The Critical Compass Podcast - Canadian Lawyer Explains COVID Court Rulings feat. Eva Chipiuk

00:00:00.000 So if you're looking to redress those kinds of injustices, I don't think it should be when people are harmed and hurt. Like in this case, you have people that lost their jobs and weren't paid. Here, you're not looking to fix the wrongs.

00:00:19.580 And that even goes back to what we were talking about just earlier, the arbitrator's level. These are not judges, again. They're looking at the issue of compensation, whether it's an arbitration on employment issues, not about the social context of government regulation and how far is too far. But they do have to touch on that sometimes.

00:00:49.580 Hello and welcome back to a special edition joint Critical Compass episode.

00:01:06.960 So today we have again with us the lovely Eva Chipiak, who's agreed to spend a little bit of her time with us, us inquisitive minds and let us pick her brain a little bit about a recent ruling that's come down in the Canadian courts.

00:01:24.620 I guess I'll just jump right into it. I have a tweet pulled up here from the Canadian Independent, and I'll do a quick reading of it here for us.

00:01:36.780 An arbitrator rules 40 health care workers who are terminated over COVID-19 vaccine refusal must be compensated.

00:01:44.520 In a recent ruling, arbitrator John Stout partially upheld grievances filed by the Canadian Union of Public Employees against the William Osler Health System concerning the termination and suspension of health care employees who refuse to comply with the hospital's COVID-19 vaccination policy.

00:02:00.320 I don't think I'll read the full thing, but essentially the ruling, this is kind of my my feeling on it, and I'll get some opinions on it before we go into too much of my personal grievances here.

00:02:15.220 But the feeling that I get from this is that this was the right decision, but it was made for the wrong reasons.

00:02:21.280 And I'll leave it at that for now. And let's bring in let's bring in James.

00:02:25.480 What are what are your thoughts on just kind of what you know about this so far?

00:02:28.580 Yeah, this is another case where it seems like it hinges on a technicality and there's a reluctance to admit any actual wrongdoing other than and the wording is really interesting.

00:02:42.860 They say like, well, they were misinformed or there's no admission of guilt.

00:02:47.080 So even if these employees do get some money out of it, it's really not the win that a lot of people are hoping for when we're looking for a certain sense of kind of justice moving forward with with with with what happened with some of these mandates.

00:03:04.320 Yeah. Yes. Just yes to that.

00:03:08.000 Eva, do you before again, we kind of get into more specifics here, do you sort of have just an initial feeling on on from what you've from what you've read of this?

00:03:17.080 Yeah, well, it's funny how this started is because there was a comment online and then we kind of exchanged some commentary.

00:03:25.720 But a couple cautionary points I would make on this one is number one, the decision is about six paragraphs.

00:03:36.960 So we don't have a lot of content to go with, to begin with, there are quite a few arbitration decisions that are way more comprehensive that I would suggest will provide a lot more details as to why the arbitrator made the decisions that they did in this case, there's just not a lot there to go on.

00:03:59.240 And one thing on that note is, I don't know what the background of all arbitrators are.

00:04:07.560 So that's one point that you might want to consider as well when looking at these, this isn't court level, it's meant to be someplace that you can access quicker.

00:04:18.120 Generally, generally, they have some kind of alternative dispute resolution credentials, which is what I did as a master's degree in law.

00:04:28.500 So it's meant to be an alternative, you see it a lot in employment with arbitration, you see it in other areas of law.

00:04:37.080 But, you know, I didn't look into the history of this particular arbitrator, and maybe that had something to do with the short decision, but it isn't a high level.

00:04:49.320 So that's one thing too, like sometimes when people are, you know, and I get it, there's a lot of, we want to see justice for things.

00:04:57.840 But perhaps this arbiter stout isn't the person that we should be, you know, putting all our eggs in the basket of solving all of the COVID woes that we have.

00:05:10.320 So those are just a couple cautionary type notes.

00:05:14.220 And like I said, there are some really interesting arbitrated decisions that have come out 30 pages long, some, and it really provides a lot of context as to why the arbitrator made the decisions that they did.

00:05:27.480 And they actually came out with a same or similar decision where they said, you know, possibly it was justified.

00:05:36.640 Maybe they didn't even go that far, but certainly said that compensation needs to be made for those that were fired.

00:05:43.320 So is a, is an arbitrator, like, does an arbitrator have to be a judge or can it be some other?

00:05:51.080 Okay, so it can just be like a regular, like a litigator or somebody with law credentials though, correct?

00:05:56.580 Yeah, so that's where, like, I don't know how it comes up in Ontario.

00:06:01.020 This is, you know, probably arbitrated through their agreements with the Labour Relations Union, all that stuff.

00:06:07.920 So maybe there's some kind of clause in there that it has to be a certain qualification or maybe three, two of the parties have to pick three people, something like that.

00:06:18.040 So those are the things, but they are not a judge generally at all.

00:06:22.800 So that's the one, you know, caveat in all of this is perhaps they just didn't have that technical knowledge.

00:06:29.200 And again, with a decision of basically six paragraphs or so, maybe this person was hesitant to really come out strong one way or another,

00:06:37.200 because maybe this isn't the background that they have.

00:06:41.760 I don't know.

00:06:42.860 So just a grain of salt with something like this.

00:06:45.960 Okay, that's good to know.

00:06:47.080 That's interesting.

00:06:47.820 I guess maybe I thought this was more, like, binding than it might be.

00:06:54.680 Like, how binding is it?

00:06:56.000 Like, could QP come back and say that we disagree with this arbitration and we're going to take it to a higher level court?

00:07:01.160 So a great question, and it's, from my understanding, with something like this, it's not binding really at all.

00:07:09.520 That's what, that, because it's so fact-based and not heavy on law generally, these things at an arbitration level.

00:07:16.540 That's why you have these specialized boards that deal with it based on fact-based scenarios.

