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Megan McPhee, Kim Spencer McPhee

Ottawa asks top court to shut down $1.1-billion class action in RCMP ‘systemic bullying’ test case

Wednesday, December 01, 2021 @ 12:01 PM | By Cristin Schmitz

The federal government is asking the Supreme Court of Canada to kybosh a $1.1-billion workplace bullying class action against the RCMP that could inspire — if it succeeds — negligence claims for workplace harassment by non-unionized workers in private industry across Canada. 

On Nov. 22 — the last day Ottawa could seek leave to appeal — the government asked the top court to hear the Attorney General of Canada’s appeal of the approval by the federal courts’ below of the certification of the novel class action which seeks damages, including punitive damages, for the RCMP’s allegedly negligent and systemic failure since 1995 to provide a workplace free from (non-sexual) “bullying, intimidation and harassment,” and for alleged reprisals against those who complained: Greenwood v. Canada 2020 FC 119.

The plaintiffs estimate that there are now 50,000 people in the class, which was pared down from at least 200,000 by the Federal Court of Appeal: R. v. Greenwood 2021 FCA 186.

The federal Crown argues that the test case is of public importance, thus warranting the top court’s attention on several grounds, including to address a legal issue which has divided appellate courts, i.e. whether there exists, or legally should exist, a tort in negligence for workplace harassment. 

“The implications will extend well beyond the particular context of workplace harassment claims involving the RCMP,” the attorney general states in his memorandum of argument filed at the Supreme Court of Canada.

Megan McPhee, Kim Spencer McPhee

Won Kim of Toronto’s Kim Spencer McPhee, who with Megan McPhee represents the plaintiffs, described the case as “cutting edge” and potentially “landmark.”

“It really addresses basics of the workplace, and whether we can use class action legislation and case law to advance redress for systemic harassment in the workplace,” he told The Lawyer’s Daily.

McPhee said the case marks the first time a class action asserting workplace harassment and bullying has gone forward on a contested basis. “This model may be useful going forward for other non-unionized work settings,” she suggested.

McPhee noted that RCMP members are uniquely situated in several respects. “Until very recently, they were prohibited from forming a union,” she explained. “They are also statutory office holders and not employees, and are therefore not covered by written, or unwritten, [employment] contracts.”

As a result, the Federal Court of Appeal noted in last September’s decision upholding the certification of the class action that RCMP members cannot avail themselves of contractual remedies.

“The vulnerability of their situation is further compounded by the paramilitary nature of the organization, where chain of command is paramount, and those who speak out are often punished,” McPhee observed.

McPhee said she sees a contradiction in the fact that “the Crown is seeking leave to appeal, in part, on the basis that it has adequate systems in place to deal with harassment” yet a Nov. 22 statement issued by RCMP commissioner Brenda Lucki “promotes the change initiatives the force is making — confirming change is necessary.”

The RCMP commissioner’s prepared statement Nov. 22 said the government wants to “obtain clarity on whether the courts should certify a class action relating to workplace disputes when there are already administrative resolution processes in place.”

Lucki cited “a range of comprehensive administrative mechanisms” implemented by the government to deter, detect, investigate, correct and provide compensation to RCMP employees for workplace disputes, including harassment complaints. “Compensation for any workplace injury is administered and evaluated independently of the RCMP under the Pension Act for regular and civilian members and the Government Employees Compensation Act for public service employees,” Lucki said.

The RCMP’s commissioner stated that the RCMP “has made an ongoing effort to address harassment in our organization. In response to several RCMP and government commissioned reports and recommendations, we have implemented numerous policy and program change initiatives to create a more respectful, inclusive and diverse workplace. ... One of our most recent initiatives is the creation of a centralized, independent unit responsible for matters relating to the resolution and prevention of harassment and violence occurrences within the RCMP; the Independent Centre for Harassment Resolution was launched on June 30, 2021, that includes a new support services unit to enhance the support provided to employees, victims and survivors of workplace harassment and violence.”

