael Swinwood)
(2) Skelly – Notice of Constitutional Question (February)
(3) Skelly – Amended Notice Of Constitutional Question (June)
(4) Skelly – Book of Transcripts – Respondents (Applicants)
(5) Skelly – Book of Transcripts – Respondent on Motion – HMTQ
(6) Skelly – 2021 Motion Factum
(7) Skelly – 2021 Motion Amended Factum – Respondents (Applicants)
(8) Skelly – DeVilla Transcript
(9) Skelly – 2021 Motion Reply Factum

(1) Skelly – RBC Default Judgement Order

MALPRACTICE SUIT AGAINST MICHAEL SWINWOOD:
(1) Skelly – Swinwood Malpractice Statement Of Claim

NEW APPLICATION DOCUMENTS:
(1) Skelly – Notice Of Application (Ian Perry)
(2) Skelly – Costs – Notice of Motion – Moving Party (Respondent) HMTK
(3) Skelly – Costs – Motion Record-Moving Party (Respondent)
(4) Skelly – Costs – Applicant Responding Motion Record Security For Costs
(5) Skelly – NEW – Responding Record March 2024
(6) Skelly – Costs – Factum – Moving Party – HMK
(7) Skelly – Costs – Responding Factum Applicants Skelly et al
(8) Skelly – Justice Akazaki Deferral Of Case
(9) Skelly – Transcript De Villa
(10) Skelly – Transcript Hodge
(11) Skelly – Transcript Skelly
(12) Skelly – Factum 2026 Hearing
(13) Skelly – Factum De Villa Toronto
(14) Skelly – Factum Ford Ontario

EXPERT REPORTS:
(1A) Skelly – Byram Bridle Resume
(1B) Skelly – Byram Bridle Expert Report
(1C) Skelly – Byram Bridle Expert Reply Report

(2A) Skelly – Douglas Allen Resume
(2B) Skelly – Douglas Allen Expert Report
(2C) Skelly – Douglas Allen Expert Report

(3A) Skelly – Gilbert Berdine Resume
(3B) Skelly – Gilbert Berdine Expert Report
(3C) Skelly – Gilbert Berdine Expert Reply Report

(4A) Skelly – Harvey Risch Affidavit
(4B) Skelly – Harvey Risch Expert Report

(5A) Skelly – William Briggs Resume
(5B) Skelly – William Briggs Expert Report
(5C) Skelly – William Briggs Expert Reply Report

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Case Conference Sought In Stale Military Injection Pass Case

Parties in a 2023 case over injection passes in the military are asking the Court what to do next. The disagreement comes over how to proceed. The Defendants want to bring a Motion to Strike — to throw out the case — while the Plaintiffs want to pursue other steps first.

The lawsuit itself hasn’t progressed since the pleadings were filed in 2023.

The information about the Plaintiffs is interesting, and the paths they’ve taken are varied. The lengths of service for some exceed 25 years. They’re located all over Canada, and are involved in many occupations. Some of them were kicked out for refusing the shots, or forced to retire. Others took them, and have ongoing health problems.

From the information listed in the Statement of Defence, any preliminary challenge would most likely be based on 2 ideas:

  1. Lack of jurisdiction (a.k.a. alternative system available); and
  2. Insufficient detail pleaded in Statement of Claim

1. Government Claims “Grievance Scheme” Should Have Been Used

15. The Plaintiffs had recourse through the grievance process established under the National
Defence Act (“NDA”). The CAF grievance process is set out in sections 29 to 29.15 of the NDA and Chapter 7 of the Queen’s Regulations and Orders (“QR&O”). Subsection 29(1) of the NDA provides that any officer or non-commissioned member of the CAF who has been aggrieved by any decision, act or omission in the administration of the affairs of the CAF for which no other process for redress is provided under the NDA is entitled to submit a grievance.

Just as in Qualizza and Neri, the Government here claims that Plaintiffs “should” have filed grievances, similar to what unionized workers do. This is invoking the defence that the Federal Court has no jurisdiction to hear the case, regardless of the merits. This has gotten many related suits thrown out.

The Statement of Defence also says that current and former veterans have the option of applying for compensation, which must be exhausted prior to commencing litigation.

2. Inadequate Pleading, Considering Allegations Made

The Government also criticises the quality of the Statement of Claim itself. While over 30 declarations are sought, critical detail is missing from the pleading.

