Federal Court tosses out another COVID lawsuit, says it presented a 'beyond bad argument'

Another COVID lawsuit challenging Canada's vaccine mandates received the boot late last week after the judge presiding over the case said the plaintiffs made a "beyond bad argument."

Rocco Galati of the Constitutional Rights Centre filed the claim last May for about 600 current and former federal government employees.

Among the plaintiffs are:

• 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.

In a judgment delivered by Federal Court Judge Simon Fothergill, he struck down the claim "in its entirety" as it presented a "beyond bad argument."

The suit 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 the claim.

In a 50-page statement of claim, the plaintiffs said 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 get the COVID vaccine to maintain 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," said Fothergill in his 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 'exercising 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 offer various exemptions and accommodations."

Fothergill noted that Canadian courts have consistently ruled that vaccination issues as a requirement of employment are adequately addressed through a grievance through the Federal Public Sector Labour Relations Act in 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,” wrote Fothergill.

“This potential harm is fundamentally related to employment ... No remedial gap in the labour relations regime warranted the exercise of the Superior Court's residual jurisdiction."

The federal court judge struck the claim for two-thirds of the plaintiffs or those subject to the Federal Public Sector Labour Relations Act. He ruled they must file their employment grievance through the proper channels, not the courts.

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."

However, Fothergill said the remaining plaintiffs not subject to that Act could amend their claim to make it "intelligible." Among them 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," he wrote.

It remains to be seen whether these plaintiffs intend to amend and refile their claim.

This isn't the first time a COVID-related lawsuit by Galati has been tossed from the court for being a "beyond bad argument." 

Last September, BC Supreme Court Justice Alan Ross tossed Galati's 391-page, $20 million lawsuit challenging BC's pandemic measures on behalf of Action4Canada. Ross claimed it was more of a “story” than a “proper pleading.”

Ross said the suit "describes wide-ranging global conspiracies" and noted it was analogous to a 1998 lawsuit described by a judge as "embarrassing."