Adelberg v. Canada

Adelberg v. Canada
Court (s) Database
Federal Court Decisions
Date
2023-02-21
Neutral citation
2023 FC 252
File numbers
T-1089-22
Decision Content
Date: 20230221
Docket: T-1089-22
Citation: 2023 FC 252
Toronto, Ontario, February 21, 2023
PRESENT: The Honourable Mr. Justice Fothergill
BETWEEN:
KAREN ADELBERG, MATTHEW ANDERSON, WYATT GEORGE BAITON, PAUL
BARZU, NEIL BIRD, CURTIS BIRD, BEAU BJARNASON, LACEY BLAIR, MARK
BRADLEY, JOHN DOE #1 , DANIEL BULFORD, JOHN DOE #2, SHAWN CARMEN ,
JOHN DOE #3, JONATHAN COREY CHALONER, CATHLEEN COLLINS, JANE DOE #1 , JOHN DOE #4, KIRK COX, CHAD COX, NEVILLE DAWOOD, RICHARD DE VOS, STEPHANE DROUIN, MIKE DESSON, PHILIP DOBERNIGG, JANE DOE #2, STEPHANE DROUIN, SYLVIE FILTEAU, KIRK FISLER, THOR FORSETH, GLEN GABRUCH, BRETT GARNEAU, TRACY LYNN GATES, KEVIN GIEN, JANE DOE #3, WARREN GREEN, JONATHAN GRIFFIOEN, ROHIT HANNSRAJ, KAITLYN HARDY, SAM HILLIARD, RICHARD HUGGINS, LYNNE HUNKA, JOSEPH ISLIEFSON, LEPOSAVA JANKOVIC, JOHN DOE #5, PAMELA JOHNSTON, ERIC JONES-GATINEAU, ANNIE JOYAL, JOHN DOE #6, MARTY (MARTHA) KLASSEN, JOHN DOE #7, JOHN DOE #8, JOHN DOE #9 , RYAN KOSKELA, JANE DOE #4, JULIANS LAZOVIKS, JASON LEFEBVRE, KIRSTEN LINK, MORGAN LITTLEJOHN, JOHN DOE #10, DIANE MARTIN, JOHN DOE #11, RICHARD MEHNER, CELINE MOREAU, ROBIN MORRISON, MORTON NG, GLORIA NORMAN, STEVEN O’DOHERTY, DAVID OBIREK, JOHN ROBERT QUEEN, NICOLE QUICK, GINETTE ROCHON, LOUIS-MARIE ROY, EMAD SADR, MATT SILVER, JINJER SNIDER, MAUREEN STEIN, JOHN DOE #12, JOHN DOE #13, ROBERT TUMBAS, KYLE VAN DE SYPE, CHANTELLE VIEN, JOSHUA (JOSH) VOID, CARLA WALKER, ANDREW WEDLOCK, JENNIFER WELLS, JOHN WELLS, MELANIE WILLIAMS, DAVID GEORGE JOHN WISEMAN, DANIEL YOUNG, GRATCHEN GRISON, (OFFICERS WITH THE ROYAL CANADIAN MOUNTAIN POLICE)
and
NICOLE AUCLAIR, MICHAEL BALDOCK, SABRINA BARON, WILLIAM DEAN BOOTH, CHARLES BORG, MARIE-EVÉ CARON, THOMAS DALLING, JOSEPH ISRAEL MARC ERIC DE LAFONTAINE, RICARDO GREEN, JORDAN HARTWIG, RODNEY HOWES, CHRISTOPHER MARK JACOBSON, JANE DOE #5, PASCAL LEGENDRE, KIMBERLY LEPAGE, KIM MACDONALD, CINDY MACKAY, KIM MARTIN MCKAY, DAVID MASON, ALEXANDRA KATRINA MOIR, JOSEPH DANIEL ERIC MONTGRAIN, RADOSLAW NIEDZIELSKI, LEANNA JUNE NORDMAN, DONALD POOLE, EDWARD DOMINIC POWER, NORMAN L. REED, JANE DOE #6, BRENDEN SANGSTER, TIMOTHY JOSEPH SEIBERT, ANN-MARIE LEE TRAYNOR, CARL BARRY WOOD, EDDIE EDMOND ANDRUKAITIS, RUBY DAVIS, JENNIFER SCHROEDER, JOSEPH SHEA EMPLOYED BY THE (DEPARTMENT OF NATIONAL DEFENCE)
and
STEFANIE ALLARD, JAKE DANIEL BOUGHNER, BRENT CARTER, BRIAN COBB, LAURA CONSTANTINESCU, SONIA DINU, ALDONA FEDOR, JANE DOE #7, MALORIE KELLY, MATTHEW STEPHEN MACDONALD, MITCHELL MACINTYRE, HERTHA MCLENDON, MARCEL MIHAILESCU, MICHAEL MUNRO , SEBASTIAN NOWAK, DIANA RODRIGUES, NATALIE HOLDEN , ADAM DAWSON WINCHESTER, (CANADA BORDER SERVICES AGENCY)
and
CHRISTINE CLOUTHIER, DEBBIE GRAY, JENNIFER PENNER, DALE WAGNER, JOSEPH AYOUB, (AGRICULTURE AND AGRI-FOOD CANADA)
and
JANE DOE #8, (ATLANTIC CANADA OPPORTUNITIES AGENCY)
and
MELANIE DUFOUR, (BANK OF CANADA)
and
JENNIFER AUCIELLO, SHARON ANN JOSEPH, ERIC MUNRO, (CANADA
MORTGAGE AND HOUSING CORPORATION)
and
JANE DOE #9, (CANADA PENSION PLAN)
and
