Date: 20210326

Docket: T-138-19

Citation: 2021 FC 267

Fredericton, New Brunswick, March 26, 2021

PRESENT: Madam Justice McDonald

PROPOSED CLASS PROCEEDING

BETWEEN:

SYLVIE CORRIVEAU

Plaintiff

and

HER MAJESTY THE QUEEN

Defendant

ORDER AND REASONS

[1] This Motion, brought with the consent of the Defendant, is for the certification of this action as a class proceeding pursuant to Rule 334.16 of the Federal Courts Rules, SOR/98-106 [Federal Courts Rules]. The parties agree on the terms of the Certification Order.

[2] The proposed representative Plaintiff, Sylvie Corriveau, asks the Court to certify a class proceeding against the Royal Canadian Mounted Police (RCMP) for the inappropriate conduct of medical doctors designated by the RCMP (Designated Physicians) to conduct medical examinations (Applicant’s Examination) as a prerequisite for admission to the RCMP.

[3] The claims against the RCMP are for negligence, breach of the duty of care, vicarious liability, and systemic negligence.

[4] For the reasons that follow this action is being certified as a Class Proceeding.

Background

[5] The RCMP is Canada's national police force and is governed by the Royal Canadian Mounted Police Act, RSC 1985, c R-10 [RCMP Act] and the Royal Canadian Mounted Police Regulations, 2014, SOR /2014-281 [RCMP Regulations].

[6] Individuals employed by the RCMP generally fall into three categories: Regular Members who are sworn police officers; Civilian Members who provide specialized services; and, Public Service employees who provide administrative and technical support.

[7] Section 9.1(1) of the RCMP Act states that those applying to become a member (Regular or Civilian) of the RCMP must have the “necessary physical qualities.” The physical qualities are assessed, in part, by a mandatory medical examination conducted by RCMP Designated Physicians. In addition to the medical doctor being designated by the RCMP, the medical examination, referred to as the Applicant’s Examination, is conducted at an RCMP facility.

[8] The Applicant’s Examination is mandatory and is often the final step in the recruitment process for those applying to the RCMP. Designated Physicians complete a form and provide their opinion on whether an applicant is fit for acceptance into the RCMP. Designated Physicians exercise tremendous power as they often have the final say on whether an applicant can become a member of the RCMP.

[9] Ms. Corriveau applied to the RCMP as a Civilian Member and on September 1, 1989, she underwent an Applicant’s Examination by Designated Physician, Dr. John A. MacDougall at the RCMP division headquarters in Toronto.

[10] In her Statement of Claim and her Affidavit, Ms. Corriveau describes in detail the “examination” conducted by Dr. MacDougall. The examination included Dr. MacDougall performing what he described as the “tweaking method” for the examination of her breasts and physically and visually examining her while she was completely naked. Even though it was not necessary for Dr. MacDougall to perform a Pap test, he insisted that he was required to “take a peek” of both her genitalia and anal areas.

[11] Ms. Corriveau describes the examination as sexualized and inappropriate and explains feeling vulnerable and anxious during the examination. But, she was aware that her future employment with the RCMP was dependant upon passing the Applicant’s Examination, a fact that was reiterated by Dr. MacDougall throughout the examination.

[12] Following the examination, Ms. Corriveau describes being in a state of shock and feeling humiliated and violated. This event caused her trauma and has had life-long physical, psychological, and emotional consequences for Ms. Corriveau.

[13] After being sworn into the RCMP in October 1989, and learning that other women had similar experiences with Dr. MacDougall, Ms. Corriveau contacted the RCMP Member Employee Assistance Program (MEAP) to report her experience with Dr. MacDougall. This report led to the incidents also being reported to the College of Physicians and Surgeons of Ontario (CPSO) and the Metropolitan Toronto Police Service (MTPS).

[14] Despite the reports of Dr. MacDougall’s conduct and various investigations, no action was taken by the RCMP, the CPSO or the MTPS and Dr. MacDougall continued to perform Applicants Examinations as a Designated Physician for the RCMP.

[15] In 2018, the Halifax Regional Police reported that they were investigating allegations of sexual assault against another RCMP Designated Physician, Dr. Douglas Campbell, for events between 1981 and 2003. Following this report by Halifax police, numerous additional allegations were made against Dr. Campbell.