00:07:24.400 Of course, anybody will take guidance in a similar situation, like another arbitrator, but certainly it's not binding on a court level if you're going up.

00:07:37.660 So, no, it wouldn't be.

00:07:40.340 Interesting.

00:07:41.780 And the chances of something like this setting a precedent for future, like, it's not even that in-depth to really set the stage for anything else.

00:07:52.500 Yeah, again, especially with a, like, six-paragraph decision, like, you know, if you're a lawyer and you want to bring this as a case forward, there's not a lot of meat to provide another arbitrator or another judge being like, oh, look at what happened in this decision, because there's not a lot there to justify.

00:08:13.580 That's why the context is so important in decisions, like, what was the reasoning behind it?

00:08:18.860 In here, really, you don't see a lot.

00:08:20.520 Like, I actually, if you don't mind, maybe put the decision on the screen so people can see how incredibly short it was.

00:08:28.560 I sent a couple to you, I don't know, maybe in the background, if one of you can look at how comprehensive some of the other decisions are.

00:08:36.780 Like, this is the, and this is on behalf of 46 or so workers, nurses.

00:08:42.300 So, the introduction, this is fact.

00:08:45.200 Now we got to the decision, two pages, boom, you're done.

00:08:48.880 That's it.

00:08:49.560 Yeah.

00:08:50.060 And the appendix is almost as long as the decision.

00:08:54.320 Yeah.

00:08:54.940 So, you know, it's hard to really gleam a lot of information from that.

00:09:00.000 And I read it and, like, that's where we already kind of clashed online when I said that doesn't really make sense.

00:09:06.120 And then it doesn't really provide that context you're looking for.

00:09:09.900 Yeah.

00:09:10.760 Well, I'll, speaking of this, you know, how short this is, I'm going to share my little screed that I went on online here.

00:09:20.620 So, I took a screenshot and I highlighted this because I was just so righteously indignant when I read it.

00:09:27.720 So, this is paragraph six and seven of this arbitration decision.

00:09:31.980 I'll read all of it.

00:09:33.740 People on the screen can see the highlighted parts.

00:09:36.560 So, arbitrator, whatever his name is, says,

00:09:40.940 Not surprisingly, arbitrators have found that a requirement to be vaccinated against COVID-19 in a healthcare setting is reasonable.

00:09:48.200 However, no arbitral consensus has emerged with respect to the consequences for employees who chose not to be vaccinated or disclose their vaccination status.

00:09:57.280 As I pointed out at the hearing, each case is different and must be assessed on its specific facts, namely, after the policy is reviewed, the specific circumstances of the workplace are assessed, as is the manner in which the discipline was imposed.

00:10:09.340 Based on the very unique circumstances at William Osler Health System, I find that the grievers in this matter were terminated for just cause.

00:10:17.120 The employees chose not to be vaccinated and, as a result, they were not reasonably available to attend at work, which, at a minimum, severely and negatively impacted the employment relationship.

00:10:25.800 That being said, the individual grievers were misguided and their conduct was not with any malicious intent.

00:10:31.380 So, I read this, and I just, oh, it made me so mad, because I was like, okay, so, this is a person who, he just, like, he just fundamentally doesn't understand, in my opinion, the point that he is arbitrating against.

00:10:48.040 Because this, I don't believe that any of the individual grievers would themselves describe, would describe themselves as misguided in their conduct.

00:10:57.560 I agree that, I agree that, I said in my little bit here, that that's the only part that he gets right, is because they were not acting with any malicious intent, but this notion that they were misguided, or, you know, the, kind of the implication that they were just misinformed, or they were propagandized, or whatever the case may be, I just don't think that that's right.

00:11:24.760 And I don't think that that is the point of why they behaved in the way that they did.

00:11:30.060 Well, great, Mike, so you don't have to argue it, because there's decisions that already say what you're saying.

00:11:34.940 And I just pulled up the Teamsters and Purolator one that we were just talking about, to give you context, that one, at least online, or how, when it turns it into a PDF, like it has a table of content, telling you how big it is, how long it is, 569 pages, possibly.

00:11:56.560 I don't know what these numbers are behind here, so, James, I put a second link under that.

00:12:03.020 Oh, here, 196 pages.

00:12:06.080 Yeah.

00:12:07.500 And this is where you could get actual context, and I actually love that we saw that one, and that's interesting to see your reaction to.

00:12:18.960 Like, that's not fair, that's not right, although one thing I would say about it, too, is the result was good.

00:12:28.060 So, if you're one of those grievers, like, accept your win, take it, because going through litigation is never fun.

00:12:36.060 Yeah, yeah.

00:12:36.480 That's another thing, you know, there's always opportunity, and that's why I'm so excited about talking about these things, and hopefully with my book, is I think that the more we challenge these things, the more we get there.

00:12:49.900 So, we shouldn't expect everything solved in one case at one time, but we have to keep challenging things to get, you know, there's a lot of gray in these things, and we have to keep figuring out, finding that balance where it's right.

00:13:04.480 But, like, this is a decision we could talk about.

00:13:07.160 Oh, yeah, 516.

00:13:08.700 Oh, goodness me.

00:13:10.420 Can you see the cursor on the live thing?

00:13:14.040 Look how small the cursor is.

00:13:14.560 How small that bar is.

00:13:15.600 Holy smoke.

00:13:16.780 Eva, I did have a brief question on, so, like, often people hope for a certain admission of wrongdoing in the way that, like, they feel that in their hearts, they're like, well, this is what happened,

00:13:33.420 and they're hoping that the decision will lay it out in the way that they feel it.

00:13:38.520 Anyways, like, how they perceived it.

00:13:41.060 But is the way that the structure of our legal system and the back and forth between both sides,

00:13:50.920 does that often influence maybe why something would settle before it would reach to a point where, like, you have a full admission of guilt or sometimes a win is not always what these people are hoping for.

