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November 27, 2024November 28, 2024

Free Speech In Canada Apparently Worth Just $16,000 (Haverbeck V. Waugh)

A week ago, Ursula Haverbeck died. She was the 96 year old German woman who had gone to prison for publicly denying the Holocaust. While the major media coverage about her is overwhelmingly negative, she chose to stand for her beliefs. It’s really rare to see something like that these days.

Kevin Waugh, a “Conservative” Member of Parliament in Canada, introduced Bill C-250 back in 2022. This would put people in prison for up to 2 years for Holocaust denial. Far from being condemned, his actions were publicly lauded.

Leah Gazan, of the New Democratic Party, introduced Bill C-413 in October 2024. It was heavily modeled on Bill C-250, and would imprison people for up to 2 years for Residential School “denialism”.

At all levels of government in this country, politicians work to strip away freedom of speech under the guise of “fighting hatred”. This cuts across party lines, and isn’t limited to just a few. It also seems that outside influences appear to be guiding these efforts.

According to records from Office of the Conflict of Interest and Ethics Commissioner, Waugh, and his wife, Ann, received a trip in 2018 worth $16,244.42 to Israel. This kind of travel is promoted as “fostering professional/cultural understanding, and meeting counterparts”.

Yes, this was just $16,000. The breakdown is as follows:

Transportation: $7,503.50
Accommodation: $2,928.84
Other: $5,812.09

This was sponsored by CIJA, the Centre for Israel and Jewish Affairs. It’s essentially the Canadian equivalent of AIPAC. Previously, the Canada-Israel Committee organized such annual trips, and their roster is full of prominent names. Believe it or not, this sort of thing isn’t illegal at all. In fact, it appears that Members of Parliament from all parties take part in it. By comparison, Trudeau ended up getting fined for his vacation with Aga Khan.

Waugh met with CIJA on February 15th, 2022. He had introduced Bill C-250 just days earlier, on February 9th. He’d probably deny the connection, but this is extremely unlikely to be any sort of coincidence. The Bill was ultimately abandoned when the substance was embedded into a Budget Bill.

Waugh takes a free trip to Israel in 2018. A few years later, he does the bidding of CIJA to introduce criminal penalties to Holocaust denial. Coincidence?

While it’s certainly true that Canadian politicians accept paid travel to other countries, none appear to even come close to the scale that occurs with Israel.

Germany lost a woman who was willing to go to prison for her beliefs. By contrast, Canadian politicians are implementing similar laws here in return for a free vacation. These people are nothing alike.

Yves-François Blanchet (Bill C-367) and Alexis Brunelle-Duceppe (Bill C-373) of the Bloc Québécois get honourable mentions for their work in eroding religious freedoms.

Maxime “The U.N. needs to shut up” Bernier has been completely silent on these issues, despite reinventing himself as a populist and free speech champion in 2018.

NUMBER	NAME	PARTY	YEAR	VALUE
1	DeBellefeuille, Claude	BQ	2007	$8,661.12
2	Dykstra, Rick	CPC	2007	$8,602.30 (USD)
3	Godin, Yvon	NDP	2007	$4,094.83 (USD)
4	Pearson, Glen	LPC	2007	$8,728.18
5	Savage, Michael	LPC	2007	$5,612.54
6	Simard, Raymond	LPC	2007	$8,188.00 (USD)
7	Smith, Joy	CPC	2007	$8,661.12
8	Stoffer, Peter	NDP	2007	$8,728.18
9	Sweet, David	CPC	2007	$7,374.72 (USD)
10	Van Kesteren, Dave	CPC	2007	$8,728.18
11	Warkentin, Chris	CPC	2007	$7,973.54

NUMBER	NAME	PARTY	YEAR	VALUE
1	Allison, Dean	CPC	2008	$9,411.00
2	Bennett, Carolyn	LPC	2008	$7,961.00
3	Breitkreuz, Garry	CPC	2008	$7,963.00
4	Brunelle, Paule	BQ	2008	$7,961.00
5	Crête, Paul	BQ	2008	$10,944.00
6	Dhaliwal, Sukh	LPC	2008	$8,758
7	Duceppe, Gilles	BQ	2008	$17,577.56
8	Goodyear, Gary	CPC	2008	$10,944.00
9	Guimond, Michel	BQ	2008	$8,728.18
10	Ignatieff, Michael	LPC	2008	$8,602.30
11	Kramp, Daryl	CPC	2008	$9,446.00
12	Lunney, James	CPC	2008	$7,961.00
13	Martin, Pat	LPC	2008	$7,961.00
14	McCallum, John	LPC	2008	$10,944.00
15	Ménard, Serge	BQ	2008	$7,971.00
16	Mulcair, Thomas	NDP	2008	$7,963.00
17	Nash, Peggy	NDP	2008	$9,411.00
18	Neville, Anita	LPC	2008	$7,961.00
19	Redman, Karen	LPC	2008	$11,785
20	Roy, Jean-Yves	BQ	2008	$7.961.00
21	Silva, Mario	LPC	2008	$7,992.33
22	Sweet, David	CPC	2008	$7,961.00
23	Wasylycia-Leis, Judy	NDP	2008	$7,961.00

NUMBER	NAME	PARTY	YEAR	VALUE
1	Brown, Gord	CPC	2009	$6,440.00
2	Cannan, Ron	CPC	2009	$9,446.00
3	Coderre, Denis	LPC	2009	$10,239.22
4	Cotler, Irwin	LPC	2009	$1,439.30
5	Dechert, Bob	CPC	2009	$3,983.00
6	Desnoyers, Luc	BQ	2009	$5,520.00
7	Devolin, Barry	CPC	2009	$9,446.00
8	Garneau, Mar	LPC	2009	$7,843.00
9	Glover, Shelly	CPC	2009	$7,843.66
10	Hoback, Randy	CPC	2009	$7,493.62
11	Hoeppner, Candice	CPC	2009	$7,843.00
12	Holland, Mark	LPC	2009	$9,446.00
13	Laforest, Jean-Yves	BQ	2009	$9,086.22
14	Lemieux, Pierre	CPC	2009	$7,493.62
15	Marston, Wayne	NDP	2009	$7,493.62
16	Mendes, Alexandra	LPC	2009	$7,253.64
17	Oliphant, Robert	LPC	2009	$10,602.00
18	Rae, Bob	LPC	2009	$3,804.80
19	Uppal, Tim	CPC	2009	$7,843.00

NUMBER	NAME	PARTY	YEAR	VALUE
1	Block, Kelly	CPC	2010	$8,451.30
2	Del Mastro, Dean	CPC	2010	$7,956.22
3	Duncan, John	CPC	2010	$6,435.34
4	Fast, Ed	CPC	2010	$9,006.68
5	Laforest, Jean-Yves	BQ	2010	$9,086.22
6	Paillé, Daniel	BQ	2010	$7,904.51
7	Rathgeber, Brent	CPC	2010	$9,078.16
8	Saxton, Andrew	CPC	2010	$8,684.01
9	Simms, Scott	LPC	2010	$8,770.68
10	Thibeault, Glenn	NDP	2010	$8,906.68
11	Watson, Jeff	CPC	2010	$9,586.18