[16] In the Statement of Claim, Ms. Corriveau claims that the RCMP had long-standing knowledge of the issues with Designated Physicians but failed or refused to take appropriate action. This resulted in the continuation of inappropriate examinations and assaults on male and female applicants who were required to submit to Applicant’s Examinations by RCMP Designated Physicians.

The Evidence

[17] The following evidence was filed in support of this Motion:

• Affidavit of Sylvie Corriveau, sworn November 21, 2019

• Affidavit of Yvette Gallo, sworn November 26, 2019

• Affidavit of Pierre LeBrun, affirmed July 20, 2019.

Issue

[18] The sole issue is if this action should be certified as a class proceeding pursuant to Rule 334.16 of the Federal Courts Rules.

Analysis

[19] As noted by Justice Rothstein in Pro-Sys Consultants Ltd. v Microsoft Corporation 2013 SCC 57 at para 102 [Pro-Sys Consultants]:

The certification stage does not involve an assessment on the merits of the claim and is not intended to be a pronouncement on the viability or strength of the action; “rather, it focuses on the form of the action in order to determine whether the action can appropriately go forward as a class proceeding”

[20] Rule 334.16(1) of the Federal Courts Rules states:

Reasonable Cause of Action

[21] The task of the Court on a certification motion is “not to resolve conflicting facts and evidence or assess the strength of the case. Rather, the task is simply to answer, at a threshold level, whether the proceeding can go forward as a class proceeding” (Wenham v Canada (Attorney General), 2018 FCA 199 at para 28 [Wenham] citing Pro-Sys Consultants Ltd v Microsoft Corporation, 2013 SCC 57 at paras 99 and 102.

[22] In considering if there is a reasonable cause of action, the Court is to assume that the facts contained in the Statement of Claim are true (Condon v Canada, 2015 FCA 159 at para 13).

[23] In her Statement of Claim, Ms. Corriveau explains the process of applying to become a Civilian Member of the RCMP and the requirement to undergo an Applicant’s Examination. She details the conduct of Dr. John A. MacDougall who preformed her examination at the RCMP division headquarters in Toronto.

[24] In 1989, Ms. Corriveau and two other women filed a complaint with the RCMP MEAP regarding the conduct of Dr. MacDougall. In the Statement of Claim, Ms. Corriveau alleges that the RCMP had knowledge of the sexual assaults and improper and invasive procedures of Dr. MacDougall, but failed to investigate or interfered with the investigations of Dr. MacDougall’s conduct and thereby condoned his actions.

[25] At paragraph 58 of the Statement of Claim, Ms. Corriveau states as follows:

RCMP employees knew from many years of issues with Designated Physicians, including issues occurring during the Applicant’s Examination and covered these issues up. Multiple class members, both male and female, were subjected to inappropriate and unnecessary procedures, assault, and battery, including sexual assault and battery. Nonetheless, RCMP employees continued to send class members to Designated Physicians who they knew or ought to have known were harming class members during the applicant’s examination.

[26] The Statement of Claim alleges that the Defendant was negligent by failing to provide Ms. Corriveau, and other Class Members, with an “Applicant’s Examination free of sexual assault and battery, and inappropriate and unnecessary procedures.”

[27] Ms. Corriveau states that the RCMP had a duty of care to those who were obligated to participate in a process fully controlled by the RCMP that included a mandatory medical examination (Applicant’s Examination) by a doctor chosen by the RCMP (Designated Physician). She argues that the RCMP breached its duty of care when it failed to establish, update, and enforce appropriate policies regarding the Applicant’s Examination and when it failed to investigate complaints of inappropriate conduct of Designated Physicians.

[28] Although the claims are made against the RCMP, the Attorney General of Canada is the appropriate Defendant by virtue of section 36 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 [Crown Liability and Proceedings Act]. The Plaintiff also alleges vicarious liability of the Crown on the basis of sections 3 and 10 of the Crown Liability and Proceedings Act.