00:14:03.700 Maybe it's a monetary compensation, but it's not really always setting the framework that people are hoping to in the future.

00:14:10.680 A really interesting question.

00:14:13.720 I think what I'm understanding, though, is, like, generally, at least in Canada, we go to court for redress.

00:14:22.380 You're not going to fix things.

00:14:25.800 And that's an important point.

00:14:28.340 And where I think Canadians and Canadian law could really use some more strategic, more coordinated effort.

00:14:37.620 If we talk for a second about the Roe v. Wade decision in the United States, like, there's so much misunderstanding about the decision from a legal and practical perspective, it's crazy.

00:14:49.620 But it was a decision that was made years ago, and then because of the decision, an organization like a Civil Liberties or some type of organization decided to proactively challenge it.

00:15:09.600 My understanding is that took about 10 years.

00:15:12.840 So if you're looking to redress those kind of injustices, I don't think it should be when people are harmed and hurt.

00:15:25.280 Like, in this case, you have people that lost their jobs and weren't paid.

00:15:29.840 Here, you're not looking to fix the wrongs.

00:15:32.800 And that even goes back to what we were talking about just earlier, the arbitrator's level.

00:15:38.740 Like, these are not judges, again.

00:15:42.180 These are, they're looking at the issue of compensation, whether it's, it's an arbitration on employment issues, not about the social context of government regulation and how far is too far.

00:15:57.120 But they do have to touch on that sometimes.

00:16:00.280 So I think, again, it goes to the, back to even my last answer is I think we have to keep challenging these things.

00:16:07.420 One thing in Canada I find is, like, we're such a young country.

00:16:14.040 We don't have a developed legal, like, case law.

00:16:18.640 Like, again, this one, two, three, 500 pages.

00:16:21.300 You can gleam a lot of it, then you get a six-paragraph decision.

00:16:25.760 Not much information comes out of it.

00:16:27.400 But the more you challenge it and you learn from it and you find the balance of how far is too far, even though it might seem, you know, black and white to you and it might make perfect sense, there's so many just little details to everything.

00:16:43.340 And that's really what a judge looks at.

00:16:45.800 That's really what lawyers do is one says, okay, focus more on this.

00:16:50.700 And the other side says, no, no, this is the important factor in this case.

00:16:54.660 And then somebody has to come up in the middle and say, okay, what we're going to decide is this thing.

00:16:59.960 So you're just reviewing things and then making constantly, like, adjusting and making decisions.

00:17:09.700 And I think that's healthy for society.

00:17:13.380 I brought that up partially because of just, yeah, part of why I brought that up is because we kind of see in these conversations how I think people put a lot of, they frame their expectations in what a lot of these little, they expect these little things, these little arbitrations to move mountains.

00:17:37.100 Yeah, and then immediately say everything is corrupt when something doesn't go their way.

00:17:48.360 And I'm like, I mean, there was a reason that it didn't go that way.

00:17:52.660 And so it's just very reactive, I find.

00:17:55.240 And that's where it's like, let's take a moment.

00:17:58.080 Let's figure out the reasons behind it.

00:18:00.240 And I agree.

00:18:01.040 Sometimes things are, and that's why we have different levels of court.

00:18:04.200 That's why you can appeal.

00:18:05.360 That's why you can go higher because it's not always right.

00:18:08.340 And anything to do with COVID, oh my gosh, it's been so controversial and it's been so tense and it's been so also reactive that you're throwing that into the mix.

00:18:20.300 And you expect people to be rational, come out with unbiased decisions.

00:18:25.280 Like, that was out the window for four years, basically.

00:18:29.060 Yeah.

00:18:31.000 When I read kind of some of the, at least the implication that I'm reading between the lines in this arbitration ruling, what I wonder is that, and maybe you can answer this.

00:18:43.980 If, let's say that both parties agreed to this arbitration ruling, CUPE said, yeah, that's fine.

00:18:51.000 And the, and the healthcare worker said, yeah, that's fine.

00:18:54.260 Does the way that it's worded with the, with the, the underline, like the, the subtext being that they were misguided in not getting vaccinated and maybe they should have, but you know, it was, it was, uh, you know, they were confused at the time.

00:19:10.920 If they accept this ruling, does that then create somewhat of a precedence for future, any future grievances?

00:19:18.000 If there's any question about a, you know, a particular, maybe not even a medical procedure, but maybe something else that the union wants to impose on the employees.

00:19:26.660 And then they can point to that and say, well, Hey, you know, these guys agreed that they were just misguided when they opposed us that one time.

00:19:32.740 And so then they'll use that in their favor in the future.

00:19:35.240 Is that, is that a valid concern?

00:19:37.260 So what did we say about it being a binding precedent?

00:19:41.680 Yeah.

00:19:43.440 Not binding and not detailed.

00:19:46.380 Yes.

00:19:47.020 Thank you.

00:19:47.680 Somebody's listening.

00:19:49.760 And I was trying to find in the background, some of the wording in the other one, because then it gives you an idea again, like if you were going to appeal this, or even if this is happening again with the same people, you have a six paragraph decision.

00:20:05.980 And the union or the griever or the arbitrator, they're going to be like, I don't know how this arbitrator stout made his decision.

00:20:16.900 Because there's just not a lot there.

00:20:18.860 And so I was trying to find here because there's just so much good stuff in the other one where you could really like come to understand where they, how and why.

00:20:31.100 And he, he focused actually, that's another thing that's nice.

00:20:34.420 And that other case, he looked at other arbitration agreements and decisions.

00:20:38.640 So he says, next, I refer to the firefighters case and the civil employees case, and he goes through it.

00:20:47.540 So you're learning from that.

00:20:50.320 You're gaining information from it.

00:20:52.340 It's like AI, just kidding.

