Category: Human Rights

Posted on

The Payne Appeal: What This s.2(d) Challenge Will Look Like

The Federal Government is appealing a shocking ruling from January which allowed a Proposed Class Action to proceed. Despite expectations to the contrary, Justice Richard Southcott (mostly) dismissed a Motion to Strike.

The challenge was organized by the group, Feds For Freedom. It’s comprised of 3 Representative Plaintiffs, all from different areas of the public sector.

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

They had their employment threatened in late 2021 with the introduction of the vaccine passport. Unlike earlier challenges, this one survived, due to the innovative arguments raised.

This lawsuit challenged not the mandates themselves, but the manner in which they were implemented. The case argued that there effectively were no grievance options because of this.

It’s not being hyperbolic to say this will impact employment rights at the Federal level. Either freedom of association is a valid ground to challenge such mandates, or there may not be any option at all.

What Happened With Justice Southcott’s Decision

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
Marginal note: 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 initial Motion to Strike was based on s.208 and s.236 of the FPSLRA, or the Public Sector Labour Relations Act. In short, employees have the right to grieve, but not to sue. This is similar to how unionized workplaces function in general.

The Statement of Claim revolved around 2 torts:

  1. Section 2(d) of the Charter, freedom of association, and
  2. Malfeasance of Public Office

First, the s.2(d) argument was that the injection pass was implemented in a heavy handed manner, without due process or meaningful consultation. As such, it circumvented any legitimate grievance process. The result is that it deprived workers of their right to freedom of association, within the context of voluntary employment.

Second, the way in which this was implemented amounted to an abuse of process and malfeasance of office by the politicians involved.

Justice Southcott accepted the first argument, that this was potentially a s.2(d) breach. However, he ruled that malfeasance was an issue that could be grieved. There was one caveat though: because there would likely be more Plaintiffs in this Class Action, it’s possible that one could be found who didn’t have that grievance right, such as a summer student.

The s.2(d) tort was allowed to proceed, while the malfeasance was struck, with Leave to Amend.

The implications are far reaching. If the s.2(d) argument was left standing, there would be precedent to prevent any such future infringements on employee rights. Unsurprisingly, the Crown appealed.

Ottawa Claims Southcott Should Have Refused Jurisdiction

28. The motion judge erred by taking jurisdiction over any aspect of the plaintiffs’ claim. First, he erred in law by failing to apply the correct legal test. Instead of assessing whether the dispute related to a matter that could be grieved under the FPSLRA, he relied on the fact that a similar issue could not be grieved under the labour relations regime that was at issue in Morin. Had the motion judge rendered his decision based on the language of s. 208, he would have found it plain and obvious that the matter could be grieved regardless of whether it was characterized as a dispute over the terms and conditions of employment or a dispute over the process by which terms and conditions were changed.

29. Second, and in any event, the motion judge committed palpable and overriding errors in accepting that the essential nature of the plaintiffs’ s. 2(d) claim related only to process. He wrongly assumed that the essential character of the dispute would be different for each of the two causes of action pled. This approach was contrary to consistent appellate authority holding that a court’s characterization of the essential nature of a dispute must be based on the facts giving rise to the dispute, and not by the legal characterization of the wrong. Since none of the material facts pled related to the process by which the Vaccination Policy was adopted, it was a palpable and overriding error to conclude that that was the essential character of the dispute.

In their filings, the Government lawyers argue that the nature of the case involves changes to the terms and conditions of employment. Section 208 FPSLRA gives everyone grievance rights, so logically, implementing the vaccine mandates should be covered.

Respondents Say Justice Southcott Made No Errors

39. Southcott J. did not err by allowing the plaintiffs’ Charter claim to survive the motion to strike.
Next, Southcott J. did not commit palpable and overriding error in his consideration of the plaintiffs’ Charter claim. Indeed, he did not engage in any such analysis because the sufficiency of the plaintiffs’ s. 2(d) claim was not even challenged by the appellant. The appellant’s motion materials include several references to the insufficiency of the plaintiffs’ misfeasance claim, but includes no such reference to the plaintiffs’ s. 2(d) claim

40. There is a “stringent” test for allowing new arguments on appeal: a new issue should only be considered “where [the Court] is able to do so without procedural prejudice to the opposing party and where the refusal to do so would risk an injustice.” The appellant has failed to identify any “exceptional circumstances” permitting it to challenge this cause of action for the first time on appeal. Nor has it explained how Southcott J. committed palpable and overriding error by not considering an argument that the appellant itself did not raise.

41. Further, any such arguments would have failed as the plaintiffs’ have pled an arguable Charter claim. The appellant here takes an unduly narrow view of the Claim contrary to the holistic and generous approach required in interpreting pleadings on a motion to strike.

47. As written by Southcott J., the plaintiffs alleged “that the Treasury Board acted with reckless indifference or willful blindness in issuing the Policy in that… it had no basis in fact to justify the Policy as a measure to prevent transmission of the virus.” Specifically, the Claim states that the Treasury Board mandated vaccination for the stated purpose of preventing transmission of COVID-19 but, in so doing, ignored the potential inefficacy of the vaccines, the potentially serious adverse effects, and the significant detriment that could have been suffered by the plaintiffs, among others. The incongruity between the Treasury Board’s knowledge and its stated intention is demonstrative of bad faith and/or dishonesty. Similar pleadings have been found to meet the standard of reasonable pleadings on a motion to strike.