NATALIE BOULARD, BEATA BOZEK, JOHN DOE #14, NERIN ANDREA CARR, SARA JESSICA CASTRO, DEBBIE (DUBRAVKA ) CUNKO, JOSÉE CYR, JANE DOE #10, CAROL GABOURY, TANIA GOMES, JULITA GROCHOCKA, MONIQUE HARRIS, WILLIAM HOOKER, KIRSTIN HOUGHTON, LEILA KOSTYK, DIANE C LABBÉ, MICHELLE LAMARRE, NICOLAS LEBLOND, SUANA-LEE LECLAIR, PAULETTE MORISSETTE, JENNIFER NEAVE, PIERRE-ALEXANDRE RACINE, BENJAMIN RUSSELL, ROBERT SNOWDEN, AABID THAWER, HEIDI WIENER, SVJETLANA ZELENBABA, NADIA ZINCK, AARON JAMES THOMAS SHORROCK, DEIRDRE MCINTOSH, (CANADA REVENUE AGENCY)
and
TAMARA STAMMIS, (CANADA SCHOOL OF THE PUBLIC SERVICE)
and
JASMIN BOURDON, (CANADA SPACE AGENCY)
and
SHARON CUNNINGHAM, ALLEN LYNDEN, RORY MATHESON, (CANADIAN
COAST GUARD)
and
TATJANA COKLIN, JOHN DOE #15, RAQUEL DELMAS, JANE DOE #11, CHELSEA HAYDEN, HELENE JOANNIS, ZAKLINA MAZUR, JANE DOE #12, JESSICA SIMPSON, KATARINA SMOLKOVA, (CANADIAN FOOD INSPECTION AGENCY)
and
ALEXANDRE CHARLAND, (CANADIAN FORESTRY SERVICE)
and
CATHERINE PROVOST, KRISTINA MARTIN, (CANADIAN HERITAGE)
and
JANE DOE #13, (CANADIAN INSTITUTES OF HEALTH RESEARCH)
and
BETH BLACKMORE, ROXANNE LORRAIN, (CANADIAN NUCLEAR SAFETY
COMMISSION)
and
RÉMI RICHER, (CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION)
and
OCTAVIA LA PRAIRIE, (CANADIAN SECURITY INTELLIGENCE SERVICE)
and
ROBERT BESTARD, (CITY OF OTTAWA GARAGE FED REGULATED)
and
KIMBERLY ANN BECKERT, (CORE PUBLIC SERVICE)
and
SARAH ANDREYCHUK, FRANCOIS BELLEHUMEUR, PAMELA BLAIKIE, NATASHA CAIRNS, ANGELA CIGLENECKI, VERONIKA COLNAR, RANDY DOUCET, KARA ERICKSON, JESSE FORCIER, VALÉRIE FORTIN, ROXANE GUEUTAL, MELVA ISHERWOOD, MILO JOHNSON, VALERIA LUEDEE, LAURIE LYNDEN, ANNETTE MARTIN, CRAIG MCKAY, ISABELLE METHOT, SAMANTHA OSYPCHUK, JANE DOE #14, WILNIVE PHANORD, ALEXANDRE RICHER LEVASSEUR, KATHLEEN SAWYER, TREVOR SCHEFFEL, (CORRECTIONAL SERVICE OF CANADA)
and
JORDAN ST-PIERRE, (COURTS ADMINISTRATION SERVICE)
and
BRIGITTE SURGUE, JANE DOE #15, (DEPARTMENT OF CANADIAN HERITAGE)
and
GHISLAIN CARDINAL, HEATHER HALLIDAY, PAUL MARTEN, CELINE RIVIER, NGOZI UKWU, JEANNINE BASTARACHE, JANE DOE #16, HAMID NAGHDIAN-VISHTEH, (DEPARTMENT OF FISHERIES AND OCEAN)
and
ISHMAEL GAY-LABBE, JANE DOE #17, LEANNE JAMES, (DEPARTMENT OF
JUSTICE)
and
DANIELLE BARABE-BUSSIERES, (ELECTIONS CANADA)
and
TANYA DAECHERT, JANE DOE #18, FRANCOIS ARSENEAU, CHANTA AUTHIER, NATHALIE BENOIT, AERIE BIAFORE, ROCK BRIAND, AMAUD BRIEN THIFFAULT, SHARON CHIU, MICHEL DAIGLE, BRIGITTE DANIELS, LOUISE GAUDREAULT, KARRIE GEVAERT, MARK GEVAERT, PETER IVERSEN, DERRIK LAMB , JANE DOE #19, ANNA MARINIC, DIVINE MASABARAKIZA, JAMES MENDHAM, MICHELLE MARINA MICKO, JEAN RICHARD, STEPHANIE SENECAL, JANE DOE #20, RYAN SEWELL, KARI SMYTHE, OLIMPIA SOMESAN, LLOYD SWANSON, TYRONE WHITE, ELISSA WONG, JENNY ZAMBELAS, LI YANG ZHU, PATRICE LEVER, (EMPLOYMENT AND SOCIAL DEVELOPMENT CANADA)
and
JANE DOE #21, BRIAN PHILIP CRENNA, JANE DOE #22, BRADLEY DAVID HIGNELL, ANDREW KALTECK, DANA KELLETT, JOSÉE LOSIER, KRISTIN MENSCH, ELSA MOUANA, JANE DOE #23, JANE DOE #24, VALENTINA ZAGORENKO, (ENVIRONMENT AND CLIMATE CHANGE CANADA)
and
PIERRE TRUDEL, (EXPORT DEVELOPMENT CANADA)
and
STEPHEN ALAN COLLEY, (FEDERAL ECONOMIC DEVELOPMENT AGENCY FOR SOUTHERN ONTARIO)
and
VLADIMIR RASKOVIC, (GARDA SECURITY SCREEING INC)