[29] The systemic negligence claim is based upon the assertion that the RCMP created and maintained a recruitment process that put applicants at risk, and that the RCMP continued with the process even after it had knowledge of inappropriate conduct by Designated Physicians. Courts have recognized "systemic negligence" claims in Davidson v Canada (Attorney General), 2015 ONSC 8008 at para 25 [Davidson] and Rumley v British Columbia, 2001 SCC 69 at para 30 [Rumley]. Similarly, claims of systemic harassment within the RCMP were found to meet the cause of action requirement in Merlo v Canada, 2017 FC 51 [Merlo] and Tiller v Canada 2019 FC 895 [Tiller].

[30] Accepting the facts contained in the Statement of Claim, I am satisfied that a reasonable cause of action has been established pursuant to Rule 334.16(1)(a).

Identifiable Class

[31] In order to establish an identifiable class, the Court in Wenham at paragraph 69 states “all that is required is ‘some basis in fact’ supporting an objective class definition that bears a rational connection to the common issues and that is not dependent on the outcome of the litigation" (citing Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46 at para 38 [Western Canadian Shopping Centres] and Hollick v Toronto (City), 2001 SCC 68 at paras 19 and 25 [Hollick]).

[32] In Pro-Sys Consultants, the Supreme Court of Canada confirmed (at para 108) that it is not necessary for class members to be identically situated but all class members must benefit from the successful prosecution of the action.

[33] The Plaintiffs' proposed class is defined as follows:

1. all persons who underwent an Applicant’s Examination by a Designated Physician (the “Class”);

2. all individuals who are entitled to assert a claim pursuant to the Family Law Act, R.S.O. 1990, c. F. 3, and equivalent or comparable legislation in other provinces and territories (the “Family Class”); and

3. excluded from the Class are individuals whose Applicant’s examination occurred when they were members of the Class certified in Janet Merlo and Linda Gillis Davidson v Her Majesty the Queen, court file T-1685-16 or Tiller v Her Majesty the Queen, Court File T-1673-17 and individuals who are or where, at the time of their Applicant’s Examination, able to grieve under s. 208 of the Federal Public Sector Labour Relations Act, SC 2003, c 22 s. 2.

[34] Pierre Lebrun, who is currently the RCMP Executive Liaison Officer to Veterans Affairs Canada, has provided an Affidavit with information from internal records regarding RCMP personnel who were required to undergo Applicant’s Examinations and the potential scope and size of the proposed class membership.

[35] At paragraph 23 of his Affidavit Mr. Lebrun states as follows:

I am informed by the Occupational Health and Safety branch through Natacha Lamontagne that the categories of RCMP personnel who are or were required to undergo Applicant’s Examinations have included the following:

a) All Regular Members;

b) From January 1979 to March 15, 1996 all civilian members (CMs);

c) From May 16, 1996 to June 1, 2016, CMs who are or were classified as set out in the chart in the next paragraph;

d) Special Constable members;

e) From February 20, 2014 to the present, Public Service Employees (PSEs) who are or were classified as set out in the next paragraph;

f) Reservists if they join the RCMP from an external police force; and

g) Cadets from 1994 onwards.

[36] At paragraphs 46 to 51 of his Affidavit, Mr. Lebrun describes the search conducted through the RCMP Human Resources Management Information System records and the predecessor human resource tracking system (PARADE) to determine the number of potential class members. Based on that information, the number of potential class members is approximately 41,339 people.

[37] However, as noted by the Plaintiff, the RCMP human resource tracking systems do not include information on those who did not join the RCMP but nonetheless underwent an Applicant’s Examination. Accordingly, the potential class number may be higher.

[38] Ms. Corriveau states in her Affidavit that she has spoken to approximately 20 potential class members. Ms. Gallo in her Affidavit states that she has spoken to approximately 100 potential class members.

[39] Based upon this information, I am satisfied that the class members are rationally connected to the common questions. Further, I am also satisfied that it is appropriate to include the family class identified in the proposed class definition.

[40] The class definition excludes those who were entitled to compensation under the Merlo or the Tiller class actions. However, it is important to note that in order to be entitled to compensation in the Merlo action class members had to be female and a current or former employee of the RCMP. The class definition here includes both male and female claimants. Similarly, the Class definition recognizes that as the examination took place as part of the employment application process, those affected were not employees or members of the RCMP at the relevant time and therefore outside the definition of the Class in Merlo.