50. Lastly, the appellant argues that leave to amend should not have been and cannot be granted in this case. Once again, the appellant reiterates its argument at the motion stage: the Claim ought to have been grieved. Southcott J. considered and rejected this argument. He found that it was plausible that the Federal Court had jurisdiction, at least over the Charter allegations, such that the Claim could survive this preliminary motion.

The Respondents take the position that Justice Southcott made no major errors with the ruling, and that the case ought to proceed.

Interestingly, the Appellants (Government) are now questioning whether or not the s.2(d) was pleaded with sufficient detail, an argument they didn’t raise at the initial hearing.

Keep in mind, this was just a Motion to Strike. It’s a look at the pleadings themselves. This isn’t meant to be a deep dive into the facts or the evidence.

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: Notice of Appeal is filed.

January 21st, 2025: Notice of Appearance is filed.

February 12th, 2025: Parties file their agreement as to what the contents of the Appeal Book will be. This is a requirement unique to the Federal Court of Appeal.

March 14th, 2025: The Appeal Book is filed.

April 14th, 2025: Appellants file their written arguments.

May 14th, 2025: Respondents file their written arguments.

Payne Part Of Series Of s.2(d) Challenges In Canada

CASE NAMES PAYNE/BCPSEF HILL/UHCWBC/UHCWO
Government Workers? Yes No
Filed Federally? Payne Hill
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

See parts 1, 2, 3, 4, 5 and 6 in this series.

All 5 of these cases (from Ontario, B.C. and the Federal Courts) involve the Section 2(d) tort in some way. How it applies differs somewhat between them.

Payne involves employees of the Federal Government, whereas Hill involves employees of Federally regulated industries, specifically, the airlines. While unionized, WestJet and Air Canada aren’t part of the Government. The airlines don’t use the FPSLRA, and the Government lacks standing to invoke the collective bargaining agreement of other people.

These subtle, but important differences explain why Payne was appealed, but Hill wasn’t.

There’s a similar distinction between the B.C. Government employees case and the health care workers one. Likewise in Ontario, Plaintiffs aren’t directly employed by Government there either.

We’ll have to see how Payne plays out, but this case could easily end up before the Supreme Court. It’s not an exaggeration to say that there will be long lasting implications on employment rights, at least at the Federal level.

PAYNE APPEAL DOCUMENTS:
(1) Payne Notice Of Appeal January 2025
(2) Payne Notice Of Appearance January 2025
(3) Payne Agreement To Contents Of Appeal Book February 2025
(4) Payne Joint Appeal Book March 2025
(5) Payne Appellants Memorandum Of Fact And Law April 2025
(6) Payne Respondents Memorandum Of Fact And Law May 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) Payne Transcript Of Southcott Hearing December 2024
(7) https://www.canlii.org/en/ca/fct/doc/2025/2025fc5/2025fc5.pdf
(8) https://www.canlii.org/en/ca/fct/doc/2025/2025fc5/2025fc5.html

Posted on

CSASPP Class Action Certification Application Still Under Reserve 2 Years Later

It has been a full 2 years since the Certification hearings concluded between CSASPP (the Canadian Society for the Advancement of Science in Public Policy), the British Columbia Government, and Provincial Health Officer, Bonnie Henry. No ruling has been made yet.

The Government is also asking the Court to strike the case altogether. While surviving such Applications is usually straightforward, a class proceeding complicates things.

The stakes are very high. If certified, the case would potentially create millions of Plaintiffs.

The hearings began in December of 2022, and were expected to conclude in a single week. That didn’t happen, so a week in April 2023 was needed to finish them off. Then, the decision was deferred.

Unfortunately, there’s no way to make any progress until this is settled once and for all.

In fairness to Justice Crerar, he has a big workload to deal with.

That being said, people do need an answer as to whether or not this case will be certified. 2 years is a long time to make a decision, even with an undertaking of this size. Hopefully, one will come soon.

Timeline Of Major Events In Case

January, 2021: The case was initially filed in January 2021 as a Proposed Class Action.

March, 2021: The B.C. Government responds to the lawsuit.

June, 2021: Plaintiffs bring their proposal for case management.

July, 2021: Defendants bring their own proposal to manage the case.

September, 2021: Notice of Civil Claim is amended.

December, 2022: Certification hearings start, but take longer than originally anticipated. They were intended to be completed over a single week.

April 2023: Certification hearings resume, taking up another week. The decision is under reserve, meaning it will be issued later. However, Justice Crerar would still make several subsequent requests for submissions based on related cases happening elsewhere.

July, 2023: Ingram, the disaster of a ruling, is brought to Justice Crerar’s attention. This is the Alberta ruling that struck down orders on a technicality (Cabinet interference), but otherwise okayed them in principle.

September, 2023: Bonnie Henry’s lawyer objects to CSASPP filing a Petition against the vaccine passport for health care workers, claiming the existing litigation amounts to a duplication, and hence, abuse of process.

April, 2024: Justice Crerar sends notice that he will likely be issuing a decision on the Certification Application within a month or so. As a result, CSASPP forwards several recent rulings on related issues. But, the ruling is further delayed.

May, 2024: Bonnie Henry’s lawyers are invited to make further written submissions.

