February 2023, a lawsuit by over 600 Federal workers, and workers of Federally regulated industries, was struck in its entirety by Justice Fothergill. November 8th, the Federal Court of Appeals will review the case. Spoiler: the Appeal will be dismissed.
To describe briefly, the Statement of Claim was struck without leave (or permission) to amend against 400 Plaintiffs on the grounds that they were barred by Section 236 of the Federal Public Sector Labour Relations Act, or FPSLRA. Government workers, for the most part, don’t have the right to sue their employer.
This didn’t apply to non-Government workers, such as in banking or aviation. However, the Claim was drafted so poorly that it was struck anyway, but with leave to amend.
The Appeal is baseless, and will go nowhere.
While there are many errors in the original case, here are 3 big ones:
1. Federal Workers Barred From Litigation, Must Grieve Instead
Taken together, Sections 208 and 236 of the FPSLRA give Federal employees the right to grieve, something that often ends in arbitration. However, they don’t necessarily have a right to sue in Court.
Now, there is (somewhat) of a way around this. If Litigants can demonstrate that the grievance process is seriously flawed or corrupted, they may get a Court to hear this. However, that didn’t happen, nor does it appear to have been attempted.
Not only was this case not beneficial to the public, but it was used as precedent in at least 3 more rulings, denying litigants access to the Courts:
The Appellants allege that Justice Fothergill failed to give reasons for denying their Claim, but he did. It’s in Paragraphs 10-36 of the ruling. Granted, it’s not one that will satisfy them, but it is addressed.
2. Claim Fails To Follow Basics Of Civil Procedure
This comes from Paragraph 39 of the ruling, and lists some of the more obvious problems that came up with this lawsuit. The Federal Court Rules should be known to anyone who brings a case, as they outline the process for doing so.
As stated previously, lawsuits must be written well enough so that the opposing sides (and the Judge) are able to understand what’s going on. This isn’t optional.
When it’s stated that “particulars” are required, this means specific information. There’s an extra burden on the Party making the claims to ensure that they are spelled out. That wasn’t done here, nor was it done in several related anti-lockdown suits.
The case was struck as “bad beyond argument“, and rightfully so. While the non-Government Plaintiffs have the right to refile, they may wish to retain better counsel.
The Claim was struck — in part — as the basics of drafting weren’t followed. The Claim heavily mirrored the Action4Canada case, also struck as “bad beyond argument“.
The Appeal (bizarrely) criticizes Justice Fothergill for relying on the Action4Canada case as a precedent. It’s unclear why, unless this is deliberate obfuscation. The parallels are striking. Although the Federal Claim is much shorter, it has substantially the same defects.
3. Large Portions Of Claim Outside Jurisdiction Of Federal Court
This should be obvious. If someone is going to commence litigation, it must be over issues that a Court can at least theoretically preside over. Yes, the merits of the case will need to be determined. However, if there are jurisdiction problems, then everything comes to a stop immediately.
The same problems occurred with the Action4Canada case, with Justice Ross saying:
This shows why the Action4Canada case was used to help with striking the Federal one. Not only are both poorly written — and don’t follow the Rules of Civil Procedure — but both make demands that Civil Courts can’t realistically grant.
In other news:
Vaccine Choice Canada’s July 2020 case is also facing a Motion to Strike in Ontario in the new year. It will be thrown out for much the same reasons. The case was idle from 2020 until January 2023, when the Motion was finally brought.
Vaccine Choice Canada’s October 2019 lawsuit challenging regulations around immunizing Ontario students hasn’t had a single Court appearance, despite being filed over 4 years ago.
Take Action Canada arranged for a mass filing in Ontario, and the Statement of Claim is a virtual clone of the Federal one. It contains the same challenges which a Civil Court can’t grant. It’s sat dormant since. Because the Plaintiffs (police, fire fighters, paramedics, etc…) are mainly unionized, jurisdiction will be an issue for them as well.
An April 2021 Application organized by Police On Guard, and another from Children’s Health Defense (Canada), aren’t being pursued. Despite being filed nearly 3 years ago, neither have had a single Court appearance.
Also, after the Federal case was struck, there was an email sent out to all 600 or so Plaintiffs, asking for more money. The “freedom business” has turned out to be quite lucrative. Apparently, the $1,000 per head retainer didn’t cover this Appeal, and was only meant to cover Trial costs.
But of course, we all know none of these claims will ever get to Trial.
How much money has been pumped into these nothing-burger lawsuits?
FEDERAL VAXX PASS CHALLENGE (APPEAL)
(1) FCA Adelberg V. HMTK A-67-23 Notice Of Appeal
(2) FCA Adelberg V. HMTK A-67-23 Appeal Book
(3) FCA Adelberg V. HMTK A-67-23 Appellants MFL
(4) FCA Adelberg V. HMTK A-67-23 Respondents MFL
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
(8) Federal Court Decision On Motion To Strike (Archive)
(1) Letter to Federal Worker Plaintiffs
(2) Federal Workers Action Donation Link For PayPal
(3) Ontario First Responders Action Donation Link For PayPal
(4) School Action Donation Link For PayPal
(5) Police Officer Action Donation Link For PayPal
(7) Federal Workers Retainer Agreement
(8) Ontario First Responders Retainer Agreement
(9) Donate To Public Citizens Inquiry
(10) Donations For Supposed B.C. Doctors Action