2021 FCA 186, 2021 FCA 186

A-42-20 2021 FCA 186 Her Majesty the Queen ( Appellant ) v. Geoffrey Greenwood and Todd Gray ( Respondents ) Indexed as: Canada v. Greenwood Federal Court of Appeal, Webb, Near and Gleason JJ.A.—By videoconference, January 21; Ottawa, September 21, 2021.

Practice — Class Proceedings — Appeal from amended certification order whereby Federal Court certified class proceeding on behalf of class consisting of everyone who has worked for or with Royal Canadian Mounted Police ( RCMP ) or at RCMP premises, regardless of whether they were members or employees of RCMP or employed in public service, assigned to work with RCMP — R epresentative plaintiffs seeking damages for non-sexual bullying, intimidation, harassment, related reprisals suffered by those raising complaints — Five common questions certified — Representative plaintiffs provided reports documenting existence of workplace culture permitting bullying, harassment within RCMP , dysfunctional grievance process — Federal Court not convinced internal dispute resolution processes within RCMP providing effective remedy for claims sought — Examining criteria set out under Federal Courts Rules , r. 334.16(1) — Determining that pleadings disclosing reasonable cause of action — Federal Court satisfied that class proceeding preferable procedure to address class members’ claims — Appellant submitting that Federal Court erred in relying on reports, assuming jurisdiction, declining to follow Vaughan v.

Canada, Bisaillon v.

Concordia University — Main issues whether Federal Court erring in its choice of evidentiary standards, use of reports; in assuming jurisdiction; in finding that negligence claim disclosed reasonable cause of action; in finding some basis in fact for scope of class certified, for common questions it certified — Federal Court not erring in considering reports — Although erring in mentioning reports as providing necessary evidence to support reasonable cause of action, it did not premise its determination on this evidence — Federal Court’s mention of reports only made in passing, reliance thereupon only in respect of jurisdictional issue, final four criteria for certification — Federal Court not committing reviewable error in accepting jurisdiction — Erring in failing to set limits on class period in respect of RCMP members, reservists — Evidence before Federal Court not supporting class period commencing prior to 1995 — Federal Court further erring in assuming jurisdiction over a class period extending beyond 2019 (when trade union certified to represent many RCMP members, reservists) — Not plain, obvious no cause of action in negligence for workplace harassment experienced by RCMP member — While claim in negligence for workplace harassment liable to be struck when brought by or on behalf of those governed by written or unwritten contracts of employment, no employment contract applying to RCMP members — RCMP members statutory office holders, not employees — First criterion for certification met — Federal Court erring in including non-employees, non-indeterminate public service employees in class it certified — Erring in certifying fourth common question (whether Court can make aggregate assessment of any damages as part of common issues trial) — No basis in fact for fourth question in respect of narrower class of RCMP members, reservists over class period — C ertification order set aside, remitted to Federal Court to delete fourth common question, amend class definition — Appeal allowed in part.

Federal Court Jurisdiction — Federal Court certifying class proceeding on behalf of class consisting of everyone who has worked for or with Royal Canadian Mounted Police ( RCMP ) or at RCMP premises, regardless of whether they were members or employees of RCMP or employed in public service, assigned to work with RCMP — R epresentative plaintiffs seeking damages for non-sexual bullying, intimidation, harassment, related reprisals suffered by those raising complaints — Five common questions certified in amended certification order — Appellant submitting Federal Court erred in assuming jurisdiction, declining to follow Vaughan v.

Canada, Bisaillon v.

Concordia University, other cases, wherein courts declined to hear workplace claims from plaintiffs subject to Federal Public Sector Labour Relations Act or to collective agreement — Whether Federal Court erred in assuming jurisdiction — Federal Court not committing reviewable error in accepting jurisdiction over claims of RCMP members, reservists — While courts ought not intervene in field of labour relations where specialized tribunals established by legislators for settlement of disputes, e xception to this general rule allowing courts to hear claims if internal mechanisms incapable of providing effective redress — Open to Federal Court to have made factual determination that internal recourse mechanisms available to RCMP members, reservists ineffective — Under Vaughan, this finding provided allowable basis for Federal Court to accept jurisdiction.