00:20:54.300 Where you're getting information and then learning.

00:20:57.380 But I did see a place where.

00:21:02.340 This is a big one.

00:21:04.400 Yeah.

00:21:06.620 And so you see him even going into other decisions or other arbitrations and gaining information from that.

00:21:14.840 At paragraph 38 of the award, this is at paragraph 349.

00:21:20.040 He's quoting from the evidence of Dr. Lube.

00:21:25.680 And so here at paragraph 34 of the award, the arbitrator says.

00:21:30.860 And so, you know, he's educated himself, looked around.

00:21:35.040 And this is the job of lawyers too.

00:21:36.760 Like they, you know, a good lawyer is going to provide everything that benefits their case and all the other arbitration decisions that benefit their case.

00:21:45.200 And then the other lawyer is going to argue the other stuff.

00:21:50.980 So I guess maybe what I'm wondering then is like, based on, based on what you're saying, like, what is the, what is the value then in this, in this arbitration ruling?

00:22:03.200 It doesn't seem like there's much there, there.

00:22:07.680 Did they get paid?

00:22:08.840 That, I don't know if it's been, uh, dispensed yet, but I suppose that's probably the value is what you're saying.

00:22:17.800 They're people, they got paid and now they're going to put this to bed basically.

00:22:21.140 Well, that was their grievance.

00:22:22.500 I don't know if they wanted an apology, but that like, that's the other thing is that's not what courts do really.

00:22:29.000 Unfortunately, it's just, you know, a monetary claim or harms cost.

00:22:34.840 Right.

00:22:36.480 Again, I think, and I think this has come out a lot during COVID is people are really looking for like justice to be served.

00:22:44.780 And it's not per se for the lawyers and the legal system to fix all the injustices.

00:22:51.660 I don't think it is actually at all, because that's not what the legal system does.

00:22:55.940 In order to get that, we need to hold elected officials to account.

00:23:02.020 We have to engage in our civic responsibility and duty.

00:23:05.920 If there was something that went wrong, or we feel that there's wrongs that were committed in other ways, then, you know, these people, they had a grievance that they were fired for cause and weren't paid.

00:23:19.500 They took it to this arbitrator and the arbitrator ruled in their favor, where they got the money for the termination.

00:23:29.100 That is, you know, a wonderful decision for them.

00:23:33.060 And I suspect that they are pretty content with that decision.

00:23:41.040 Possibly some of them are like, we want, you know, to see an apology and we want a retraction and this has to change our record.

00:23:48.660 Like, you know, maybe.

00:23:49.640 But I don't think any of that actually was at play, because you would see that in a decision, too.

00:23:57.280 Like, if their record was blackmarked or something like that.

00:24:04.840 Okay.

00:24:05.580 Okay.

00:24:06.100 Yeah.

00:24:06.420 So, I guess it's one of those situations where you maybe don't look a gift horse in the mouth, right?

00:24:12.180 I don't know exactly the saying, but it sounds great.

00:24:15.400 Basically, like, be grateful for what you got and don't try and pick apart a win, basically.

00:24:26.160 Take the W.

00:24:27.640 Well, that, yes, but always let's keep challenging.

00:24:30.720 Let's not just be satisfied with that.

00:24:32.800 I get it that we can do more and I think we need to do more.

00:24:36.160 There's still a lot of harms that are out there.

00:24:38.320 And so, let's build on it, maybe, is how I would change it.

00:24:42.180 So, yeah, get it in the win column and use it for future.

00:24:46.560 Yes.

00:24:47.760 One thought on this is that we have to keep on challenging, but we also have to properly understand the things we are pointing to when we're trying to further this conversation.

00:25:00.660 Because I could see an arbitration like this, for some, they say, this is a win, this proves we were right, and they unduly use this.

00:25:09.380 And then the other side is just going to say, well, this, again, doesn't prove what you want it to prove.

00:25:14.820 And further, the fact that they didn't admit anything proves that the mandates were still justified.

00:25:20.960 So, a piece like this is almost a, it's morphing in the way of, like, it can mean as much as somebody dives into it, because people read into it.

00:25:32.740 And if we're not honest about some of these cases, or if we don't fully understand them, it's not really furthering the conversation at all.

00:25:42.960 Because it could just be used, like, the other side can just be, use this to say whatever they want to say anyway.

00:25:52.620 So, we're not getting any farther in these conversations.

00:25:58.000 Yeah.

00:25:58.900 I 100% agree with you.

00:26:01.320 It could be taken both ways.

00:26:03.660 And, you know, again, I was trying to look at the decision a bit, the long one, at paragraph 320.

00:26:08.960 So, he listed this seven or so decisions that the employee used to justify relying on public health.

00:26:22.400 So, again, a lot, you could actually see how they are reviewing things.

00:26:28.860 But then he says, before leaving the summary, oh, no, 321.

00:26:32.760 Personal autonomy and bodily integrity are rights which are recognized in Canadian arbitral jurisprudence.

00:26:42.120 They are a branch of rights broadly characterized as privacy rights.

00:26:46.440 Irwing is a direct authority on this point.

00:26:49.400 The notion that upon taking a stand for those rights, workers must disclose to their employer their particular personal reasons for doing so.

00:26:57.200 And those reasons must be judged adequate is, these are fancy words, anatoma to the very rights themselves.

00:27:08.240 So, there you, like, you see just even the, like, okay, he's contemplated, this arbitrator is really contemplating this decision,

00:27:17.560 talking about personal autonomy, bodily integrity, what, and then it goes on to workplace safety in the next paragraph.

00:27:24.560 And there's a lot of decisions.

00:27:26.380 There's a lot of history on that.

00:27:28.900 So, he goes into another decision.

00:27:32.900 So.

00:27:33.740 It's looking at the underlying principles that support each component.

00:27:41.520 Yeah.

00:27:43.680 Yeah, this is extremely thorough.

