Category: Employment

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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 and Angela Wood. 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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“Bad Beyond Argument” Dorceus Ruling Appealed, Galati Undeterred By $190,000 Cost Order

It should be obvious by now that this is just an abuse of the Court system.

Back in December, a Toronto lawsuit involving nearly 500 health care workers across Ontario was struck by a Superior Court Judge. The Statement of Claim was extremely poorly written, and didn’t plead any of the necessary facts for any Plaintiff, or any Charter breach. It did, however, go off on many unrelated tangents. This trainwreck came from “Mr. Bad Beyond Argument” himself, Rocco Galati.

Instead of the 473 Plaintiffs outlining their cases and circumstances, the Defendants had to do it. They ended up introducing a 13,000 page, 23 volume Motion Record with their employment documents. That’s right, the Defendants had to provide the background information on the Parties.

The Claim was also littered with subjects that a Civil Court had no ability to hear.

It included:

  • Allegations of criminal conduct
  • Allegations of crimes against humanity
  • Allegations of eugenics (which would be criminal)
  • Allegations of violations of Nuremberg Code
  • Allegations of violations of the Helsinki Declaration

Rather than simply pleading facts, the Statement of Claim tried arguing expert evidence, and caselaw, neither of which is appropriate at this stage. The purpose is to lay out the “who, what, where, when, how” of events, not make legal submissions. A competent lawyer would know this, but then, Galati isn’t a competent lawyer.

Beyond that, there was the issue of jurisdiction. The vast majority of Plaintiffs were unionized, and subject to various collective bargaining agreements. This wasn’t something that could be fixed simply by advancing a better quality pleading, unless brand new arguments were made, such as here.

See parts 1, 2 and 3 for background information.

As an aside, the CSASPP defamation suit had gotten a mention in the Motion hearing, and Justice Chalmers’ comments about the Vaccine Choice Canada and Action4Canada cases were referenced. That Appeal should be interesting.

Justice Koehnen further ordered $190,000 in costs against the Plaintiffs, which worked out to less than $500 per Plaintiff. He ended up chewing out the Galati for “recycling” his old pleadings. Unfortunately, it’s still the clients who are stuck with the Bill. No matter how often lawyers act in frivolous and vexatious ways, they typically aren’t personally held responsible.

[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

In an unsurprising twist, the ruling has been appealed. The Notice itself is nothing new, and appears to be cut-and-pasted from other (failed) Appeals.

The Notice takes issue with the fact that the Judge found that the Court had no jurisdiction over the bulk of the Plaintiffs, even the arbitration requirement. However, Rule 21.01 (1) and (3) of Civil Procedure make it clear that it’s grounds for bringing a challenge.

The Notice takes issue with the Court not taking “facts pleaded as true”. However, counsel doesn’t know how to draft a Statement of Claim, nor does he know what’s supposed to be in one. Rehashing failed conspiracy theories hasn’t sat too well either.

The Notice takes issue with the $190,000 in costs awarded. However, costs are a discretionary matter, and almost impossible to overturn. And again, it involved 473 Plaintiffs, from all over the Province.

It’s unclear if the $190,000 in costs has actually been paid. If not, the Defendants can always seek an Order for Security for Costs prior to the hearing. Should it be granted, it would force Plaintiffs/Appellants to pay up ahead of time.

Plaintiffs To Be Shaken Down For More Money?

Now, if Adelberg (over 600 Plaintiffs) is any indication, a retainer of more than $600,000 isn’t enough. Another $600,000 was sought to appeal that “bad beyond argument” decision. That’s over $1.2 million for a lawsuit that never proceeded past the Statement of Claim. One has to assume that the Dorceus Plaintiffs are also being asked to pay more.

Similarly, although Katanik (100 Plaintiffs) was ultimately dropped, the $150,000 retainer wasn’t enough, and another $450,000 was demanded.

Action4Canada and Vaccine Choice Canada routinely hit up donors for more money.

With this in mind, it’s fair to assume that the Dorceus Plaintiffs/Appellants are also being asked to pay more. And again, when their Appeal crashes, it’s not counsel who has to pay costs.

