Docket: T-1685-16
Citation:
2017 FC 51
Ottawa, Ontario, January 13, 2017
PRESENT: The Honourable Madam Justice McDonald
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BETWEEN:
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JANET MERLO AND
LINDA GILLIS DAVIDSON
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Plaintiffs
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and
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HER MAJESTY THE
QUEEN
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Defendant
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ORDER AND REASONS
I.
Introduction
[1]
On October 6, 2016 the Commissioner of the Royal
Canadian Mounted Police [RCMP], Bob Paulson, announced that a settlement
agreement had been reached in the class action lawsuits filed by Janet Merlo
and Linda Gillis Davidson [The Plaintiffs]. The settlement is intended to
provide financial redress to females in the RCMP who have experienced
gender-based discrimination and harassment. This is a motion for certification
of the action as a class proceeding to allow the parties to move forward with the
implementation of this settlement agreement throughout Canada. The parties are
in agreement on the terms of the certification. For the reasons that follow,
the certification motion is granted.
II.
Background
[2]
The action for which certification is sought is the
consolidation of an action filed in British Columbia in 2012 by Ms. Merlo
[Merlo Action], and an action filed in Ontario in 2015 by Ms. Davidson
[Davidson Action]. In their action, they make
allegations of gender-based bullying, discrimination, and harassment, which
both Ms. Merlo and Ms. Davidson say they experienced while they were with the
RCMP. In addition, Ms. Davidson alleges discrimination on the basis of sexual
orientation. The Plaintiffs allege this harassment and discrimination has
impacted their careers within the RCMP, and has caused them to suffer physical
and psychological damage, personal expense, and loss of income. The Plaintiffs
also bring this action on behalf of those who are entitled to assert a
derivative claim in accordance with the applicable family law legislation
arising from a family relationship.
[3]
The Plaintiffs allege that the RCMP and its
management failed to fulfill its statutory, common law, and contractual duties
to provide them with a work environment free of discrimination, harassment and
bullying. They claim that complaints which were made, were not properly
investigated by the RCMP. The Plaintiff, Ms. Davidson, filed grievances in
response to the discrimination and harassment she suffered, but she says they
were not adjudicated in accordance with the Royal
Canadian Mounted Police Act, R.S.C., 1985, c. R-10 [RCMP Act]. They
also claim that they suffered from retaliatory abuse from male members of the
RCMP in response to their complaints. Both Plaintiffs have been diagnosed with
medical conditions as a consequence of the harassment and discrimination they
endured while with the RCMP.
[4]
Although the claims are made against the RCMP as
an institution, the Attorney General of Canada is the proper Defendant by
virtue of the operation of section 36 of the Crown Liability and Proceedings
Act, R.S.C. 1985, c. C-50.
[5]
Certification as class proceedings was sought in
both the Merlo Action in British Columbia and the Davidson Action in Ontario. However,
both of these actions were held in abeyance when the parties engaged in
settlement discussions in 2015 and into 2016. Those discussions culminated in
the settlement agreement announced by Commissioner Paulson, on October 6, 2016.
[6]
The Plaintiffs, Janet Merlo
and Linda Gillis Davidson, seek an order certifying this action as a class
proceeding for the purpose of settlement and appointing them as the
representative Plaintiffs.
III.
Issue
[7]
The sole issue is whether this action should be
certified as a class proceeding pursuant to Rule 334.16 of the Federal
Courts Rules, SOR/98-106 [Federal Courts Rules].
IV.
Analysis
[8]
Class action legislation is remedial
legislation, which is to be given a broad, liberal and purposive interpretation
in order to achieve its foundational policy objectives of access to justice, judicial
economy, and behaviour modification (Hollick v
Toronto (City), 2001 SCC 68 [Hollick]
at paras 14-16).
[9]
Certification is an initial procedural step to
determine if it is appropriate for the matter to proceed as a class proceeding.
The analysis at the certification stage is not a review of the merits of the
claim, rather, the focus is on the form of the action and whether it can
appropriately go forward as a class action (Hollick at para 16).
[10]
The evidentiary standard on a certification
motion is low. In fact, in the settlement context, such as here, courts have
generally engaged in a less vigorous analysis of the certification criteria (see
Gariepy v. Shell Oil Co., [2002] OJ No 4022 at para 27).