NUMBER	NAME	PARTY	YEAR	VALUE
1	Adler, Mark	CPC	2011	$5,920.31
2	Bezan, James	CPC	2011	$10,781.52
3	Brison, Scott	LPC	2011	$8,820.48
4	Cotler, Irwin	LPC	2011	$5,700.00
5	Cuzner, Rodger	LPC	2011	$9,397.33
6	Foote, Judy	LPC	2011	$5,030.08
7	LeBlanc, Dominic	LPC	2011	$14,680.00
8	Miller, Larry	CPC	2011	$10,525.04
9	Murray, Joyce	LPC	2011	$8,580.00
10	Ravignat, Mathieu	NDP	2011	$7,281.39
11	Shipley, Bev	CPC	2011	$5,370.04

NUMBER	NAME	PARTY	YEAR	VALUE
1	Ambler, Stella	CPC	2012	$10,238.84
2	Blanchette-Lamothe, Lysane	NDP	2012	$9,209.84
3	Caron, Guy	NDP	2012	$8,226.84
4	Chisholm, Robert	NDP	2012	$10,016.28
5	Cleary, Ryan	NDP	2012	$6,030.00
6	Davies, Don	NDP	2012	$10,677.68
7	James, Roxanne	CPC	2012	$7,059.14
8	Lapointe, François	NDP	2012	$11,740.46
9	Larose, Jean-François	NDP	2012	$9,031.84
10	Lunney, James	CPC	2012	$3,992
11	Nicholls, Jamie	NDP	2012	$7,808.28
12	Papillon, Annick	NDP	2012	$9,031.84
13	Rafferty, John	NDP	2012	$10,161.68
14	Trottier, Bernard	CPC	2012	$9,856.28
15	Williamson, John	CPC	2012	$9,961.96
16	Young, Terence	CPC	2012	$10,389.22

NUMBER	NAME	PARTY	YEAR	VALUE
1	Aspin, Jay	CPC	2013	$11,165.60
2	Bateman, Joyce	CPC	2013	$7,915.48
3	Bruinooge, Rod	CPC	2013	$9,937.98
4	Clarke, Rob	CPC	2013	$11,165.60
5	Easter, Wayne	LPC	2013	$9,786.96
6	Lamoureux, Kevin	LPC	2013	$10,053.40
7	Lunney, James	CPC	2013	$5,032.71
8	Menegakis, Costas	CPC	2013	$10,490.70
9	Michaud, Élaine	NDP	2013	$8,185.48
10	Scott, Craig	NDP	2013	$10,892.92
11	Young, Wai	CPC	2013	$12,683.80

NUMBER	NAME	PARTY	YEAR	VALUE
1	Bélanger, Mauril	LPC	2014	$9,537.50
2	Bennett, Carolyn	LPC	2014	$3,981.61
3	Byrne, Gerry	LPC	2014	$12,580.74
4	Falk, Ted	CPC	2014	$12,450.71
5	Hoback, Randy	CPC	2014	$5,092.21
6	Jones, Yvonne	LPC	2014	$11,935
7	Morin, Isabelle	NDP	2014	$9,782.96
8	Opitz, Ted	CPC	2014	$5,026.24
9	Sandhu, Jasbir	NDP	2014	$14,679.57
10	Sweet, David	CPC	2014	$4,915.36
11	Wilks, David	CPC	2014	$8,608.12

NUMBER	NAME	PARTY	YEAR	VALUE
1	Lunney, James	INDEPENDENT	2015	$3,285.89

NUMBER	NAME	PARTY	YEAR	VALUE
1	Albas, Dan	CPC	2016	$12,750
2	Blaney, Steven	CPC	2016	$5,616.78
3	Di Iorio, Nicola	LPC	2016	$6,930.36
4	Dubé, Matthew	NDP	2016	$12,342.24
5	Fillmore, Andy	LPC	2016	$10,294.97
6	Fuhr, Stephen	LPC	2016	$11,207.65
7	Garrison, Randall	NDP	2016	$7,800.22
8	Genuis, Garnett	CPC	2016	$12,650.80
9	Gladu, Marilyn	CPC	2016	$9,394.06
10	Godin, Joël	CPC	2016	$11,929.56
11	Grewal, Ra	LPC	2016	$9,391.15
12	Lefebvre, Paul	LPC	2016	$10,236.50
13	Levitt, Michael	LPC	2016	$9,393.35
14	Longfield, Lloyd	LPC	2016	$11,379.11
15	Mendicino, Marco	LPC	2016	$6,714.00
16	O’Regan, Seamus	LPC	2016	$11,186.79
17	Raitt, Lisa	CPC	2016	$8,643.72
18	Rankin, Murray	NDP	2016	$9,495.06
19	Rayes, Alain	CPC	2016	$10,705.65
20	Rempel, Michelle	CPC	2016	$6,296.13
21	Richards, Blake	CPC	2016	$7,880.54
22	Rioux, Jean	LPC	2016	$11,137.02
23	Ruimy, Dan	LPC	2016	$6,841.14
24	Sorbara, Francesco	LPC	2016	$10,350

NUMBER	NAME	PARTY	YEAR	VALUE
1	Brosseau, Ruth Ellen	NDP	2017	$11,705.62
2	Calkins, Blaine	CPC	2017	$11,492.23
3	Dhillon, Anju	LPC	2017	$9,550.21
4	Hardcastle, Cheryl	NPD	2017	$9,522.18
5	Harder, Rachael	CPC	2017	$7,410.21
6	Maloney, James	LPC	2017	$14,116.86
7	McCauley, Kelly	CPC	2017	$12,724/81
8	Nuttall, Alexander	CPC	2017	$10,423.31
9	O’Connell, Jennifer	LPC	2017	$11,375.14
10	Romanado, Sherry	LPC	2017	$11,840.21
11	Rusnak, Don	LPC	2017	$14,013.00
12	Sarai, Randeep	LPC	2017	$11,806.43
13	Schulte, Deborah	LPC	2017	$15,238.90
14	Zimmer, Bob	CPC	2017	$12,437.04

NUMBER	NAME	PARTY	YEAR	VALUE
1	Amos, William	LPC	2018	$11,245.24
2	Brosseau, Ruth Ellen	NDP	2018	$2977.22
3	Fergus, Greg	LPC	2018	$8,696.85
4	Kusie, Stephanie	CPC	2018	$13,390.91
5	McLeod, Cathy	CPC	2018	$7,721.70
6	Ng, Mary	LPC	2018	$7,355.84
7	Oliver, John	LPC	2018	$7,197.11
8	O’Toole, Erin	CPC	2018	$7,884,47
9	Schmale, Jamie	CPC	2018	$7,286.99
10	Sikand, Gagan	LPC	2018	$7,150.00
11	Stubbs, Shannon	CPC	2018	$14,212.93
12	Sweet, David	CPC	2018	$1,116.22
13	Vandal, Dan	LPC	2018	$9,282.93
14	Waugh, Kevin	CPC	2018	$16,244.42