A complaint here (and common in these cases) is that necessary detail is missing to even theoretically advance. For example, while many Plaintiffs claim to have a religious objection to the shots, under Section 2(a) of the Charter, not one of them explains what the objection actually is. Here’s a primer in what should be added.

True, one could easily argue that the Charter is useless, and it largely is. But then, why makes such claims in the first place?

While the Statement of Claim makes many accusations against the military, and very serious ones, they do need to be spelled out in much greater detail.

Unfortunately, far too few people get their “day in Court”. In an ideal world, every valid case would get to Trial. However, thousands of Plaintiffs have seen their cases thrown out (often for lack of jurisdiction) prior to any ruling on the merits. And others are bogged down by drafting deficiencies.

(1) Bruce Statement Of Claim
(2) Bruce Statement Of Defence
(3) Bruce Reply Statement
(4) Bruce Notice Of Discontinuance McLaren
(5) Bruce Notice Of Discontinuance Radford
(6) Bruce Letter To The Court

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UHCWBC And BCPSEF Conclude Certification Hearings, Decision Under Reserve

A pair of Proposed Class Actions wrapped up their hearings for certification on Friday, in the B.C. Supreme Court. These groups are attempting to convince a Judge that this is the most expeditious way to process thousands of claims related to loss of employment over injection mandates from 2021.

On a related note: the Court will also consider Applications brought to throw both cases out completely. The Government is making the usual arguments about how these cases are an “abuse of process”, and an ineffective way to resolve disputes. Notes from the hearings were provided by observers who attended, and are quite detailed. For simplicity, they were compiled into a single document. The suits came from:

(1) UHCWBC – United Health Care Workers of British Columbia
(2) BCPSEF – British Columbia Public Sector Employees For Freedom

It’s unclear how many Plaintiffs would result if either case was certified, but it could be in the hundreds, if not thousands. A lot of people didn’t like being pressured to take the shots.

See Parts 1, 2, 3, 4, 5, 5, 7, and 8 in this series on s.2(d) challenges.

UHCWBC And BCPSEF Part Of Series Of s.2(d) Cases

CASE NAMES FEDS4F/BCPSEF FREE2FLY/UHCWBC/UHCWO
Government Workers? Yes No
Filed Federally? Feds For Freedom Free To Fly
Filed in B.C.? BCPSEF UHCWBC
Filed in Ontario.? n/a UHCWO
Wrongful Termination by Gov’t? Yes No
Inducement to Breach Contract? No Yes
Breach s.2(d) Charter Rights? Yes Yes
Malfeasance of Public Office? Yes Yes

There are actually 5 different Proposed Class Actions going on which are based on a variation of the s.2(d) argument. While similar, there are differences in the arguments being advanced.

Feds For Freedom (Payne) initially got past a Motion to Strike at the beginning of 2025, but that was overturned by the Court of Appeal. By contrast, Free To Fly (Hill) survived a preliminary challenge that the Government did not appeal. This bodes well for the health care worker cases, as the arguments are essentially the same.

Update: The case of British Columbia Teachers’ Federation v. British Columbia, 2016 SCC 49 was mentioned after this publication. Without getting lost in the weeds, it allowed Court access in instances where collective bargaining was impacted unilaterally without good faith consultation. There isn’t the comparable “ouster” that exists Federally, over constitutional challenges. This is good news for public sector workers, hoping to avoid the fate of Payne.

The B.C. cases are having both Applications to Strike and for Certification heard at the same time. The Ontario lawsuit appears to have been pushed back to the end.

Another wildcard is that CSASPP was refused certification recently, but Justice Crerar’s decision has been appealed. There is potentially some overlap with the ones here.

Understanding The Arguments Of These s.2(d) Cases

Government Workers: It is true that unionized and Government workplaces typically have a collective bargaining agreement. This means that there’s some sort of grievance process to follow, and then arbitration. How these differed is that the Plaintiffs are arguing that injection mandates “added a term or condition” to the employment, without any meaningful consultation, negotiation or consideration. In the Payne case, that was accepted initially, then overturned.

Non-Government workers: The argument differs here, because the Government isn’t actually the employer. Instead, Plaintiffs allege the Government induced a breach of contract, by causing the employer to “add a term or condition” to the employment, without any meaningful consultation, negotiation or consideration. Another way to look at this is as third party interference.

