Let’s start with a thought experiment. How aggressively are litigants supposed to be following up with counsel? What separates diligence from excessiveness?
Employees of Canada Post (a.k.a. The “Posties”) have commenced yet another Appeal, trying to extend the deadline to challenge an earlier ruling.
To summarize: employees of Canada Post brought grievances when their company implemented the injection pass back in 2021. It eventually went to Arbitration, where it was deemed to be a “reasonable” policy in 2022.
Instead of challenging this ruling via Application for Judicial Review, they found a lawyer who convinced them to file a Statement of Claim. It was predictably tossed for lack of jurisdiction, in addition to the inadequate pleading itself.
Although Plaintiffs wanted to file an Appeal, they were given the runaround by counsel, and eventually abandoned. They found a new lawyer, but needed to file for an extension. The deadline had long expired.
See Parts 1, 2 and 3 for background information.
Over the last year, the focus was on getting an extension of time to Appeal. There were questions of whether or not Plaintiffs “acted diligently”, and if Defendants really were “prejudiced” by the delay.
Hennelly Factors And Deadlines To Appeal
| APPEAL RULING FROM | PROTHONOTARY | JUDGE |
|---|---|---|
| Appeal Goes Where | Federal Court | Federal Court Of Appeal |
| Appeal Ruling To | Single Judge (FC) | Panel of Justices (FCA) |
| Rules of Procedure | Rule 51 | Rules 335 to 357 |
| Time Limit For Notice | 10 Days | 30 Days |
| Initial Document | Notice Of Motion | Notice Of Appeal |
| Procedure | Motion | Appeal |
| New Evidence Allowed? | No | With Leave, Rule 351 |
Understanding the Appeal process depends on who issued a ruling. If a decision comes from a Justice, then a Notice of Appeal goes to the Federal Court of Appeal. There’s a 30 day time limit. However, if it comes from an Associate Justice (Prothonotary), then there’s just 10 days to serve a Notice of Motion. Here though, because it took months for the Plaintiffs to file anything, it didn’t seem to matter.
Obtaining an extension of time to begin a proceeding is often doable, but may not be easy. The decision comes down to the Hennelly Test, which is a “suggested” list of 4 considerations. Other factors may also be looked at.
- Did the moving party have a continuing intention to pursue the application?
- Does the moving party have a reasonable explanation for the delay?
- Is there some potential merit to the application?
- Is there prejudice to the other party from the delay?
In the original Motion to extend time to Appeal, Associate Justice Cottor acknowledged the first part of the test, that the Plaintiffs had a continuing intention to pursue it.
Cottor entertained the idea of “giving the benefit of the doubt” to the third part, that there was some potential merit to the Appeal. That’s interesting, considering no explanation was ever provided on how to challenge the lack of jurisdiction (as Arbitration was required).
That being said, Cottor ruled against the Posties on the second and fourth part of the Hennelly Test. He said there was no reasonable explanation for the day, and presumed that there was prejudice caused by its length.
The request to extend time was 234 days past the deadline, of which 53 days of which was caused by Gratl himself. He didn’t act promptly after taking the case.
In this decision, Justice Kane said there was no error in how this had been applied, and upheld the refusal to extend time.
Now, the Notice of Appeal argues that the same mistakes were made.
Were Plaintiffs Supposed To Hound Their Former Counsel?
No Motion was ever filed by this firm.
In their first and more recent Motion Records asking for more time, the Plaintiffs give substantial evidence that they tried to get an Appeal started. The above screenshots are from one of the Affidavits. They were effectively led on, and then abandoned.
However, Associate Justice Cottor (starting on paragraph 9) wasn’t convinced that the Plaintiffs had pursued this diligently enough.
[35] A delay of 53 days is significant, and there is a no reasonable explanation for it. As per Singh 2023 the question is whether the Moving Plaintiffs have a reasonable explanation for the entire delay from the March 25 Appeal Deadline to the service of the Notice of Appeal on November 14. Since they do not have a reasonable explanation for a significant portion of the period, namely 53 days, it is not possible to conclude that they have a reasonable explanation for the delay. The outcome of the analysis of the initial delay of almost six months will not change this conclusion.