Palestinian Authority and the Canadian Palestinian Foundation of Quebec

(2018) Brosseau, Ruth Ellen
(2018) Boulerice, Alexandre
(2018) Caron, Guy
(2018) Casey, Bill
(2018) Chen, Shaun
(2018) Davies, Don
(2018) Genuis, Garnett
(2018) Johns, Gord
(2018) Mathyssen, Irene
(2018) McDonald, Ken
(2018) Ouellette, Robert-Falcon
(2018) Stetski, Wayne
(2018) Tabbara, Marwan
(2018) Tan, Geng

International Democratic Union (IDU)

(2018) Tony Clement

Foreign Affairs Department, The Knesset, Jerusalem

(2018) Sweet, David

NUMBER	NAME	PARTY	YEAR	VALUE
1	Lapointe, Linda	LPC	2019	$13,552.80

March Of Dimes

(2019) Barlow, John
(2019) Damoff, Pam
(2019) May, Bryan

NUMBER	NAME	PARTY	YEAR	VALUE
1	Aldag, John	LPC	2022	$16,695.62
2	Barrett, Michael	CPC	2022	$16,209.30
3	Dancho, Raquel	CPC	2022	$13,313.79
4	Duncan, Eric	CPC	2022	$10,528.25
5	Jeneroux, Matt	CPC	2022	$11,453.80
6	Kelly, Pat	CPC	2022	$10,760.73
7	Lattanzio, Patricia	LPC	2022	$16,903.70

NUMBER	NAME	PARTY	YEAR	VALUE
1	Aitchison, Scott	CPC	2023	$13,994.14
2	Berthold, Luc	CPC	2023	$10,227.60
3	Blanchette-Joncas, Maxime	BQ	2023	$7,524.88
4	Blois, Kody	LPC	2023	$23,930.48
5	Bradford, Valerie	LPC	2023	$14,007.89
6	Chambers, Adam	CPC	2023	$18,950.85
7	Champoux, Martin	BQ	2023	$18,246.85
8	Chahal, Harnirjodh (George)	LPC	2023	$23,744.00
9	Chen, Shaun	LPC	2023	$11,563.58
10	Findlay, Kerry-Lynne	CPC	2023	$23,883.00
11	Fortin, Rhéal	BQ	2023	$18,846.85
12	Goodridge, Laila	CPC	2023	$18,446.20
13	Hallan, Jasraj Singh	CPC	2023	$23,017.04
14	Hepfner, Lisa	LPC	2023	$18,644.15
15	Housefather, Anthony	LPC	2023	$10,866.91
16	Kramp-Neuman, Shelby	CPC	2023	$11,728.58
17	Lapointe, Viviane	LPC	2023	$7,636.23
18	Martel, Richard	CPC	2023	$10,894.04
19	Paul-Hus, Pierre	CPC	2023	$17,233.40
20	Rempel Garner, Michelle	CPC	2023	$12,252.48
21	Scheer, Andrew	CPC	2023	$18,446.20
22	Schiefke, Peter	LPC	2023	$11,316.78

KEVIN WAUGH, CPC MP:
(1) https://www.parl.ca/legisinfo/en/bill/44-1/c-250
(2) https://www.ourcommons.ca/Members/en/kevin-waugh(89084)
(3) https://lobbycanada.gc.ca/app/secure/ocl/lrs/do/cmmLgPblcVw?comlogId=521753
(4) https://lobbycanada.gc.ca/app/secure/ocl/lrs/do/vwRg?cno=111&regId=917368&blnk=1
(5) https://www.conservative.ca/mp-waugh-introduces-legislation-to-prohibit-holocaust-denial/
(6) https://archive.ph/fCnNn

November 20, 2024December 16, 2024

Canada Post Employees Appeal Dismissal Over Arbitration Requirements, Faulty Pleadings

Employees at Canada Post (a.k.a. the “Posties”) are trying to appeal a March 2024 ruling that saw their lawsuit struck, without an opportunity to amend. Rule 51 of the Federal Courts Rules allows for findings of Associate Judges to be reviewed by way of Motion. However, it wasn’t the Court that screwed them over, but their counsel.

They should have been advised from the beginning that filing the lawsuit in the first place was a dead end, with no chance of success. Or perhaps they were….

Backstory Of What’s Been Going On

For context: back in the Spring of 2022, an Arbitration Panel ruled against employees at Canada Post. The Union had challenged the new policy requirements for injections that the Federal Government had brought in. Understandably, many workers weren’t happy about it.

The Canadian Union of Postal Workers, or CUPW, is the group representing employees. There is, of course, a collective bargaining agreement that everyone is expected to follow. Article 9 specifies the grievance resolution process, and binding arbitration is the end. Arbitration is considered to be final, as it’s an alternative to going to Court. Although the CUPW did fight for its workers, they still lost. Arbitrator Thomas Jolliffe ruled against them.

However, if the process is unfair, there’s often a way to have it looked at. This is done by an Application for Judicial Review. It’s analogous to appealing an unfavourable ruling, if not handled properly. But that’s not what ended up happening.

Leighton Grey, an Alberta lawyer, apparently convinced a few hundred employees to ignore the decision of Arbitator Jolliffe, and the grievance process altogether. June 2022, he filed an 18 page Statement of Claim. Yes, he sued Canada Post, instead of asking the earlier decision to be reviewed.

The Claim itself was very poorly written, and lacked much of the necessary information to proceed. It pleaded no facts whatsoever about individual Plaintiffs — remember, it was only 18 pages — and didn’t provide the necessary particulars to support allegations of bad faith and malice. There was also the problem that while Canada Post was a Crown Corporation, legally, it was considered separate from the Government.

For the next year, the file was largely inactive. The Claim was later amended, and not for the better. Eventually, the Court ordered the case to advance, so the Defendants moved to have the case thrown out.

And the case was eventually struck, without Leave to Amend. Plaintiffs weren’t allowed to sue, just because they were unhappy with the Arbitration results. Moreover, the Claim wasn’t pleaded anywhere close to properly.

At least some of those clients now have a new lawyer, Jason Gratl. He’s now seeking an extension of time to file a Rule 51 Motion for Reconsideration. An included Affidavit also alleges Grey didn’t file Notice of Motion as expected.

Timeline Of Events Leading To This Point

This is a follow up to a March 2024 article on the Canada Post lawsuit. Even more background information is here, to help understand the chain of events. It’s important to note that the CUPW went through the full arbitration process — as required — prior to this lawsuit commencing.

Leighton Grey Implies Federal Court “Rigged” Outcome

In a post on Twitter, Grey comments about a case involving over 300 military veterans being struck. That too was struck for the 2 main reasons: (a) not following prescribed grievance scheme/lack of jurisdiction; and (b) failure to properly plead the Statement of Claim.

