Thursday, January 19th was an interesting day in Federal Court. Ottawa brought a Motion to Strike a lawsuit brought by over 600 people challenging a 2021 Order which mandated experimental shots for their continued employment. This applied to: (a) Government workers; and (b) industries that were subject to Federal regulation.
For those who don’t know, this is not a Motion to decide a case on its merits. Instead, it’s designed to throw out a case — either in whole or in part — before it goes through the various stages of litigation. Typically, there’s either some serious error in law, or the case (even if the facts are assumed to be true) is still insufficient.
Originally, the Motion to Strike was to be heard in writing (which means no arguments at a hearing). However, that changed at the last moment, as the Justice decided to allow a 3 hour session. It went a bit past the allotted time, and took about 3 1/2.
If this hearing is to be any indication of where things are going, there were several main issues that needed to be addressed.
1. Are Some Plaintiffs Statute Barred From Going To Court?
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.
Approximately 2/3 of the more than 600 Plaintiffs were members of the Federal Government. The other 1/3 or so were part of companies that were Federally regulated. This can create a split, as only some of them may be eligible for this lawsuit.
Section 236 of the Federal Public Sector Labour Relations Act states that employees have the right to have their problems dealt with via collective bargaining, in lieu of Court action. If this holds, then presumably it would apply to everyone, at least the employees of the Federal Government.
Most union employees, especially in the public sector, are prohibited from taking their problems to Court. Instead, they have to follow a grievance process that eventually leads to arbitration. Granted, those rulings may be appealed if the process is unfair, but that’s where things start out.
This was discussed at length at the hearing: the prospect that the majority of Plaintiffs may be barred from the case. It doesn’t appear any of them ever tried to go through arbitration.
2. Are Other Plaintiffs Suing Wrong Defendants?
While the public sector workers may be barred because of arbitration requirements, the employees of Federally regulated sectors have a different issue: did they sue the wrong people?
The notion was discussed that the individual employers ought to be sued instead, or at least in addition to the Government. After all, shouldn’t a former worker at Air Canada be suing Air Canada? Shouldn’t a former bank employee be suing that bank? Of course, there is the counter-argument that these industries were simply following the rules that Ottawa mandated.
We’ll have to see how that plays out.
3. Why Aren’t All Plaintiffs In Lawsuit Named?
This should be common sense, but, if people wish to take their grievances to Court and ask for money, they need to identify themselves.
Instead, there are 40 “John Does” listed, and another 49 “Jane Does”. The Crown Counsel brought this up at the hearing, and complained that he had no idea who they were. Despite the Defendants’ attempts, these people apparently remain unidentified.
It’s unclear why they weren’t named in the Statement of Claim. One possibility was that they didn’t want their names splashed around, given the rampant fundraising that was going on. It was suggested that this was to prevent retaliation against friends and family who still held jobs. However, that makes little sense, as they’d still have to be identified as some point.
4. Should Have Been An Application For Judicial Review?
One of the grounds that the Defendants bring up in their Motion is that these proceedings really should have been done up as an Application for Judicial Review. Sections 18(1) and (3) of the Federal Courts Act are cited, and it seems pretty clear cut.
Extraordinary remedies, federal tribunals
18 (1) Subject to section 28, the Federal Court has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.
Remedies to be obtained on application
(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.
At the hearing, the Judge stated that he would have no problems with a Statement of Claim, if it were only damages and/or declaratory relief. However, challenging the Order itself presented a complication, as it likely should have been an Application.
This alone may not be fatal. If it were simply a matter of the wrong form, the Judge could theoretically grant an extension of time to refile properly.
5. Is This Suit Considered “Moot”, And Does That Matter?
Ottawa is claiming the issue is “moot” and not worth wasting everyone’s time. Moot, in the legal sense means that the issues are over and done with, and cannot be fixed by the Court. Here, Crown Counsel states that since the Orders have lapsed, there’s nothing to try. That’s what happened with Brian Peckford’s case.
In fairness, this appears to be something that may be selectively employed to deny someone their day in Court. It seems underhanded to pull an Order (or let it expire) as a means of avoiding having to answer for it. There’s also the possibility that similar Orders may be imposed at some point in the future.
It should be noted that “moot” issues can still be tried, if the Court finds there to be compelling public interest in doing so. And so far, that has been applied unevenly.
6. Does Claim Follow The Basics Of Civil Procedure?
This was addressed at length in the first critique of this suit. This Claim appears to not follow even the basics of the Federal Court Rules, which could lead to it getting thrown out. At a minimum the Judge could order that a rewrite be performed.
(a) Lack of material facts pleaded
(b) Overall disorganization
(c) Claim lacks particulars (specifics) needed to proceed
(d) Nature of damages needs to be clearly specified
The Motion to Strike addressed these concerns, along with several others. Striking a pleading won’t (typically) lead to the case being thrown out. However, it does take time — and hourly billings — to amend or redraft it.
The Judge did discuss the possibility of allowing a rewrite, if the Claim weren’t barred for other reasons. This includes the arbitration requirement mentioned earlier.
7. How Much Damage Does A4C Precedent Cause Here?
Crown Counsel brought up the valid point that large sections of this Federal case are similar — and sometimes identical — to the Action4Canada case that was struck on August 29, 2022. (See Order)
Justice Alan Ross found the Action4Canada case:
(a) Prolix, or far too long
(b) Embarrassing to the Court
(c) Made non-justicable demands
(d) Was “bad beyond argument”
(e) Contained many pages of irrelevant material
(f) Was not something that could be adequately responded to
(g) Was so poorly written that mere amendments were inadequate
Now, a fair amount of the content from that NOCC, or Notice of Civil Claim, was cut and pasted into the Federal case. Not only are Plaintiffs not getting quality work, they aren’t even getting original work.
The Federal Judge would likely be obligated to strike the sections of the Claim that are identical or substantially similar to the Action4Canada case.
Despite the NOCC’s horrible quality, Justice Ross did allow Action4Canada the chance to redraft it properly. Instead, they appealed the Decision, because, reasons…
Now, the choice to let Action4Canada rewrite may very well influence this Court if it decides to allow another shot at the Federal vaxx pass case.
Predictions For The Motion Outcome?
Just a guess, but here we go:
- The case will have to be refiled as an Application for Judicial Review
- The (ex) Federal employees will be barred, as they should have pursued arbitration
- The (ex) workers of Federally regulated industries will be allowed to proceed
- All Plaintiffs will have to identify themselves
- The pleadings will be struck in their entirety, but a rewrite will be allowed, at least for the Plaintiffs who are not barred.
- Despite being “moot”, it will be in the public interest to proceed
- The duplication with Action4Canada case will have to be removed
- Expect an appeal, and more requests for donations
We’ll have to wait until the decision comes down to see how accurate all this is.
Update: a copy of the retainer agreement is now available for viewing. Turns out that Plaintiffs were paying $1,000 each for the privilege of being represented in this suit. Doesn’t look like they got their money’s worth.
FEDERAL VAXX PASS CHALLENGE
(2) Federal Court Vaccine Mandate Challenge
(3) Federal Vaccine Passport Challenge Retainer Agreement
(4) Federal Court Vaccine Mandate Challenge Motion To Strike
(5) Federal Court Vaccine Mandate Challenge Affidavit Of Service
(6) Federal Court Vaccine Mandate Challenge Responding Motion Record
(7) Federal Court Of Canada Rules