In both variations, the Plaintiffs state that their Section 2(d) Charter rights (freedom of association) were violated. This was caused by the Government not allowing employers and employees to engage in voluntary relationships. Presumably, employers wouldn’t have fired anyone (or very few), without authorities meddling.

The UHCWBC case (and similarly, the UHCWO one) appear to be on more solid ground because they are not Government employees. The go-to tactic of claiming lack of jurisdiction does not apply to them.

We’ll have to wait for a decision, however long that takes. Assuming certification of either happens, this is only the beginning. Much more will have to be done prior to Trial. Both groups are still fundraising to cover existing costs, and CSASPP is trying to raise money for their ongoing Appeal.

BCPS EMPLOYEES FOR FREEDOM COURT DOCUMENTS:
(1) BCPS Notice Of Civil Claim October 2023
(2) BCPS Amended Notice Of Civil Claim April 2024
(3) BCPS Response To Civil Claim May 2024
(4) BCPS Requisition Case Management August 2024
(5) BCPS Notice Of Application Certification October 2024
(6) BCPS Notice Of Application To Strike October 2024
(7) BCPS Response To Application To Strike November 2024
(8) BCPS Consent Order Scheduling Of Materials January 2025
(9) BCPS Plaintiff Submissions Certification And Strike December 2004
(10) BCPS UHCWBC Plaintiff REPLY Submissions Cert/Strike January 2025

UHCWBC COURT DOCUMENTS:
(1) UHCWBC Notice Of Civil Claim October 2023
(2) UHCWBC Amended Notice Of Civil Claim April 2024
(3) UHCWBC Response To Notice Of Civil Claim May 2024
(4) UHCWBC Amended Response To Notice Of Civil Claim May 2024
(5) UHCWBC Requisition For Case Management Scheduling August 2024
(6) UHCWBC Notice Of Application For Certification October 2024
(7) UHCWBC Response To Application For Certification October 2024
(8) UHCWBC Notice Of Application To Strike Claim October 2024
(9) UHCWBC Consent Order Scheduling October 2024
(10) UHCWBC Response To Application To Strike November 2024

CERTIFICATION NOTES:
(1) UHCWBC and BCPSEF Certification Notes
(2) https://x.com/uhcwbc
(3) https://unitedtogether.ca/
(4) https://x.com/bcpsef
(5) https://bcpsforfreedom.com/
(6) https://www.covidconstitutionalchallengebc.ca/

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Military Veterans Injection Pass Appeal Dismissed, Hennelly Factors

The Federal Court of Appeal threw out a challenge on Monday involving hundreds of current and former members of the Canadian Armed Forces. Another $2,340 in costs was also ordered. As of now, this appears to be the end of the road.

Many had thought that the purpose was to get the case back on track, after it was struck last year. However, that’s only partly true. This proceeding was to determine whether or not Justice Manson of the Federal Court erred in refusing to grant an extension of time to bring an initial Appeal. The filing deadline had been missed.

The Justices here ruled that no mistake had been made, and the Appeal was dismissed.

Appeals Within/Between Federal Courts

Whether it’s a Judge or Associate Judge/Prothonotary who makes a decision matters, if parties wish to challenge. It determines where the Appeal goes to, procedure, and more importantly, the time limit.

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

The original claim was struck over (a) inadequate pleadings; and (b) a requirement to follow the grievance scheme, by an Associate Judge, back in November, 2024. This meant there was a mere 10 days to serve a Notice of Motion. However, counsel appeared to mistake it for being a 30-day limit. Justice Manson refused a request to extend time. The case was effectively time barred at that point.

Now, the case went to the Federal Court of Appeal. What should have happened was a committed effort to convince this panel that it was a mistake to not grant that extension. Instead, it was glossed over in favour of attempting to argue the case shouldn’t have been thrown out in the first place.

Ultimately, the Court of Appeal ruled that no error was made in refusing to grant an extension of time.

Hennelly Factors: What Decided This Appeal

The test for whether or not to grant an extension of time is commonly referred to the Hennelly Test, or the Hennelly Factors. While not exhaustive, these are 4 considerations that need to be made.

  1. a continuing intention to pursue an appeal of the Associate Judge’s order
  2. that their proposed appeal had some merit
  3. that the respondents would not be prejudiced by the delay
  4. that there was a reasonable explanation for the delay

A number of other issues were raised, such as not following procedures, and citing incorrect rules. That said, this is what courts look to when making their decision on time extensions.