and
MÉLANIE BORGIA, JONATHAN KYLE SMITH, DONNA STAINFLELD, ANNILA
THARAKAN, RENEE MICHIKO UMEZUKI, (GLOBAL AFFAIRS CANADA)
and
DENNIS JOHNSON, (GLOBAL CONTAINER TERMINALS CANADA)
and
ALEXANDRE GUILBEAULT, TARA (MARIA) MCDONOUGH, FRANCE VANIER,
(GOVERNMENT OF CANADA)
and
ALEX BRAUN, MARC LESCELLEUR-PAQUETTE, (HOUSE OF COMMONS)
and
AIMEE LEGAULT, (HUMAN RESOURCE BRANCH)
and
DORIN ANDREI BOBOC, JANE DOE #25, SOPHIE GUIMARD, ELISA HO, KATHY
LEAL, CAROLINE LEGENDRE, DIANA VIDA, (IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA)
and
NATHALIE JOANNE GAUTHIER, (INDIGENOUS AND NORTHERN AFFAIRS CANADA)
and
CHRISTINE BIZIER, AMBER DAWN KLETZEL, VERONA LIPKA, KERRY SPEARS, (INDIGENOUS SERVICES CANADA)
and
SUN-HO PAUL JE, (INNOVATION, SCIENCE AND ECONOMIC DEVELOPMENT
CANADA)
and
GILES ROY, (NATIONAL FILM BOARD OF CANADA)
and
RAY SILVER, MICHELLE DEDYULIN, LETITIA EAKINS, JULIE-ANNE
KLEINSCHMIT, MARC-ANDRE OCTEAU, HUGUES SCHOLAERT, (NATIONAL
RESEARCH COUNCIL CANADA)
and
FELIX BEAUCHAMP, (NATIONAL SECURITY AND INTELLIGENCE REVIEW
AGENCY)
and
JULIA MAY BROWN, CALEB LAM, STEPHANE LEBLANC, SERRYNA WHITESIDE, (NATURAL RESOURCES CANADA)
and
NICOLE HAWLEY, STEEVE L’ITALIEN, MARC LECOCQ, TONY MALLET, SANDRA MCKENZIE, (NAV CANADA)
and
MUHAMMAD ALI, (OFFICE OF THE AUDITOR GENERAL OF CANADA)
and
RYAN ROGERS, (ONTARIO NORTHLAND TRANSPORTATION COMMISSION)
and
THERESA STENE, MICHAEL DESSUREAULT, JOHN DOE #16, (PARK CANADA)
and
CHARLES-ALEXANDRE BEAUCHEMIN, BRETT OLIVER, (PARLIMENTARY
PROTECTION SERVICE)
and
CAROLE DUFORD, (POLAR KNOWLEDGE CANADA)
and
JOANNE GABRIELLE DE MONTIGNY, IVANA ERIC, JANE DOE #26, SALYNA
LEGARE, JANE DOE #27, ANGIE RICHARDSON, JANE DOE #28, (PUBLIC
HEALTH AGENCY OF CANADA)
and
FAY ANNE BARBER, (PUBLIC SAFETY CANADA)
and
DENIS LANIEL, (PUBLIC SECTOR PENSION INVESTMENT BOARD)
and
KATHLEEN ELIZABETH BARRETTE, SARAH BEDARD, MARIO CONSTANTINEAU, KAREN FLEURY, BRENDA JAIN, MEGAN MARTIN, JANE DOE #29, ISABELLE PAQUETTE, RICHARD PARENT, ROGER ROBERT RICHARD, NICOLE INCENNES, CHRISTINE VESSIA, JANE DOE #30, PAMELA MCINTYRE, (PUBLIC SERVICES AND PROCUREMENT CANADA)
and
ISABELLE DENIS, (REGISTRAR OF THE SUPREME COURT OF CANADA)
and
JANE BARTMANOVICH, (ROYAL CANADIAN MINT)
and
NICOLE BRISSON, (SERVICE CANADA)
and
DENIS AUDET, MATHIEU ESSIAMBRE, ALAIN HART, ANDREA HOUGHTON, NATALIA KWIATEK, DANY LEVESQUE, DAVID MCCARTHY, PASCAL MICHAUD, MERVI PENNANEN, TONYA SHORTILL, STEPHANIE TKACHUK, MARSHALL WRIGHT, (SHARED SERVICES CANADA)
and
EVE MARIE BLOUIN-HUDON, MARC-ANTOINE BOUCHER, CHRISTOPHER
HUSZAR, (STATISTICS CANADA)
and
STEVE YOUNG, (TELESTAT CANADA)
and
NATHAN ALIGIZAKIS, STEPHEN DANIEL, ALAIN DOUCHANT, KRYSTAL MCCOLGAN, DEBBIE MENARD, CLARENCE RUTTLE, DOROTHY BARRON, ROBERT MCLACHLAN, (TRANSPORT CANADA)
and
SCOTT ERROLL HENDERSON, DENIS THERIAULT, (TREASURY BOARD OF
CANADA)
and
JOSIANE BROUILLARD, ALEXANDRA MCGRATH, NATHALIE STE-CROIX, JANE DOE #31, (VETERANS AFFAIRS CANADA)
and