April, 2025: Randy Hillier’s win at the Ontario Court of Appeal is forwarded.

So, When Will The Decision Be Made?

There’s no way to answer this.

Justice Crerar has since released decisions in other cases, although, they’re much simpler in scope. The ruling he issues — whatever it is — will impact millions of people. The various requests for submissions suggest that he’s trying to ward off any possibility of an appeal.

For what it’s worth, the overall quality of the filings has been very high. This is night and day different from another case in Vancouver.

It’s a game of hurry-up-and-wait.

LINKS TO REVIEW:
(1) https://justice.gov.bc.ca/cso/index.do
(2) https://www.covidconstitutionalchallengebc.ca/court-documents
(3) https://www.covidconstitutionalchallengebc.ca/status-updates
(4) https://www.covidconstitutionalchallengebc.ca/faq
(5) https://www.covidconstitutionalchallengebc.ca/transparency
(6) https://www.covidconstitutionalchallengebc.ca/hearing-videos
(7) https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc2108/2022bcsc2108.html

DOCUMENTS AVAILABLE FROM CASE
(A) CSASPP 20210126 Notice of Civil Claim
(B) CSASPP 20210321 Request for Assignment of Judge
(C) CSASPP 20210331 Response to Civil Claim
(D) CSASPP 20210531 Cease and Desist Letter to Regulators
(E) CSASPP 20210621 CSASPPs Case Plan Proposal
(F) CSASPP 20210621 Dr Bonnie Henrys availability requested
(G) CSASPP 20210731 Defendants Case Plan Proposal
(H) CSASPP 20210813 Requisition for JMC for 1 October 2021
(I) CSASPP 20210817 Demand for Particulars
(J) CSASPP 20210821 Plaintiffs Response to Demand for Particulars
(K) CSASPP 20210913 Oral Reasons for Judgment Short Leave Application Seeking Stay
(L) CSASPP 20210915 Amended Notice of Civil Claim
(M) CSASPP 20211025 Affidavit No 2 of CSASPP Executive Director
(N) CSASPP 20211028 Proceedings in Chambers Defendants Application for Further Particulars
(O) CSASPP 20221101 Affidavit No 3 of Redacted Deponent Redacted
(P) CSASPP 20221102 Dr Henry and HMTKs Application Response for Webcast Application
(Q) CSASPP 20221115 Respondents Requisition Seeking 16 Nov 2022 CPC to Be Held by MS Teams

Posted on

BCPSEF And UHCWBC Certification Hearings In A Week Over s.2(d) Violations

During the week of April 28th to May 2nd, 2025, the fates of 2 Proposed Class Actions are to be determined in a Victoria Court. These are on behalf of B.C. public sector employees, and B.C. health care workers, both current and former. Their employment was threatened by injection mandates a few years ago.

The British Columbia Supreme Court will hear both: (a) Applications to Certify; and (b) Applications to Strike. The decisions will almost certainly be deferred until later.

The groups organizing and arranging funding are: (a) BCPSEF, B.C. Public Service Employees for Freedom; and (b) UHCWBC, United Health Care Workers of B.C.

Because of the overlap in the cases, they’ll be argued at the same time. This is often done to save time and money for everyone involved.

See Parts 1, 2, 3, 4, and especially 5. These cases are all very similar.

Application To Strike BCPSEF Claim Entirely

5. The plaintiff was a unionized employee of the Province within the BC Public Service. At all material times, his employment was subject to the collective agreement between his union, the B.C. General Employees’ Union (the “GEU”), and his employer, the Province.

9. On January 11, 2022, the GEU filed a grievance on behalf of the plaintiff, challenging the Province’s decision to put him on leave without pay. On August 15, 2022, the GEU notified the plaintiff that it was withdrawing his grievance because the GEU had determined the grievance did not have a reasonable chance of success.

21. Jurisdiction in this case is determined through the “essential character” framework set out by the Supreme Court of Canada in Weber v. Ontario Hydro. The central question is whether the cause of action arises “from the interpretation, application or alleged violation of the [plaintiff’s] collective agreement”. Plaintiffs cannot avoid arbitration by pleading causes of action or wrongs which are typically adjudicated outside the labour relations process. Rather, the central focus of the analysis is the facts of the complaint, not the legal form in which the complaint is advanced. Accordingly, Charter and tort claims fall within the exclusive jurisdiction of a labour arbitrator if their “essential character” relates to the interpretation and application of a collective agreement.

22. The connection between the dispute and collective agreement does not need to be explicit or direct. Rather, defendants need only establish that the dispute arises “inferentially” out of the collective agreement to have it struck under Rule 21-8. This is consistent with the Supreme Court of Canada’s direction to adopt “a liberal position” under which the legislative intention to grant labour arbitrators “broad exclusive jurisdiction over issues relating to conditions of employment” is given effect.

The B.C Government is asking that the Baldwin case (BCPS) be thrown out on the grounds that grievance structure provides for an alternative remedy. Consequently, the Courts have no jurisdiction.

This is essentially the same arguments that Payne (Feds4Freedom) made in Federal Court, and that case survived a Motion to Strike. In fairness, it is currently under appeal. This isn’t to say that either Payne or Baldwin are hopeless, but this is something to consider.