[41] The class definition meets the requirements of Rule 334.16(1)(b) and the Plaintiff has satisfied the "identifiable class" requirement of the certification criteria.

Common Questions

[42] In Vivendi Canada Inc v Dell'Aniello, 2014 SCC 1 at para 46 [Vivendi], the Supreme Court of Canada explained that:

… a question will be considered common if it can serve to advance the resolution of every class member's claim. As a result, the common question may require nuanced and varied answers based on the situations of individual members. The commonality requirement does not mean that an identical answer is necessary for all the members of the class, or even that the answer must benefit each of them to the same extent. It is enough that the answer to the question does not give rise to conflicting interests among the members.

[43] In Vivendi, at para 72, the Supreme Court of Canada confirmed that “the threshold that must be met to find that there are common questions is a low one”. Similarly, Courts should take a purposive approach in assessing common issues (Pro-Sys Consultants at para 108). However, there must be some evidentiary basis or "some basis in fact" demonstrating that common issues exist beyond a bare assertion in the pleadings (Hollick at para 25).

[44] The Plaintiff proposes the following common questions:

Negligence

• 1) Did the RCMP, through its agents, servants and employees owe a duty or duties of care to the plaintiff and other Class Members to take reasonable steps to provide an Applicant’s Examination free of inappropriate and/or unnecessary procedures, assault and battery, including sexual assault and sexual battery?

• 2) If yes, what was the applicable standard or standards of care? Was there a breach of this duty or duties by the RCMP through its agents, servants and employees?

• 3) If yes, is the Crown vicariously liable for the failure of its agents, servants and employees at the RCMP to take reasonable steps to provide an Applicant’s Examination free of inappropriate and/or unnecessary procedures, assault and battery, including sexual assault and sexual battery?

Designated Physicians

• 4) Do the RCMP’s servants, agents or employees include Designated Physicians?

Damages

• 5) Can the Court make an aggregate assessment of any damages as part of the common issues trial? If so, to whom and in what amount?

• 6) Does the RCMP’s conduct through its servants, agents or employees justify an award of aggravated, exemplary, and/or punitive damages? If so, to whom and in what amount?

[45] It is undisputed that the Applicants Examination was a mandatory step in the RCMP application process. It is also undisputed that the RCMP selected the Designated Physician and made all the arrangements for the medical examination. In my view, these facts are a sufficient “basis in fact” to support common questions 1 and 2.

[46] The answer to questions 3 and 4 are related to the resolution of questions 1 and 2 and the answers will be applicable to all class members.

[47] Although the answers to questions 5 and 6 relating to damages is less certain in terms of commonality among class members, at this time, I am satisfied the questions have “some basis in fact” so as to meet the common question threshold.

[48] Overall, I am satisfied that the common question objective as required by Rule 334.16(1)(c) is met here.

Preferable Procedure

[49] The factors relevant to determining if a class proceeding is the preferable procedure are set out in Rule 334.16(2) of the Federal Courts Rules as follows:

[50] With respect to Rule 334.16(2)(a), and as noted above in the common question analysis, a determination of the legal duties owed by the RCMP to the members of the class in these particular circumstances is a necessary precondition to the determination of any claim for compensation. Therefore, the common questions take precedence over any individual questions that may arise. I am satisfied that a common issues trial could effectively respond to the majority of the issues arising from these claims.

[51] On Rule 334.16(2)(b), I would note that there is no evidence that others have sought or seek to bring a similar claim.

[52] In my view, the objectives of Rule 334.16(2)(c), (d) and (e) are also satisfied. It is likely that the common issues will be best served through litigation on a class basis and not through multiple individual actions. The risk of double recovery is addressed as the proposed Class excludes those who were eligible under the Merlo and Tiller actions.

[53] Those who were assaulted but who were not eligible to claim under the Merlo settlement because they were not members of the RCMP at the time of the examination, or because they are men, are included in the above Class definition. With respect to internal mechanisms for resolution of claims, as the conduct at issue here occurred pre-employment, there may not have been any internal RCMP processes or other means to respond to claims.