But McPhee said that despite the government stating, repeatedly over the years that “there is no room for harassment, bullying and intimidation” in the RCMP, “it then places the onus on employees to come forward and speak out in an environment where, government report after government report has recognized, there is a pervasive fear of retaliation and an ineffectual complaint resolution system.”

She said “this has been borne out by our clients’ experiences. Harassment complaints, generally made against management, are also investigated and overseen by management without recourse to independent adjudication. The RCMP cannot truly say it is committed to a safe and respectful work environment while it continues to fight these cases instead of compensating its injured members and fixing its internal system and culture.”

Kim and McPhee were part of the successful team of class counsel which settled in 2016 the Merlo-Davidson class action against Ottawa for the widespread sexual harassment, and gender- and sexual-orientation-based systemic discrimination, bullying and harassment of female RCMP employees since 1974.

A year ago former Supreme Court of Canada Justice Michel Bastarache, the independent assessor who with two other former judges assessed more than 3,000 claims under the Merlo-Davidson Settlement Agreement, issued his final report on the settlement’s implementation, titled, Broken Dreams Broken Lives: The Devastating Effects of Sexual Harassment on Women in the RCMP.

His 2020 report deplores the RCMP’s approach to harassment and abuse within its ranks, concluding that the organization “has a toxic culture which has proved intractable to change. ... Despite some improvement, neither legislative changes nor administrative reforms have succeeded in eliminating the toxic aspects of a culture deeply embedded in the RCMP.”

The certification of the Greenwood class action in Federal Court, as approved and modified by the Federal Court of Appeal, covers claims by RCMP members and reservists for allegedly systemic “non-sexual” bullying, intimidation and harassment in RCMP workplaces, and reprisals, between Jan. 1, 1995, and the dates collective agreements come (or came into) force for them.

(Systemic negligence claims for sexual harassment were encompassed by the settled class proceedings in Merlo v. Canada 2017 FC 533, Tiller v. Canada 2019 FC 895, and Ross v. The Queen T-370-17, in which the Federal Court certified class proceedings against the RCMP for workplace sexual harassment, and harassment based on sexual orientation, following the consent of the Crown to the certification orders for the purposes of settlement.)

In Greenwood, the federal Crown argued that the systemic negligence claim had no reasonable prospect of success and that the Federal Court erred in finding there exists a reasonable cause of action in negligence related to workplace harassment, and in presuming that different requirements apply to a claim framed as systemic negligence, and in finding that the alleged class-wide duty of care is sustainable at law.

The Crown pointed to Piresferreira v. Ayotte 2010 ONCA 384, Colistro v. Tbaytel 2019 ONCA 197 and Merrifield v. Canada (Attorney General) 2019 ONCA 205 (Merrifield #2). The Ontario Court of Appeal held that Canadian law does not recognize the tort of harassment; no recovery lies in tort for the negligent infliction of mental suffering in the employment context; and there is no tort of harassment.

For the three-judge panel at the Federal Court of Appeal in Greenwood, Justice Mary Gleason agreed with the Crown that a claim in negligence for workplace harassment — whether brought on an individual or systemic basis — is liable to being struck when it is brought by, or on behalf of, those governed by written or unwritten contracts of employment since remedies available to employees in contract law militate against the recognition of the existence of a duty of care to take reasonable steps to prevent workplace harassment.

However, the holding in Piresferreira does not apply to RCMP members as they are statutory office holders, not employees, and they have no contractual remedies available in employment law, Justice Gleason said. Thus the policy reasons which led the Ontario Court of Appeal to decline to extend a duty of care in negligence to prevent workplace harassment in Piresferreira “do not pertain to RCMP members,” Justice Gleason said.

Moreover, she added, Merrifield #2 “left the door open to the recognition of a new tort of workplace harassment in an appropriate case (para. 53).”