In their response, BCPS stated that: “The Plaintiffs allege that the Impugned Order and Regulation imposed terms on the Plaintiffs’ employment that were contrary to (and indeed uncontemplated by) the relevant collective agreements.” In short, the manner in which this was handled falls far outside the scope of any grievance scheme available.

Essentially, it’s a re-argument of the Payne case. If the employer (namely, Government) unilaterally changes conditions of employment and circumvents the grievance system, are workers still expected to follow it?

Application To Strike UHCWBC Claim Entirely

17. This action is an abuse of process for two reasons.
18. First, the plaintiffs are attempting to usurp the roles of their unions. Unionized employees give up certain individual rights in exchange for certain collective powers exercisable through unions. The issues raised in this action could have been, and in some instances were, raised by unions through the mandatory grievance and arbitration processes set out in the relevant collective agreements. Many of those grievances have now been settled. To the extent that unions have settled grievances filed by the plaintiffs or putative class members, the issues raised by those grievances are res judicata and it is abusive for the plaintiffs to attempt to re-litigate them in this action. If the plaintiffs (or any putative class members) are dissatisfied with how their unions have handled or settled their grievances, their remedy is a fair representation complaint under s. 12 of the Labour Relations Code.

24. Dealing first with the inducing breach of contract claim, one element of this tort is, of course, a breach of contract. To succeed in his inducing breach of contract claim against the PHO and Province, Mr. Ferguson would have to show (among other things) that his employer, the Vancouver Island Health Authority, breached the collective agreement between the Facilities Subsector Bargaining Association and HEABC by suspending him without pay and terminating his employment. Ms. Perepolkin would have to show that her employer, the Interior Health Authority, breached the collective agreement between the Health Sciences Association and HEABC.

The B.C Government is also asking that the health care workers case be thrown out as well. It raises somewhat different issues.

The Government argues that the Representative Plaintiffs (Ferguson and Perepolkin), should have grieved through their respective unions against the employers.

But here’s where things get interesting: The Provincial Government isn’t the employer. They can’t invoke collective bargaining agreements they aren’t part of. Instead, the Claim accuses them of inducing a breach of contract of third parties. In other words, they meddled in someone ELSE’S business.

In the Hill case (FreeToFly), the Motion to Strike was dismissed because of this distinction. It was never appealed, and is soon to face its own certification hearings.

Things *might* be trickier since Ferguson and Perepolkin have already settled their cases internally. That said, it doesn’t remove the fact that their employment was messed with in the first place. And again, the Province isn’t the employer.

Certification Applications For Both BCPSEF And UHCWBC

Both BCPSEF and UHCWBC have submitted their Certification Applications. Other Affidavits were subsequently filed in support.

For most lawsuits, all of the parties are named at the start. Class Actions differ significantly because they allow many more Plaintiffs (and sometimes Defendants) to be added later. Here, a Judge must be satisfied that the Representative Plaintiff(s) speaks for a class of people, or classes. Also, it must be demonstrated that such litigation would be an effective way of dealing with all these claims at once.

These hearings aren’t to try the case. Instead, they’re to convince the Court that such a proceeding should be allowed to go ahead.

The Government raises the usual objections over abuse of process, and some new ones. Specifically, these cases might overlap with the CSASPP Proposed Class Action that has been under reserve for 2 years now. Another possible conflict is with a case called Ferguson. Hopefully, that can be resolved.

Questions are also raised about potential lack of common issues, and the feasibility of taking on such cases.

There is a joint response for both BCPSEF and UHCWEF, and an interesting read.

How These Various Proposed Class Actions Differ

CASE NAMES PAYNE/BCPSEF HILL/UHCWBC/UHCWO
Government Workers? Yes No
Filed Federally? Payne Hill
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

Given that Hill and Payne both survived initial challenges in Federal Court, this is promising. Of course, there’s no guarantee of what this Judge will do.

We’ll have to see at the end of April.

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

FREE TO FLY FEDERAL COURT DOCUMENTS:
(1) Hill Proposed Class Action Statement Of Claim May 2023
(2) Hill Order Case Management June 2023
(3) Hill Amended Statement Of Claim October 2023
(4) Hill Defendant Motion Record To Strike Claim April 2024
(5) Hill Plaintiff Responding Motion Record To Strike Claim May 2024
(6) Hill Plaintiff List Of Proposed Amendments May 2024
(7) https://www.canlii.org/en/ca/fct/doc/2025/2025fc242/2025fc242.html

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

UHCWO COURT DOCUMENTS:
(1) Wolfs Draft Statement Of Claim
(2) Wolfs Statement Of Claim August 2024

Posted on

A Look At The Hillier Ruling: Appeal Overturns Ban On Public Gatherings

Nice to cover a win, rare as they may be.

Last week, the Court of Appeal for Ontario overturned a ruling which found “stay-at-home” orders from 2021 to be justified, even if they did breach the Charter. The Application came from former Ontario MPP, Randy Hillier. This comes 4 years after Doug Ford effectively placed the entire Province under house arrest.

In the end, the Court of Appeal boiled it down to a simple 2-part question:

[47] The issues raised in this case are as follows:

(a) did the Gathering Restrictions violate Mr. Hillier’s freedom of peaceful assembly as provided for in section 2(c) of the Charter?

(b) if yes, is the violation justified under s. 1 of the Charter?

The Appellate Court indeed found that the orders did in fact amount to a breach of rights that couldn’t be justified. In particular, the way some gatherings could be accommodated, but not others, was very revealing.