RCMP — Federal Court certifying class proceeding on behalf of class consisting of everyone who has worked for or with Royal Canadian Mounted Police ( RCMP ) or at RCMP premises, regardless of whether they were members or employees of RCMP or employed in public service, assigned to work with RCMP — R epresentative plaintiffs seeking damages for non-sexual bullying, intimidation, harassment, related reprisals suffered by those raising complaints — Federal Court not committing reviewable error in accepting jurisdiction — Open to Federal Court to have made factual determination that internal recourse mechanisms available to RCMP members, reservists ineffective — However, Federal Court e rring in failing to set limits on class period in respect of RCMP members, reservists — Evidence before Federal Court not supporting class period commencing prior to 1995 — Federal Court further erring in assuming jurisdiction over a class period extending beyond 2019 (when trade union certified to represent many RCMP members, reservists) .

Crown — Torts — Negligence — Federal Court certifying class proceeding on behalf of class consisting of everyone who has worked for or with Royal Canadian Mounted Police ( RCMP ) or at RCMP premises, regardless of whether they were members or employees of

RCMP or employed in public service, assigned to work with RCMP — R epresentative plaintiffs seeking damages for non-sexual bullying, intimidation, harassment, related reprisals suffered by those raising complaints — Not plain, obvious no cause of action in negligence for workplace harassment experienced by RCMP member — While claim in negligence for workplace harassment liable to be struck when brought by or on behalf of those governed by written or unwritten contracts of employment, no employment contract applying to RCMP members — RCMP members statutory office holders, not employees.

This was an appeal from an amended certification order whereby the Federal Court certified a class proceeding on behalf of a class consisting of everyone who has ever worked for or with the Royal Canadian Mounted Police ( RCMP ) or at RCMP premises, regardless of whether they were members or employees of the RCMP or employed in the public service and assigned to work with the RCMP .

In their underlying action, the representative plaintiffs seek damages for non-sexual bullying, intimidation and harassment, which they allege is systemic in RCMP workplaces, and for related reprisals suffered by those who have raised complaints. The class certified by the Federal Court includes all persons who worked with or for the RCMP such as regular members, civilian members and special constables, public service employees, temporary civilian employees, community constables, auxiliary constables, and cadets. The Federal Court certified five common questions.

The appellant alleged that the Federal Court erred in certifying this class and in its application of each of the criteria for certification. The representative plaintiffs provided a number of reports documenting the existence of a workplace culture that permitted bullying and harassment to occur within the RCMP as well as a dysfunctional grievance process that failed to respond adequately to complaints of harassment.

The Federal Court was not convinced that the internal dispute resolution processes within the RCMP would provide an effective remedy for the claims sought to be advanced through the class proceeding. It further held that the reports supported the allegations that there were widespread and pervasive systemic issues with the internal dispute resolution processes within the RCMP . It therefore declined to defer to such processes for the resolution of class members’ claims.

Turning to the five criteria set out under subsection 334.16(1) of the Federal Courts Rules ( Rules ) that must be met for certification to be available, the Federal Court determined that the pleadings disclosed a reasonable cause of action. Regarding the identifiable class requirement, the Federal Court held that all class members shared characteristics of professional involvement with the RCMP and being subject to its internal policies, which bore a rational connection to the systemic negligence claim.

The Federal Court went on to find that the common issues would serve to advance the resolution of each class member’s claim. It was also satisfied, after examining the factors set out in subsection 334.16(2) of the Rules (i.e., the goals of judicial economy, behaviour modification and access to justice), that the class proceeding was the preferable procedure to address the class members’ claims.

The appellant submitted that the Federal Court erred in law in confusing the evidentiary standards for determination of the initial jurisdictional question; its admission of and reliance on the reports in respect of the jurisdictional and cause of action requirements; assuming jurisdiction; and finding that the negligence claim had a reasonable prospect of success. The appellant argued that the Federal Court erred in declining to follow Vaughan v. Canada , Bisaillon v.

Concordia University and several other cases where courts have declined to hear workplace claims from plaintiffs subject to the Federal Public Sector Labour Relations Act (or the predecessor version of that statute) or to a collective agreement governed by other labour legislation.