[36] While it may not be necessary to also consider the initial delay of almost six months given the above conclusion, I will do so for completeness. The initial delay is the period from the Appeal Deadline of March 25 until Current Counsel was engaged on September 22. As noted above, the Moving Plaintiffs blame Former Counsel for that delay. The defendants advanced various arguments in response, the general tenor of which is that: a) clients must live with their choice of counsel and counsel’s actions (subject to limited exceptions which the defendants say do not apply), with clients and counsel being treated as one for the purposes of a motion to extend time; and b) that the Moving Plaintiffs were insufficiently diligent in following up with Former Counsel in the circumstances of this case. The Moving Plaintiffs argued in response that the cases that have held that errors or inadvertence of counsel is not a reasonable explanation for…
[37] Using the approach advocated for by the defendants, namely that errors or inadvertence of counsel is not a reasonable explanation for the delay, then there is no reasonable explanation for the delay. However, if that approach is not used, it is appropriate to consider the behavior of the Moving Plaintiffs during that period … Considering the conduct of the Moving Plaintiffs during that period of delay does not assist them. They knew that the Appeal Deadline had been missed, and that the filing of a motion for an extension of time was lagging considerably (and more so as time went on). However, despite that, there was only occasional follow-up by the Moving Plaintiffs. Having regard to what transpired during that initial period of almost six months, it is not possible to conclude that the Moving Plaintiffs diligently addressed the situation
Associate Justice Cottor saw this as 2 separate delays: (a) nearly 6 months from previous counsel, Grey; and (b) another 53 days from current counsel, Gratl. He concluded there was no reasonable explanation. In the Appeal, Justice Kane saw no problem with this reasoning.
It raises the question of what litigants need to do. Are they expected to hound their lawyers day-in and day-out to check the progress of the case? Are they supposed to involve the Law Society? If lawyers mislead clients and lie to them, are they not able to fix their case?
Of course, none of this addresses the elephant in the room: there’s no jurisdiction to sue the company, as Canada Post is unionized, with a collective bargaining agreement.
Brief Timeline Of Major Events
September 2021: Canada Post announces that it will change the “vaccination” policy, requiring that all employees (and new hires) take the shots in order to be employed. It’s to take effect on November 26th, 2021.
October 26th, 2021 mandatory injection policy is formally approved.
November 15th, 2021: CUPW, Canadian Union of Postal Workers, files grievance against Canada Post’s new policy of requiring the injections in order to stay employed.
January 18th, 2022: Arbitration hearing is held over Canada Post’s policy requiring the injections of all employees. There would be several sessions over the coming months.
April 27th, 2022: Arbitrator dismisses the grievance against Canada Post, saying that the injection requirement is “reasonable”.
***It’s important to remember that this didn’t start with a lawsuit. It began with grievances and then arbitration. This matters as it relates to the lack of jurisdiction of the Federal Court.
July 12th, 2022: Statement of Claim is filed with the Federal Court. It names: (a) Canada Post Corporation; (b) Her Majesty the Queen, as Elizabeth was Queen at the time; and (c) Attorney General of Canada.
September 5, 2023: Even more Plaintiffs discontinue, or voluntarily leave the case. It worth mentioning that the Court history is filled with various Plaintiffs discontinuing. This is especially prevalent after the Motion to Strike is set out. Seems they realize that their case will go nowhere.
March 4th, 2024: Motions are eventually heard.
March 13th, 2024: Court releases reasons for striking the case.
March 13th, 2024: Order striking case is officially issued.
***Despite what happened, many Plaintiffs want to pursue an Appeal. However, they’re abandoned by their lawyer, and forced to seek a new one. They eventually hire Jason Gratl
November 15th, 2024: Gratl files a Notice of Change of Solicitor. It’s unclear why he waited nearly 2 months to do anything.
November 15th, 2024: Gratl files a Notice of Motion, indicating Plaintiffs will be seeking an extension of time to appeal the March ruling. It’s been a full 8 months at this point. Given that it was an Associate Justice who struck the case, the deadline is a mere 10 days.