As well, while the class actions certified in Merlo, Tiller et al. were decided in the context of the federal Crown’s consent to the issuance of certification for the purposes of settlement, “the Federal Court needed to be satisfied that it was not plain and obvious that the claims disclosed no cause of action before it could approve the settlements,” Justice Gleason pointed out. “Presumably, a similar view would have been required for the Crown to have agreed to the settlements on a principled basis,” said Justice Gleason, who practised labour and employment law before joining the federal bench.

The Federal Court of Appeal panel concluded that it could not be said that it was “plain and obvious” that there is no cause of action in negligence for workplace harassment experienced by an RCMP member.

In a multipronged leave to appeal application to the Supreme Court of Canada, the federal Crown argues the public importance of the questions whether the law should recognize a tort in negligence for workplace harassment and, if it should, whether this should be limited to non-unionized federal public-sector workers. “In addition to noting a conflict in the appellate jurisprudence, the Federal Court of Appeal based its conclusion that non-unionized class members had a reasonable cause of action in negligence mainly in the absence of a contract of employment,” the Crown argues its written argument filed with the top court. “In doing so, the court failed to consider whether the availability of statutory recourse regimes made to the redefined class would negate a prima facie duty of care at the second stage of the Anns test. ... The questions of whether these, and other, policy reasons might dispatch the need for the law to recognize a new tort, and whether the negligence claim in this case engaged the core policy-making functions of the legislation and executive branches, are ripe for determination.”

The Crown also urges the importance of the case on the basis that the courts below effectively displaced Vaughan v. Canada, 2005 SCC 11 — which the Crown said established that where Parliament has provided for a specialized administrative regime for the resolution of workplace disputes, the role of the courts is limited to exercising exceptional jurisdiction in individual cases.

“By creating a blanket and class-wide exception to this deferential posture, the court below effectively displaces Vaughan, vastly expanding the reach of the courts into the everyday workplace disputes of non-unionized employers,” asserts the Crown. “The implications will extend well beyond the particular context of workplace harassment claims involving the RCMP; making courts available for the adjudication of all manner of workplace disputes on a negligence standard. As this impact engages the interests of employers and employees well beyond the RCMP, leave should be granted.”

With respect to the RCMP’s acknowledged culture of sexual harassment, and harassment on the basis of sexual orientation, Bastarache’s 178-page final report last year called for an “in depth, external and independent review of the organization and future of the RCMP as a federal policing organization.”

“For the last 30 years issues of workplace and sexual harassment and discrimination have been brought to the attention of the Government of Canada and the RCMP through internal reports, external reports and litigation before the courts,” Bastarache wrote. “The measures taken in response have not, in my view, succeeded in addressing the underlying issues arising from the RCMP’s toxic culture. Indeed, based on my review of former reports and litigation and conversations with 644 women, I am not convinced that positive cultural change can occur without external pressure.”

Bastarache also said it was “impossible to fully convey the depth of the pain” that he and his fellow assessors witnessed in the 644 interviews that were conducted, and 3,086 claims that were assessed. “What the women told the Assessors shocked them to their core,” he said. “This process has forever tarnished the image of the RCMP as a Canadian icon,” he wrote. “Bright, well-educated women said that they joined the RCMP seeking to help others, sometimes because they themselves had needed help as a young person. They told the Assessors of the brutal treatment they experienced which ground them down, broke their confidence, and shattered their trust in their fellow officers. The full tragedy and suffering of what the RCMP’s failure to provide a safe workplace has done to these women is overwhelming.”

Bastarache concluded in his final report, “based on everything I was told over the past three years, that the culture of the RCMP is toxic and tolerates misogyny and homophobia at all ranks and in all provinces and territories. ... This culture does not reflect the stated values of the RCMP, and it is found throughout the organization. RCMP members and officers are forced to accept that they must function in the context of this culture to succeed. RCMP employees appear to blame the ‘bad apples’ without recognizing the systemic and internal origins of this conduct.”

The final Bastarache report indicates 2,304 women were compensated, and 782 claims were denied. In all, $125,266,500 was paid to claimants.

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