Purolator is one of the companies that forced employees to make the decision about getting the injections (vaccine passports) in 2021, or risking their employment. The outcome is a year old, but worth reviewing.
Being a unionized employer, there are set procedures to handle grievances. Not following those rules can cause headaches for everyone involved. While many workers objected to this new requirement for injections, they handled it in different ways.
Pathway #1: David Reynolds and Riley Kearns, counsel for the Union, Teamsters Local No. 31, took their case to Labour Arbitration. They brought in their experts to counter the narrative that the shots were necessary. They successfully persuaded Arbitrator Nicholas Glass of the validity of their concerns. In December 2023, he ordered backpay for wages, benefits, and other compensation.
Pathway #2: Leighton Grey, counsel for over 200 Plaintiffs, filed a lawsuit in Federal Court in June 2022. It was amended in December 2022. Despite a few brief Court appearances, nothing ever happened, and opposing counsel threatened to bring a Motion to Strike. The case was discontinued in April 2023.
This article also demonstrates that having a horrible lawyer can ruin the outcome.
Reynolds and Kearns chose the correct path (Arbitration), and pursued the case diligently. They clearly put the work in. On the other hand, Grey chose a method (Court) which wasn’t allowed, and then did nothing to advance it.
The employees who the Union grieved for were compensated for their losses. The employees who went to Court ultimately got screwed over.
It’s unclear from the Arbitration ruling if the Purolator employees who sued would still be eligible for backpay given Arbitration was successful. Either way, going to Court was a complete waste of time and money.
How Canadian Government Defines “Constructive Dismissal”
This is quoted with the disclaimer that yes, the Government did mess around with EI for people who were terminated. Suddenly requiring the injections IS a retroactive change in the conditions of employment. However, this page is still helpful to read for general information.
Definition of constructive dismissal
The phrase “constructive dismissal” describes situations where the employer has not directly fired the employee. Rather the employer has:
- failed to comply with the contract of employment in a major respect
- unilaterally changed the terms of employment, or
- expressed a settled intention to do either thus forcing the employee to quit
Constructive dismissal is sometimes called “disguised dismissal” or “quitting with cause”. This is because it often occurs in situations where the employer offers the employee the alternative of:
- leaving, or
- submitting to a unilateral and substantial alteration of a fundamental term or condition of their employment
Whether or not there has been a constructive dismissal is based on an objective view of the employer’s conduct. It is not merely on how the employee perceives the situation.
It is the employer’s failure to meet its contractual obligations that distinguishes a constructive dismissal from an ordinary resignation. The seriousness of the employer’s failure as well as the amount of deliberation apparent in its actions are also important factors.
The employer’s action must be unilateral, which means the employer must do it without the consent of the employee. If it is not unilateral, the variation is not a constructive dismissal but merely an agreed change to the contract of employment.
If the employee clearly indicates non-acceptance of the new conditions of employment to the employer, there has been a constructive dismissal. However, this is only if the employee leaves within a reasonable period (usually short). By not resigning, the employee indicates he accepts the new conditions of employment.
There have been cases where courts have held that there has been a constructive dismissal even though the complainant remains in the employ of the employer. This includes, for example, cases where the employee:
- continues to work under the new conditions in order to mitigate damages, and
- either protests the new conditions explicitly or makes it clear that he still reserves the right to take legal action
Unilaterally changing the terms and conditions of employment is constructive dismissal, no matter how politicians like to frame things. And this is exactly the kind of problem that a union should be challenging.
In the case of Teamsters Local No. 31, they did just that.
Teamsters Collective Agreement Mandates Arbitration
Teamsters is the Union representing Purolator employees. And it includes Local No. 31, which is the branch that successfully grieved against the company at a Labour Arbitration. Article 6 of the Collective Bargaining Agreement very clearly spells out the grievance process. And 6.2(d) goes on to state:
6.2(d) “Should the parties fail to reach satisfactory settlement in the preceding steps, the final settlement of the grievance may be submitted to the Arbitration Board as outlined below.”
The next several pages of the document go on to outline the process involved in the grievance process, including deadlines to commencing future step. Suing the employer, or going to Court, is not mentioned anywhere.
Teamsters Union Won At Labour Arbitration
While much of the content on this site covers losses, this one was a win. And it was nice to see employees getting some justice for what had been done to them. Read the entire decision.
