Massive lawsuit challenging COVID vaccination requirement for federal workers tossed by court

Photo: Vancouver Coastal Health

Another lawsuit challenging Canada's COVID-19 vaccination mandates has been tossed out of court for being “bad beyond argument.”

The claim was filed last May by Rocco Galati of the Constitutional Rights Centre, on behalf of about 600 people who are current or former employees of the Government of Canada, federal Crown corporations, and federally-regulated businesses or organizations.

Plaintiffs included 91 RCMP officers, 35 employees of the Department of National Defence, 18 Canada Border Services Agency employees, 31 Canada Revenue agency employees along with many more employees of various federal agencies and federally-regulated corporations.

Locally, Kelowna Airport firefighter Dustin Blair is one of the hundreds of plaintiffs in the case.

In a judgment delivered this week by Federal Court Judge Simon Fothergill, the claim was “struck in its entirety,” as the claim is “bad beyond argument” and can't be properly answered by the defendants.

The claim names Prime Minister Justin Trudeau, Deputy Prime Minister Chrystia Freeland, Chief Medical Health Officer Teresa Tam, Minister of Transport Omar Alghabra and Deputy Minister of Public Safety Marco Mendicino.

In a 50-page statement of claim, the plaintiffs say 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 and the “Interim Order Respecting Certain Requirements for Civil Aviation Due to COVID-19, No. 61” issued by Transport Canada on April 24, 2022.

Both orders required employees to be vaccinated for COVID-19 to maintain their employment in those sectors.

“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 measures instituted by the Government of Canada amounted to crimes against humanity,” Judge Fothergill said in his recent ruling.

“The Statement of Claim alleges that the Defendants have 'knowingly engaged in the misfeasance of their public office, and abuse of authority, through their public office' by '[e]xercising a coercive power to force unwanted 'vaccination' under the TB Policy and Interim Order. However, the pleading fails to engage with the substance of the [two orders], which do not force vaccination and also offer various exemptions and accommodations.”

But ultimately, Judge Fothergill noted that Canadian courts have consistently ruled that issues of vaccination as a requirement of employment are properly addressed by way of a grievance through the Federal Public Sector Labour Relations Act, in both unionized and non-unionized workplaces. He quoted a 2022 Ontario Court of Appeal ruling:

“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 ... There was no remedial gap in the labour relations regime that warranted the exercise of the Superior Court’s residual jurisdiction.”

As such, Judge Fothergill struck the claim in its entirety for all the plaintiffs who are subject to the Federal Public Sector Labour Relations Act – those who are employed within the “Core Public Administration.” He found that these plaintiffs must file their employment grievance through the proper channels, not the courts. About two-thirds of the plaintiffs fall into this category.

He quoted a similar 2022 Federal Court ruling that found: "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.”

But Judge Fothergill left the door open for the plaintiffs who are not subject to that Act, to amend their claim to make it “intelligible.” These plaintiffs include employees of Canada Post, BC Ferries, Via Rail Canada, federally regulated airlines, and many others, along with the Kelowna Airport Fire Fighters.

“The claims must be framed in a manner that is intelligible and allows the Defendants to know the case they have to meet,” Judge Fothergill wrote.

It's not clear at this time if these plaintiffs plan to amend their claim and try again.

This isn't the first time a COVID-related lawsuit by Galati has been tossed from court for being “bad beyond argument.” Last September, BC Supreme Court Justice Alan Ross ruled Galati's 391-page, $20 million lawsuit challenging B.C.'s pandemic measures on behalf of Action4Canada was more of a “story” than a “proper pleading,” and it too was tossed.

Justice Ross said that suit "describes wide-ranging global conspiracies" and noted it was analogous to a 1998 lawsuit, which was described by a judge as “embarrassing.”