Factor #1: Was There A Continuing Intention To Appeal?

[7] In particular, the Judge held that there was no evidence supporting an intent to appeal, even when considering the Affidavit.

The Affidavit submitted surprisingly came from counsel, and not from a client. On contentious issues, lawyers are prohibited from swearing out evidence they intend to argue. Typically, a client or a clerk does this. Consequently, this one was disallowed.

It also didn’t say the magic words: “I/we always intended to appeal”.

Factor #2: Was There Some Merit To The Appeal?

[12] Second, the appellants contend that the Judge erred in concluding that their proposed appeal had no likelihood of success. In fact, the bulk of the appellants’ submissions in this appeal focuses on the merits of some aspects of the Associate Judge’s order. The appellants contend in this respect that the Associate Judge erred: (i) in treating their claim as improperly bypassing the CAF grievance system; (ii) in concluding that that system was an adequate alternative remedy; and (iii) in striking the amended Statement of Claim without leave to amend.

[13] One major problem with these submissions is that nothing of that sort was put to the Judge. As the Judge correctly noted, both the Affidavit and the appellants’ written submissions in support of the Motion are silent as to how the appeal of the Associate Judge’s order might be successful (Order at para. 15). This problem is exacerbated by the fact that these submissions are based, in large part, on documents, mostly directives and reports on reviews of the National Defence Act and the CAF, that were not before the Judge and that were appended, in e-versions, to the appellants’ Memorandum of Fact and Law in this appeal.

[14] As the respondents correctly point out in their written submissions, the Judge cannot be faulted for not considering documents and submissions that were not put to him.

The Motion requesting the extension of time actually didn’t get into this at all. No draft submissions were attached, nor was there a section outlining what the appeal might look like. Justice Manson denied the request, in part, not knowing he Court of Appeal saw nothing wrong with that.

Factor #3: Will The Respondents Not Be Prejudiced By The Delay?

[7] …. On prejudice, the Judge found that although the respondents did not claim to be prejudiced by the delay in bringing the Motion, they were “certainly going to be prejudiced” by the fact the appellants were seeking an additional delay – that is up to the end of January 2025 – to file a “full motion record for an Appeal” (Order at paras. 19-21). According to the Judge, the respondents, in such context, were facing “indefinite delay going forward”.

This is probably the most subjective part of the test, as it’s hard to prove that a party is prejudiced. Nonetheless Justice Manson concluded that there was already excessive delay, and that there probably would be again.

Factor #4: Was There A Reasonable Explanation For The Delay?

[7] …. Finally, the Judge determined that both the 29-day delay and the additional 6-week delay sought to create a “full motion record for an Appeal”, were not explained in any rational sense, even, again, when considering the Affidavit (Order at paras. 22-23).

The official reason for the delay was that there was a serious logistical problem coordinating over 300 clients, to determine who actually wanted to appeal. Justice Manson ruled that a Notice of Motion could still have been filed within the 10 day period. in short something could have been filed, and the client issues sorted out later.

Part of the problem with this test is that it’s discretionary, and largely subjective. What one Judge may consider a reasonable explanation, another would reject out of hand. Similarly, one may view submissions to have “at least some merit”, while a colleague would not. There’s no uniform standard.

The Court of Appeal concluded with this:

[17] One other major problem with this appeal is that the appellants, at best, only superficially address the Judge’s application of the other Hennelly criteria (intent to appeal, delay and prejudice) to the circumstances of the case. There is nothing for us, therefore, to conclude that the appellants have met the highly deferential palpable and overriding error standard on these issues.

At the Monday hearing, a considerable amount of time was spent arguing how an Appeal could have proceeded (which is the 2nd Factor). That said, none of that had been put to Justice Manson previously. The 1st, 3rd, and 4th Factors weren’t addressed in great detail. The Appeal was dismissed.

What Happens Now For The Plaintiffs?

It’s quite disappointing for Plaintiffs, especially to have it end this way. The Court of Appeal never made any meaningful or deep findings on the merits of their cases. Nor was any new ground broken over employment rights. A missed deadline is what ultimately sealed their fate.

There’s no single answer for what comes next. Many are still employed with the military, while others have left. And most have at least initiated the grievance process, and are at various stages. They have some things to figure out.

While an attempt at the Supreme Court of Canada is theoretically possible, it seems unlikely to happen.

