Date: 20250207

Docket: T-1081-23

Citation: 2025 FC 242

Toronto, Ontario, February 7, 2025

PRESENT: Mr. Associate Judge Michael D. Crinson

BETWEEN:

GREGORY HILL, BRENT WARREN

AND TANYA LEWIS

Plaintiffs

and

HIS MAJESTY THE KING IN RIGHT

OF THE GOVERNMENT OF CANADA AND

THE MINISTER OF TRANSPORTATION

Defendants

ORDER AND REASONS

[1] The plaintiffs filed an Amended Statement of Claim (the “Claim”) requesting certification of a class proceeding brought on behalf of current and former employees in the federally regulated aviation industry that were subject to disciplinary measures. The plaintiffs allege the complained of disciplinary measures were contrary to the plaintiffs’ collective agreements and arose as a consequence of the mandatory COVID-19 vaccination order enacted by the Minister of Transport (“the Minister”).

[2] This Order addresses the motion brought by the named defendants requesting determination of their motion to strike prior to certification of the proposed class proceeding. Specifically, the defendants ask that the Amended Statement of Claim be struck in its entirety without leave to amend, or in the alternative with leave to amend and an order requiring service of the Further Amended Statement of Claim within 45 days of this Order.

[3] The Claim alleges numerous grounds of liability including negligence, interference with contractual relations, inducement of breach of contract, breach of privacy, misfeasance in public office, and Charter of Rights and Freedoms (the “Charter”) claims relating to subsections 2(a), 2(d), 7, and 15. In response to the defendants’ motion to strike the plaintiffs have conceded and abandoned their claims of negligence, interference with contractual relations, breach of privacy and Charter claims relating to subsections 2(a), 7 and 15.

[4] The remaining grounds alleged by the plaintiffs to found liability are inducement of breach of contract, misfeasance in public office and violation of subsection 2(d) of the Charter. The defendants argue their motion to strike should succeed against these three remaining bases of liability on the following grounds:

1. the plaintiffs’ claims in induced breach of contract and misfeasance in public office are doomed to fail as they include an element that the action was taken without legal authority, justification or proper purpose when it is plain and obvious that Interim Order 43 (the “Impugned Order”) was issued pursuant to a valid legal authority and for a proper purpose;

2. the Impugned Order was a core policy decision and is immune from tort liability given the absence of bad faith and improper purpose;

3. The Claim is in the incorrect forum for addressing terms of the collective agreements governing the unionized plaintiffs’ employment. Such claims, they argue, requires that unionized plaintiffs follow the prescribed grievance process;

4. The Claim is devoid of material facts to ground induced breach of contract and misfeasance in public office;

5. The plaintiffs have not pled material facts to support a finding of government conduct that is clearly wrong, in bad faith or an abuse of power, which acts are necessary to support a claim for damages under subsection 24(1) of the Charter when seeking a remedy for unconstitutional laws.

6. The Claim fails to meet the requirements for a Charter remedy, a defect that cannot be cured by amendment;

7. The Claim fails to plead essential elements and lacks material facts of the alleged Charter infringement of sections 2(d); and

8. It is plain and obvious that any alleged infringements would be justified pursuant to section 1 of the Charter . The Claim relitigates issues previously decided, including in United Steelworkers, Local 2008 v Attorney General of Canada, 2022 QCCS 2455 .

I. The Timing of the Motion to Strike

[5] A threshold issue is whether the defendants’ motion to strike should be determined prior to certification of the proposed class proceeding. While a certification motion should, absent exceptional circumstances, be the first procedural matter heard in a proposed class proceeding (Moore v Canada (AG), 2022 FC 824 at para 14) the Court retains the discretion to hear a motion to strike before a certification motion (Berenguer v WOW Air ehf, 2019 FC 407 at para 20). Some of the factors to be considered in the exercise of that discretion include but are not limited to:

a) whether the motion to strike will dispose of the entire proceeding or will substantially narrow the issues to be determined;

b) whether the outcome of the motion will promote settlement;

c) the interests of economy and judicial efficiency; and

d) whether scheduling the motion in advance of certification would promote the “fair and efficient determination” of the proceeding.

[6] The plaintiffs did not contest the timing of the defendants’ motion to strike. Instead, the plaintiffs conceded the motion to strike in respect of the majority of the tort claims raised and all but one of the Charter grounds pleaded. The bringing of the defendants’ motion to strike has substantially narrowed the issues to be determined. Such a significant narrowing of the issues will enhance the opportunity for the parties to resolve the proceeding. Further, the substantial narrowing of the issues ahead of the certification motion promotes a fair and efficient approach to certification. The judicial efficiency achieved through determination of this motion also serves to reduce potential expense of the proceeding for the parties. For these reasons, this motion to strike warrants the Court exercising its discretion to hear the motion to strike before a certification motion.