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) Dorceus Notice Of Appeal
(10) 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

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Review Of Winnipeg Class Action Lawsuit (Injection Mandates), Discontinued In May 2023

Back in December 2022, a Proposed Class Action was filed in Winnipeg against several Municipal and Provincial Defendants. This was to challenge the so-called “vaccine passport” system that was in place at the time.

These included:

  • The Government of Manitoba
  • Brent Roussin (Chief Medical Officer of Health)
  • The City of Winnipeg
  • City of Winnipeg Police Services

The Representative Plaintiff, Courtney Peters, was a civilian working as a Communications Operator with the Winnipeg Police. He had been there for 8 years at that point.

In an unsurprising move, both Manitoba and Winnipeg brought Motions to Strike the Claim. Aside from the significant pleading deficiencies, they stated that the Court had no jurisdiction, due to the collective bargaining system that was in place.

Rather than attempt to fight on for his clients, counsel discontinued the case.

Yet Another Case Discontinued By Leighton Grey

Just 6 months after it was filed, this Manitoba (Proposed) Class Action was dropped. It didn’t even get as far as having the Motion to Strike heard.

(a) Canada Post: struck in March 2024
(b) Canadian National Railway: discontinued in June 2023
(c) Purolator, discontinued in April 2023
(d) Westjet, discontinued in April 2023

Of course, there’s also this Proposed Class Action in Federal Court, with Chief Gregory Burke. Nearly 18 months after the suit was initiated, there’s been no progress beyond amending the Statement of Claim. No Motions. No Defences filed. No Certification started.

This has become a significant problem in recent years. Members of the public cheer as it *appears* someone is fighting for their rights, and they often donate. But then, those cases quietly disappear, and are never heard about again.

Timeline Of Major Events In Case

December 8th, 2022: Statement of Claim is filed in the King’s Bench Court of Manitoba

January 5th, 2023: Municipal Defendants prepare Notice of Motion to strike lawsuit.

January 6th, 2023: Manitoba Defendants prepare Notice of Motion to strike lawsuit.

February 14th, 2023: Hearing for Motion to Strike is adjourned.

February 27th, 2023: Hearing for Motion to Strike is adjourned.

April 27th, 2023: Hearing for Motion to Strike is adjourned.

May 25th, 2023: Notice of Discontinuance is filed.

As an aside, the Notice of Discontinuance is dated April 3rd, 2023, but wasn’t filed until the end of May. Perhaps dropping the case had long been the intention.

There are so many examples of this happening.

(1) Winnipeg Class Action Statement Of Claim
(2) Winnipeg Class Action Notice Of Motion Municipal Defendants
(3) Winnipeg Class Action Notice Of Motion Provincial Defendants
(4) Winnipeg Class Action Affidavit Of Service
(5) Winnipeg Class Action Notice Of Discontinuance
(6) https://web43.gov.mb.ca/Registry/NameSearch

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Review Of Westjet Injection Pass Lawsuit, Dropped In April 2023

Countless times in the last few years, we come across announcements about lawsuits being filed to challenge so-called injection passports. There’s initially plenty of hope and optimism that meaningful results will force Governments to change their ways. And a suit filed against Westjet in the Fall of 2022 was one such example.

The suit named:

  • His Majesty The King in Right of Canada
  • Attorney General of Canada
  • Westjet Group Inc.
  • Westjet Airlines Ltd.
  • Westjet Encore
  • Westjet Vacations Inc.
  • Swoop Inc.

These announcements are typically followed up with requests for donations, or solicitations for more clients, and more fees. There’s never really “enough” money.

But all too often, there won’t be any new reporting.

This is usually because they’re quietly dropped. And that’s exactly what happened here.

Shoddy Claims Being Recycled In Federal Court

The Westjet lawsuit should look familiar. It was filed by Leighton Grey of the firm Grey Wowk Spencer. It’s one of many filed in recent years that went absolutely nowhere.

(a) Canada Post: struck in March 2024
(b) Canadian National Railway: discontinued in June 2023
(c) Purolator, discontinued in April 2023

Grey has been in the press many times since 2020, often for filing a high profile lawsuit. That said, rarely does anything ever come of it. These cases are typically struck or discontinued (dropped).

And here, “The Discontinuer” is at is again.