00:27:46.440 Yeah.

00:27:46.960 And then talks about the public health agencies.

00:27:49.140 And that's actually what I was trying to find there.

00:27:51.480 So, the one thing I've seen in this one and other ones is where they say that, and it makes sense to me when arbitrators made the decisions in the way I'm about to explain.

00:28:05.280 So, they said, okay, we understand there was a pandemic, we understand that public health authorities were saying, okay, we need to take measures, do what you can to accommodate people, tell them to work from home if they can.

00:28:18.540 And most employers gladly did what they could.

00:28:26.540 And then public health guidelines started to diminish, especially after a few years, which you would expect.

00:28:35.280 Where arbitrators, like in that one, I know when I just couldn't find it, came down on employers, and this is why I think it's great.

00:28:43.620 And these are good decisions, is they said, if you were following public health mandates and guidelines at the start of the pandemic to accommodate your employees at home, and then we started to decrease the guidelines, and you didn't invite them back in.

00:29:03.200 Now, there seems to be a problem, because, and this is something that's important for, and throughout the COVID pandemic, it was really hard to explain to people sometimes that who's the responsible one.

00:29:15.860 So, somebody gets fired, they're blaming Justin Trudeau, if they're not a federal employee, it has nothing to do with him getting fired, it was the employer making decisions.

00:29:25.500 But what happened is, it started from the federal government, Justin Trudeau saying, what we're going to do is we're going to enforce our federal workers to get vaccinated, we're going to implement these mandates, also you can't travel, blah, blah, blah.

00:29:39.800 And so, employers took the cue, okay, the federal government, the top dog in the country is saying they're going to be implementing these policies, public health authorities are telling us that we need to be careful, we're going to follow suit, because this is, you know, what a responsible employer is going to do, and we're going to implement these measures.

00:30:03.500 What some arbitrators said, and I know in this decision, he said it, is, you have to do that on the back end, too.

00:30:12.560 COVID was a moving thing, and public health guidelines were changing all the time, so when restrictions were being lifted, and you didn't invite people in, and you didn't bring back accommodations, then there seems to be a disconnect here.

00:30:25.840 And that makes perfect sense to me.

00:30:27.980 Especially, especially with the federal, like, if you look at how many public sector employees there are, that makes up a huge chunk of Canadian jobs.

00:30:40.260 So, the power that they have when setting some of these, setting the tone, and setting kind of what we deem acceptable in these kind of situations, like, that's a lot of influence in that way.

00:30:55.000 So, I can definitely see how...

00:30:58.260 Well, I was just going to add that they knew they had that influence.

00:31:01.600 Like, that's where there is some responsibility on, you're not just another employee, Government of Canada.

00:31:12.700 You also have public health agencies, which we're all paying for, guiding you in these principles.

00:31:18.980 So, what's a regular employer at, you know, the health?

00:31:23.340 Well, health is a whole other thing, because you would think that they have medical people that can address some of this.

00:31:28.340 But, like, Purolator, what is the Purolator boss, CEO, supposed to say when public health and the Government of Canada is saying,

00:31:37.520 okay, we need to take these measures to keep people safe and your workers safe?

00:31:42.040 So, he's not going to be like, hmm, I don't know about that.

00:31:45.940 You know, and then he's going to get sued if somebody gets sick.

00:31:49.360 So, they knew they had that influence.

00:31:51.760 And that's one place where it was a little tricky.

00:31:54.780 Well, and the executive team of some of these companies, they are not equipped with, like, they're not going to dive into, like, the underlying principles and make a stand.

00:32:06.500 And they're not going to put their necks on the line to say, like, oh, we understand the precautionary principle, or we understand bodily autonomy and all that.

00:32:16.680 Like, they haven't been diving into all of these.

00:32:21.600 They're concerned about their day-to-day business.

00:32:24.540 So, they're not going to lead and go out on a limb and do something that's contrary to what either other countries are doing or what the government's setting as a framework.

00:32:35.400 Yeah.

00:32:37.300 Yeah.

00:32:37.780 So, it makes sense that they would behave that way or they would fall in line.

00:32:44.620 Do you have an opinion, or maybe not an opinion, maybe a prediction?

00:32:49.200 You know, they say if you want to be taken seriously, you have to make a prediction.

00:32:51.840 So, let's say it's 2025, 2026, and COVID-26 breaks out, and the government of Canada, well, it probably wouldn't happen in 26 because Paulie F. will be the prime minister.

00:33:07.400 But in this hypothetical, let's just say everyone else is still in place.

00:33:11.100 And they try and go, the public health authorities try and make similar proclamations and mandates that they did before.

00:33:19.220 Do you suspect that fewer agencies would comply this time around, knowing what has happened in the years following the last round of mandates and public health directives?

00:33:34.660 When you say agencies, do you mean government agencies?

00:33:37.940 I mean, like, well, this is based on the presumption that the individual provincial health authorities were broadly acting on advice from Health Canada.

00:33:50.460 Like, do you think maybe Alberta would choose to go a different way than, you know, than they did previously?

00:33:57.700 You're asking if provinces would get on board?

00:34:01.600 Yeah, if there would be fewer of them getting on board than they did this time around.

00:34:06.900 Well, I think this goes to, I think, a broader question and problem of censorship.

00:34:16.760 It just, anyone that spoke up, whether that was provincial, like, the fact that you took away voices of doctors and scientists that were raising concerns, that that's basically their job.

00:34:31.020 So, I think if that's going to happen again, sure, people would get in line because you're actively suppressing voices.

00:34:43.440 I think if people were allowed to continue to express things, I think it would be harder to implement these things and these measures the way they were, I think.

00:34:54.880 But I don't, I couldn't speak on behalf of a province and I don't really understand.

00:35:01.560 Come on, speak on behalf of a province.