“Same judge”
“Same judgment”
“Same reasons”
“Same comments”
“Even the same costs”
“Is anyone else seeing a pattern?”

Yes, there obviously is a pattern. 2 grossly inept and incompetent lawyers — Grey and Catherine Christensen — filed claims when there was no jurisdiction to do so. Neither of them pleaded their cases with anywhere near the detail necessary to advance a suit anyway.

There’s also the issue raised that Canada Post, a Crown Corporation, is considered separate from the Government. While pedantic to many, it was raised at the hearing.

However, in the way this is presented, it looks as though Grey implies Associate Judge Coughlan has been maliciously fixing her decisions. Although careful not to state it directly, it’s the impression that his audience would be left with. He suggests that she, and perhaps the entire Federal Court, is corrupt.

Should lawyers be actively working to undermine trust and confidence in the Judiciary? That’s what it looks like Grey is intentionally doing.

Valour Legal Action Centre, the firm Christensen runs, tweeted out similar comments, implying that Associate Judge Coughlan fixed that one as well. These are very risky things to say, especially in light of the serious and legitimate errors raised in the respective cases.

Accusing the Federal Court, and Associate Judge Coughlan, of “hiding behind the grievance system”, amounts to an allegation of corruption. Is this wise to post on Twitter?

Grievance/Arbitration Requirement Bars Court Action

Canada Post is a unionized workplace, and there are systems in place to handle grievances. This is spelled out in Article 9 of the collective bargaining agreement. Most relevant is the requirement to seek arbitration if other, lesser methods fail. An Arbitrator’s ruling is to be considered final. There is no inherent right to sue.

As for the Canadian Government itself, legally, it’s distinct and separate from the Crown Corporations — yes, unfair — despite Canada Post obeying its orders to force injection mandates.

Arbitration didn’t go the way the workers wanted, so Grey sued the company anyway. Having the case struck for lack of jurisdiction was entirely predictable. However, he implies that the Federal Court had predetermined the outcome.

Grey also filed lawsuits against: (a) Canadian National Railway; and (b) Purolator in recent years. He’s well aware of this issue, as counsel in those cases have raised it as well.

As for the new lawyer, Jason Gratl, he’ll have a difficult time with his Rule 51 Motion, assuming he gets the time extension. In theory, a competent lawyer could plead a new Statement of Claim properly. That said, the lack of jurisdiction is fatal. No amount of pleading facts or detail will get around this, which makes one wonder why he’s doing this at all.

Rule 51 Motions are meant to correct errors made by the Associate Judge. They’re not a way to fix a mess created by incompetent counsel.

Statement Of Claim Not Pleaded Properly, Once Again

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.

Regular readers on this site will have heard of Rules 174 and 181 of the Federal Court Rules. Similar provisions exist in all Provincial Courts as well.

However, Grey doesn’t do this at all. The Statement of Claim is just 18 pages, and there’s no information pleaded about any specific Plaintiff. “Facts” are supposed to include the who, what, where, when and how of events unfolding. There has to be enough detail about each Plaintiff that the Defendants can respond.

Grey doesn’t plead any facts that would establish any Charter breaches either. There are specific requirements that have to be met for each tort that each Plaintiff is raising.

Facts Required For Section 2a (Religion) To Be Considered

(1) that he or she sincerely believes in a practice or belief that has a nexus with religion, and
(2) that the impugned state conduct interferes, in a manner that is non‑trivial or not insubstantial, with his or her ability to act in accordance with that practice or belief

https://www.canlii.org/en/ca/fct/doc/2017/2017fc1092/2017fc1092.html#22

Facts Required For Section 7 (Security) To Be Considered

(1) plaintiff must plead facts to establish a deprivation of their right to life, right to liberty or right to security of the person.
(2)The claim must then set out facts to show that any deprivation of these rights was effected in a manner contrary to the principles of fundamental justice.

https://www.canlii.org/en/on/onsc/doc/2022/2022onsc2732/2022onsc2732.html#par69

Facts Required For Section 15 (Equality) To Be Considered

(1) on its face or in its impact, the state action creates a distinction based on a prohibited ground (either enumerated or analogous); and
(2) the state action imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage

ENUMERATED GROUND	ANALOGOUS GROUND
Explicitly In Charter	Recognized By Courts
Race	Sexual Orientation
National/Ethnic Origin	Marital Status
Colour	Off-Reserve Band Member
Religion	Citizenship
Sex	–
Age	–
Mental/Physical Disability	–

However, “vaccination status” has never been recognized as an analogous ground.

https://www.canlii.org/en/on/onsc/doc/2022/2022onsc2732/2022onsc2732.html#par80

General Formula For Charter Damages Under Section 24

(i) establish whether there has been a Charter breach;
(ii) show why damages are a just and appropriate remedy, having regard to the related functions of compensation, vindication of the right (in question), and/or deterrence of future breaches;
(iii) if the plaintiff is successful in meeting these two steps, the state then has the opportunity to demonstrate that damages are inappropriate or unjust; and
(iv) if the state is unsuccessful, assess the quantum of damages

https://www.canlii.org/en/mb/mbca/doc/2012/2012mbca64/2012mbca64.html#11

And again, Grey would have to plead sufficient facts about each Plaintiff who was invoking these rights. However, there’s no information provided about any of them. No wonder the case was struck. It’s impossible to establish there’s been a Charter breach (part i), when there are no facts pled to even theoretically support such a claim.

As for “pleading particulars”, Rule 181 of Federal Court Rules, Grey makes all kinds of allegations of malice, conspiracy, and malfeasance of public office. He needs to explain the who, what, where, when and how that all of this happened.

Grey includes allegations such as Criminal Code violations — which would get the Claim immediately struck — because a Civil Court has no jurisdiction to hear them.

In fact, there’s no shortages of torts listed, but there are no facts or particulars included that would support a claim for any of them, in favour of any Plaintiff. It’s “Mr. Bad Beyond Argument 2.0”.

A proper Statement of Claim with this many Plaintiffs would be hundreds of pages long. It’s not something that Grey — or this new lawyer — can fix with amendments.

What Happens Now?

The Plaintiffs seeking to have the decision reviewed — which is not all of them — first need to convince the Court to grant an extension of time to have their main Motion heard. The first is a procedural Motion, and in theory, is doable.

Then, they need to be persuasive that Associate Judge Coughlan shouldn’t have thrown the case out completely, that she should have at least given Leave to Amend. This will be difficult, especially with: (a) Court not having proper jurisdiction; and (b) the Statement of Claim being so deficient of necessary information. It seems extremely unlikely for a review to be successful.

Arbitator Jolliffe’s ruling is considered binding.

To be honest, Jason Gratl would have far better luck suing Grey for incompetence, negligence, and malpractice. His performance falls far short of what one should expect from a senior lawyer. At least his clients would get some of their money back.

We’ll have to see how this plays out.