OLUBUSAYO (BUSAYO) AYENI, JOHN DOE #17, CYNTHIA BAUMAN, JANE DOE #32, LAURA CRYSTAL BROWN, KE(JERRY) CAI, NICOLINO CAMPANELLI, DONALD KEITH CAMPBELL, COLLEEN CARDER, KATHY CARRIERE, MELISSA CARSON, DAVID CLARK, BRADLEY CLERMONT, LAURIE COELHO, ESTEE COSTA, ANTONIO DA SILVA, BRENDA DARVILL, PATRICK DAVIDSON, EUGENEDAVIS, LEAH DAWSON, MARC FONTAINE, JACQUELINE GENAILLE, ELDON GOOSSEN, JOYCE GREENAWAY, LORI HAND, DARREN HAY, KRISTA IMIOLA,CATHERINE KANUKA, DONNA KELLY, BENJAMIN LEHTO, ANTHONY LEON, AKEMI MATSUMIYA, JANE DOE #33, JANE DOE #34, JANE DOE #35, ANNE MARIE MCQUAID-SNIDER, LINO MULA, PAMELA OPERSKO, GABRIEL PAQUET CHRISTINE PAQUETTE, CAROLIN JACQUELINE PARIS, JODIE PRICE, KEVIN PRICE, GIUSEPPE QUADRINI, SAARAH QUAMINA, SHAWN ROSSITER, ANTHONY RUSH, ANTHONY SHATZKO, CHARLES SILVA, RYAN SIMKO, NORMAN SIROIS, BRANDON SMITH, CATHARINE SPIAK, SANDRA STROUD, ANITA TALARIAN, DARYL TOONK, RYAN TOWERS, LEANNE VERBEEM, ERAN VOOYS, ROBERT WAGNER, JASON WEATHERALL, MELANIE BURCH, STEVEN COLE, TONI DOWNIE, AMBER RICARD, JODI STAMMIS, (CANADA POST)
and
NICOLAS BELL, JOHN DOE #18, JOHN DOE #19, JANE DOE #36, JOHN DOE #20, PAOLA DI MADDALENA, NATHAN DODDS, JOHN DOE #21, JANE DOE #37, NUNZIO GIOLTI, MARIO GIRARD, JANE DOE #38, JANE DOE #39, YOU-HUI KIM, JANE DOE #40, SEBASTIAN KORAK, ADA LAI, MIRIUM LO, MELANIE MAILLOUX, CAROLYN MUIR, PATRIZIA PABA, RADU RAUTESCU, ALDO REANO, JACQUELINE ELISABETH ROBINSON, JOHN DOE #22, FREDERICK ROY, JOHN DOE #23, TAEKO SHIMAMURA, JASON SISK, BEATA SOSIN, JOEL SZOSTAK, MARIO TCHEON, REBECCA SUE THIESSEN, JANE DOE #41, MAUREEN YEARWOOD, (AIR CANADA)
and
JOHN DOE #24, JOSÉE DEMEULE, JACQUELINE GAMBLE, DOMENIC GIANCOLA, SADNA KASSAN, MARCUS STEINER, CHRISTINA TRUDEAU, (AIR
CANADA JAZZ)
and
JOHN DOE #25, EMILIE DESPRES, (AIR INUIT)
and
REJEAN NANTEL, (BANK OF MONTREAL)
and
LANCE VICTOR SCHIIKA, (BC COAST PILOTS LTD)
and
ELIZABETH GODLER, (BC FERRIES)
and
JOHN DOE #26, JANE DOE #42, TAMARA DAVIDSON, JANE DOE #43, KARTER CUTHBERT FELDHOFF DE LA NUEZ, JEFFREY MICHAEL JOSEPH GOUDREAU, BRAD HOMEWOOD, CHAD HOMEWOOD, CHARLES MICHAEL JEFFERSON, JOHN DOE #27, JANICE LARAINE KRISTMANSON, JANE DOE #44, DARREN LOUIS LAGIMODIERE, JOHN DOE #28, JOHN DOE #29, MIRKO MARAS, JOHN DOE #30, JOHN DOE #31, JOHN DOE #32, JOHN DOE #33, JOHN DOE #34, JANE DOE #45, JOHN DOE #35, KENDAL STACE-SMITH, JOHN DOE #36, STEVE HEATLEY, (BRITISH COLUMBIA MARITIME EMPLOYERS ASSOCIATION)
and
PAUL VEERMAN, (BROOKFIELD GLOBAL INTEGRATED SOLUTIONS)
and
MARK BARRON, TREVOR BAZILEWICH, JOHN DOE #37, BRIAN DEKKER, JOHN GAETZ, ERNEST GEORGESON, KYLE KORTKO, RICHARD LETAIN, JOHN DOE #38, DALE ROBERT ROSS, (CANADIAN NATIONAL RAILWAY)
and
TIM CASHMORE, ROB GEBERT, MICHEAL ROGER MAILHIOT, (CANADIAN
PACIFIC RAILWAY)
and
KARIN LUTZ, (DP WORLD)
and
CRYSTAL SMEENK, (FARM CREDIT CANADA)
and
SYLVIE M.F. GELINAS, SUSIE MATIAS, STEW WILLIAMS, (G4S AIRPORT
SCREENING)
and
SHAWN CORMAN, (GEOTECH AVIATION)
and
JUERGEN BRUSCHKEWITZ, ANDRE DEVEAUX, BRYAN FIGUEIRA, DAVID SPRATT, GUY HOCKING, SEAN GRANT, (GREATER TORONTO AIRPORTS AUTHORITY)
and
DUSTIN BLAIR, (KELOWNA AIRPORT FIRE FIGHTER)
and
HANS-PETER LIECHTI, (NATIONAL ART CENTRE)
and
BRADLEY CURRUTHERS, LANA DOUGLAS, ERIC DUPUIS, SHERRI ELLIOT,
ROBEN IVENS, JANE DOE #46, LUKE VAN HOEKELEN, KURT WATSON,
(ONTARIO POWER GENERATION)
and
THERESA STENE, MICHAEL DESSUREAULT, ADAM PIDWERBESKI, (PARKS
CANADA)
and
JOHN DOE #39, (PACIFIC PILOTAGE AUTHORITY)
and
ANGELA GROSS, (PUROLATOR INC.)