00:35:03.740 Well, the one thing I would say, and again, this goes to my book, which I keep talking about, is I think that provinces, all of them, should be acting a little bit more advocating for their own citizens, more like Quebec.

00:35:21.820 Like, there's no reason that Alberta shouldn't be advocating and demanding, and we are seeing that through Danielle Smith a bit more, although we don't always see it.

00:35:33.620 And so, I think, just like I was saying, it's healthy for people to challenge things.

00:35:39.100 I think it's healthy for the province to challenge the federal government when they're saying things like this.

00:35:46.340 Like, I would hope that they've learned something from this and take a stand.

00:35:51.240 There was something I heard Danielle Smith say when she was campaigning, and I just thought, wonderful, and I've never, I don't think I've heard her talk about it since,

00:36:01.220 is when the federal government enacted the Emergencies Act, and it froze bank accounts.

00:36:08.260 It demanded that banks across Canada froze bank accounts, and all the banks complied.

00:36:15.260 What Danielle Smith said then was any banks that are Alberta-based credit unions, she would say, don't abide by that.

00:36:24.520 And one thing to understand about provincial versus federal jurisdiction is property rights are provincial, and then both provincial and federal government can have bank, they're regulated, that's the one, under provincial laws, and then there's national laws.

00:36:43.560 And so, any banks that would have been under provincial laws, she said that she would just be like, that's not enforceable here in Alberta.

00:36:52.860 So, there's ways of saying it and doing things.

00:36:57.140 On this particular issue, I don't know exactly the background, but the health part is very interesting.

00:37:04.620 And I think that actually goes to your point earlier when you mentioned Roe v. Wade, because I feel like that was a demonstration in the U.S. of how, regardless of what your feelings on the actual abortion issue are,

00:37:18.180 I think most legal people, there's a good way of saying, most lawyers and judges and legal scholars would agree that that was just a ruling of, that was just good legal interpretation because it brought abortion legislation back fully into the purview of the states, if I understand it correctly.

00:37:44.980 Yes, and it's the same here in Canada.

00:37:49.140 And then actually, I just remembered too, Lacrete, which is a small community in Alberta, they said, we're not enforcing anything COVID-related.

00:37:59.200 And so, there you had, you know, a municipality that didn't abide by any provincial mandates or federal mandates.

00:38:08.980 They said, no. And so, there is, there's always an ability to fight or to question or to be civil disobedient.

00:38:19.140 You saw, you see that with Saskatchewan challenging the federal government on the energy stuff.

00:38:25.920 And they said, no.

00:38:26.980 And then they were going to take them to court.

00:38:28.440 Like, these things are good to challenge.

00:38:30.400 I think that we need to start taking, standing up and, and then seeing what happens.

00:38:35.520 Like, what's the worst that's going to happen, really?

00:38:38.620 Well, exactly right.

00:38:39.580 And I mean, it just, it, there's a, I feel like there's a, there's a feeling among certain people, not, not of our, you know, particular political views,

00:38:51.660 but maybe the, maybe the prevailing view of most people who aren't, you know, fully, potentially, like, psychotically invested into this stuff like I am.

00:39:01.520 But the, the general Canadian person's view of, of government is very trusting and very, like, almost blasé about it.

00:39:10.700 Very, like, oh, you know, they're probably doing the right thing for the right reasons.

00:39:14.100 But if you have that attitude, then you just, you know, as we saw, you leave yourself open to potentially being taken advantage of by people who don't have everyone's best interests in mind.

00:39:23.980 Like, there's also an aspect to that where, um, I think when people see a government party or a part of the government who shares their views, they're more willing to imagine that government having more control.

00:39:40.060 And then it's not until you realize like, oh, well, if we, well, what happens when somebody is in power who doesn't share your views, then all that extra control is very, very scary to them.

00:39:53.520 So it's this, it's the difference, it's the jurisdiction differences between federal, provincial and municipal that gives a certain level of protection to individuals and communities, depending on like, your needs are different here than, well, obviously in Quebec, they have, like, you want a, a town to run its own affairs because we, like, there's no possible way that a federal government would have the information and organization

00:40:23.500 ability to plan everything to plan everything for every single little small town.

00:40:27.180 So, um, that's why we have a separation of, of power, um, and it's these checks and balances between these levels that it, it has to be a battle because that's how we find out, that's how we navigate and we get closer to truth.

00:40:44.400 We, we, we need this kind of constant opposition.

00:40:48.960 And as soon as that opposition, this push-pull stops, we're in a bad place because at no point will you ever naturally have a hundred percent agreement that will only happen if it's manufactured and top-down state control.

00:41:07.320 There's no possible, there's no possible way for it to ever be able to, like, properly either plan an economy or handle social affairs or be able to navigate all these issues that are constantly in flux and need a whole bunch of people to, to be constantly solving these problems.

00:41:27.520 Um, so I, I, I feel like there's more power to the people if we reinforce each of these levels, if we contribute, if we participate, uh, rather than just throwing our, our ball into the court into kind of the, into just the federal, just talking about federal issues or just dealing with it from the federal parties and saying like, oh, this is our last hope.

00:41:53.240 If we, if we, if we just get this one party elected, like, well, what about, what about the provincial?

00:41:58.420 What about our, what about our cities?

00:42:00.880 We, we have to start there.

00:42:05.100 Yep.

00:42:05.820 A hundred percent agree on that.

00:42:07.940 All of it.

00:42:09.180 Well, that maybe leads into a good little, uh, maybe we can, uh, talk a little bit about, I don't know.

00:42:15.180 Are you, do you want to talk a little bit about your book about, uh, speaking of civic participation?

00:42:19.980 Can you, uh, can you share any updates since the last time we talked?

00:42:23.240 The best book ever that hopefully will elevate the conversation in this country.

00:42:28.840 No, I'm so excited.