[7] Despite these cautions, I conclude that the gathering limits at issue in this case were not demonstrably justified under s. 1 of the Charter. This case is materially different from Trinity Bible Chapel. First, this case concerns an absolute, rather than partial ban. Second, while Ontario tailored restrictions on religious gatherings to facilitate freedom of religion, no such tailoring was performed to facilitate the right to peacefully assemble. The evidence discloses that Ontario failed to consider the impact of the gathering limits on s. 2(c) of the Charter. The pandemic posed significant challenges for Ontario, but the Constitution does not fade from view in times of crisis.

Various public officials “claimed” that there has been all kinds of consultations done to ensure protection of rights, or at least some of them. This seems designed more to protect themselves from future challenges, than any sincere effort. Freedom of assembly didn’t make the list, for some reason.

Now, things should have been straightforward. However, Government lawyers have been quite good at convincing Judges that suspending rights (on the flimsiest of bases). “Trust me, Bro” has been the way it’s worked for a while.

While the Appeal seemed to be a long shot, there were at least 2 things which helped. First, several cases the Government relied on weren’t entirely helpful. Second, creating multiple “tiers” of protected rights involved some mental gymnastics to explain.

Ontario Superior Court Dismisses Application

From reading the original ruling, a familiar issue comes up.

[72] Mr. Hillier concedes that the Gathering Restrictions were enacted to address a pressing and substantial concern, namely COVID-19. This included the pressing need to reduce the transmission of COVID-19, and to reduce hospitalization and ICU admissions. The Court of Appeal in Trinity Bible found COVID-19 was a pressing and substantial concern in the spring of 2021. The Court of Appeal further accepted the motion judge’s finding that the “the objective of the religious gathering restrictions was to reduce COVID-19 transmission, hospitalization and death, and to mitigate threats to the integrity of the healthcare system”:

[73] As reviewed earlier in this decision, these were factually the same considerations before me. The rising caseloads and mounting deaths required government action. Without government intervention and restrictions, many more people would die. In Ontario, the pressing and substantial concern was heightened because its healthcare system, particularly the hospital sector, was close to its breaking point. Not only were those who suffered from COVID-19 at risk, but so were all the Ontarians who might need acute hospital care. There was no immediate fix to this long-standing structural problem, aside from doing all that was possible to reduce the spread of COVID-19. In short, it is hard to envision a more pressing and substantial objective.

[74] Accordingly, while I would have come to the same conclusion, there is no factual or legal basis for me to depart from the finding in Trinity Bible, that the Gathering Regulations were enacted to address the pressing and substantial objective of reducing the transmission of COVID-19.

The ruling, like so many, seems to “defer to the experts” without posing any real challenge. It this the best approach?

This may be a purist stance to take. But playing along with the Government narrative of there being a “pressing and substantial concern”, dooms many of these cases to fail. Under the Oakes Test, virtually any infringement of rights can be justified if it’s deemed to be:

(a) Pressing and Substantial Objective
(b) Rational Connection
(c) Minimal Impairment

By conceding the first (and really, the second) parts here, litigants are reduced to arguing that the impairment is not minimal, and is excessive.

In this instance though, tying this to Trinity Bible Chapel hurt initially, although it was ultimately useful later on. Justice Callaghan ruled that the outdoor assemblies could be restricted, much like a church could. That led to the Application being dismissed.

But there was one important difference: religious gatherings were restricted, while political gatherings were prohibited outright. That would change everything on Appeal.

As an aside, this ruling was cited by the Alberta King’s Bench in May 2024. Club Ménage, a polygamy group, challenged Land Use By-Laws which prohibited certain type of gatherings. In this context, it appears to be a swinger’s club.

Court Of Appeal Overturns Lower Court Ruling

Here’s how the Hillier Appeal was framed. It was over 2 questions of law. The Court seemed to focus almost exclusively on the second, while side-stepping the first.

The Applicant raises two issues in this Appeal, namely:
1) that the Application Judge erred in his application of the minimal impairment branch of the test cited in R v Oakes; and
2) that the Application Judge erred in upholding government action that created a constitutionally impermissible hierarchy of rights.

One of the cases, interestingly enough, that Hillier relied on in his Appeal was Ontario v. Trinity Bible Chapel et al. This matters, because even when Courts found “restrictions” to be justified, they never entirely banned religious gatherings. They were just made very inconvenient.

[155] Finally, it is important to note that, throughout the pandemic, religious gathering limits were carefully tailored to reflect evolving circumstances, new scientific evidence, and changing levels of risk. Ontario never completely banned religious gatherings. Even when risk was at its highest, and public health at its most precarious, religious institutions were permitted to have upwards of ten persons together, to facilitate virtual or drive-in services.

[167]… Yet, it remains the fact that, despite the claimants’ characterization as such, there was never a complete ban on religious gatherings or religious activity. It was always open to the churches to deliver services to congregants, albeit in a less than optimal fashion. Gathering limits imposed a significant burden on religious activity, but they did not prevent it from occurring.

By this logic, how then could Ford justify a stay-at-home order which permitted one type of protected activity (religious in nature), while outright banning another (political assembly)? While Trinity is often seen as a bad ruling, there was something good within it.

It stands to reason that public assembly could be permitted, with similar restrictions. But the reason it was not: political gatherings are a potential threat to Government, while religious gatherings aren’t.