569. The hourly paid grievances are upheld. The group grievance is upheld. The grievors are entitled to be compensated for their losses which will include any lost wages and benefits, between July 1, 2022 and their first day of work following May 1, 2023.
570. The owner operators’ grievances are upheld. They are entitled to be compensated for their losses commencing the first date that they lost revenue from being denied the use of a vaccinated relief driver. There is no common end date for their losses at this point. The losses are yet to be determined.
571. Dan Moes’ grievance is upheld with full compensation from the first day of his dismissal, or first loss of revenue from being denied use of a relief driver, whichever came first.
572. The administrative non-attestation termination grievances, either individually or as part of the group grievance, are upheld. These grievors are entitled to the same level of compensation as the other grievors in their category.
573. The res judicata preliminary objection is dismissed.
574. I reserve jurisdiction to determine quantum with respect to all grievances.
575. I reserve jurisdiction on any other matters arising, including interpretation, or implementation with respect to this award.
Teamsters Local No. 31 went to bat for their members at a Labour Arbitration hearing and won. Not all unions backed members, but this one did. And they did it successfully. Lost income was to be paid back.
Plaintiffs In Civil Claim Got Screwed Over
This lawsuit had problems from the very beginning, and this was predictable. Here are the more obvious ones to consider:
- Failure to plead necessary material facts
- Failure to keep evidence out of the Claim
- Failure to properly plead necessary particulars
- Failure to properly plead Charter violations
- Seeking Relief a CIVIL Court cannot grant
- Failure to understand labour law and jurisdiction
These cases: (a) Canada Post; (b) Canadian National Railway; and now (c) Purolator, all came from the same lawyer. They have the same serious defects, and none of them ever went anywhere. Canada Post, a.k.a. “The Posties”, was thrown out on a Motion to Strike, while both CNR and Purolator were dropped. It doesn’t look like anyone received a refund.
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.
Rule 174 of the Federal Court Rules is a requirement to plead facts, and it includes pleading facts about all Plaintiffs. There were over 200 (214, if counted right). Instead, there were a handful of sweeping declarations in Claim to cover everyone, and that’s it.
This is paired with Rule 181, a requirement to plead particulars. Grey is claiming that the Government conspired, acted with malice, and intentionally inflicted all kinds of mental and psychological harm. All of this needs to be spelled out in detail, but isn’t done.
And, as outlined above, the Federal Court has no jurisdiction to hear the case at all. The collective bargaining agreement spells out Arbitration. The Courts typically refer to this as the “explicit ouster”, and will routinely throw them out. Grey should know this.
Grey also once again asks the Court for CRIMINAL remedies in a CIVIL Court. This is not allowed. Each type of Court is only set up to hear certain kinds of disputes. There’s also allegations that the Genetic Non-Discrimination Act was violated (despite that being about race and ethnicity).
The probable reason for pleading Criminal Code violations (and others) is to get around the lack of jurisdiction of the Federal Court. If Grey were to simply argue that his clients were wrongfully forced out of their job, or that they were constructively dismissed, the suit would be tossed immediately. So he tries to turn it into something else.
If all of this sounds familiar, it should. “Mr. Bad Beyond Argument’s” cases are filled with these same defects. Although Grey tends to “tone it down” somewhat when drafting pleadings, the similarities are striking. And both lawyers simply recycle their claims, just making minor edits.
Grey’s clients got nothing of value from his work. They (presumably) paid retainers just to have him drop the case 10 months later. They got screwed over. Had they simply allowed their union to represent them at Arbitration, all of this could have been avoided. True, there were no guarantees at Arbitration, but there was always a chance, as opposed to filing a lawsuit.
Why are all the “freedom lawyers” complete idiots?
(1) https://www.canada.ca/en/employment-social-development/programs/laws-regulations/labour/interpretations-policies/constructive-dismissal.html
(2) https://teamsters362.com/wp-content/uploads/2021/07/UPS-2020-2025.pdf
(3) https://www.canlii.org/en/ca/cala/doc/2023/2023canlii120937/2023canlii120937.html
(4) Purolator T-1267-22 Statement Of Claim
(5) Purolator T-1267-22 Amended Statement Of Claim
(6) Purolator T-1267-22 Notice Of Discontinuance
Judical Review
May 8. Reserve judgment..
no up date yet