February 14th, 2025: Gratl files the Motion Record for clients.
February 27th, 2025: The Federal Government files their Responding Motion Record.
May 2nd, 2025: Associate Justice Cotter refuses the extension of time.
***Since the Notice of Motion is so late, Gratl is forced to bring another Motion, this one to extend time. However, his explanation for the months long delay falls on deaf ears.
May 12th, 2025: Gratl brings another Motion, to challenge the refusal to grant an extension of time. This time, the 10 day time limit is met.
June 4th, 2025: The Attorney General of Canada files their Responding Motion Record.
September 23rd, 2025: Hearing is held via video on this Motion.
October 2nd, 2025: Justice Kane refuses Appeal that would have extended time to Appeal original decision from Associate Justice Coughlan.
***Gratl tried to explain again why the Canada Post Plaintiffs should get an extension of time, despite being months late. Again, the Court rules otherwise. At this point, the options within the Federal Court are exhausted.
October 17th, 2025: Plaintiffs file Notice of Appeal with Federal Court of Appeal.
Note: All of the dates listed can be confirmed by searching the respective cases on the Federal Court website. It keeps a detailed listing of all significant events in T-1436-22.
We’ll have to see what happens. But it’s frustrating for litigants to be let down when they clearly were trying to advance their case.
ARBITRATION:
(1) https://www.cupw.ca/sites/default/files/urb-ja-31-2022-ca-en.pdf
(2) Canada Post Collective Bargaining Agreement 2022
(3) Canada Post Arbitration update, February 2022 (removed)
(4) Wayback Machine Archive
(5) CUPW On Some Updates On Arbitration
(6) Wayback Machine Archive On Arbitration Updates
(7) https://www.cupw.ca/en/last-days-arbitration-vaccination-practice-grievance
(8) Wayback Machine Archive Of April 1st, 2022 Update
(9) https://www.cupw.ca/en/arbitrator-dismisses-grievance-against-canada-post%E2%80%99s-mandatory-vaccination-practice
(10) Arbitration Decision (Removed)
(11) Canada Post Arbitration Ruling Redacted
(12) Wayback Machine Archive Of Arbitration Decision
(13) https://www.fct-cf.gc.ca/en/court-files-and-decisions/court-files#cont
LITIGATION (CASE STRUCK):
(1) Canada Post Statement Of Claim (July, 2022)
(2) Canada Post Amended Statement Of Claim (June 7, 2023)
(3) Canada Post Order Timetable (July, 2023)
(4) Canada Post Defendants Motion Record (October, 2023)
(5) Canada Post Plaintiff Responding Motion Record (January, 2024)
(6) Canada Post Plaintiff Responding Motion Record CP (February, 2024)
(7) Canada Post Further Amended Statement Of Claim (February, 2024)
(8) Canada Post Decision Striking Amended Pleading (March, 2024)
LITIGATION (EXTENDING TIME TO APPEAL):
(1) Canada Post Notice Of Change Of Solicitor (November, 2024)
(2) Canada Post Affidavit of Karine Solakian (November, 2024)
(3) Canada Post Notice Of Motion (November 2024)
(4) Canada Post Applicants Motion Record Extension Of Time (February, 2025)
(5) Canada Post Motion Record Extension Of Time (February, 2025)
(6) Canada Post HMTK Motion Record Extension Of Time (February, 2025)
(7) Canada Post Order Refusing Extension Of Time To Appeal (May, 2025)
LITIGATION (APPEAL OF REFUSAL TO EXTEND TIME TO APPEAL):
(1) Canada Post Motion Record Appeal Refusal To Extend Time (May, 2025)
(2) Canada Post HMTK Written Submissions Appeal Time Extension (June, 2025)
(3) Canada Post Order Dismissing Appeal For Extension Of Time (October, 2025)
(4) Canada Post Federal Court Case History
LITIGATION (APPEAL TO FEDERAL COURT OF APPEAL):
(1) Canada Post FCA Notice Of Appeal
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