Once Again, No Material Facts Or Particulars Pleaded

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 will have heard the terms “pleading facts” and “pleading particulars”. While the numbering systems differ, the Rules are the same across Canada. In short, there must be enough detailed information in a lawsuit that the opposing side is able to understand, and respond.

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)

One of the reasons Grey’s claims are typically so short is that he rarely pleads any facts. Despite having over 100 Plaintiffs, the suit is less than 25 pages. Once again, there’s no specific information about any Plaintiff, other than they are/were employees of Westjet. There’s nothing about:

  • Who is a current employee v.s. who left?
  • Who had no shots, 1 shots, 2 shots, or more?
  • Who worked remotely v.s. who worked in person?
  • Who got any sort of severance pay?
  • Who (if anyone) was subject to any bonus or performance contract?
  • Were there different unions, and any overlapping, or different policies?
  • Who raised which specific objection to taking the injections?
  • Who attempted which type of exemption method?
  • Which specific religious objections (for those who invoked it) applied and how?
  • Who went to grieve with their union?
  • What were the results of any internal grievance?

This isn’t to defend the policy at all. However, from a due process perspective, there’s so little information contained that it’s impossible to defend against. Basic information must be pleaded for each Plaintiff. Grey includes none of it.

None of the Charter violations are pleaded properly either. While (initially) the Court is to accept everything as true, there is very specific information that must be alleged to make it possible to advance.

There’s also a lack of particulars. The suit makes all kinds of allegations of malice, bad faith, and malfeasance of public office, but doesn’t spell out any of it.

The Claim and Amended Claim include allegations which a Civil Court doesn’t have jurisdiction over, such as relying on the Criminal Code of Canada.

Looking at the: (a) Canada Post; (b) CNR; (c) Purolator; and now (d) Westjet pleadings, it’s clear that it’s the same suit just tweaked a little. Grey merely changes the names in the Style of Cause (the Parties) and refiles elsewhere.

Clients are paying (presumably) good money for recycled garbage.

Westjet Has Collective Bargaining Agreement For Employees

Westjet employees appear to be part of CUPE Local 4070, which is one of many unions. Unsurprisingly, there is a collective bargaining agreement which outlines most of the important things involved.

Article 30 lists the various steps involved, and the people who are involved. Like many unions, Arbitration and not litigation, is considered to be the final one. Article 31 then goes through the process itself.

Grey discontinued the case rather than have the jurisdiction challenged. He has done this with multiple lawsuits now.

Now, Umar Sheikh and Angela Wood showed a way around the grievance requirement in another Federal case. Specifically, they argued that the introduction of the injection pass was a new condition imposed “without meaningful consultation”. Basically, the way mandates were implemented circumvented the grievance process. They successfully stopped a Motion to Strike.

Perhaps Grey could have done the same.

Timeline Of Major Events In Case

October 4th, 2022: Statement of Claim is filed.

November 17th, 2022: Defence files Notice of Intent to Respond.

November 20th, 2022: Case management is ordered.

November 21st, 2022: Amended Statement of Claim is filed.

December 5th, 2022: Plaintiffs (a) Erin Shannon; (b) Tara Mainland; (c) Jennifer Masterman all send in Notices of Discontinuance.

December 8th, 2022: Plaintiff’s lawyer (Grey) submits letter with proposed timetable.

February 28th, 2023: Court orders case management conference on March 13th, 2023.

March 13th, 2023: Conference discusses options of discontinuing overall, or setting timetable to file materials for Motion to Strike.

April 12th, 2023: Lawsuit is discontinued.

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.

And that’s how this Westjet case concluded.

The Government (and the Westjet Defendants) threatened to bring Motions to Strike. The likely reasons were the lack of jurisdiction, and the shoddy nature of the pleadings. Rather than fight, the lawyer dropped the case. He never even tried to fight back.

Before even a single Motion could be argued, the entire lawsuit was discontinued. Plaintiffs are presumably out of luck for any retainer fees they’ve paid.

WESTJET DOCUMENTS:
(1) Westjet Statement Of Claim October 2022
(2) Westjet Amended Statement Of Claim November 2022
(3) Westjet Order Timetable December 2022
(4) Westjet Notice Of Discontinuance April 2023

UNION DOCUMENTS:
(1) https://www.cupe4070.ca/collective-agreements
(2) Westjet CUPE 4070 Collective Bargaining Agreement

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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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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