The main issues were whether the Federal Court erred: in its choice of evidentiary standards and in its use of the reports; in assuming jurisdiction; in finding that the negligence claim disclosed a reasonable cause of action; and in finding that there was some basis in fact for the scope of the class certified and for the common questions it certified. Held , the appeal should be allowed in part. The Federal Court did not make a reviewable error of law in its consideration of the reports.

Although it did erroneously refer to them as “provid[ing] the necessary evidence to support a reasonable cause of action”, which was an error because no evidence may be considered on the issue of whether there is a reasonable cause of action, it did not premise its determination on this evidence but rather centred its analysis on whether, as a matter of law, the pleadings disclosed a cause of action.

The Federal Court’s mention of the reports was only made in passing and it relied on them only in respect of the jurisdictional issue and the final four criteria for certification, not in respect of the cause of action requirement. Evidence similar to the reports has frequently been relied on in certification matters to support that there is some basis in fact for the final four criteria for certification. The Federal Court thus did not err in admitting and relying on the reports in consideration of the final four criteria.

Given this, there was no error in the Federal Court’s likewise consideration of the reports on the jurisdictional issue. The Federal Court did not commit a reviewable error in accepting jurisdiction over the claims made on behalf of RCMP members and reservists, but did err in failing to set limits on the class period in respect of this group. The Federal Court’s decision to accept jurisdiction over the claims advanced by the representative plaintiffs was a discretionary one. The Federal Court premised its assumption of jurisdiction on the inefficacy of the recourse mechanisms available to class members.

The rationale underpinning Vaughan and the line of cases that rely on Vaughan involves the recognition by the courts that they ought not intervene in the field of labour relations, where specialized tribunals have been established by legislators for settlement of disputes. Vaughan holds that claims from employees subject to federal public sector labour legislation in respect of matters that are not adjudicable before the Federal Public Sector Labour Relations and Employment Board should not be heard by the courts.

However, an exception to this general rule allows courts to hear claims that may only be grieved under internal grievance mechanisms if the internal mechanisms are incapable of providing effective redress. There is nothing in Bisaillon that detracts from these principles. It was open to the Federal Court to have made the factual determination that the internal recourse mechanisms available to RCMP members and reservists were ineffective for a portion of the class period set by the Federal Court.

Under Vaughan and its progeny, this finding provided an allowable basis for the Federal Court to have accepted jurisdiction over their claims for a portion of the class period. In terms of the commencement date of this period, the evidence that was before the Federal Court was incapable of supporting a class period commencing prior to 1995. The reports all post-date 1995 by several years, the earliest one having been published in 2007. The Federal Court accordingly made a palpable and overriding error in allowing the class period to commence earlier than 1995.

The Federal Court further erred in that, in 2019, a trade union had been certified to represent many RCMP members and reservists. Given the sea change in members’ vulnerability that comes with unionization and the concomitant ability of a trade union to negotiate protections in respect of and seek redress for workplace harassment, intimidation and bullying, the Federal Court erred in assuming jurisdiction over a class period extending beyond the date a collective agreement comes or came into force for class members.

It was not plain and obvious that there was no cause of action in negligence for workplace harassment experienced by an RCMP member. The representative plaintiffs’ claims relevant to this appeal were grounded in negligence and the required elements that a plaintiff must establish are the same in all negligence claims, regardless of whether or not they are pursued on a systemic basis. A claim in negligence for workplace harassment—whether brought on an individual or systemic basis—is liable to be struck when it is brought by or on behalf of those governed by written or unwritten contracts of employment.

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, no employment contract applies to RCMP members and they accordingly have no contractual remedies available in employment law. RCMP members are statutory office holders and not employees. 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 v. Ayotte do not pertain to RCMP members.

There is divided appellate authority on the issue of whether RCMP members may recover damages in tort for workplace harassment. Common law class actions for workplace harassment have been certified in respect of RCMP members in other cases. The first criterion for certification was met in the instant case, albeit for a class that is substantially smaller than the one certified by the Federal Court. There was no evidence before the Federal Court to indicate that non-employee class members might have been subject to harassment, intimidation or bullying of the sort alleged by the representative plaintiffs.

The Federal Court therefore made a palpable and overriding error in including non-employees in the class it certified. Likewise, there was no evidence before the Federal Court to support inclusion of the non-indeterminate public service employees in the class because there was no indication that they had experienced harassment, bullying or intimidation. In sum, there was only evidence before the Federal Court to support the inclusion of RCMP members and reservists in the class in respect of the shorter class period.