LITIGATION:
(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
(9) Canada Post Notice Of Change Of Solicitor November 2024
(10) Canada Post Affidavit of Karine Solakian November 2024
(11) Canada Post Notice Of Motion November 2024

TWITTER:
(1) https://x.com/GreyMatterConvo/status/1858612823900770492
(2) https://x.com/GreyMatterConvo/status/1858635451839508580
(3) https://x.com/GreyMatterConvo/status/1858635720052584917
(4) https://x.com/ValourLegal/status/1858178030369186289

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, Full Text
(12) Wayback Machine Archive Of Arbitration Decision
(13) https://www.fct-cf.gc.ca/en/court-files-and-decisions/court-files#cont

OTHER LAWS AND DECISIONS
(1) https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1507/2022bcsc1507.html#par52
(2) https://www.canlii.org/en/ca/fct/doc/2023/2023fc252/2023fc252.html#par51
(3) https://www.canlii.org/en/ca/fca/doc/2015/2015fca20/2015fca20.html
(4) https://www.canlii.org/en/ca/fct/doc/2017/2017fc786/2017fc786.html#par32
(5) https://laws-lois.justice.gc.ca/eng/regulations/sor-98-106/index.html
(6) https://laws-lois.justice.gc.ca/eng/acts/F-7/FullText.html
(7) https://laws-lois.justice.gc.ca/eng/acts/P-33.3/

November 16, 2024November 22, 2024

Military Veterans’ Injection Pass Case Thrown Out Over Grievance Requirement, Poor Pleadings

Recently, Associate Judge Coughlan of the Federal Court of Canada struck a lawsuit brought by over 300 current and former members of the military. This case had to do with the injection requirements that came into effect in late 2021. This is yet another one that would never be heard on its merits.

To be fair, the Statement of Claim does plead some facts and background information about each Plaintiff, including position, rank, length of service, and duties. It also listed who took the shots, and who tried to get exemptions. Information about family situations are given, and each Plaintiff states whether or not they’re still with the military.

Many cases don’t even give this data, so it’s a step up.

A variety of Charter violations are alleged, including:

Section 2(a) – Freedom of Religion
Section 2(d) – Freedom of Association
Section 7 – Security of the Person
Section 8 – Privacy, Search and Seizure
Section 15(1) – Equality

Problem is, while a variety of Charter violations are listed, none of them are properly pleaded. The requirements for each are very specific, but it doesn’t seem to have happened — for ANY Plaintiff.

The Judge also took issue with material being filed late, and some Affidavits being sworn before the proceedings commenced.

However, the most damning problem was that counsel filed the case in the wrong venue. The military is governed by the National Defence Act, or NDA, which covers legal affairs within the Canadian Armed Forces. The process for grieving is outlined in Section 29. Notably, it gives everyone the right to grieve, but not the right to sue.

Even worse, counsel Catherine M. Christensen had been warned about all of this previously.

National Defence Act, S.29: Grievance The Required Option

Like so many “vaccine passport” lawsuits covered on this site, jurisdiction is a serious issue. Why here? It’s because Section 29 of the National Defence Act specifies that there is a grievance process that members of the Canadian Armed Forces are expected to follow. There’s nothing listed that allows for a lawsuit to be filed.

Right to grieve
29(1) An officer or non-commissioned member who has been aggrieved by any decision, act or omission in the administration of the affairs of the Canadian Forces for which no other process for redress is provided under this Act is entitled to submit a grievance.

No penalty for grievance
29(4) An officer or non-commissioned member may not be penalized for exercising the right to submit a grievance

Authorities for determination of grievances
29.1 (1) The initial authority and subsequent authorities who may consider and determine grievances are the authorities designated in regulations made by the Governor in Council.

Final authority
29.11 The Chief of the Defence Staff is the final authority in the grievance process and shall deal with all matters as informally and expeditiously as the circumstances and the considerations of fairness permit.

Decision is final
29.15 A decision of a final authority in the grievance process is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal or to review by any court.

In fairness, s.29.15 does allow for a Judicial Review to be filed if the grievance process is unsatisfactory. This would be analogous to appealing. But it’s not the same thing as filing a Statement of Claim.

Why is this important? It’s because Christensen, counsel for the Plaintiffs, didn’t follow the National Defence Act. She filed a lawsuit, instead of using the pathway available. And it’s not the first time the Federal Court has had to explain it to her.

Previous Case Saw Interlocutory Injunction Application Denied

An Application filed in late 2021 sought to prevent several members of the Canadian Armed Forces from facing consequences for refusing the injections. An Interlocutory Injunction was sought, with the plan to get a permanent one later.

November 29th, 2021 – Notice of Application is filed in Federal Court.

December 1st, 2021 – Notice of Appearance is filed by the Government.

December 6th, 2021 – Motion is filed for Interlocutory (temporary) Injunction to prevent members of the Armed Forces from having to take the injections.

December 12, 2021 – Federal Court books hearing on the 15th.

December 15th, 2021 – Court has hearing on the Application.

December 16th, 2021 – Court denies the Application for Injunction, but does so without costs.

January 9th, 2022 – Case is discontinued altogether.

In the reasons released on December 17th, Justice Fuhrer outlines the reasons the Application was denied. He notes that this wasn’t the proper forum to bring the challenge anyway.

[40] Under the NDA s 29(1) and chapter 7 of the Queen’s Regulations and Orders Volume 1 – Administration [QR&O], a CAF member can grieve the denial of an accommodation request, the initiation of a remedial measure or a release decision resulting from the application of the CAF Vaccination Policy, among other decisions, acts or omissions in the administration of the affairs of the CAF. According to the affidavit of Gordon Prieur, a senior policy analyst with DND, the grievance must be submitted within three months after the day when the grievor knew or reasonably ought to have known of the decision, act or omission for which the grievance is submitted. Grievances submitted after this period nonetheless may be considered if it is in the interests of justice to do so.

[41] The CAF grievance process consists of two levels of authority, the Initial Authority [IA] and the Final Authority [FA]. The IA can be the grievor’s commanding officer or next superior officer, while the FA is the CDS, who can delegate this role in certain circumstances. In addition, certain grievances are to be referred to the Military Grievance External Review Committee [MGERC], an independent, arm’s-length entity that reviews grievances and makes recommendations to the CDS. The CDS is not bound, however, by MGERC’s recommendations but he must provide reasons if he does not act on them.

[42] As noted above, Charter claims can be considered in the grievance process.

While the Interlocutory Injunction Application had been denied, litigants could (in theory) go ahead trying to get a permanent one. But they decided not to. The fact that this should have been grieved in the first place likely influenced this decision.

There were also concerns that counsel didn’t plead the case properly.

This 2021 ruling is important because Christensen makes the same mistakes again, but with a much larger case. Her next one would involve over 300 Plaintiffs.

Current Lawsuit Thrown Out Over Jurisdiction, Pleadings

This case was an Action, which is initiated by filing a Statement of Claim. The procedures are different than those for filing an Application, but the same problems came up.

June 20th, 2023 – Statement of Claim is filed in Federal Court on behalf of 330 Plaintiffs.

July 28th 2023 – Amended Statement of Claim is filed.