II. The Standard on a Motion to Strike

[7] A motion to strike is not a means to assess whether one party or the other is more likely to succeed in the proceedings on its merits. Rather it provides a gatekeeping function that should only prevent claims that have no reasonable prospect of success, separating the hopeless claims from those that have some chance of success. As the Supreme Court of Canada held in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para 21, it is a tool that should be used with care:

Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. Before Donoghue v. Stevenson, 1932 CanLII 536 (FOREP), [1932] A.C. 562 (H.L.) introduced a general duty of care to one’s neighbour premised on foreseeability, few would have predicted that, absent a contractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in a bottle of ginger beer. Before Hedley Byrne & Co. v. Heller & Partners, Ltd., [1963] 2 All E.R. 575 (H.L.), a tort action for negligent misstatement would have been regarded as incapable of success. The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in Donoghue v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.

[8] On a motion to strike a pleading pursuant to Rule 221(1) of the Federal Courts Rules SOR/98-106 (the “Rules”), the applicable test is whether it is “plain and obvious” that the claim discloses no reasonable cause of action: see Hunt v Carey, 1990 CanLII 90 (SCC) [1990] 2 SCR 959, [1990] SCJ No 93 at para 32 (QL). The burden on the moving party is very high and the Court should exercise its discretion to strike a pleading only in the clearest of cases.

[9] A motion to strike is not an exercise in critiquing inelegantly drafted pleadings. The pleading sought to be struck should be read generously with allowance for inadequacies due to drafting deficiencies. Those allegations in the pleading that are capable of being proved must be taken as true. This rule of taking an allegation in a pleading as true does not apply, however, to allegations based on assumptions and speculation: Operation Dismantle Inc v The Queen (1985), 1985 CanLII 74 (SCC), 18 DLR (4th) 481 (SCC) at paras 486-487 and 490-491. Moreover, the Court need not accept at face value bare allegations, factual allegations which may be regarded as scandalous, frivolous or vexatious, or legal submissions dressed up as factual allegations.

[10] Pursuant to rule 221(1)(c) a claim may also be struck if it is scandalous, frivolous or vexatious. There is no rigid test for determining whether a pleading is scandalous, frivolous or vexatious. However, Steiner v. Canada, 1996 CanLII 3869 (FC) describes one such pleading thus:

A scandalous pleading includes one which improperly casts a derogatory light on someone, with respect to their moral character. A claim is a frivolous one where it is of little weight or importance or for which there is no rational argument based upon the evidence or law in support of the claim. A vexatious proceeding is one that is begun maliciously or without a probable cause, or one which will not lead to any practical result.

[11] Finally, rule 221(1)(f) empowers the Court to strike a claim or part of a claim. Making bald, conclusory allegations of bad faith or abuse of power without any evidentiary foundation is an abuse within the meaning of this rule (see: Albert v. Canada Post Corporation, 2024 FC 420 at para 14).

[12] Rule 221(1) allows “a pleading, or anything contained therein, be struck out, with or without leave to amend”. If a pleading shows a scintilla of a cause of action, it may be struck out with leave to amend, if it can be cured by amendment. Thus, a pleading will not be struck out without leave to amend unless there is no scintilla of a cause of action (see: Al Omani v Canada, 2017 FC 786 at paras 32-35).

III. Have the Moving Party Met the Test on this Contested Motion to Strike

[13] The alleged facts in the Statement of Claim have not yet been proven but those allegations in the Claim that are capable of being proved must be taken as true. Those facts include:

1. On August 13 and October 6, 2021, the Federal Government announced its intent to require mandatory COVID-19 vaccination for employees in the federally regulated air transportation sector;
2. On August 25, 2021, in response to the above announcements, Air Canada announced that it was mandating COVID-19 vaccination for its employees. This mandate required employees to disclose their vaccination status and to be vaccinated by October 30, 2021.Employees who did not comply, other than those in one of two exceptions, would not be able to work and would face consequences up to unpaid leave or termination;
3. On October 16, 2021, WestJet, also in response to the above announcements, issued a policy mandating COVID-19 vaccination for employees, absent which employees could be disciplined up to and including termination;
4. On October 29, 2021, the Minister of Transportation (the “Minister”) issued the Impugned Order pursuant to s. 6.41 of the Aeronautics Act, R.S.C. 1985, c. A-2. The Impugned Order required air carriers to establish and implement a mandatory COVID-19 vaccination policy effective from October 30, 2021, in which no unvaccinated employee could access aerodrome property or have in-person interactions with other employees, unless that employee fell within one of two exceptions.Further, the Impugned Order required air carriers to collect and disclose information pertaining to their employees’ vaccination status;
5. Both Air Canada and WestJet explicitly relied upon the Impugned Order in enacting the above policies and were induced by the Impugned Order to create these policies;
6. At the time of these mandates there were six COVID-19 vaccines available to the public in Canada and the product monographs for each of those lacked “any information or direction on the transmission of COVID-19”;
7. There was information available to the National Advisory Committee on Immunization outlining adverse reactions, side effects or manufacturing concerns with most of the available vaccines;
8. The stated objective of the Impugned Order was the prevention of transmission of COVID-19;
9. The actual objective of the Impugned Order was “political gain and expediency” and the Minister of Transport knew or should have known the prevention of transmission was not achievable by virtue of the Impugned Order.

[14] At the heart of this proposed class action is the Impugned Order and its alleged consequences. As part of the motion to strike the remaining tort claims the defendants argue it is plain and obvious the claims must fail as the Impugned Order was issued pursuant to valid legal authority and for a proper purpose. The defendants argue that the Impugned Order is a core policy decision and therefore the defendants are immune from tort liability given the absence of bad faith and improper purpose. The Claim alleges otherwise.

[15] As held by the Federal Court of Appeal “those who wield public power cannot be a law unto themselves, immunized from truly independent review and shielded from meaningful scrutiny” (see: Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79 at para 10). This does not mean that there is no scope for immunity from tort liability, but caution must be exercised in making such determinations on a preliminary motion to strike:

There is, however, jurisprudence holding that courts should be reluctant to dismiss a proposed class action as disclosing no reasonable cause of action “based on policy reasons at the motion stage before there is a record on which a court can analyze the strengths and weaknesses of the policy arguments.

Canada (Attorney General) v. Jost, 2020 FCA 212 at para 74

[16] While there does not appear to be a dispute between the parties that the Minister of Transport issued the Impugned Order “pursuant to subsection 6.41(1) of the Aeronautics Act, R.S.C. 1985, c. A-2.”, the Claim alleges the Impugned Order was issued without justification or proper purpose. In support of that allegation there are the alleged facts outlined above that are assumed to be true.

[17] Further, in light of the facts pleaded and described above, it is at least arguable that any claimed immunity from the pleaded torts in suit may not apply in the circumstances. While the defendants may ultimately establish that they are immune from tort liability, it is not plain and obvious at this point that this is the case.

[18] The moving defendants submitted that the decision in Syndicat des métallos, section locale 2008 c. Procureur général du Canada, 2022 QCCS 2455 (“United Steelworkers”) is dispositive of several issues in the present case. I disagree, for the following reasons.

[19] First, there is no basis to conclude that the decision of the Quebec Superior Court in United Steelworkers was a lead case or that the plaintiffs in this action consented to United Steelworkers being a lead case that would bind the present plaintiffs. Indeed, there is nothing on the record before me to establish that the plaintiffs in the present proceeding had any voice in United Steelworkers.

[20] Second, United Steelworkers is based on the evidentiary record before the Court in that case based upon the claims in that case. There are key distinctions between the claims in United Steelworkers and the claims in the present case. In United Steelworkers, the applicants did not question the efficacy or safety of the vaccines, nor did they claim that the vaccines are unnecessary. (United Steelworkers at para 49). This is in contradistinction to the issues in the present case in which the efficacy, safety and necessity of the vaccines are challenged in the allegations in the Claim.

[21] Third, as the Court in Brake v Canada (Attorney General), 2019 FCA 274 notes at paras 56 to 59, while a case may have similar legal and factual issues it is not necessary that this Court be bound by it. United Steelworkers may be persuasive, but it is not binding on this Court. The weight given to United Steelworkers as persuasive authority in the present case is a matter best determined at a certification motion rather than this motion to strike.

[22] The defendants also submit that this proceeding is an abuse of process on the basis that at least some members of the proposed class are or were members of certified trade unions and that those individuals who would be bound by a collective agreement should take up their issues related to disciplinary measures (including suspension and termination) through the grievance process. In this regard, it should be noted the named plaintiffs are or were members of certified trade unions and are individuals who would be bound by a collective agreement.