[11]
In the Federal Court Rules, the criteria
for certification of a class proceeding is outlined in Rule 334.16(1) as
follows:
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334.16 (1)
Subject to subsection (3), a judge shall, by order, certify a proceeding as a
class proceeding if
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334.16 (1) Sous réserve du paragraphe (3), le juge autorise une instance
comme recours collectif si les conditions suivantes sont réunies :
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(a) the
pleadings disclose a reasonable cause of action;
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a) les
actes de procédure révèlent une cause d’action valable;
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(b) there
is an identifiable class of two or more persons;
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b) il
existe un groupe identifiable formé d’au moins deux personnes;
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(c) the
claims of the class members raise common questions of law or fact, whether or
not those common questions predominate over questions affecting only
individual members;
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c) les
réclamations des membres du groupe soulèvent des points de droit ou de fait
communs, que ceux-ci prédominent ou non sur ceux qui ne concernent qu’un
membre;
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(d) a class
proceeding is the preferable procedure for the just and efficient resolution
of the common questions of law or fact; and
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d) le
recours collectif est le meilleur moyen de régler, de façon juste et
efficace, les points de droit ou de fait communs;
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(e) there
is a representative plaintiff or applicant who
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e) il
existe un représentant demandeur qui :
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(i) would fairly
and adequately represent the interests of the class,
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(i)
représenterait de façon équitable et adéquate les intérêts du groupe,
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(ii) has
prepared a plan for the proceeding that sets out a workable method of
advancing the proceeding on behalf of the class and of notifying class
members as to how the proceeding is progressing,
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(ii) a
élaboré un plan qui propose une méthode efficace pour poursuivre l’instance
au nom du groupe et tenir les membres du groupe informés de son déroulement,
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(iii) does
not have, on the common questions of law or fact, an interest that is in
conflict with the interests of other class members, and
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(iii) n’a
pas de conflit d’intérêts avec d’autres membres du groupe en ce qui concerne
les points de droit ou de fait communs,
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(iv) provides
a summary of any agreements respecting fees and disbursements between the
representative plaintiff or applicant and the solicitor of record.
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(iv)
communique un sommaire des conventions relatives aux honoraires et débours
qui sont intervenues entre lui et l’avocat inscrit au dossier.
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A.
Reasonable Cause of Action
[12]
For the purpose of determining if the action discloses a reasonable cause of action, it is assumed
that the facts outlined in the Statement of Claim are true (Condon v Canada,
2015 FCA 159 at para13).
[13]
Here, the Statement of Claim asserts claims in
negligence, breach of contract and allegations of breach of section 15 of the Charter.
The Statement of Claim outlines the factual events which form the foundation
for these claims.
[14]
Based upon the facts contained in the Statement
of Claim, I am satisfied that a reasonable cause of action has been
established, as required by Rule 334.16(1)(a).
B.
Identifiable Class
[15]
The purpose of a class description is to have a
clear definition of those who may be entitled to relief as part of the class,
and to provide objective criteria to identify possible members of the class (Western
Canadian Shopping Centres Inc. v Dutton, 2001 SCC 46 at para 38).
[16]
That said, class members are not required to
have identical claims (see Hollick at para 21) and it is not necessary
at the certification stage to be satisfied that each class member would be
successful in establishing a claim (Cloud v Canada (Attorney General), [2004]
OJ No 4924 [Cloud] at para 45).
[17]
Here the parties propose the class be defined as
follows:
Primary Class Members: All female current
and former living Regular Members, Civilian Members and Public Service
Employees (who are appointed by the Commissioner of the RCMP under the
delegated authority of the Public Service Commission pursuant to the Public
Service Employment Act, R.S.C., 1985, c. P-32; amended S.C. 2003, c. 22,
ss.12 and 13) who worked within the RCMP at any time during the Class Period.
The Class Period is September 16, 1974, to the date the Settlement receives
court approval.
For the purposes of the Settlement, “Regular
Members” includes Regular Members, Special Constables, Cadets, Auxiliary
Constables, Special Constable Members, and Reserve Members.
For the purpose of the Settlement, “Public
Service Employees” includes Temporary Civilian Employees who, prior to 2014
were appointed under the now-repealed subsection 10(2) of the RCMP Act, R.S.C.,
1985, c. R-10.
Secondary Class Members: All persons who
have a derivative Claim in accordance with applicable family law legislation
arising from a family relationship with a Primary Class Member.
[18]
I am satisfied that the class definition of the
Primary Class Members, although potentially numbering in the thousands, is
nonetheless clearly identifiable.
[19]
With respect to the Secondary Class Members,
family law classes have been certified in other class proceedings involving
claims against government agencies (Dolmage v Ontario, 2010 ONSC 1726 at
paras 154-155). In the circumstances, I am satisfied that it is appropriate to include
a secondary class. Considering that the secondary class is a derivative of the
Primary Class, as a class, it is also identifiable.
