Our members have filed 2 legal cases. The first one was filed on behalf of a non union member. It is a direct action civil claim against the employer Victorian Order of Nurses and Dr. Kieran Moore the Chief Medical Officer of Health.
Non Union Claim
The second case filed is for unionized members.
It is a Class Action Lawsuit naming Dr. Kieran Moore, Chief Medical Officer of Health as the Defendant.
Proposed Class Action Claim
Please take your time to read through this communication. We have endeavoured to bring clarity and to answer any questions regarding our legal campaign.
Class Action Information and FAQ’s.
A class action is a type of lawsuit that allows one or more plaintiffs to seek relief for themselves and for others who have similar claims against the same party. This allows the court, in a certified class proceeding, to resolve the claims of a large number of people in a single proceeding.
In Ontario for a class action to proceed to litigation it first requires certification by the court. To be granted certification in court the competency of our class and certifiable action must be demonstrated. Many considerations are evaluated to determine competency. Once a class action is certified it needs to have the financial ability to proceed. This is important because a certified class action prevents other plaintiffs from litigating a similar case against the defendant named at the same time.
Benefits of a Class Action
One of the most important benefits to our members is the protection that a class action offers regarding counter costs in the event of an unsuccessful court ruling. Once the class action is certified the members of the class can NOT be held financially responsible for court costs / tariffs in the event of an unfavourable ruling.
Unfortunately in Ontario, unlike other provinces, during the certification process the named plaintiffs can be held financially responsible for court costs / tariffs if the certification is unsuccessful.
For this reason it is our plan to assist our members to secure sufficient funding before moving forward with the certification process to protect the named plaintiffs.
1) Q- Who qualifies to join this class action ?
A-This class action is brought on behalf of members of the class consisting of all unionized healthcare workers in Ontario who have been subject to the issuance of the COVID 19 Directive 6. The broadness of this class has the potential to include thousands or tens of thousands of health care workers across Ontario. It includes unionized healthcare workers that were fully vaccinated, partially vaccinated or unvaccinated. It includes unionized workers that remained employed, were placed on leave, terminated, resigned, or took early retirement due to the issuance of Directive 6. At the time of filing the class definition is very broad, with the intent of representing as many plaintiffs as possible. Please be aware there is a possibility of the class definition becoming more restricted during the certification process. It is our hopes for this NOT to happen as we would like to represent as many impacted health care workers as possible. Ultimately the FINAL CLASS DEFINITION IS A DECISION OF THE COURT.
2 ) Q - My union has commenced arbitration and / or has offered me a settlement can I still participate in the class action ?
A) - At the outset it is important to note that until a class action is certified, there are no class members. This means that the case prior to certification is between the proposed representative plaintiffs and the defendants. Should the Court certify the class action, then the court will also make a ruling on the class definition. If you meet the definition, see above, then you would be a class member.
Grievances in a unionized environment can be mediated, settled between the union and the member or proceed to a labour tribunal using an arbitrator to hear evidence and make a binding decision. In a settlement there is no public record. A public record corresponds with arbitrated decision. Upon agreeing to a settlement, the union member is asked to acknowledge and agree to the terms of the settlement by signing a Minutes of Settlement Document. Typically the Minutes of Settlement asks for nondisclosure of the settlement as well as an agreement for the member and their heirs not to take further action against the union or employer. It would NOT typically include releasing other parties from further legal action. A Class Action lawsuit that has Kieran Moore, the Chief Medical Officer of Heath named as the defendant and does NOT have unions or employers named as defendants would not normally be included in a union/employer settlement Please read your minutes of settlement carefully. We have not been made aware of any minutes of settlement that include parties beyond unions and employers or include the Chief Medical Officer of Health.
In simple terms, if you are not signing away your ability to bring legal proceedings against the Chief Medical Officer of Health as part of your settlement, then you may be able to participate as a potential class member
We have had several members reach out to us for advise on the terms of their specific settlement. We regret that we do not have sufficient funding to cover the individual legal costs of this undertaking. The above is the best general advise we are able to offer.
Another option is provide a copy of your minutes of settlement - if applicable - and our statement of claim to obtain a separate legal opinion. The Law Society of Ontario offers the following :
Law Society Referral Service (LSRS): Connect with the Law Society of Ontario to find a lawyer or paralegal for a free consultation of up to 30 minutes to help you determine your rights and options. www.findlegalhelp.ca, Crisis Line: 416-947-5255 / Toll Free: 1-855-947-5255
3) Q - My termination/ leave of absence / retirement / resignation was more than 2 years ago. Has my statute of limitations passed?
A) - The Class Action bought by our members was filed prior to our representative plaintiffs’ statute of limitations expiring. Ultimately, the court will determine what the “class period” is in the certification proceeding. Our members hope to be as expansive and inclusive as possible.
