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
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 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
I’m one of the plaintiffs and sad to say, it looks to be that we were had.
From the get go, nothing seems to have been done right and to be clear, most felt that we were kept in the dark as to what work was done and when it was done to justify the billings to our collaborative finances.
The only positive thing this experience resulted in providing was the wisdom of knowing for the future to be more careful who we trust in such serious cases.
Thank you for the break down.
Excellent update on what seemed a deliberate sabotage by the firm and fleecing of the clients. I was one of the plaintiffs lured into this farce but never again. Of course Leighton launched a class action suit since original plan imploded and extra $$ was asked to enter but I wasn’t being fooled a second time. I stay in contact with some who returned to CN, unjabbed , after turdo suspends the mandates. Its been over a year and thus calls action seems dead in the water for any updates.