58. Mr. Hillier’s third argument on appeal is that the application judge “erred in law in upholding a hierarchy of rights established by Ontario” through the Gathering Limits. This is how Mr. Hillier describes the fact that the Gathering Limits prohibited outdoor gatherings for political purposes while allowing certain religious gatherings.

59. This is a new argument on appeal which this Court should not entertain. As a general rule, appellate courts will not entertain new issues on appeal. The application judge’s reasons contained no analysis of a “hierarchy of rights” because Mr. Hillier did not make this argument below, and therefore this Court would have to consider this argument as a matter of first impression. There is no exception to the rule against new arguments on appeal for constitutional claims.

The Government lawyers complained that “hierarchy of rights” was a new issue on Appeal, and should not be considered. That said, they concede that Hillier had referred to other types of activities, such as religion, sports events, and shopping. They then go on to argue (essentially) that any sort of activities can be restricted if it is deemed to be necessary.

In other words, hypocrisy had been addressed before, even if “hierarchy of rights” was a new term.

Hillier wasn’t really introducing a brand new issue, but making better arguments.

Sanity did prevail at the Court of Appeal.

Timeline Of Major Events In Case

June 13th, 2022: Hillier files Notice of Application in Toronto.

October 6th, 2022: Hillier files Notice of Constitutional Question.

May 4th, 2023: Hillier is questioned during discovery.

May 5th, 2023: Joel Kettner is questioned during discovery.

May 16th, 2023: Kevin Bardosh is questioned during discovery.

June 7th, 2023: Hillier files Factum (arguments) for hearing.

July 7th, 2023: Ontario files Responding Factum.

July 21st, 2023: Hillier’s Reply Factum comes in.

July 27th/28th, 2023: Application is heard in Provincial Court.

September 12th, 2023: Supplementary submissions are filed after the fact.

November 13th, 2023: More supplementary submissions are filed.

November 22nd, 2023: Ontario Superior Court dismisses the Application.

February 26th, 2024: Appellant’s (Hillier’s) Factum is filed.

May 23rd, 2024: Respondent’s (Government’s) Factum is filed.

September 19th, 2024: Appeal is heard in Toronto.

April 7th, 2025: Ontario Court of Appeal overturns ONSC decision.

With all this in mind, some perspective is needed. Doug-The-Thug is still in power, and in fact, was re-elected in 2022 and 2025. He’s faced no real consequences for doing any of this. Hopefully though, there will be more pushback the next time such a tyrant wants to impose martial law.

ONSC COURT DOCUMENTS:
(1) Hillier Notice Of Application
(2) Hillier Notice Of Constitutional Question
(3) Hillier Transcript Of Hillier
(4) Hillier Transcript Of Bardosh
(5) Hillier Transcript Of Kettner
(6) Hillier Factum
(7) Hillier Responding Factum
(8) Hillier Reply Factum
(9) https://www.canlii.org/en/on/onsc/doc/2023/2023onsc6611/2023onsc6611.html

ONCA COURT DOCUMENTS:
(1) HIllier APPEAL Appellant Factum
(2) HIllier APPEAL Respondent Factum
(3) https://www.canlii.org/en/on/onca/doc/2025/2025onca259/2025onca259.html

Posted on

BCPSEF And UHCWBC Certification Hearings To Take Place In April Over s.2(d) Violations

At the end of April, 2 groups are expected to begin their certification hearings at the British Columbia Supreme Court. These are: BCPS Employees for Freedom Society, and UHCWBC, the United Health Care Workers of BC. These are Proposed Class Action lawsuits filed in October 2023 challenging the injection mandates.

The idea behind Class Actions is simple: it can reduce a significant amount of time and expense to “bundle” related litigants into a single challenge.

The lawyers, Umar Sheikh and Angela Wood, are trying to convince the Court that their clients’ Section 2(d) Charter Rights were infringed. This is — of course — freedom of association — and it’s become their signature tort. They’ve had some success so far.

It’s worth mentioning that there’s strong parallels between these suits and the Payne and Hill cases. They were filed by the same lawyers, and make essentially the same arguments. Both of those survived an initial challenge, although Payne is currently under Appeal. All of them are Proposed Class Actions.

CASE NAMES PAYNE/BCPSEF HILL/UHCWBC
Government Workers? Yes No
Filed Federally? Payne Hill
Filed in B.C.? BCPSEF UHCWBC
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

Collective bargaining agreements are typically fatal, due to the issue of whether or not the Court has jurisdiction. Usually, Arbitration is called for. But that doesn’t apply when the party being sued isn’t the employer. In the Hill and UHCWBC cases, the respective Governments are accusing of meddling with other people’s employment.

This removes the potentially strongest initial challenge.

BCPS Employees for Freedom Society, Wrongful Termination

54. The Plaintiff’s plead that the Order constitutes an improper and unjustified imposition by the Defendant of a new term and condition of employment absent collective bargaining memoranda of agreement, consideration, or consent to their existing and freely negotiated employment agreements and as such violates their protected right under s. 2d of the Charter.

It’s been a longstanding defence raised by various Governments in wrongful termination cases: there’s a grievance option available, therefore, the Court has no jurisdiction. That said, the argument here is that any grievance process was circumvented by unilaterally imposing changes of employment agreements. If there’s no opportunity for meaningful consultation, how can the internal processes be used?