and
GERHARD GEERTSEMA, (QUESTRAL HELICOPTERS)
and
AMANDA RANDALL, JANE DOE #47, FRANK VERI, (RBC ROYAL BANK)
and
JAMES (JED) FORSMAN, (RISE AIR)
and
JANE DOE #48, (ROGERS COMMUNICATIONS INC)
and
JERRILYNN REBEYKA, (SASKTEL)
and
EILEEN FAHLMAN, MARY TREICHEL, (SCOTIABANK)
and
JUDAH GAELAN CUMMINS, (SEASPAN VICTORIA DOCKS)
and
DARIN WATSON, (SHAW)
and
RICHARD MICHAEL ALAN TABAK, (SKYNORTH AIR LTD)
and
DEBORAH BOARDMAN, MICHAEL BRIGHAM, (VIA RAIL CANADA)
and
KEVIN SCOTT ROUTLY, (WASAYA AIRWAYS)
and
SAILOR, (WATERFRONT EMPLOYERS OF BRITISH COLUMBIA)
and
BAYDA, JAMIE ELLIOTT, JOHN DOE #40, RANDALL MENGERING,
SAMANTHA NICASTRO, VERONICA STEPHENS, JANE DOE #49, (WESTJET)
and
MELVIN GEREIN, (WESTSHORE TERMINALS)
Plaintiffs
and
HIS MAJESTY THE KING, PRIME MINISTER JUSTIN TRUDEAU, DEPUTY PRIME MINISTER AND MINISTER OF FINANCE CHRYSTIA FREELAND, CHIEF MEDICAL OFFICER TERESA TAM, MINISTER OF TRANSPORT OMAR ALGHABRA, DEPUTY MINISTER OF PUBLIC SAFETY MARCO MENDICINO, JOHNS AND JANES DOE
Defendants
ORDER AND REASONS
I. Overview
[1] The Defendants have brought a motion pursuant to Rule 221(1)(a) of the Federal Courts Rules, SOR/98-106 [Rules] to strike the Plaintiffs’ Statement of Claim in its entirety, without leave to amend.
[2] The Statement of Claim was filed on May 30, 2022. The Plaintiffs comprise approximately 600 individuals who allege they suffered harm as a result of the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police issued by the Treasury Board of Canada on October 6, 2021 [TB Policy], and the Interim Order Respecting Certain Requirements for Civil Aviation Due to COVID-19, No. 61 issued by Transport Canada on April 24, 2022 [Interim Order].
[3] The Plaintiffs are current or former employees of the Government of Canada, federal Crown corporations, and federally-regulated businesses or organizations. The precise circumstances of the Plaintiffs’ employment are not pleaded in the Statement of Claim.
[4] Unusually, the style of cause groups the Plaintiffs by their employers. For example, the first group of Plaintiffs is identified as employed by the Royal Canadian Mounted Police; the second as employed by the Department of National Defence; the third as employed by the Canada Border Services Agency; and so on.
[5] There are numerous groups of Plaintiffs identified as employees of a wide variety of federal government institutions and Crown corporations. Other Plaintiffs are identified as employees of federally-regulated businesses or organizations such as Air Canada, Bank of Montreal, BC Ferries, Canadian National Railway, Ontario Power Generation, Purolator, and Rogers Communications.
[6] According to the Defendants, approximately two-thirds of the Plaintiffs appear to be employed within the Core Public Administration [CPA], as defined in the Financial Administration Act, RSC 1985, c F-11, s 11(1) and Schedules I, IV [FAA]. The Defendants say these Plaintiffs’ claims are barred by s 236 of the Federal Public Sector Labour Relations Act, SC 2003, c 22, s 2 [FPSLRA].
[7] The remaining one-third of the Plaintiffs appear to fall within two other categories: employees of federal Crown corporations and employees of businesses or organizations that operate in a variety of federally-regulated sectors, principally transportation, telecommunications, logistics, finance, and courier services. The Defendants do not dispute the Court’s potential jurisdiction over the claims brought by these Plaintiffs, but nevertheless maintain that the Statement of Claim fails to disclose any reasonable causes of action.
[8] With respect to those Plaintiffs who are subject to s 236 of the FPSLRA, the Statement of Claim must be struck in its entirety without leave to amend. With respect to those Plaintiffs who are not subject to s 236 of the FPSLRA, the Statement of Claim must be struck in its entirety, but with leave to amend.
II. Issues
[9] The issues raised by the Defendants’ motion are whether the Statement of Claim should be struck and, if so, whether leave should be granted to amend the pleading.
A. Plaintiffs Subject to the FPSLRA
[10] The Plaintiffs who are employed within the organizations listed in Schedule A hereto are members of the CPA, as defined in the FAA. Persons employed within the CPA are subject to s 236 of the FPSLRA. This provision reads as follows:
No Right of Action
Disputes relating to employment
236 (1) The right of an employee to seek redress by way of grievance for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute.
Application
(2) Subsection (1) applies whether or not the employee avails himself or herself of the right to present a grievance in any particular case and whether or not the grievance could be referred to adjudication.
[…]
Absence de droit d’action
Différend lié à l’emploi
236 (1) Le droit de recours du fonctionnaire par voie de grief relativement à tout différend lié à ses conditions d’emploi remplace ses droits d’action en justice relativement aux faits — actions ou omissions — à l’origine du différend.
Application
(2) Le paragraphe (1) s’applique que le fonctionnaire se prévale ou non de son droit de présenter un grief et qu’il soit possible ou non de soumettre le grief à l’arbitrage.
[…]
[11] The right to grieve is available to employees as defined in s 206(1) of the FPSLRA. Both unionized and non-unionized employees may file a grievance. The Defendants say that the Plaintiffs’ right to grieve encompasses the allegations contained in the Statement of Claim, because they concern their “terms and conditions of employment”, as that expression is used in s 208 of the FPSLRA:
Right of employee
208 (1) Subject to subsections (2) to (7), an employee is entitled to present an individual grievance if he or she feels aggrieved (a) by the interpretation or application, in respect of the employee, of
(i) a provision of a statute or regulation, or of a direction or other instrument made or issued by the employer, that deals with terms and conditions of employment, or
(ii) a provision of a collective agreement or an arbitral award; or
(b) as a result of any occurrence or matter affecting his or her terms and conditions of employment.