00:42:30.660 And I had hoped that it would be out earlier, but like most things, I jump into it with two feet, not knowing what I'm doing.

00:42:38.640 And I'm like, oh, there's, there's more to this.

00:42:40.820 It was, it was just an idea to have like a little guidebook, basically a handbook for people.

00:42:47.000 And then I was like, oh, maybe I should talk about this.

00:42:50.500 Oh, what about this?

00:42:51.480 Oh, maybe a little bit about this.

00:42:53.260 So then it turned into a lot more than I thought, but it, it talks basically about everything we've talked about today.

00:43:00.560 Different levels of court, um, a bit of history so that people understand how the system came about separation of powers and three different examples where the federal and the provincial governments clashed.

00:43:20.040 In one case where the provincial government and the municipal government clashed and then what happened.

00:43:26.100 And then a part that I really like about the book, um, especially now when you saw how, how many times I kept going back to the decision is I've quoted Supreme court cases, because that's one thing I found a lot, um, happening over COVID and with charter discussions.

00:43:44.020 And I get it.

00:43:45.060 Lots of people are frustrated.

00:43:46.460 I understand that, but there's been a lot of discussion about some of these issues like freedom of expression, bodily autonomy,

00:43:54.180 and the Supreme court has talked about these issues.

00:43:57.680 So I think the more we learn from that and then use it in our discussions, it really elevates the conversation when we're talking to others, because when we're talking to others, we could say, Hey, you know, when there was a decision, which was the Morgenthaler case on abortions, there was a massive discussion on bodily autonomy.

00:44:22.500 And let's talk about how that is similar to what happened during COVID or how that's different, but at least we could talk about it like adults.

00:44:32.260 And this is something we were talking about earlier is I'm really just very tired of people acting like children in this country.

00:44:40.900 We have stopped talking to each other like adults, allowing, it's just insults and, um, disparaging comments.

00:44:50.660 And it, again, I'm going back to the leadership in this country.

00:44:55.200 So when the prime minister of this country sets an example of disparaging and shaming and canceling people, what are other Canadians going to do?

00:45:06.400 What kind of standard are we setting for them?

00:45:08.840 So there was somebody, there was a big controversy a week or two about a lady in BC that was arrested for hateful comments.

00:45:16.480 And I said, welcome to Canada, woman arrested for mean tweets, because the story didn't say a lot, number one, number two, it's not my responsibility.

00:45:28.120 I think to investigate what the mean tweets were when CTV and global and all these multi million dollar conglomerates aren't posting it.

00:45:38.600 But what kind of standard are we setting for some lady in BC?

00:45:45.040 I don't know her education.

00:45:46.640 I don't care.

00:45:47.520 But if the prime minister of our country is going around disparaging and dismissing his own citizens, really, what are you expecting from regular Canadian citizens?

00:45:59.200 Let's start from the top.

00:46:00.860 Let's check like the way that some of our elected officials are acting is just pathetic.

00:46:07.720 It's embarrassing.

00:46:09.080 I'm so tired of it.

00:46:10.460 They're acting like children.

00:46:11.820 Actually, I take it back.

00:46:13.260 Children act more responsibly and more kindly and more openly than some of these elected officials.

00:46:20.540 And I'm just really tired of that.

00:46:22.920 And I'd like, I really hope that we can elevate the conversation in this country.

00:46:26.980 And I hope that my book can contribute to that just a little bit, at least.

00:46:31.340 And so that's another point is with everything I try to do, I'm always pointing the finger at our elected officials, not at Canadians.

00:46:43.300 Like, and that's why I wrote the book, because I do find that lots of people are misguided or misinformed because nobody's helping them.

00:46:52.420 And then when somebody tries to speak out or tries to do something, they're disparaged.

00:46:57.460 They're shut on.

00:46:58.200 Oh, you're so stupid.

00:46:59.280 You don't even know why the people went to Ottawa to protest.

00:47:02.620 And I'm like, really?

00:47:03.900 Is this the level of discussion we're going to accept in this country?

00:47:07.720 If somebody is really, like, ignorant about why people went to Ottawa, for example, then just say, okay, it had nothing to do with provincial mandates or whatever.

00:47:18.240 But it's just, it's just been a bit too much.

00:47:21.300 It's just constant, like, I don't know, I feel we could do better in this country.

00:47:26.700 And I think we could grow up and act like adults.

00:47:30.300 What do you guys think?

00:47:31.380 Is it possible?

00:47:32.340 That's a pretty big ask.

00:47:33.600 I don't know.

00:47:34.100 It's fun to be mean on the internet sometimes.

00:47:36.120 So what are you going to do?

00:47:38.380 Well, there's a time and place to dunk.

00:47:40.720 Maybe focus on elected officials.

00:47:42.820 Yeah.

00:47:43.240 Elected officials.

00:47:44.640 I certainly think that we should, it's not just being mean, but, like, calling out the garbage.

00:47:51.080 And there's so much garbage if we just paid attention to that instead of, you know, all of the trolls and the bots and all that.

00:47:59.700 But actually, and some elected officials make it really hard because they don't have comments or they block you.

00:48:06.080 And that's so wrong as well.

00:48:08.300 Like, let's focus on that.

00:48:10.000 Yeah.

00:48:10.300 Let's all come together.

00:48:11.520 All citizens can be like, that's not right.

00:48:14.520 We all should be able to participate in the public square with these elected officials who we pay for.

00:48:19.420 That's right.

00:48:20.240 Well, and I think that there should be, I mean, I don't know, I don't know at what level this would get enforced.

00:48:25.520 But I think if you're going to be a government official on X and have the little the gray checkmark of a government official, I don't think you should be able to turn your comments off because it's almost universally one type of politician that has their comments turned off.

00:48:40.820 And it's the ones who are making those snarky, you know, baiting kind of posts.

00:48:45.820 And they don't have any responses in the comments other than the people who already agree and love them.