Up until Payne, various Governments had been entirely successful arguing that there was no way around those agreements. But the logic applied here seems so basic.

Both cases here also argue that the Plaintiffs’ freedom of association rights were violated, and it applies whether or not the Government is the employer.

United Health Care Workers, Inducement To Breach Contract

58. The Plaintiffs and Class Members allege that the Defendants intended to and caused and/or induced the Employers to breach contractual employment agreements by their actions in relation to: the disclosure of private medical information; imposition of a leave without pay; and/or unlawful termination by ordering the Employers to enforce the Orders absent justification. The breaches of contractual employment agreements are therefore a direct result of the unlawful inducement of the breach as herein before particularized and as a result of unlawful interference by the Defendants in the contractual relationship between the Plaintiffs, Class Members and their Employers.

This differs from the above case since the health care workers aren’t directly for the Government. Instead, they had their employment terminated by their employers such as hospitals, because of the injection mandates that were handed down. This is a subtle, but important distinction.

Certification Hearings To Determine Viability Of Class Action(s)

A common misconception is that these hearings are to determine the merits of the Plaintiffs’ respective cases. That’s not really accurate.

Instead, the purpose is to determine whether or not there’s an overall interest in proceeding with such a case. Essentially, the lawyers have to “sell” the idea that they have the ability and plan to see it through. It’s more about the nuts and bolts of such an undertaking, rather than trying the matter. The ability to finance and sustain a prolonged lawsuit will also be an issue.

The Representative Plaintiffs (a.k.a. Token Plaintiffs) are taking a significant risk as well. Should a Claim not be certified, they can be held personally responsible for Court costs. Those can be expensive.

Should either case be certified, it would pretty much close off opportunities to bring related claims for similar classes of people. This is partly why the Court needs to ensure these ones are serious.

Applications to Strike have also been filed in both cases, which is not a surprise. Those presumably will be heard at the same time.

BCPSEF and UHCWBC have both brought forward their Notices, and more documents are expected to be filed.

Hopefully, it goes more efficiently than the CSASPP hearings. Decisions on Certification, and an Application to Strike have been under reserve for nearly 2 years now.

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

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

GENERAL LINKS:
(1) https://bcpsforfreedom.com/
(2) https://bcpsforfreedom.com/media-release-plaintiff-launches-class-action-lawsuit/
(3) https://x.com/bcpsef
(4) https://unitedtogether.ca/
(5) https://unitedtogether.ca/faq-classaction/
(6) https://x.com/UHCWBC

Posted on

Looking At The Burke Federal Proposed Class Action (Injection Mandates)

Canadians were subjected to varying forms of lockdown measures from 2020 through 2022. Some restrictions still exist today in places such as health care settings.

As a result, a topic that’s come up numerous times is the idea of Class Actions. This is based on the concept that a single lawsuit — if carefully prepared — will be much more effective than individual claims. Many more people could potentially benefit. And indeed, such cases have sprung up.

With that in mind, it’s worth asking: how are these cases going?

One such suit filed in Federal Court is Chief Gregory Burke v. His Majesty the King, and the Attorney General of Canada. It commenced back in September 2023. To put it mildly, advancing the case doesn’t appear to be much of a priority.

There’s just the Statement of Claim and an amended version on file, both of which look to be horribly deficient. It will have to be further amended.

No Motion to Strike has (yet) been commenced. There’s no Statement of Defence. It doesn’t look like any steps have been taken to certify the case as a Class Action. The most recent action was in December 2024, advising of potential dates for a case conference. Donations are being sought still.

Counsel’s Recent Record On “Vaccine Passport” Cases

This Proposed Class Action is being conducted by Leighton Grey of the firm Grey Wowk Spencer. He has filed several related lawsuits (not Class Actions) in Federal Court in recent years. However, the trend seems to be to discontinue — drop — them, rather than push through.

(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

A search of other Court records — such as Manitoba — reveal other, related cases which were promptly discontinued. One has to wonder how diligently this one will be pursued.

Nothing Pleaded About Chief Gregory Burke, Representative Plaintiff

Most people are familiar with the more “traditional” lawsuits. In those, the details of each Plaintiff must be spelled out in the Statement of Claim, and then, the Defendants respond. They typically know from the onset exactly who is suing them, and for how much.

For (Proposed) Class Actions, the Claim pleads information about 1 or more “Representative Plaintiffs” only. There are “subgroups” or “classes” listed of prospective litigants. They still have to provide enough detail about their own circumstances. Beyond that, there’s a process to attempt to certify the lawsuit as a Class Action. A Judge may (or may not) certify.

Only a single Representative Plaintiff — sometimes called a “Token Plaintiff” — is required, provided he or she is able to qualify for all classes.

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.

Problem here: there’s nothing pleaded about Chief Gregory Burke. Federal Court Rules make it clear what’s required in a Statement of Claim. Neither the original nor the amended version provide any information about him.

Since Burke is the only Representative Plaintiff, he must give sufficient detail to at least theoretically support all of such Claims. True, other Plaintiffs may be added, but only if Certification is successful. It’s probably too late to amend the Style of Cause (names of Parties).