Droit du fonctionnaire
208 (1) Sous réserve des paragraphes (2) à (7), le fonctionnaire a le droit de présenter un grief individuel lorsqu’il s’estime lésé a) par l’interprétation ou l’application à son égard :
(i) soit de toute disposition d’une loi ou d’un règlement, ou de toute directive ou de tout autre document de l’employeur concernant les conditions d’emploi,
(ii) soit de toute disposition d’une convention collective ou d’une décision arbitrale;
b) par suite de tout fait portant atteinte à ses conditions d’emploi.
[12] In Hudson v Canada, 2022 FC 694 [Hudson], I granted the defendant’s motion to strike the statement of claim without leave to amend on the ground that the plaintiffs’ claims were barred by s 236 of the FPSLRA. The analysis that follows is adapted from the one I applied in Hudson.
[13] Subsection 236(1) of the FPSLRA has been recognized as an “explicit ouster” of the courts’ jurisdiction (Bron v Canada (Attorney General), 2010 ONCA 71 [Bron] at para 4). Once it is established that a matter must be the subject of a grievance, the grievance process cannot be circumvented, even for reasons of efficiency, by relying on a court’s residual jurisdiction (Bouchard c Procureur général du Canada, 2019 QCCA 2067).
[14] Subsection 236(1) of the FPSLRA was enacted in 2005 in direct response to the Supreme Court of Canada’s decisions in Vaughan v Canada, 2005 SCC 11 [Vaughan] and Weber v Ontario Hydro, [1995] 2 SCR 929 [Weber] (see Attorney General of Canada, on behalf of Correctional Service of Canada v Robichaud and MacKinnon, 2013 NBCA 3 [Robichaud] at para 3). Vaughan and Weber stand for the proposition that courts should usually decline to exercise any residual jurisdiction they may have to intervene in employment-related matters. Before a court will intervene in an employment-related dispute, there must be a gap in labour adjudication that causes a “real deprivation of ultimate remedy” (Weber at para 57).
[15] This principle was succinctly stated by the Federal Court of Appeal in Canada v Greenwood, 2021 FCA 186 [Greenwood] at paragraph 130 (leave to appeal ref’d, 2022 CanLII 19060 (SCC)):
Vaughan and the cases that apply it hold that, in most instances, claims from employees subject to federal public sector labour legislation in respect of matters that are not adjudicable before the FPSLREB should not be heard by the courts, as this would constitute an impermissible incursion into the statutory scheme. However, an exception to this general rule allows courts to hear claims that may only be grieved under internal grievance mechanisms if the internal mechanisms are incapable of providing effective redress.
[16] The Defendants say the effect of s 236 of the FPSLRA is to remove any residual discretion this Court may have to intervene in labour disputes involving employees with grievance rights. The Defendants argue that s 236 serves to revoke any statutory grant of jurisdiction this Court might otherwise possess.
[17] Following the enactment of s 236 of the FPSLRA, it appears that no court has intervened in a labour dispute that involves employees who possess grievance rights. The most one can find in the jurisprudence is obiter commentary suggesting that an exception might be found if the integrity of the grievance procedure is shown to be compromised based on the evidence presented in a particular case (Lebrasseur v Canada, 2007 FCA 330 [Lebrasseur]). The onus of establishing that there is room for the exercise of a court’s residual discretion lies with a plaintiff (Lebrasseur at paras 18-19).
[18] In Robichaud, the Court of Appeal of New Brunswick suggested that if the residual discretion to hear a labour dispute continues to exist despite s 236 of the FPSLRA, it will be only in “exceptional” cases: “The truly problematic cases will be those where the grievance process is itself ‘corrupt’” (at para 10).
[19] While evidence is not generally admissible on a motion to strike, it may be admitted where a jurisdictional question arises. Evidence as to the nature and efficacy of the suggested alternate processes is necessary to provide a basis for the Court’s determination of whether it ought to decline jurisdiction in favour of the alternate administrative remedies (Greenwood at paras 95-96).
[20] The Defendants have adduced evidence in support of their motion to strike, but this consists only of an affidavit appending the relevant policy documents as exhibits. No evidence has been tendered respecting “the nature and efficacy of the suggested alternate processes”, as contemplated in Greenwood (at para 95).
[21] The Defendants maintain that it is sufficient for them to invoke the FAA to demonstrate that the claims of approximately two-thirds of the Plaintiffs are barred by s 236 of the FPSLRA. The Defendants note that the Plaintiffs do not allege the available internal grievance process is “corrupt” or incapable of providing redress. Indeed, the Statement of Claim is silent regarding the potential availability or adequacy of alternative remedies.
[22] It would have been helpful for the Defendants to provide evidence, or alternatively detailed legal submissions, regarding which of the Plaintiffs are subject to s 236 of the FPSLRA and which are not. Instead, considerable time was expended during the hearing of this motion reviewing the Schedules to the FAA in order to determine which groups of Plaintiffs are employed within the CPA. Following the hearing of the motion, the Court directed the parties to confirm the accuracy of the lists of employers that appear in Schedules A and B hereto. Schedules A and B were subsequently approved by the parties through their counsel. To their credit, this was done on consent.
[23] According to paragraph 6 of the Statement of Claim:
The Plaintiffs are all either:
(a) Federal (former) Employees of various agencies and Ministries of the Government of Canada and servants, officials, and/or agents of the Crown;
(b) Employees of Federal Crown Corporations; and
(c) Employees of federally regulated sectors;
As set out and categorized in the style of cause in the within claim.
[24] While this manner of pleading is unorthodox, it is sufficiently clear. In effect, the categories of employment disclosed in the style of cause are incorporated by reference into the body of the pleading. For the purposes of the Defendants’ motion to strike, the Plaintiffs’ assertions respecting their places of employment, as identified in the style of cause, must be assumed to be true.
[25] Taken at face value, I am satisfied the pleading confirms that the majority of the Plaintiffs are employed within the CPA. Their claims are therefore barred by s 236 of the FPSLRA.
