Countless times in the last few years, we come across announcements about lawsuits being filed to challenge so-called injection passports. There’s initially plenty of hope and optimism that meaningful results will force Governments to change their ways. And a suit filed against Westjet in the Fall of 2022 was one such example.
The suit named:
- His Majesty The King in Right of Canada
- Attorney General of Canada
- Westjet Group Inc.
- Westjet Airlines Ltd.
- Westjet Encore
- Westjet Vacations Inc.
- Swoop Inc.
These announcements are typically followed up with requests for donations, or solicitations for more clients, and more fees. There’s never really “enough” money.
But all too often, there won’t be any new reporting.
This is usually because they’re quietly dropped. And that’s exactly what happened here.
Shoddy Claims Being Recycled In Federal Court
The Westjet lawsuit should look familiar. It was filed by Leighton Grey of the firm Grey Wowk Spencer. It’s one of many filed in recent years that went absolutely nowhere.
(a) Canada Post: struck in March 2024
(b) Canadian National Railway: discontinued in June 2023
(c) Purolator, discontinued in April 2023
Grey has been in the press many times since 2020, often for filing a high profile lawsuit. That said, rarely does anything ever come of it. These cases are typically struck or discontinued (dropped).
And here, “The Discontinuer” is at is again.
Once Again, No Material Facts Or Particulars Pleaded
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 will have heard the terms “pleading facts” and “pleading particulars”. While the numbering systems differ, the Rules are the same across Canada. In short, there must be enough detailed information in a lawsuit that the opposing side is able to understand, and respond.
| JURISDICTION | PLEAD FACTS | PLEAD PARTICULARS |
|---|---|---|
| Federal Court | Rule 174 | Rule 181 |
| British Columbia | Rule 3-1(2)(a) | Rule 3-7(17) |
| Manitoba | Rule 25.06(1) | Rule 25.06(11) |
| Ontario | Rule 25.06(1) | Rule 25.06(8) |
| Nova Scotia | Rule 38.02(2) and (3) | Rule 38.03(3) |
One of the reasons Grey’s claims are typically so short is that he rarely pleads any facts. Despite having over 100 Plaintiffs, the suit is less than 25 pages. Once again, there’s no specific information about any Plaintiff, other than they are/were employees of Westjet. There’s nothing about:
- Who is a current employee v.s. who left?
- Who had no shots, 1 shots, 2 shots, or more?
- Who worked remotely v.s. who worked in person?
- Who got any sort of severance pay?
- Who (if anyone) was subject to any bonus or performance contract?
- Were there different unions, and any overlapping, or different policies?
- Who raised which specific objection to taking the injections?
- Who attempted which type of exemption method?
- Which specific religious objections (for those who invoked it) applied and how?
- Who went to grieve with their union?
- What were the results of any internal grievance?
This isn’t to defend the policy at all. However, from a due process perspective, there’s so little information contained that it’s impossible to defend against. Basic information must be pleaded for each Plaintiff. Grey includes none of it.
None of the Charter violations are pleaded properly either. While (initially) the Court is to accept everything as true, there is very specific information that must be alleged to make it possible to advance.
There’s also a lack of particulars. The suit makes all kinds of allegations of malice, bad faith, and malfeasance of public office, but doesn’t spell out any of it.
The Claim and Amended Claim include allegations which a Civil Court doesn’t have jurisdiction over, such as relying on the Criminal Code of Canada.
Looking at the: (a) Canada Post; (b) CNR; (c) Purolator; and now (d) Westjet pleadings, it’s clear that it’s the same suit just tweaked a little. Grey merely changes the names in the Style of Cause (the Parties) and refiles elsewhere.
Clients are paying (presumably) good money for recycled garbage.
Westjet Has Collective Bargaining Agreement For Employees
Westjet employees appear to be part of CUPE Local 4070, which is one of many unions. Unsurprisingly, there is a collective bargaining agreement which outlines most of the important things involved.
Article 30 lists the various steps involved, and the people who are involved. Like many unions, Arbitration and not litigation, is considered to be the final one. Article 31 then goes through the process itself.
Grey discontinued the case rather than have the jurisdiction challenged. He has done this with multiple lawsuits now.
Now, Umar Sheikh and Angela Wood showed a way around the grievance requirement in another Federal case. Specifically, they argued that the introduction of the injection pass was a new condition imposed “without meaningful consultation”. Basically, the way mandates were implemented circumvented the grievance process. They successfully stopped a Motion to Strike.
Perhaps Grey could have done the same.
Timeline Of Major Events In Case
October 4th, 2022: Statement of Claim is filed.
November 17th, 2022: Defence files Notice of Intent to Respond.
November 20th, 2022: Case management is ordered.
November 21st, 2022: Amended Statement of Claim is filed.
December 5th, 2022: Plaintiffs (a) Erin Shannon; (b) Tara Mainland; (c) Jennifer Masterman all send in Notices of Discontinuance.
December 8th, 2022: Plaintiff’s lawyer (Grey) submits letter with proposed timetable.
February 28th, 2023: Court orders case management conference on March 13th, 2023.
March 13th, 2023: Conference discusses options of discontinuing overall, or setting timetable to file materials for Motion to Strike.
April 12th, 2023: Lawsuit is discontinued.
And that’s how this Westjet case concluded.
The Government (and the Westjet Defendants) threatened to bring Motions to Strike. The likely reasons were the lack of jurisdiction, and the shoddy nature of the pleadings. Rather than fight, the lawyer dropped the case. He never even tried to fight back.
Before even a single Motion could be argued, the entire lawsuit was discontinued. Plaintiffs are presumably out of luck for any retainer fees they’ve paid.
WESTJET DOCUMENTS:
(1) Westjet Statement Of Claim October 2022
(2) Westjet Amended Statement Of Claim November 2022
(3) Westjet Order Timetable December 2022
(4) Westjet Notice Of Discontinuance April 2023
UNION DOCUMENTS:
(1) https://www.cupe4070.ca/collective-agreements
(2) Westjet CUPE 4070 Collective Bargaining Agreement