August 7th, 2023 – Notice of Intention to Respond is filed by the Government.

September 11th, 2023 – Statement of Defence is filed by the Government.

September 22nd, 2023 – Reply to the Statement of Defence is filed.

January 30th, 2024 – Court compels Defence to file their Affidavit of Documents.

March 3rd, 2024 – Court orders case management for the lawsuit.

April 29th, 2024 – Court gives a schedule of events to unfold.

Defendants shall serve and file their motion to strike by July 12th, 2024.
The Plaintiffs shall serve and file their motion in response by August 9th, 2024.
Hearing of motion to strike to be in-person at the Federal Court August 20th, 2024.

June 26th, 2024 – Plaintiffs contact Court, ask for hybrid setup so that Plaintiffs can attend the proceedings remotely.

July 11th, 2024 – Government files Motion to Strike the case.

August 12th, 2024 – Court contacted to request permission to file materials.

August 14th, 2024 – Court allows Plaintiff Motion materials to be filed, despite them not complying with the rules and procedure laid out.

August 14th, 2024 – Motion Record with 35 Affidavits filed by Plaintiffs

August 20th, 2024 – Court adjourns Motion to Strike hearing until September 19th.

September 19th, 2024 – Motion to Strike heard in Court.

November 12th, 2024 – Statement of Claim is struck without Leave to Amend. $5,040 in costs ordered.

The initial filing was covered by the National Post, but it doesn’t appear that there was any follow up done afterward.

Anyhow, the ruling was pretty brutal. It cited a variety of errors, including: (a) failure to properly plead Charter violations; (b) failing to comply with rules when submitting evidence; and (c) lack of jurisdiction, given the grievance scheme available.

[58] Given my conclusion that the action should be struck without leave to amend, there is no need for me to consider whether the Court should exercise its discretion to take jurisdiction over the proceeding. However, for the sake of completeness, I will address that issue briefly.

[59] In support of its motion, Canada filed the affidavit of Ann-Marie De Araujo Viana (the “Viana affidavit”), Manager Professional Policies–Grievances, Canadian Armed Forces Grievance Authority. The Viana affidavit sets out the statutory and regulatory framework for the CAF grievance process established by sections 29-29.15 of the National Defence Act [NDA] and regulations. That framework is supplemented by the DAOD, specifically, DAOD 2017-0 Military Grievances and DAOD 2017-1 Military Grievance Process.

[60] Pursuant to subsection 29 of the NDA, CAF members who are aggrieved by any decision, act, or omission in the administration of the affairs of the CAF, for which no other process for redress is provided under the NDA, may submit a grievance. As set out in the Viana affidavit, the CAF grievance process has two levels of authority, the Initial Authority [IA] and the Final Authority [FA]. The CDS is the FA. In some circumstances there may be an independent review of the grievance by the Military Grievance External Review Committee [MGERC]. However, the CDS remains the final authority and is not bound by any findings or recommendation of the MGERC.

[61] Following a decision of the FA, dissatisfied CAF members may seek judicial review of the decision in this Court, including any appeal rights deriving therefrom.

[62] As this Court has noted on a number of occasions, the grievance process available under the NDA is broadly worded and comprehensive, capturing a wide range of issues and allowing members to seek redress for virtually any issues arising during the course of their service: Jones v Canada, (1994) 87 FTR 190 at paras 9-10 (TD); Fortin v Canada (Attorney General), 2021 FC 1061 at paras 25-26; Jones v Canada (Chief of Defence Staff), 2022 FC 1106 at para 21.

Christensen had been warned by the Federal Court about exactly this issue, just a few years ago. But she filed this lawsuit anyway.

The Court noted that she hadn’t come anywhere close to convincing that the grievance scheme was corrupted or unworkable. And it would be a very tough sell indeed.

The Judge noted at paragraph 67 that over 100 of the Plaintiffs had filed grievances anyway. This is yet another problem that would derail this case. Parallel or simultaneous proceedings are not allowed. Considering the grieving was the correct option, this lawsuit would have been stayed.

The Statement of Claim had other serious errors. Specifically, none of the Charter violations were pleaded sufficiently. It’s not enough to simply list the different sections. Paragraphs 18 to 41 outlined exactly what was wrong.

Serious question: While it’s nice to see people standing up for their rights, what good is it when counsel can’t follow basic directions on how to proceed? If they can’t understand grievance rights, or how to plead a claim, how does this help anyone?

Of course, Christensen still probably got paid for her “work”.

No matter how much, or how often, a lawyer screws up a case, it’s the clients who pay.

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.

COURT DOCUMENTS:
(1) Qualizza Statement Of Claim June 2023
(2) Qualizza Amended Statement Of Claim July 2023
(3) Qualizza Statement Of Defence September 2023
(4) Qualizza Reply To Statement Of Defence September 2023
(5) Qualizza Defendants Motion To Dismiss Claim July 2024

OTHER:
(1) https://www.laws-lois.justice.gc.ca/eng/acts/n-5/
(2) https://www.laws-lois.justice.gc.ca/eng/acts/n-5/page-3.html#h-374837
(3) https://www.fct-cf.gc.ca/en/court-files-and-decisions/court-files#cont
(4) https://www.canlii.org/en/ca/fct/doc/2021/2021fc1443/2021fc1443.html
(5) https://www.canlii.org/en/ca/fct/doc/2024/2024fc1801/2024fc1801.html
(6) https://nationalpost.com/news/canada/hundreds-of-military-part-of-lawsuit-over-mandatory-covid-vaccine
(7) https://valourlegalactioncentre.org/
(8) https://www.youtube.com/watch?v=hifDPBW4r0w

November 14, 2024November 15, 2024

Purolator Injection Pass Lawsuit Dropped in 2023, While Arbitration Succeeded

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.

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

November 13, 2024November 13, 2024

Review Of Canadian National Railway Case, Dropped in 2023

It’s time to review a case that slipped under the radar in 2022 and 2023. This is the CNR, or Canadian National Railway case and their injection mandate (vaccine passport) lawsuit. Yes, it’s considered old, but the information here should be worth it.

To their credit, Rebel News did cover the initial filing, but there doesn’t seem to have been any follow up. Of course, there wasn’t much to report.

The criticism that’s coming may sound like another Galati case, but it’s not. Yes, the errors are virtually identical, so it’s easy to make that mistake.

The lawyer is Leighton Grey, of the firm Grey Wowk Spencer LLP.

For some of Grey’s other work, consider his “Posties” case. He represented employees and former employees of Canada Post. They were faced with job losses in 2021/2022 as a result of the injection mandates. Now, the company has a collective bargaining agreement, which mandates arbitration as opposed to litigation to resolve disputes.

Arbitration did in fact happen, with different counsel, but it went unfavourably towards the workers. Rather than filing for a review, Grey decided to sue Canada Post instead. Quite predictably, the case was thrown out on a Motion to Strike, as there was no jurisdiction for the Courts. There was also the problem that Grey didn’t plead his case properly, and it would have been struck anyway.