FEDERAL COURT/CLAIM STRUCK:
(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 Plaintiff Motion To Strike Written Submissions (August 2024)
(7) Qualizza Transcript Of Coughlan Hearing (September 2024)
(8) Qualizza Order Striking Statement Of Claim Without Leave (November 2024)

FEDERAL COURT/RULE 8 MOTION TO EXTEND TIME/RULE 51 APPEAL:
(1) Qualizza Plaintiffs Motion To Extend Time To Appeal (December 2024)
(2) Qualizza Defendants Respond To Motion To Extend Time To Appeal (December 2024)
(3) Qualizza Order Denying Extension Of Time (January 2025)
(4) Qualizza Federal Court Notes

FEDERAL COURT OF APPEAL/CONTENTS OF APPEAL BOOK:
(1) Qualizza Notice Of Appeal (January 2025)
(2) Qualizza Motion Record Contents Of Appeal Book (February 2025)
(3) Qualizza Responding Motion Record Contents Of Appeal Book (March 2025)
(4) Qualizza Order Contents Of Appeal Book (April 2025)

FEDERAL COURT OF APPEAL/ARGUMENTS/RESULTS (AD HOC):
(1) Qualizza Appellants Memorandum Of Fact And Law (May 2025)
(2) Qualizza Respondents Memorandum Of Fact And Law (June 2025)
(3) Qualizza FCA Order Dismissing Appeal (December 2025)
(4) Qualizza FCA Reasons Dismissing Appeal (December 2025)

FEDERAL COURT OF APPEAL/MARK LOLACHER REINSTATEMENT:
(1) Qualizza Notice Of Discontinuance (January 2025)
(2) Qualizza Lolacher Motion Record (March 2025)
(3) Qualizza Lolacher A.G. Responding Motion Record (March 2025)
(4) Qualizza Lolacher Christensen Responding Motion Record (March 2025)
(5) Qualizza Lolacher Order For Reinstatement (May 2025)
(6) Qualizza Lolacher Reasons For Reinstatement (May 2025)

FEDERAL COURT OF APPEAL/VENDETTA AGAINST LOLACHER:
(1) Qualizza Lolacher Letter To Court (May 2025)
(2) Qualizza Federal Court Notes FCA
(3) Qualizza Order Justice Gleason Refusing Filing Of Materials (June, 2025)

SUPREME COURT OF CANADA, APPLICATION FOR LEAVE:
(1) Qualizza SCC Notice Of Application For Leave To Appeal
(2) Qualizza SCC Application For Leave To Appeal
(3) Qualizza SCC Certificate File Access
(4) Qualizza SCC Response From AG Opposing Application
(5) Qualizza SCC Responding Certificate

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“Posties” Appeal Again: Hennelly Factors And Getting The Runaround

Let’s start with a thought experiment. How aggressively are litigants supposed to be following up with counsel? What separates diligence from excessiveness?

Employees of Canada Post (a.k.a. The “Posties”) have commenced yet another Appeal, trying to extend the deadline to challenge an earlier ruling.

To summarize: employees of Canada Post brought grievances when their company implemented the injection pass back in 2021. It eventually went to Arbitration, where it was deemed to be a “reasonable” policy in 2022.

Instead of challenging this ruling via Application for Judicial Review, they found a lawyer who convinced them to file a Statement of Claim. It was predictably tossed for lack of jurisdiction, in addition to the inadequate pleading itself.

Although Plaintiffs wanted to file an Appeal, they were given the runaround by counsel, and eventually abandoned. They found a new lawyer, but needed to file for an extension. The deadline had long expired.

See Parts 1, 2 and 3 for background information.

Over the last year, the focus was on getting an extension of time to Appeal. There were questions of whether or not Plaintiffs “acted diligently”, and if Defendants really were “prejudiced” by the delay.

Hennelly Factors And Deadlines To Appeal

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

Understanding the Appeal process depends on who issued a ruling. If a decision comes from a Justice, then a Notice of Appeal goes to the Federal Court of Appeal. There’s a 30 day time limit. However, if it comes from an Associate Justice (Prothonotary), then there’s just 10 days to serve a Notice of Motion. Here though, because it took months for the Plaintiffs to file anything, it didn’t seem to matter.

Obtaining an extension of time to begin a proceeding is often doable, but may not be easy. The decision comes down to the Hennelly Test, which is a “suggested” list of 4 considerations. Other factors may also be looked at.