Appropriateness of the Representative Plaintiff

[54] The Plaintiff, Sylvie Corriveau, is a Civilian Member of the RCMP and currently serves as the Officer-in-Charge at the Operational Communications Centre, National Support Services.

[55] Ms. Corriveau began her career with the RCMP in 1989. Prior to being hired with the RCMP, she was required to undergo an Applicant’s Examination. In the Statement of Claim she details her experience of assault and sexual abuse by the Designated Physician.

[56] As stated in Western Canadian Shopping Centres at paragraph 41:

… in assessing whether the proposed representative is adequate, the court may look to the motivation of the representative, the competence of the representative’s counsel, and the capacity of the representative to bear any costs that may be incurred by the representative in particular (as opposed to by counsel or by the class members generally). The proposed representative need not be “typical” of the class, nor the “best” possible representative.

[57] Historically, Ms. Corriveau has attempted to address the issues raised here within the RCMP and through the Metropolitan Toronto Police Service and the College of Physicians and Surgeons of Ontario without any resolution. I am satisfied that she does not have interests in conflict with the class on the common issues and she is a suitable representative plaintiff.

[58] I am therefore satisfied that Sylvie Corriveau will fairly and adequately represent the interests of the class.

Litigation Plan

[59] The litigation plan contains the essential ingredients for the next steps in this matter including a communication plan, a notice program, plans with respect to oral and documentary discovery, retention of experts, and the assessment of damages.

[60] As noted in Wenham, courts must recognize that litigation plans are a work in progress, they are "not cast in stone" and they can be amended as the litigation proceeds (Wenham at para 103).

[61] In my view, the Plaintiff has provided a reasonable and practical Litigation Plan. The parties have also agreed to a Notice Program, which sets out multiple mechanisms for distributing the Notice to potential Class Members. The plan also provides appropriate opting out steps and confidentiality provisions. The Defendant has agreed to cover the costs of the Notice Program.

[62] With respect to legal fees, Ms. Corriveau confirms her agreement with legal counsel, Kim Spencer McPhee Barristers P.C., that they will only be paid fees if there is a settlement or successful judgment on the common issues that benefits one or more members of the Class. Ms. Corriveau is not obliged to fund any disbursements or taxes as the matter proceeds. Finally, any legal fees will be subject to Court Approval.

[63] In addition to the above, I am satisfied that certification of this action will heighten awareness and assist in behaviour modification and facilitate access to justice (AIC Limited v Fischer, 2013 SCC 69 at para 22).

Conclusion

[64] For the reasons outlined above, I grant the Motion and order that this matter be certified as a Class Proceeding.

ORDER IN T-138-19

THIS COURT ORDERS that:

1. ThisactioniscertifiedasaclassproceedingagainsttheDefendant,HerMajestytheQueen.

2. TheClassis definedas:

1. allpersonswhounderwentanApplicant’sExaminationbya DesignatedPhysician (the“Class”);

2. allindividualswhoareentitledtoassertaclaimpursuanttotheFamilyLawAct, R.S.O.1990,c.F.3,andequivalentorcomparablelegislationinotherprovincesandterritories(the “Family Class”);and,

3. excluded from the Class are individuals whose Applicant’s Examination occurredwhen they were members of the Class certified in Janet Merlo and Linda GillisDavidson v Her Majesty the Queen, Court File T-1685-16 or Tiller v Her MajestytheQueen,CourtFileT-1673-17andindividualswhoareorwere,atthetimeoftheir Applicant’s Examination, able to grieve under s. 208 of the Federal Public SectorLabourRelationsAct,SC2003,c22,s2.