[26] Before determining whether to exercise any discretion to consider a proceeding, the Court must first be satisfied that the grievance process is not available and would not provide any remedy (Murphy v Canada (Attorney General), 2022 FC 146 [Murphy], at para 32, citing Public Service Alliance of Canada v Canada (Attorney General), 2020 FC 481). As Prothonotary (now Associate Judge) Mireille Tabib explained in Murphy in paragraph 33:
Consequently, and as also suggested in Lebrasseur v Canada, 2007 FCA 330, at para 19, once it is established that a person has recourse to a statutory grievance scheme, it is up to the applicant, and not the respondent seeking to have the application dismissed as premature, to establish that the procedure is clearly not available. That is the necessary conclusion, since concluding otherwise and allowing access to the courts whenever the admissibility of a grievance is challenged would have the effect of bypassing the exhaustive scheme Parliament intended. It would amount to asking the Court to prejudge the admissibility of a grievance and to usurp the role of the grievance authority in respect of the interpretation and application of the provisions governing the grievance procedure.
[27] Associate Judge Tabib’s ruling in Murphy was recently upheld by Justice Vanessa Rochester in Murphy v Canada (Attorney General), 2023 FC 57 [Murphy (Appeal)].
[28] Even at this preliminary stage, the onus is on the Plaintiffs to establish the Court’s jurisdiction over the claims advanced in the Statement of Claim (Hudson at para 91; Murphy (Appeal) at para 82). I am not persuaded that the Plaintiffs who are employed within the CPA have done so.
[29] On a motion to strike, a plaintiff will satisfy the requirement that the pleadings disclose a reasonable cause of action unless, assuming all facts pleaded to be true, it is plain and obvious that the plaintiff’s claim cannot succeed (Pro-Sys Consultants Ltd v Microsoft Corporation, 2013 SCC 57 at para 63). However, this does not mean that the Plaintiffs’ assertions respecting this Court’s jurisdiction must be assumed to be true. As Justice Rochester explained in Murphy (Appeal) at paragraph 86:
It is clear that on a motion to strike an application for judicial review, the facts asserted by the applicant in its Notice of Application must be presumed to be true (Prairies Tubulars (2015) Inc v Canada (Border Services Agency), 2018 FC 991 at para 26 and the cases cited therein). This presumption does not extend to the arguments that an applicant may make or any evidence they may submit in response to a motion to strike the Notice of Application. Concluding otherwise would run counter to the teaching of the Federal Court of Appeal in [Canada (National Revenue) v JP Morgan Asset Management (Canada) Inc, 2013 FCA 250] and have the effect of rendering such motions to strike incapable of success, thereby hampering the Court’s power to restrain the misuse or abuse of its process (JP Morgan at para 48).
[30] Plaintiffs who enjoy statutory grievance rights and allege they have been harmed by the TB Policy or Interim Order must exhaust the grievance process before seeking redress in this Court (Murphy (Appeal) at paras 75-76). As I held in Wojdan v Canada (Attorney General), 2021 FC 1341 at paragraph 31, permitting premature access to the Court:
[…] would have the effect of undermining the labour grievance process enacted by Parliament. The Court would be preempting the primary role of labour adjudicators in determining questions that pertain to the application of the Vaccination Policy, the extent to which it may be said to infringe employees’ rights, whether any infringement can be justified on the grounds of public health, and if not, whether the Applicants are entitled to financial or other compensation. Premature judicial intervention would not be complementary to fundamental principles of labour relations, but destructive of them.
[31] The Plaintiffs argue that their claims are not barred by s 236 of the FPSLRA, because some of the remedies they seek are beyond the powers of a labour adjudicator to grant. They emphasize the declaratory relief sought in the Statement of Claim regarding the constitutional validity of the TB Policy and Interim Order, citing ss 91 and 92(10) of the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5 and the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
[32] The Plaintiffs cannot escape the operation of s 236 of the FPSLRA by pleading that their claims are not ordinary workplace disputes, or that some of the remedies they seek are not available through the internal grievance process. As the Ontario Court of Appeal held in Bron, the right to grieve is “very broad” and “[a]lmost all employment-related disputes can be grieved under s 208 of the FPSLRA” (at paras 14-15).
[33] In Ebadi v Canada, 2022 FC 834 [Ebadi], the plaintiff advanced the argument (at para 35) that:
[…] Bron maintains the court’s residual discretion to hear a claim when a grievance procedure does not provide an adequate remedy. Further, the Court may assume jurisdiction over claims that, in the usual course, may be barred by section 236, where there is a gap in the statutory scheme, where the events produce a difficulty unforeseen by the scheme, or where “no adequate alternative remedy already exists,” as set out in Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v Canadian Pacific Ltd., [1996] 2 SCR 495 at para 8 [Brotherhood].
[34] Justice Henry Brown rejected this argument, holding that alleged Charter violations may be addressed through the grievance process under the FPSLRA (Ebadi at 43-44, citing Green v Canada (Border Services Agency), 2018 FC 414 at paras 10-11). He also affirmed that the grievance procedure operates “in lieu of any right of action”, even when a plaintiff’s preferred remedy (in that case third-party adjudication) is not available (at paras 49-50):
In accordance with the analysis in Green, the Plaintiff could have challenged the Harassment Policy and Grievance Procedure themselves under sections 208 and 236 of the FPSRLA. In addition and in my respectful view, the statutory bar to court litigation set out in subsection 236(2) pre-empts any cause of action in this Court notwithstanding there is no access to third party-adjudication.