  1. Did the moving party have a continuing intention to pursue the application?
  2. Does the moving party have a reasonable explanation for the delay?
  3. Is there some potential merit to the application?
  4. Is there prejudice to the other party from the delay?

In the original Motion to extend time to Appeal, Associate Justice Cottor acknowledged the first part of the test, that the Plaintiffs had a continuing intention to pursue it.

Cottor entertained the idea of “giving the benefit of the doubt” to the third part, that there was some potential merit to the Appeal. That’s interesting, considering no explanation was ever provided on how to challenge the lack of jurisdiction (as Arbitration was required).

That being said, Cottor ruled against the Posties on the second and fourth part of the Hennelly Test. He said there was no reasonable explanation for the day, and presumed that there was prejudice caused by its length.

The request to extend time was 234 days past the deadline, of which 53 days of which was caused by Gratl himself. He didn’t act promptly after taking the case.

In this decision, Justice Kane said there was no error in how this had been applied, and upheld the refusal to extend time.

Now, the Notice of Appeal argues that the same mistakes were made.

Were Plaintiffs Supposed To Hound Their Former Counsel?

No Motion was ever filed by this firm.

In their first and more recent Motion Records asking for more time, the Plaintiffs give substantial evidence that they tried to get an Appeal started. The above screenshots are from one of the Affidavits. They were effectively led on, and then abandoned.

However, Associate Justice Cottor (starting on paragraph 9) wasn’t convinced that the Plaintiffs had pursued this diligently enough.

[35] A delay of 53 days is significant, and there is a no reasonable explanation for it. As per Singh 2023 the question is whether the Moving Plaintiffs have a reasonable explanation for the entire delay from the March 25 Appeal Deadline to the service of the Notice of Appeal on November 14. Since they do not have a reasonable explanation for a significant portion of the period, namely 53 days, it is not possible to conclude that they have a reasonable explanation for the delay. The outcome of the analysis of the initial delay of almost six months will not change this conclusion.

[36] While it may not be necessary to also consider the initial delay of almost six months given the above conclusion, I will do so for completeness. The initial delay is the period from the Appeal Deadline of March 25 until Current Counsel was engaged on September 22. As noted above, the Moving Plaintiffs blame Former Counsel for that delay. The defendants advanced various arguments in response, the general tenor of which is that: a) clients must live with their choice of counsel and counsel’s actions (subject to limited exceptions which the defendants say do not apply), with clients and counsel being treated as one for the purposes of a motion to extend time; and b) that the Moving Plaintiffs were insufficiently diligent in following up with Former Counsel in the circumstances of this case. The Moving Plaintiffs argued in response that the cases that have held that errors or inadvertence of counsel is not a reasonable explanation for…

[37] Using the approach advocated for by the defendants, namely that errors or inadvertence of counsel is not a reasonable explanation for the delay, then there is no reasonable explanation for the delay. However, if that approach is not used, it is appropriate to consider the behavior of the Moving Plaintiffs during that period … Considering the conduct of the Moving Plaintiffs during that period of delay does not assist them. They knew that the Appeal Deadline had been missed, and that the filing of a motion for an extension of time was lagging considerably (and more so as time went on). However, despite that, there was only occasional follow-up by the Moving Plaintiffs. Having regard to what transpired during that initial period of almost six months, it is not possible to conclude that the Moving Plaintiffs diligently addressed the situation

Associate Justice Cottor saw this as 2 separate delays: (a) nearly 6 months from previous counsel, Grey; and (b) another 53 days from current counsel, Gratl. He concluded there was no reasonable explanation. In the Appeal, Justice Kane saw no problem with this reasoning.

It raises the question of what litigants need to do. Are they expected to hound their lawyers day-in and day-out to check the progress of the case? Are they supposed to involve the Law Society? If lawyers mislead clients and lie to them, are they not able to fix their case?

Of course, none of this addresses the elephant in the room: there’s no jurisdiction to sue the company, as Canada Post is unionized, with a collective bargaining agreement.

Brief Timeline Of Major Events

September 2021: Canada Post announces that it will change the “vaccination” policy, requiring that all employees (and new hires) take the shots in order to be employed. It’s to take effect on November 26th, 2021.

October 26th, 2021 mandatory injection policy is formally approved.