  • Section 2(a) of the Charter;
  • Section 6 of the Charter (Mobility)
  • Section 7 of the Charter (Security of the Person)
  • Section 8 of the Charter (Unreasonable Search and Seizure)
  • Section 15 of the Charter (Equality)
  • Tortious interference of economic relations
  • Tortious inducement to breach contractual relations
  • Intentional infliction of mental suffering
  • Malfeasance of public office
  • Negligent representation
  • Human rights violations

These are just some of the torts alleged in the Statement of Claim. Problem is: Grey pleads no information to support any of it. Granted, it may be true, but there’s nothing explained. Many are simply listed, with no facts or particulars to support any of it.

We know Burke’s name, and that’s about it.

Yes, the Statement of Claim can usually be amended. Keep in mind though, the case was filed nearly a year and a half ago. Shouldn’t such information already be included?

The Representative Plaintiff is Chief Gregory Burke. He is a senior who lives in Nova Scotia. He was chosen for a number of reasons, including his resistance to lockdown tyranny, which is being prosecuted there. He is also a Metis hereditary Chief who fits into both of the subclasses described in the class action.

Heck, there’s more information listed on counsel’s website than there is in the Statement of Claim.

Other Nonsense Included In Statement Of Claim

The Claim bizarrely pleads product liability and breach of implied warranty. This doesn’t make any sense. If Burke were fighting lockdown tyranny, he wouldn’t have taken any of the injections. And in paragraph 5, it’s stated that the Plaintiffs hadn’t. This would only apply if someone had taken the shot(s) and been harmed. Beyond that, it would be the manufacturers who’d be potentially liable.

Starting around paragraph 57, there are allegations that the Government had breached its duty of care to the Plaintiffs. It goes on and on about the dangers posed by “experimental vaccines”. But once again, the Plaintiffs plead that none of them took the shots.

Grey pleads the Nuremberg Code among other remedies that have no jurisdiction in a Canadian Civil Court. This is a Galati favourite, and part of the reason his cases are typically struck early on.

As for the Genetic Non-Discrimination Act, the purpose of that legislation had to do with race, ethnicity, and genetic disorders a person might have. It doesn’t apply here, yet lawyers routinely include it.

There are also allegations of interference with economic relations. For this tort to work, the Defendants would have to have done something improper or illegal to a third party that harmed the Plaintiffs. None of that is specified here. The employers would need to be identified, and the circumstances laid out.

The entire Claim reads as if Grey had simply cut and pasted from various other lawsuits, without paying much attention to how logical it all was.

Pleading Names The Subclasses (Groups of Plaintiffs)

Typically, a Class Action will name various “subclasses” of Plaintiffs. These are people who will still be part of the litigation, but whom have been impacted in different ways. Quote:

  1. “Employment Subclass“: members who have experienced job loss or adverse employment effects as a result of the Defendants’ actions. This subclass includes those who have been terminated, denied promotions, experienced decreased working hours or suffered any other professional hardship
  2. “Travel Subclass“: individuals who were prevented or prohibited from travelling due to their vaccination status. Members of this subclass have been adversely affected by the Defendants’ conduct and policies that either implicitly or explicitly restricted the mobility rights of unvaccinated individuals, thus causing significant disruption to both their personal and professional lives.
  3. “Dual Impact Subclass“: is unique in that it encapsulates members who fall within both the aforementioned subclasses.

As stated before, there’s no information pleaded about Burke. He may very well have valid claims both regarding employment and travel, but there’s nothing provided.

Timeline Of Major Events In Case

September 23rd, 2023: Statement of Claim filed.

October 5th, 2023: Government sends notice that it will respond and defend.

November 1st, 2023: Associate Judge Michael D. Crinson and Justice Mandy Aylen are assigned to be case management Judges for the suit.

December 10, 2023: Defendants contact Court, asking that any Statement of Defence be deferred until after Certification Motion has been heard and determined.

June 3, 2024: Statement of Claim (Plaintiff Class) filed with the Court.

December 19th, 2024: Letter from Plaintiff’s lawyer about case management dates.

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.

That’s where things currently stand. No Statement of Defence has been filed. There’s no Motion to Strike (yet), though presumably one is coming. And the process for a Certification Motion hasn’t even been started.

“2024-10-07
Current Status: The Statement of Claim was filed on 25 September 2023. A Federal Court action with a similar fact pattern recently faced a Motion to Strike Application to amend the Statement of Claim. We await online production of the Amended Statement of Claim to better assess whether further refinements are required in our action. In the interim a Case Management Conference has been requested. Scheduling of same is pending.”

An October 2024 status update may shed some light on things. The current plan is apparently wait to see what happens in some similar case, and then further amend this suit. So… to just wait and see, and piggyback off of someone else. Shouldn’t clients be talking to that lawyer then?

The case is nearly a year and a half old, and there’s just the Statement of Claim. Could such a case be certified and advanced? Maybe, but it doesn’t seem very urgent.

(1) Burke T-2008-23 Statement Of Claim (September, 2023)
(2) Burke T-2008-23 Intent To Respond (October, 2023)
(3) Burke T-2008-23 Crinson Assigned (November, 2023)
(4) Burke T-2008-23 Crinson Order (December, 2023)
(5) Burke T-2008-23 Amended Statement Of Claim, Plaintiff Class (June, 2024)


Notice: ob_end_flush(): failed to send buffer of zlib output compression (0) in /home/canuckla/public_html/wp-includes/functions.php on line 5471