Grey had another lawsuit on behalf of Purolator workers, but the same problems arose. He didn’t have jurisdiction to file the case — as arbitration was mandatory — and it wasn’t pleaded properly. It was eventually dropped. That will be covered in the future.

These are at least 3 cases: (a) Canada Post; (b) Purolator; and (c) Canadian National Railway, where a lawsuit was filed by Grey when there was no jurisdiction. These suits were doomed from the start.

As for the O.G., or Original Gangsta “Mr. Bad Beyond Argument”, his work includes: (a) Adelberg; (b) Dorceus; (c) Katanik; and (d) several cases with the CPSO. The Court had jurisdiction over none of them.

It’s still amazing that lawyers always get paid, regardless of how completely, or how often, they screw up their cases. It’s the clients who lose out.

Hundreds of clients are out of luck because counsel failed to follow the Rules of Civil Procedure, and he didn’t follow basic employment law.

What Specific Errors Were Made With CNR Case?

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

Worth noting: #6 is fatal to the case. Because of the collective bargaining agreements, the Plaintiffs lack jurisdiction to sue. In theory, they could plead that they exhausted all avenues and that the employer wasn’t acting in good faith. A Judge might agree that this is the only available venue, but there are no gurantees.

In any event, lack of jurisdiction wasn’t the only serious problem.

1. Failure To Plead Necessary Material Facts

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.

By “material facts”, this means the lawyer has to plead specific information and background about everyone involved. The Statement of Claim is only 14 pages because it doesn’t plead any facts about anyone.

Their length of time with the company
Their role or position within the company
Their specific objection for refusing the injections (religious, health, conscience, etc…)
What discipline was taken, or if they quit
The specific steps they took to resolve it internally
Which union, if any, each Plaintiff belongs to
Who was working remotely, and who was physically present
Who applied for EI, who was denied, and what reason(s) given
What, if anything happened with regard to grievances and arbitration

These are just a few of the details that must be pleaded for each Plaintiff. It’s not optional. A properly written Claim would have been a few hundred pages. Especially with the question of jurisdiction, it must be listed in detail that these people were trying to follow the terms of their agreement, if they had one. Grey put NONE of this in the Claim.

Even if this were a Proposed Class Action (it wasn’t) the Representative Plaintiff(s) would still need to have adequate facts pleaded about their situation. Not a single person pleaded anything.

One of the more ridiculous statements from Grey is that some Plaintiffs are part of a Union — 4 are listed — but that others are not. No Plaintiffs are matched with any, nor are any of the grievance procedures outlined.

2. Failure To Keep Evidence Out Of The Claim

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.

The other part of Federal Court Rule 174 also applies. The Statement of Claim goes on at length about scientific declarations about health risks and treatment. Now, this may be appropriate expert evidence to give at a later date, but it doesn’t belong in the Claim itself. Does Grey not know this?

3. Failure To Properly Plead Necessary Particulars

Rule 181 of the Federal Court Rules specifics “pleading particulars”. What this means is that actions based on misrepresentation, fraud, breach of trust, etc…. must be spelled out. Procedurally, Defendants cannot be left guessing what they have to respond to.

Grey openly accuses Government officials of conspiring to harm the Plaintiffs, but he doesn’t give any of the detail needed to even theoretically support such allegations.

4. Failure To Properly Plead Charter Violations

Grey’s lawsuit contains “cookie cutter” allegations of Charter violations, such as:

Section 2(a) – Freedom of Conscience
Section 7 – Security of the Person
Section 8 – Freedom from Unreasonable Search and Seizure
Section 15 – Equality

However, none of it is pleaded properly. To bring allegations that one’s rights have been violated, each Plaintiff must plead facts that would support these claims. As mentioned earlier, there’s no specific information provided about any of them. The Court would need to know the details of who said and did what. To do this correctly, the Statement of Claim would have been a few hundred pages.

5. Seeking Relief A CIVIL Court Cannot Grant

This is downright embarrassing. At paragraph 1(d) of the Amended Claim, Grey asks the Court for Declaratory Relief that Criminal Code violations have taken place. Yes, he asks a Civil Court to make findings of a criminal nature. That alone is enough to get the case struck.

For reference, Action4Canada and Adelberg were struck as “bad beyond argument”, in part, because they asked for remedies a Civil Court had no jurisdiction over. Grey does the same thing here.

6. Failure To Understand Labour Law And Jurisdiction

The case was dropped ultimately because the Defendants tried to bring a Motion to Strike. This Order from February, 2023 makes it clear what it was about. CNR knew full well that the Court had no jurisdiction, at least for many workers, so the obvious first step was to bring such a challenge.

Although Grey tried to argue a litany of torts, this case was essentially “constructive dismissal”. Since the terms and conditions of employment had been retroactively changed, it amounted to a repudiation of the contract by the employer. This is exactly the kind of issue that unions grieve over.

Most likely, Grey tried to dress it up to get around the lack jurisdiction.

Timeline Of Major Events In This Case

March 4th, 2022: Grey files the Statement of Claim against CNR and the Federal Government. Despite representing over 200 Plaintiffs, the entire document is just 14 pages long.

September 7th, 2022: case management is held to bring a Motion to Strike.

October 11th, 2022: Statement of Claim is amended.

October 28, 2022: first Notice of Discontinuance is filed. Several Plaintiffs want out.

February 1st, 2023: Statement of Claim is again amended.

February 7th, 2023: Order from the Court regarding how to proceed with the Motion to Strike the case.

May 8th, 2023: Most Plaintiffs discontinue.

May 17th, 2023: Grey files a Motion to remove himself as solicitor for the few remaining clients. This appears to be the most work he has actually performed in the case.

June 20th, 2023: Last client discontinues case.

So, what actually happened in this case? The Statement of Claim was amended a few times, and there was some activity on a Motion to Strike. Then the suit was dropped without anything happening. None of the Plaintiffs ever got their day in Court. But their lawyer probably got his money.

(1) CNR T-553-22 Statement Of Claim (March 4, 2022)
(2) CNR T-553-22 Case Management September 7 2022
(3) CNR T-553-22 Amended Statement Of Claim (October 11, 2022)
(4) CNR T-553-22 Notice Of Discontinuance October 28, 2022
(5) CNR T-553-22 Amended Amended Statement Of Claim (February 1, 2023)
(6) CNR T-553-22 Order Regarding Motion To Strike February 7 2023
(7) CNR T-553-22 Notice Of Discontinuance May 8, 2023
(8) CNR T-553-22 Motion For Removal Of Solicitor (May 17, 2023)
(9) CNR T-553-22 Notice Of Discontinuance June 20, 2023

November 11, 2024November 11, 2024

Antisemitism Hearings Continue At Canadian Parliament

The House of Commons has resumed hearings into the concerns of the Jewish community in Canada, and to bring forward ideas on what to do about it. To date, there are 23 witnesses scheduled to testify, and 78 briefs filed with Parliament. The hearings began in May 2024.