November 15th, 2021: CUPW, Canadian Union of Postal Workers, files grievance against Canada Post’s new policy of requiring the injections in order to stay employed.

January 18th, 2022: Arbitration hearing is held over Canada Post’s policy requiring the injections of all employees. There would be several sessions over the coming months.

April 27th, 2022: Arbitrator dismisses the grievance against Canada Post, saying that the injection requirement is “reasonable”.

***It’s important to remember that this didn’t start with a lawsuit. It began with grievances and then arbitration. This matters as it relates to the lack of jurisdiction of the Federal Court.

July 12th, 2022: Statement of Claim is filed with the Federal Court. It names: (a) Canada Post Corporation; (b) Her Majesty the Queen, as Elizabeth was Queen at the time; and (c) Attorney General of Canada.

September 5, 2023: Even more Plaintiffs discontinue, or voluntarily leave the case. It worth mentioning that the Court history is filled with various Plaintiffs discontinuing. This is especially prevalent after the Motion to Strike is set out. Seems they realize that their case will go nowhere.

March 4th, 2024: Motions are eventually heard.

March 13th, 2024: Court releases reasons for striking the case.

March 13th, 2024: Order striking case is officially issued.

***Despite what happened, many Plaintiffs want to pursue an Appeal. However, they’re abandoned by their lawyer, and forced to seek a new one. They eventually hire Jason Gratl

November 15th, 2024: Gratl files a Notice of Change of Solicitor. It’s unclear why he waited nearly 2 months to do anything.

November 15th, 2024: Gratl files a Notice of Motion, indicating Plaintiffs will be seeking an extension of time to appeal the March ruling. It’s been a full 8 months at this point. Given that it was an Associate Justice who struck the case, the deadline is a mere 10 days.

February 14th, 2025: Gratl files the Motion Record for clients.

February 27th, 2025: The Federal Government files their Responding Motion Record.

May 2nd, 2025: Associate Justice Cotter refuses the extension of time.

***Since the Notice of Motion is so late, Gratl is forced to bring another Motion, this one to extend time. However, his explanation for the months long delay falls on deaf ears.

May 12th, 2025: Gratl brings another Motion, to challenge the refusal to grant an extension of time. This time, the 10 day time limit is met.

June 4th, 2025: The Attorney General of Canada files their Responding Motion Record.

September 23rd, 2025: Hearing is held via video on this Motion.

October 2nd, 2025: Justice Kane refuses Appeal that would have extended time to Appeal original decision from Associate Justice Coughlan.

***Gratl tried to explain again why the Canada Post Plaintiffs should get an extension of time, despite being months late. Again, the Court rules otherwise. At this point, the options within the Federal Court are exhausted.

October 17th, 2025: Plaintiffs file Notice of Appeal with Federal Court of Appeal.

Note: All of the dates listed can be confirmed by searching the respective cases on the Federal Court website. It keeps a detailed listing of all significant events in T-1436-22.

We’ll have to see what happens. But it’s frustrating for litigants to be let down when they clearly were trying to advance their case.

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 Redacted
(12) Wayback Machine Archive Of Arbitration Decision
(13) https://www.fct-cf.gc.ca/en/court-files-and-decisions/court-files#cont

LITIGATION (CASE STRUCK):
(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 (March, 2024)

LITIGATION (EXTENDING TIME TO APPEAL):
(1) Canada Post Notice Of Change Of Solicitor (November, 2024)
(2) Canada Post Affidavit of Karine Solakian (November, 2024)
(3) Canada Post Notice Of Motion (November 2024)
(4) Canada Post Applicants Motion Record Extension Of Time (February, 2025)
(5) Canada Post Motion Record Extension Of Time (February, 2025)
(6) Canada Post HMTK Motion Record Extension Of Time (February, 2025)
(7) Canada Post Order Refusing Extension Of Time To Appeal (May, 2025)

LITIGATION (APPEAL OF REFUSAL TO EXTEND TIME TO APPEAL):
(1) Canada Post Motion Record Appeal Refusal To Extend Time (May, 2025)
(2) Canada Post HMTK Written Submissions Appeal Time Extension (June, 2025)
(3) Canada Post Order Dismissing Appeal For Extension Of Time (October, 2025)
(4) Canada Post Federal Court Case History

LITIGATION (APPEAL TO FEDERAL COURT OF APPEAL):
(1) Canada Post FCA Notice Of Appeal

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