Here, the ONCA’s reasoning in Bron is again relevant:
[32] Finally, the appellant argues that a superior court must maintain an inherent jurisdiction despite whatever language may be used in s. 236. He relies on Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., 1996 CanLII 215 (SCC), [1996] 2 S.C.R. 495, [1996] S.C.J. No. 42, at para. 8. As I read that case, it stands for the proposition that a superior court has inherent jurisdiction to provide a remedy where the relevant statutory scheme does not speak to the circumstances at hand. In other words, the court’s inherent jurisdiction can fill remedial lacunae in legislation. There is no legislative gap here. Section 236 speaks directly to workplace complaints that are grievable under the legislation. For those complaints, even when there is no access to third-party adjudication, the grievance procedure operates “in lieu of any right of action”. [Emphasis added]
[35] Canadian courts have consistently found that harms allegedly suffered by employees as a result of their employers’ policies and practices in response to the COVID-19 pandemic are properly addressed by way of grievance, in both unionized and non-unionized workplaces (see National Organized Workers Union v Sinai Health System, 2022 ONCA 802 [Sinai Health] at para 39 and the cases cited therein). As the Court of Appeal for Ontario held in Sinai Health (at para 38):
At its core, the harm at issue was the potential for being placed on leave without pay or terminated under the Policy, if an employee chose to remain unvaccinated. The appellant’s members were not being forced to be vaccinated, denied bodily autonomy, or denied the right to give informed consent to vaccination. They could choose to be vaccinated or not. If they chose not to be vaccinated, they faced being placed on unpaid leave or having their employment terminated. This potential harm is fundamentally related to employment. It is harm which an arbitrator has the tools to remedy. If the appellant were to prevail in the arbitration, an arbitrator could order reinstatement without loss of seniority and compensation for lost wages. There is no palpable and overriding error in the application judge’s conclusion that there was no remedial gap in the labour relations regime that warranted the exercise of the Superior Court’s residual jurisdiction.
[36] The Plaintiffs who are subject to s 236 of the FPSLRA have not demonstrated that their circumstances constitute “exceptional cases”, or that there is a gap in labour adjudication that causes a “real deprivation of ultimate remedy” (Weber at para 57; Vaughan at paras 22, 39). For these Plaintiffs, the Statement of Claim must be struck in its entirety without leave to amend.
B. Plaintiffs Not Subject to the FPSLRA
[37] The Plaintiffs who are employed within the organizations listed in Schedule B hereto are not members of the CPA, as defined in the FAA. The Defendants concede that these Plaintiffs’ claims potentially fall within this Court’s jurisdiction.
[38] The Defendants nevertheless maintain that the Statement of Claim is drafted so poorly that it fails to disclose any reasonable causes of action. They therefore argue that the Statement of Claim must be struck in its entirety without leave to amend, regardless of whether or not the Plaintiffs are subject to s 236 of the FPSLRA.
[39] The Rules that govern pleadings in this Court provide in relevant part:
Form of pleadings
173 (1) Pleadings shall be divided into consecutively numbered paragraphs.
Allegations set out separately
(2) Every allegation in a pleading shall, as far as is practicable, be set out in a separate paragraph.
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, wilful 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.
Modalités de forme
173 (1) Les actes de procédure sont divisés en paragraphes numérotés consécutivement.
Présentation
(2) Dans la mesure du possible, chaque prétention contenue dans un acte de procédure fait l’objet d’un paragraphe distinct.
Exposé des faits
174 Tout acte de procédure contient un exposé concis des faits substantiels sur lesquels la partie se fonde; il ne comprend pas les moyens de preuve à l’appui de ces faits.
[…]
Précisions
181 (1) L’acte de procédure contient des précisions sur chaque allégation, notamment :
a) des précisions sur les fausses déclarations, fraudes, abus de confiance, manquements délibérés ou influences indues reprochés;
b) des précisions sur toute allégation portant sur l’état mental d’une personne, tel un déséquilibre mental, une incapacité mentale ou une intention malicieuse ou frauduleuse.
[40] It is fundamental to the trial process that a plaintiff plead material facts in sufficient detail to support the claim and the relief sought (Mancuso v Canada (National Health and Welfare), 2015 FCA 227 [Mancuso] at para 16). Pleadings play an important role in providing notice and defining the issues to be tried.
[41] The Court and defendants cannot be left to speculate as to how the facts might be variously arranged to support various causes of action. If the Court were to allow parties to plead bald allegations of fact, or mere conclusory statements of law, the pleadings would fail to perform their role in identifying the issues (Mancuso at paras 16-17).
[42] A plaintiff must plead, in summary form but with sufficient detail, the constituent elements of each cause of action or legal ground raised. The pleading must tell the defendant who, when, where, how and what gave rise to its liability. Plaintiffs cannot file inadequate pleadings and rely on a defendant to request particulars, nor can they supplement insufficient pleadings to make them sufficient through particulars (Mancuso at paras 19-20).
[43] To establish a reasonable cause of action, a statement of claim must “(1) allege facts that are capable of giving rise to a cause of action; (2) indicate the nature of the action which is to be founded on those facts; and (3) indicate the relief sought, which must be of a type which the action could produce and the court has jurisdiction to grant” (Zbarsky v Canada, 2022 FC 195 at para 13, citing Bérubé v Canada, 2009 FC 43 at para 24, aff’d, 2010 FCA 276).
[44] As Justice Beth Allen of the Ontario Superior Court of Justice observed in Guillaume v Toronto (City), 2010 ONSC 5045 (at para 54):
The importance of clearly drafted and structured pleadings does not require much explanation. Pleadings should be drafted with sufficient clarity and precision so as to give the other party fair notice of the case they are required to meet and of the remedies being sought. The role of pleadings is to assist the court in its quest for the truth. Clearly, confusing, run on and poorly organized pleadings cannot accomplish those goals. Courts have held a pleading may be struck out on the grounds it is unintelligible and lacks clarity […]
[45] The Statement of Claim in this proceeding is almost 50 pages long. Nine pages are devoted to the remedies sought. There are allegations of constitutional invalidity and criminal culpability, broad assertions of scientific knowledge regarding the COVID-19 pandemic, and a claim that some of the public health measu