Officially, the hearings are referred to as: “Antisemitism and Additional Measures that Could be Taken to Address the Valid Fears that are Being Expressed by Canada’s Jewish Community”.

It’s unclear what, if anything, will come as a result. Free speech absolutists will notice the general trend of recommending solutions that involve some form of “re-education” or punishment.

Interestingly, both the Jewish and Islamic lobbies support the implementation of Bill C-63, the Online Harms Act. The vague wording of the text would make it a powerful weapon.

One can’t but notice that the inconsistency of the attitudes of the participants. It seems while free expression is to take a back seat here, it wouldn’t be in similar circumstances. Let’s look at one example, the Centre for Israel and Jewish Affairs, or CIJA.

CIJA On Jewish “Identity”: Free Speech Must Be Curbed

When it comes to protecting the well being of Jews in Canada, nothing is off the table. Aggressive efforts must be made, even if it limits free speech and free association.

Enforce existing anti-hate laws and provide training to courts, police, government employees and the legal system in antisemitism and hate crimes.
Incorporate the IHRA definition of antisemitism into all government training on Equity, Diversity, and Inclusion.
Ban Vancouver-based group Samidoun for its direct and open ties to terror groups.
Have both Ottawa and the provinces introduce safe access (bubble) legislation around synagogues, Jewish community buildings, and centres of Jewish life.
Pass the Online Harms Act.
Introduce the new Anti-Racism Strategy and ensure no government funding goes to those promoting and platforming hate.
Ban the display of symbols of listed terror organizations.
List the Iranian Revolutionary Guard Corps as a terrorist organization.
Improve the collection and reporting of hate crime data, including how the information is shared with threatened communities.
The Government of Canada should direct the provinces to act clearly to prevent antisemitism in schools, both on university campuses and in K-12.

These are the points introduced by CIJA for these hearings. However, it’s interesting to note that these efforts are not encouraged for all groups. Far from it.

CIJA On Palestinian “Identity”: Free Speech Must Be Protected

Despite the seemingly heavy handed approach favoured to combat antisemitism, it seems a different path is desirable regarding Palestinians.

Ottawa, ON – November 8, 2024 – In response to the announcement made by the Special Representative on Combatting Islamophobia about the Prime Minister’s support of “Anti-Palestinian Racism” (APR), the Centre for Israel and Jewish Affairs (CIJA) expressed serious concerns regarding the concept that risks undermining protections for Jewish Canadians and could misuse human rights laws to advance political narratives that silence Jewish voices.

CIJA has engaged directly with the federal government on this issue, calling on the Prime Minister to reject APR and ensure that Canadian policy protects the free expression of all communities without infringing upon Jewish identity or silencing voices within Canada’s Jewish community. CIJA’s engagement has also included correspondence and meetings with key government representatives to advocate for consistent, inclusive, human rights protections.

The concerns are entirely different when it comes to recognizing Palestinians as a race or ethnicity. CIJA summarizes them concisely.

It lacks debate
It is inconsistent with established definitions and redundant under the Charter
It risks sidetracking creation of Islamophobia guides
It challenges freedom of expression
It contravenes Established Government Policies
It is inconsistent with Canadian Foreign Policy
It imposes divisive environment
It silences victims of antisemitism
It silences discussions of terrorism
It invalidates anti-BDS legislation and policy

Recently, CIJA published a paper called: “Ten major concerns with the concept of Anti-Palestinian Racism (APR)”. The main theme is that it undermines legitimate expression, Government policies and is divisive.

It seems more likely that “Anti-Palestinian racism” is opposed as a concept to make it more difficult to declare what Israel does to them as a genocide.

Bernier On Genocide Of Palestinians: U.N. Needs To Shut Up

Maxime Bernier was Foreign Affairs Minister from 2007 until 2008. This is one of the most prestigious positions there is in politics. One would think that he’d have many ideas as to where a future Government could go if he were in power.

However, when running to be the head of the Conservative Party of Canada 2016/2017, his ambitions for foreign policy were very light. He had vague statements about trade and economic growth, but this is his only definitive one:

I won’t aim to please the foreign affairs establishment and the United Nations — a dysfunctional organisation which for years has disproportionately focused its activities on condemning Israel. Instead, I will ensure our country’s foreign policy will be refocused on the security and prosperity of Canadians.

Bernier is no dummy. He knows exactly why the U.N. has been condemning Israel, and the resolutions are very easy to look up. However, he prefers to deflect by referring to the U.N. as “dysfunctional”.

Strange, isn’t it? Bernier was “Mr. Freedom” when it came to Canadians having their rights taken away in 2020 and 2021. But he shilled for a foreign power that did (and still does) worse to its neighbours.

In fairness, few politicians (anywhere) in the West are willing to call out Israeli occupation of Palestinians. A cynic may wonder if all those free vacations had anything to do with it.

Anyhow, this is Parliament is up to these days — hearing witnesses advocate for measures on behalf of a tiny minority — and all because of events on the other side of the world.

(1) https://www.ourcommons.ca/committees/en/JUST/StudyActivity?studyActivityId=12632914
(2) https://www.cija.ca/government_support_of_anti_palestinian_racism_risks_undermining_canadian_jewish_rights
(3) https://assets.nationbuilder.com/cija/pages/4068/attachments/original/1719952377/2024-06-20_APR_Need_to_know.pdf?1719952377
(4) http://www.maximebernier.com/foreign_policy_must_focus_on_the_security_and_prosperity_of_canadians_not_pleasing_the_dysfunctional_united_nations
(5) Wayback Machine Archive Of Bernier

Palestinian Authority and the Canadian Palestinian Foundation of Quebec

International Democratic Union (IDU)

Foreign Affairs Department, The Knesset, Jerusalem

March Of Dimes

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Backstory Of What’s Been Going On

Timeline Of Events Leading To This Point

Leighton Grey Implies Federal Court “Rigged” Outcome

Grievance/Arbitration Requirement Bars Court Action

Statement Of Claim Not Pleaded Properly, Once Again

What Happens Now?

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National Defence Act, S.29: Grievance The Required Option

Previous Case Saw Interlocutory Injunction Application Denied

Current Lawsuit Thrown Out Over Jurisdiction, Pleadings

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How Canadian Government Defines “Constructive Dismissal”

Definition of constructive dismissal

Teamsters Collective Agreement Mandates Arbitration

Teamsters Union Won At Labour Arbitration

Plaintiffs In Civil Claim Got Screwed Over

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What Specific Errors Were Made With CNR Case?

1. Failure To Plead Necessary Material Facts

2. Failure To Keep Evidence Out Of The Claim

3. Failure To Properly Plead Necessary Particulars

4. Failure To Properly Plead Charter Violations

5. Seeking Relief A CIVIL Court Cannot Grant

6. Failure To Understand Labour Law And Jurisdiction

Timeline Of Major Events In This Case

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CIJA On Jewish “Identity”: Free Speech Must Be Curbed

CIJA On Palestinian “Identity”: Free Speech Must Be Protected

Bernier On Genocide Of Palestinians: U.N. Needs To Shut Up

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