[20]
The Class descriptions meet the requirement of
Rule 334.16(1)(b).
C.
Common questions
[21]
The common
question is the “substantial ingredient” of each Class Member’s claim (Hollick,
at para 18). It allows the claim to proceed as a representative one and avoids
duplication of fact-finding or legal analysis (Rumley v British Columbia, 2001 SCC 69 at para 29).
[22]
In Vivendi Canada Inc. v Dell’Aniello, 2014 SCC 1, at para 72, the Supreme Court of
Canada stated that the common questions requirement constitutes a low bar. In Pro‑Sys Consultants Ltd. v Microsoft Corporation, 2013 SCC 57 at para 108, the Supreme Court of Canada confirmed
that a Court should take a purposive approach in assessing common issues.
Additionally, it stated that Class members do not need to be identically
situated vis-à-vis the defendant, nor is it necessary that the common issues
predominate over non-common issues.
[23]
Here, the parties have proposed the following as
the common question: Is the Defendant liable to the Class?
[24]
The Plaintiffs submit that the liability of the
Defendant is the common question which applies to each member of the Class who
has a claim arising out of their treatment as a female working within the RCMP.
The resolution of this common question is necessary to the resolution of each
Class Member’s claim. As well, the answer to this question will avoid
duplication of fact-finding and legal analysis.
[25]
As noted by the Ontario Court of Appeal in Cloud,
at paras 64 – 66, even if aspects of liability and damages will have to be
assessed individually, that does not remove the advantage of resolving the
common issue.
[26]
I am satisfied that the common question
objective, as required by Rule 334.16(1)(c) is met in this case.
D.
Is a Class Proceeding the Preferable Procedure?
[27]
The preferability analysis takes into
consideration the principal goals of class actions as outlined in Hollick as follows:
[15] First, by aggregating
similar individual actions, class actions serve judicial economy by avoiding
unnecessary duplication in fact-finding and legal analysis. Second, by
distributing fixed litigation costs amongst a large number of class members,
class actions improve access to justice by making economical the prosecution of
claims that any one class member would find too costly to prosecute on his or
her own. Third, class actions serve efficiency and justice by ensuring that
actual and potential wrongdoers modify their behaviour to take full account of
the harm they are causing, or might cause, to the public.
[28]
Rule 334.16(2) of the Federal Courts Rules
provides a list of factors that must be considered.
[29]
Based upon the information provided by the RCMP,
there may be as many as 20,000 females who qualify as Primary Class Members.
Considering the potential size of the Primary Class, individual actions would
be inefficient and uneconomic. There is no evidence that a significant number
of the Class Members have expressed an interest in individually controlling the
prosecution of their own claim. Here, distribution of the costs of the
litigation across a class of this size may be the Class Members’ only means of
achieving access to justice. Finally, there is the reality that a large number
of the proposed class members remain employed within the RCMP and may fear
reprisal if they pursue individual claims.
[30]
These factors strongly weigh in favor
certification of this matter as a class proceeding, as it achieves the
objectives outlined in Hollick of access to justice, judicial economy, and
behaviour modification.
E.
Appropriateness of the representative Plaintiffs
[31]
The parties submit that the proposed
representative Plaintiffs, Ms. Merlo and Ms. Davidson, adequately represent the
interests of the Class. They have both provided evidence of the gender-based
discrimination and harassment they personally experienced while working within
the RCMP. In their Affidavits, both Ms. Merlo and Ms. Davidson have indicated
their willingness to act in this capacity and their willingness to act in the
best interests of the Class. Additionally, since commencing their own actions,
they have demonstrated a willingness to put forward their stories for scrutiny
by the Court, the Defendant, and the public at large. They have also had
communication with Class Members across Canada.
[32]
I am satisfied that Ms. Merlo and Ms. Davidson
meet the requirements to be considered as the representative Plaintiffs for the
proposed class action, as required by Rule 334.16(1)(e).
F.
Litigation Plan
[33]
The parties have jointly provided a detailed and
robust notice plan that outlines the communication plan and the steps by which
the Class Members will be notified of the Certification and the proposed
settlement. The plan contains a workable method of advancing the proceeding on
behalf of the Class and ensuring a process is in place to allow for the
independent assessment of each Class Member’s claim. An Independent Assessor
has been chosen by the parties who will take steps to notify Class Members of
the proceeding and the settlement.
[34]
To facilitate providing notice to the Class by
direct mailing, the parties request an order that the RCMP, and other federal
government departments or agencies that might have contact information on
potential Class Members, be directed to provide that information to a
designated contact with the RCMP.