Thus, the broader class certified was tainted by palpable and overriding error and was amended to include only RCMP members and reservists over a class period between 1995 and the dates collective agreements came into force for them. The Federal Court committed a palpable and overriding error in certifying the fourth common question (whether the Court can make aggregate assessment of any damages as part of common issues trial) but not in certifying the others.

There was a basis in fact for all but the fourth question in respect of the narrower class of RCMP members and reservists over the class period from 1995 to the date collective agreements came into force. The representative plaintiffs tendered no evidence to suggest a method for the conduct of an aggregate assessment of damages and their litigation plan was similarly silent on the point. There was no basis for interfering with the approval of respondents Todd Gray and Geoffrey Greenwood as representative plaintiffs.

Finally, it was open to the Federal Court to conclude that a class proceeding was the preferable procedure in respect of the smaller class and shorter class period. The certification order was set aside and remitted to the Federal Court to delete the fourth common question and to amend the class definition. STATUTES AND REGULATIONS CITED Accessible Canada Act , S.C. 2019, c. 10 . Canada Labour Code , R.S.C., 1985, c. L-2 , 122–162, 127.1–129, 133, 147, 148. Canada Occupational Health and Safety Regulations , SOR/86-304 , ss. 20.1–20.10. Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]. Commissioner’s Standing Orders (Conduct) , SOR/2014-291 . Commissioner’s Standing Orders (Grievances and Appeals) , SOR/2014-289 . Commissioner’s Standing Orders (Investigation and Resolution of Harassment Complaints) , SOR/2014-290 . Crown Liability and Proceedings Act , R.S.C., 1985, c. C-50, s. 9 . Family Law Act , R.S.O. 1990, c. F.3 . Federal Courts Rules , SOR/98-106 , rr. 334.1–344.39, 334.16(1),(2), 334.17, 334.39.

Federal Public Sector Labour Relations Act , S.C. 2003, c. 22, s. 2 , ss. 2 , 206 , 206 –237, 208, 209, 209.1, 238.13, 238.19, 238.24, 238.25, 240(a)(i). Occupational Health and Safety Act , R.S.O. 1990, c. O.1, ss. 32.0.1 –32.0.8. Pension Act , R.S.C., 1985, c. P-6, s. 111 . Public Servants Disclosure Protection Act , S.C. 2005, c. 46, ss. 19 , 20.4 , 22 , 38 . Public Service Employment Act , S.C. 2003, c. 22, ss. 12, 13 . Royal Canadian Mounted Police Act , R.S.C., 1985, c. R-10, ss. 3 , 10 , 20.2(1) (l), 30.1 –36.1, 31, 45.11–45.15. Royal Canadian Mounted Police Regulations , 1988 , SOR/88-361 .

Royal Canadian Mounted Police Regulations , 2014 , SOR/2014-281, s. 58 , Sch.

Royal Canadian Mounted Police Superannuation Act, R.S.C., 1985, c. R-11, ss. 32, 33. Work Place Harassment and Violence Prevention Regulations, SOR/2020-130, ss. 2, 10, 12, 25, 27, 31. CASES CITED APPLIED: Vaughan v. Canada, 2005 SCC 11, [2005] 1 S.C.R. 146; Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666; Housenv. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929, (1995), 24O.R. (3d) 358. distinguished: Piresferreira v. Ayotte, 2010 ONCA 384, 319 D.L.R. (4th) 665, revg in part (2008), (ON SC), 72 C.C.E.L. (3d) 23(Ont. Sup. Ct.).

CONSIDERED: Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3; National Police Federation v.Treasury Board, 2019 FPSLREB 74; Lebrasseur v. Canada, 2006 FC 852, 296 F.T.R. 166, 2006 CarswellNat 1934, affd 2007 FCA 330;Davidson v. Canada (Attorney General), 2015 ONSC 8008, 262 A.C.W.S. (3d) 648; Merlo v. Canada, 2017 FC 533, 281 A.C.W.S. 3(d)702; Tiller v. Canada, 2019 FC 895, 307 A.C.W.S. (3d) 470; Merrifield v. Canada (Attorney General), 2019 ONCA 205, 145 O.R. (3d)494; AIC Limited v. Fischer, 2013 SCC 69, [2013] 3 S.C.R. 949; McCracken v.