3. SylvieCorriveauisappointedastheRepresentativePlaintifffortheClass;

4. KimSpencerMcPheeBarristersP.C.isappointedcounselfortheClass(“Class Counsel”);

5. TheClassclaimsthefollowingrelief:

• (a) Generaldamages(plusdamagesequaltothecostsofadministeringtheplan of distributionoftherecoveryinthisaction);

• (b) Lossofincome;

• (c) Specialdamages;

• (d) Exemplaryandpunitive damages;

• (e) Damagespursuant tothe FamilyLaw Act,RSO1990,c.F-3 andequivalent or comparable legislationinotherprovinces andterritories;

• (f) Pre-judgmentand post-judgmentinterest;and

• (g) Costsofthisaction;

6. Theplaintiff’sLitigationPlanisapprovedintheformattachedasSchedule“A”tothis Order.

7. ThecommonissuesattachedtothisOrderasSchedule“B”arecertifiedascommonissues.

8. The Notice of Certification as a Class Proceeding, substantially in the form and contentattached to this Order as Schedule “C” is approved (the “Certification Notice”). TheCertificationNoticeshallbeavailableinbothFrenchandEnglish.

9. TheCertificationNoticewillbedistributedsubstantiallyinthemannersetoutintheNoticeProgramsetoutintheLitigationPlan.

10. DewarCommunicationsInc.isappointedasNoticeAdministratortoadministertheNoticeProgram.

11. ThecostsofeffectingNoticeofcertificationshallbepaidbytheDefendant.

12. ForthepurposeoffacilitatingtheNoticeProgram,theRCMPandotherfederalgovernmentdepartmentsandagencieswhoarereasonablyexpectedtohaverelevantnamesand contact information shall make reasonable efforts to identify and provide to DewarCommunications Inc. the names and last known address or other last known contactinformationoftheClassMembers,exceptwheredisclosureofsuchinformationisprohibitedbylaw.

13. TheformandmannerofprovidingNoticeofcertificationasapprovedinparagraphs8 and 9 represents fairandreasonablenoticetoall personsentitledtoNoticeofcertification.

14. TheOpt-Outform,substantiallyintheformandcontentattachedtothisOrderasSchedule “D”isapproved.

15. A member of the Class may only opt out of this class proceeding by sending a signed,written election to opt out to the address set out in the Certification Notice. Notice of thedecision to opt out must be received by Dewar Communications Inc. as set out in theCertificationNoticewithin90daysofthedateofthelatestpublicationoftheCertificationNoticeinthenewspaperssetoutinSchedule“E”.

16. IfaClassMemberoptsoutofthisclassproceeding,theirFamilyClassMembersshallalso bedeemedtohaveoptedout.No person may opt out a minor or a mentally incapable Class Member without thepermission of the Court after notice to the Children’s Lawyer or Public Guardian andTrustee,asapplicabletoClassMembersresidentinOntario,andtocomparableorequivalent entities in the other provinces and territories as applicable to Class Membersresidentinotherprovincesandterritories.

17. Dewar Communications Inc. will serve on the parties and file with the Court an affidavitstating the date upon which the Certification Notice is published and attaching a list of all persons who have opted out of the class proceeding in accordance with this Order, within 30daysoftheopting-outdeadline.

18. The affidavit referred to in paragraph 18 shall be filed under seal so that the identities ofthoseindividualselectingtooptoutofthisproceedingarenotaccessibletothepublic.

19. No other class proceeding may be commenced with respect to the matters in issue in thisactionabsentleaveofthisCourt.

20. This Class Proceeding excludes claims that are covered under Merlo v Her Majesty theQueen, Federal Court File No. T-1685-16, and Tiller v Her Majesty the Queen, FederalCourtFileNo.T-1673-17.

21. No costs are payable on this motion for certification.

"Ann Marie McDonald"

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	T-138-19
STYLE OF CAUSE:	SYLVIE CORRIVEAU v HER MAJESTY THE QUEEN
PLACE OF HEARING:	held by videoconference between TORONTO, ONTARIO, EDMONTON, ALBERTA, and Fredericton, New Brunswick
DATE OF HEARING:	MARCH 24, 2021
ORDER AND reasons:	MCDONALD J.
DATED:	MARCH 26, 2021

APPEARANCES:

Won Kim Megan B. McPhee Aris Gyamfi Rachel Sider	FOR THE PLAINTIFF
Bruce Hughson Deborah Babiuk-Gibson	FOR THE DEFENDANTENF

SOLICITORS OF RECORD:

Kim Spencer McPhee Barristers P.C. Toronto, Ontario	for the plaintiff
Attorney General of Canada Department of Justice Canada Prairie Region Edmonton, Alberta	FOR THE defendant