[35]
I am satisfied that the disclosure of this
confidential information is for the benefit of the female to whom it relates
and I am further satisfied that the information will be protected by requiring
that it is only to be disclosed to the RCMP designated contact and to the
Independent Assessor.
V.
Conclusion
[36]
For the reasons outlined above, I allow the
motion for certification of this action as a Class proceeding.
[37]
Pursuant to Rule 334.39 (1) of the Federal
Courts Rules there will be no costs.
ORDER
THIS COURT ORDERS that:
1.
For the purposes of this settlement, this action
is, by consent, certified as a class proceeding against the Defendant, Her
Majesty the Queen. This class proceeding will be decertified if the Settlement
Agreement entered into by the parties is not approved by this Court, or if this
Court’s approval of the Settlement Agreement is reversed on appeal, or if the
Defendant exercises its right to terminate the Settlement Agreement pursuant to
Article 5.02 of the Settlement Agreement;
2.
In the event the Settlement Agreement is not
approved and the action is decertified as a class proceeding, the Plaintiffs
are at liberty to continue the action and the Defendant retains the right to
oppose certification and defend the action;
3.
The Class is defined as:
a.
Primary Class Members: All female current and
former living Regular Members, Civilian Members and Public Service Employees
(who are appointed by the Commissioner of the RCMP under the delegated
authority of the Public Service Commission pursuant to the Public Service
Employment Act, R.S.C., 1985, c. P-32; amended S.C. 2003, c. 22, ss.12 and 13)
who worked within the RCMP at any time during the Class Period. The Class Period
is September 16, 1974, to the date the Settlement receives court approval.
i.
For the purposes of the Settlement, “Regular Members” includes Regular Members, Special
Constables, Cadets, Auxiliary Constables, Special Constable Members, and
Reserve Members.
ii.
For the purpose of the Settlement, “Public Service Employees” includes Temporary Civilian
Employees who, prior to 2014 were appointed under the now-repealed subsection
10(2) of the RCMP Act, R.S.C., 1985, c. R-10.
b.
Secondary Class Members: All persons who have a
derivative Claim in accordance with applicable family law legislation arising
from a family relationship with a Primary Class Member.
4.
Janet Merlo and Linda Gillis Davidson are
appointed as the Representative Plaintiffs for the Class;
5.
The Representative Plaintiffs allege, on behalf
of the Class, that the Defendant was negligent and violated their rights under
s. 15 of the Canadian Charter of Rights and Freedoms in breaching duties
to ensure that Primary Class Members could work in an environment free of
gender and sexual orientation based discrimination and harassment;
6.
The Class claims the following relief:
a.
General damages and special damages;
b.
Punitive damages;
c.
Damages pursuant to the Canadian Charter of
Rights and Freedoms;
d.
Punitive damages pursuant to the Charter of
Human rights and Freedoms and the Civil Code of Quebec;
e.
Pre-judgment interest; and
f.
Costs.
7.
The following is certified as the common issue:
a.
Is the Defendant liable to the Class?
8.
Klein Lawyers LLP and Kim Orr Barristers P.C.,
are appointed as Class Counsel;
9.
The Notice of Certification and Settlement
Approval Hearing, substantially in the form and content attached to this Order
as Schedule “A”, is approved [the Notice]. The
Notice shall be made available in both English and French. The Notice will be
distributed substantially in the manner set out in the Notice Plan attached to
this Order as Schedule “B”. The Opt Out Form,
substantially in the form and content attached to this Order as Schedule “C” is approved;
10. The cost of publication of the Notice in accordance with the Notice
Plan shall be paid by the Defendant;
11. For the purposes of facilitating the Notice and Class Member
verification, the RCMP and other federal government departments and agencies
who are reasonably expected to have relevant names and contact information
shall make reasonable efforts to identify and provide to the RCMP Designated
Contact, referred to in Article 3.03(2)(a) of the Settlement Agreement, the
names and last known address or other contact information of women who were female
Regular Members, Civilian Members or Public Service Employees, as defined in
the Settlement Agreement, who worked within the RCMP from September 16, 1974 to
date, except where disclosure of such information is prohibited by law;
12. The Designated Contact shall release the information referred to in
paragraph 11 above to the Independent Assessor only;
13. Class Members may opt out of the class proceeding by delivering a
complete, signed Opt Out Form to Klein Lawyers LLP or Kim Orr Barristers P.C.
at the addresses stated on the Opt Out Form on the date specified; and
14. No costs are payable on this motion for certification in accordance
with Rule 334.39 of the Federal Courts Rules.
"Ann Marie McDonald"
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