[23] A decision the moving party relies upon in support of its position is Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 SCR 929. The Court in that decision raises two questions pertinent to the present proceeding:

1. Does the dispute, viewed with an eye to its essential character, arise from the collective agreement? and

2. Are the parties to the present dispute subject to the labour arbitrator’s jurisdiction?

[24] The present proceeding is a dispute claiming that as a consequence of the mandatory COVID-19 vaccination order enacted by the Minister of Transport (“the Minister”) the plaintiffs’ suffered harm. The complained of harm was allegedly suffered because of disciplinary measures imposed by the plaintiffs’ employers in response to that Impugned Order enacted by the Minister of Transport. In short, the plaintiffs complain that the essential character of the dispute arises from the Impugned Order rather than from the collective agreements in place.

[25] This dispute is not a dispute between the employer and employee. The employers purportedly bound by the collective agreements are not parties to this proceeding and the defendants have not established or admitted on this motion that the defendants are subject to the jurisdiction of a labour arbitrator. The defendants have not established that this is such a clear case that the Court should exercise its discretion to strike a pleading.

[26] At the outset of these reasons, I stated that a motion to strike is not an exercise in critiquing inelegantly drafted pleadings. Nonetheless, where as here, a party is willing to amend a pleading and has proposed specific amendments that would assist in clarifying, confirming or defining the issues for the benefit of the opposing party and the Court, such amendments should be permitted and encouraged.

[27] On this motion, I am satisfied that the currently pleaded facts in the amended statement of claim show more than a scintilla of a cause of action in respect of each of the grounds remaining in issue after the concession by the plaintiffs. However, the pleadings can be improved by some of the plaintiffs’ proposed amendments. Thus, the plaintiffs shall further amend the amended statement of claim to incorporate those paragraphs set out in Appendix A of the plaintiffs’ motion record that relate to the claims of inducement of breach of contract, misfeasance in public office and violation of subsection 2(d) of the Charter and the remedies arising therefrom.

IV. Costs

[28] Rule 400 of the Federal Courts Rules SOR/98-106 (the “Rules”) confirms the Court has full discretionary power over the amount and allocation of costs. In deciding whether to award costs the Court considers the purposes of an award of costs which include the promotion of settlement, the provision of compensation and the deterrence of abusive behaviour. Rule 401(2) of the Rules provides that costs should be ordered payable forthwith if the Court is satisfied the motion should not have been brought or opposed.

[29] In this proceeding the parties have an agreement on costs which they have proposed to the Court. The parties propose each party should bear its own costs in the event the claim is not entirely struck or if the claim is struck with leave to amend. I agree with the proposal and no costs shall be awarded.

ORDER FOR T-1081-23

THIS COURT ORDERS that:

1. The following shall be struck from the amended statement of claim:

2. Paragraphs 1(h), 1(k), 1(l), 1(m);

3. The references in paragraphs 6, 16, 77 and 82 to subsections 2(a), 7 and 15 of the Charter; and

4. Paragraphs 78, 80, 81, 84 and 85.

5. The plaintiffs shall amend the amended statement of claim to incorporate those paragraphs set out in Appendix A of the plaintiffs’ motion record that relate to the claims of inducement of breach of contract, misfeasance in public office and violation of subsection 2(d) of the Charter and the remedies arising therefrom.

6. The further amended statement of claim shall be served and filed within 45 days of the date of this order.

7. Each party shall bear its own costs of this motion.

8. The defendants’ motion is otherwise dismissed.

"Michael D. Crinson"

Associate Judge

FEDERAL COURT

SOLICITORS OF RECORD

Docket:

T-1081-23

STYLE OF CAUSE:

GREGORY HILL, BRENT WARREN, AND TANYA LEWIS v HIS MAJESTY THE KING IN RIGHT, OF THE GOVERNMENT OF CANADA AND, THE MINISTER OF TRANSPORTATION

PLACE OF HEARING:

Toronto, Ontario

DATE OF HEARING:

May 23, 2024

ORDER AND reasons:

CRINSON A.J.

DATED:

February 7, 2025

APPEARANCES:

Umar Sheikh

Angela Wood

For The Plaintiffs

Shelan Miller

Sofia Hirji

For The Defendants

SOLICITORS OF RECORD:

Sheikh Law

Victoria, BC

For The Plaintiffs

Department of Justice Canada

British Columbia Regional Office

Vancouver, BC

For The Defendants