00:48:50.580 So that's I just that doesn't seem right to me.

00:48:54.420 Totally.

00:48:54.900 And this goes back to my book is we're talking about what what is the role of elected officials?

00:49:00.280 What how did that come up, come to be?

00:49:03.200 And I've personally launched a lawsuit against an elected official that blocked me for asking one question on a policy.

00:49:12.600 And it's not that I want to sue people, but I feel at this point we need to, like I was saying earlier, actually, we need to challenge these things.

00:49:23.520 Is it right?

00:49:24.820 Let's have a court decide whether or not that was appropriate behavior by a paid elected official to block somebody based on one question comment.

00:49:34.760 Totally.

00:49:35.780 Totally.

00:49:36.420 And we'll see what the courts have to say about that.

00:49:39.160 Again, it's not I'm not doing this because it's a fun thing.

00:49:43.480 But so like I just think at some point somebody needs to say, OK, let's see who's right and who's wrong.

00:49:50.840 And let's have a court decide here.

00:49:52.320 Well, and it is important as, you know, so much of our political discourse changes so fast.

00:49:58.460 Right.

00:49:58.720 You know, there it's only a very, you know, relatively speaking, it's just a blink of an eye that you're even you even like a normal citizen has the ability to confront an elected official so easily and so quickly.

00:50:12.040 Now, you know, with with, you know, with Twitter being kind of more of an open platform now, you know, since since Elon took over, you know, that we don't have I'm sure we don't have the literature.

00:50:23.920 We don't have the the legal precedent of what is and isn't OK for elected officials to do.

00:50:30.560 So, yeah, that's that's great.

00:50:32.060 I encourage that.

00:50:33.820 I encourage suing that is and that is different than different than individuals blocking somebody for like repeat of harassed behavior.

00:50:43.200 Because there's like and if it's in the domain of like, OK, you're asking something about policy or you're pointing out where they're wrong or trying to take them to account, hold them accountable for something.

00:50:55.720 That's different than calling somebody stupid and doing it repeatedly and like targeting that way and think often people will say like, well, you can't sue somebody for blocking you because you blocked for these other people like, well, the circumstances are different.

00:51:11.440 We've got to like make that distinction and really reinforce on like, well, these elected officials are they are responsible to the people who elect them to the citizens.

00:51:26.260 And this is a way of them connecting to them.

00:51:28.780 And what happens when they block off that feedback mechanism?

00:51:33.840 Is that like is that something we want in a democracy?

00:51:37.760 Is that helping us get closer to a good, honest way of governance?

00:51:45.480 Yeah, and I agree.

00:51:47.520 I obviously wouldn't condone anybody being allowed to harass and abuse people, which happens to me all the time.

00:51:56.120 And I'm not getting paid by the public.

00:51:58.620 I constantly get terrible things said to me about me.

00:52:03.460 And what I think makes sense is like may give a warning if you're going to continue that way, unless it's obvious, just go right ahead.

00:52:12.980 But if somebody like I've said and I've done this personally, it's like you're a schoolteacher.

00:52:17.440 OK, here's your one warning.

00:52:20.400 You get two and then you're strike three.

00:52:22.680 You're out like it's pretty.

00:52:24.400 It's not rocket science, any of this.

00:52:28.600 Yeah, no.

00:52:29.160 And yeah, like James said, I mean, there's there's a vast difference.

00:52:32.700 Like, I don't think anyone like no one would ever try to make that like this particular politician could never make that argument against you in court and say, oh, I blocked Eva because she was she was harassing me.

00:52:44.180 Of course not.

00:52:45.100 But you can there's a there's a literal written record of it that anyone can look in at any given time.

00:52:51.060 Right.

00:52:51.340 Unless your tweets are protected, which other politicians do protect their tweets, too, which, you know, again, is that same type of politician.

00:52:57.740 So, yeah, that's a context is king there for sure.

00:53:02.760 Yeah.

00:53:03.340 Awesome.

00:53:03.840 OK, well, we've been at it for just about an hour here.

00:53:06.900 Does anyone have anything anything else to say or should we go to maybe we'll we'll leave that that one question that we talked about earlier for for Eva's paid subscribers?

00:53:17.600 What do you think?

00:53:19.240 Oh, yeah, sure.

00:53:19.840 And or we could do it again.

00:53:21.400 It's always fun to chat with you guys.

00:53:23.420 Sweet.

00:53:24.200 Yeah, I think that covers a lot.

00:53:26.120 And these kind of conversations, I feel like.

00:53:30.680 You're you're helping us think about these things in a way that we maybe wouldn't come to the same conclusions.

00:53:36.020 Like I felt like we always learn a lot when we dive into this side.

00:53:40.180 So I appreciate you sharing your expertise with us and hopefully our viewers.

00:53:45.020 Anytime.

00:53:45.580 I'm so happy to.

00:53:49.520 Anytime.

00:53:50.640 Yeah.

00:53:50.940 Awesome.

00:53:51.400 Yeah, we really appreciate it.

00:53:52.340 Thanks, Eva.

00:53:52.900 And yeah, we will we'll put links to everything we talked about in the show notes.

00:53:57.100 And if anyone wants to read that five hundred ninety six page page decision and leave some comments, that'd be great.

00:54:03.860 And yeah.

00:54:04.720 Awesome.

00:54:05.060 OK, James.

00:54:05.820 Eva, thanks.

00:54:07.100 Thanks, guys.

00:54:07.720 And we'll we'll see you guys on the next one.

00:54:10.520 Cheers.

00:54:10.960 Thanks, guys.

00:54:11.960 Cheers.

00:54:12.220 Cheers.

00:54:12.280 I'll see you next time.

The Critical Compass Podcast - September 12, 2024

Canadian Lawyer Explains COVID Court Rulings feat. Eva Chipiuk ｜ A Critical Compass Discussion

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