4 ) Q - Why are you charging for members to join a class action? If a plaintiff fits the definition of the class, why are plaintiffs not automatically included ?
A) - No one is being charged to be a member of any class action. We are attempting to support the class action brought by our members by fundraising sufficient funds for legal and experts. To be clear, when the Court determines the class definition, anyone who meets that definition is entitled to be a class member. No payment is required.
United Health Care Workers of Ontario is asking for support to fund the litigation efforts by contributing $300.00. Without having significant funding our members will not have the ability to bring the class action before the courts.
We have made a commitment to the representative / named plaintiffs to help raise enough funding to offer financial protection in the event class certification is unsuccessful and the representative / named plaintiffs are ordered to pay court costs. If they are successful at the certification phase, money raised would then be used to pay for litigation for the class action.
It has always been our mission to help our members. This will never change. As always, if you are financially unable to contribute we will not see anyone left behind. Please email us at UHCWO@protonmail.com.
Typically with class action lawsuits there is no communication beyond the representative / named plaintiffs until the case has been litigated and an award has been granted.
Our framework differs as UHCWO is supporting our members in the class action. We will keep members informed with updates and meetings through this long legal journey. UHCWO has entered into a specialized retainer with Sheikh Law. In this agreement UHCWO will not be held liable for outstanding legal costs in the event UHCWO is unable to continue to pay legal bills. This does not mean that Sheikh Law will continue to litigate on our behalf if we are unable to financially support this legal endeavour. The retainer is not a pro bono agreement.
6 ) Q - I have joined a multi plaintiff lawsuit with Rocco Galati. Is it possible to also become a plaintiff in the class action as well?
A ) It all depends on the ultimate class definition decided by the Court. If you meet the definition, then you can participate.
Background……....in the early days of the legal campaign
An important part of UHCWOs founding mission and vision is to advocate for informed consent to medical treatment for both healthcare workers and patients. We have stood unwavering in our advocacy as we witnessed the foundation of medical ethics rapidly erode as the response to COVID 19 unfolded. We were witness to vast numbers of dedicated healthcare workers having their livelihoods and careers abruptly taken away, simply for making a personal medical choice. Other healthcare workers were coerced into a medical treatment with the threat of being terminated, which stripped away the element of informed consent. Others were denied both medial and religious exemptions to this medical treatment. During this turmoil it was difficult to find an unconflicted legal opinion. Unionized workers were repeatedly told to seek representation from their union. Non unionized workers had difficulty seeking legal counsel to represent their concerns. Umar Sheikh of Sheikh Law has been incredibly supportive and well aligned with our mission and vision. Sheikh Law is representing several different employment sectors sharing similar concerns.
After retaining Sheikh Law as our legal counsel we began the lengthy process of evidence collection from hundreds of members. After this mountain of evidence was reviewed, Sheikh Law presented UHCWO several legal avenues to consider.
Members were asked to contribute $300.00 to fund this legal campaign and have their evidence reviewed. Members had the understanding that we were committed to supporting the most viable legal avenue with the greatest chance of success for the greatest number of members.
The 2 legal avenues we are supporting have been filed. The first is for a non union member as direct action civil calm. The second is a class action lawsuit for unionized members.
Prior to filing the above claims we discussed and considered the following legal avenues.
Duty of fair representation complaint. This is a complaint, filed with the Canada Industrial Relations Board against a union. Although it is our opinion that our unions failed their members in their duties to fairly represent, similar complaints brought before the labour board have been unsuccessful. The duty of fair representation has an incredibly low bar. So low in fact, it could be considered fair representation even if a union does not file a grievance on behalf of a member as long as they considered doing so.
A comprehensive Human Rights Complaint.
A claim for denial of EI through the social securities tribunal.
After advice from our legal counsel and much consideration, we concluded that our best legal avenues to support were ones that would have the potential to benefit the greatest number healthcare workers as well as set a deterrent for future mandates.
This will be best accomplished with the 2 cases we have chosen to support.
We are acutely aware of how financially and emotionally devastating this has been to our members that have suffered the loss of their career and financial security. In an attempt to place the least financial strain on the members who have already joined this legal campaign we would like to join as many new members as possible to sustain the funding needed to move forward. We are asking for new members that are interested in becoming plaintiffs in our class action lawsuit to join and contribute $300.00. We would also welcome any outside donations to assist. Regardless of being employed or involved in health care we hope to garnish the support of any individual who has felt the threat of their medical freedom being compromised.
As of today, to the best of our knowledge, there has not been a legal case such as ours that has proceeded to trial. Most settle before litigation. While accepting a settlement may be financially advantageous for the plaintiff it does not help in the bigger goal set a positive legal precedent. If we are able to accomplish this it will have a profound positive effect downstream.
Please share this information far and wide to support our continued success.
Share the initiative with a printable one page flyer
There are tens of thousands of healthcare workers in Ontario who have been impacted.