Canadian National Railway Company, 2012 ONCA 445,111 O.R. (3d) 745; Prentice v. Canada, 2005 FCA 395, [2006] 3 F.C.R. 135, 346 N.R. 201, leave to appeal to S.C.C. refused [2006] 1S.C.R. viii; Moodie v. Canada, 2008 FC 1233, 336 F.T.R. 269, affd 2010 FCA 6, 399 N.R. 14; Lebrasseur v. Canada, 2011 FC 1075,418 F.T.R. 49, affd 2012 FCA 252; Tindall v. Canada (Royal Canadian Mounted Police), 2018 ONSC 4365; A. (K.) v. Ottawa (City)(2006), (ON CA), 80 O.R. (3d) 161, 269 D.L.R. (4th) 116 (C.A.); Rivers v.

Waterloo Regional Police ServicesBoard, 2018 ONSC 4307; Syndicat Catholique des Employés de Magasins de Québec Inc. v. Paquet Ltée, (SCC), [1959]S.C.R. 206, (1959), 18 D.L.R (2d) 346; Merrifield v. Canada (Attorney General), [2008] O.J. No. 2730 (QL) (Sup. Ct.), affd 2009ONCA 127, leave to appeal to S.C.C. refused, [2019] 2 S.C.R. viii, ; Sulz v. British Columbia (Minister of PublicSafety and Solicitor General), 2006 BCCA 582, 276 D.L.R. (4th) 391; Attorney General of Canada et al. v. Smith, 2007 NBCA 58, 316N.B.R. (2d) 180; Colistro v. Tbaytel, 2019 ONCA 197, 145 O.R. (3d) 538; Saadati v.

Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543;Canada v. South Yukon Forest Corporation, 2012 FCA 165, 431 N.R. 286; Brake v. Canada (Attorney General), 2019 FCA 274, [2020]2 F.C.R. 638; Sarvanis v. Canada, 2002 SCC 28, [2002] 1 S.C.R. 921. REFERRED TO: Public Service Alliance of Canada v. Treasury Board, 2020 FPSLREB 105; Public Service Alliance of Canada v. Treasury Board, 2020FPSLREB 106; Public Service Alliance of Canada v. Treasury Board, 2020 FPSLREB 107; Public Service Alliance of Canada v.Treasury Board, 2020 FPSLREB 108; Public Service Alliance of Canada v. Treasury Board, 2020 FPSLREB 109; Desrosiers v.

Canada(Attorney General), 2004 FC 1601, 266 F.T.R. 7, 2004 CarswellNat 4124; Galarneau v. Canada (Attorney General), 2005 FC 39, 306F.T.R. 1; Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184; Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158;Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 S.C.R. 477; Canada (Attorney General) v. Jost, 2020 FCA212; Hunt v. Carey Canada Inc., (SCC), [1990] 2 S.C.R. 959, (1990), 74 D.L.R. (4th) 321; Mil Davie Inc. v.

Sociétéd’Exploitation et de Développement d’Hibernia Ltée, (FCA), 226 N.R. 369, 85 C.P.R. (3d) 320, [1998] CarswellNat814 (F.C.A.); Johnson v. Ontario, 2016 ONSC 5314, 364 C.R.R. (2d) 17; Bigeagle v. Canada, 2021 FC 504, 2021 CarswellNat 2031;R.G. v. Hospital for Sick Children, 2017 ONSC 6545, 2017 CarswellOnt 16865, affd on other grounds 2018 ONSC 7058, 41 C.P.C.(8th) 109 (Div. Ct.); Gay v. New Brunswick (Regional Health Authority 7), 2014 NBCA 10, 421 N.B.R. (2d) 1; R. v. Sheppard, 2002SCC 26, [2002] 1 S.C.R. 869; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; F.H. v.

McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41;Manos v. Riotrin Properties (Flamborough) Inc., 2020 ONCA 211, 2020 CarswellOnt 3794; Regina Police Assn. Inc. v. Regina (City)Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360; McGavin Toastmaster Ltd. v. Ainscough, (SCC),[1976] 1 S.C.R. 718, (1975), 54 D.L.R. (3d) 1; General Motors of Canada Ltd. v. Brunet, (SCC), [1977] 2 S.C.R. 537,(1976), 13 N.R. 233; St. Anne Nackawic Pulp & Paper v. CPU, (SCC), [1986] 1 S.C.R. 704, (1986), 73 N.B.R. (2d) 236;Ladouceur c. Canada, 2007 QCCA 1005, [2007] R.J.Q. 556; Deslisle c.

R., 2018 QCCS 3855, 297 A.C.W.S. (3d) 248; HospiraHealthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215, [2017] 1 F.C.R. 331; Decor Grates Incorporated v.Imperial Manufacturing Group Inc., 2015 FCA 100, [2016] 1 F.C.R. 246; Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA157, [2018] 2 F.C.R. 344; Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.); Cooper v. Hobart, 2001 SCC 79, [2001] 3S.C.R. 537; Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114; Cloud v. Canada (Attorney General) (2004), (ON CA), 73 O.R. (3d) 401, 247 D.L.R. (4th) 667, [2004] O.J.

No. 4924 (QL); Francis v. Ontario, 2021 ONCA 197, 154O.R. (3d) 498; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534; Wenham v. Canada (AttorneyGeneral), 2018 FCA 199, 429 D.L.R. (4th) 166; Vivendi Canada Inc. v. Dell’Aniello, 2014 SCC 1, [2014] 1 S.C.R. 3; Ross v. Canada(Attorney General), 2018 SKCA 12, [2018] 5 W.W.R. 669; Paradis Honey Ltd. v. Canada, 2017 FC 199, [2018] 1 F.C.R. 275; McLeanv. Canada (Attorney General), 2018 FC 642; Nasogaluak v. Canada (Attorney General), 2021 FC 656; Saint John (City) v. Hayes, 2018NBCA 51; Ari v.

Insurance Corporation of British Columbia, 2019 BCCA 183, 27 B.C.L.R. (6th) 102. AUTHORS CITED: Canada. Parliament. Senate. Proceedings of the Standing Senate Committee on National Security and Defence, Conduct Becoming: Whythe Royal Canadian Police Must Transform its Culture, 41st Parl., 1st Sess., No. 16 (June 10, 2013). RCMP,

Summary Report on Gender Based Harassment and Respectful Workplace Consultations: "E" Division, Final Version (2012),online: <http://redwalljanehall.com/wp-content/uploads/2013/03/E-Div-Summary-Report-Final-Version-Simmie-Smith.pdf>.

Report from the Civilian Review and Complaints Commission for the RCMP . Report into Workplace Harassment in the RCMP , April 2017. Report from the Office of the Auditor General of Canada. Mental Health Support for Members—Royal Canadian Mounted Police , February 2017. Report of the Independent Investigator into Matters Relating to RCMP Pension and Insurance Plans, Submitted to the Minister of Public Safety and the President of the Treasury Board, A Matter of Trust , June 2007.

Report of the Task Force on Governance and Cultural Change in the RCMP , Submitted to the Minister of Public Safety and President of the Treasury Board, Rebuilding the Trust , December 2007. Report to the Minister of Public Safety and Emergency Preparedness. Review of four cases of civil litigation against the RCMP on Workplace Harassment , March 2017. Sgro, Judy A. and Grant Mitchell, Shattered Dreams: Addressing Harassment and Systemic Discontent within the RCMP , 2014.

APPEAL from an amended certification order ( 2020 FC 119 ) whereby the Federal Court certified a class proceeding on behalf of a class consisting of everyone who has ever worked for or with the Royal Canadian Mounted Police ( RCMP ) or at RCMP premises, regardless of whether they were members or employees of the RCMP or employed in the public service and assigned to work with the RCMP . Appeal allowed in part. APPEARANCES Christine Mohr , Derek Allen , Andrew Law , Jacob Pollice and Marilyn Venney for appellant. Won J. Kim , Megan B. McPhee , Aris Gyamfi and Rachael Sider for respondents.

SOLICITORS OF RECORD Deputy Attorney General of Canada for appellant. Kim Spencer McPhee Barristers P.C. , Toronto, for respondents. The following are the reasons for judgment rendered in English by [ 1 ] Gleason J.A.: Class proceedings in the Federal Court provide a procedural vehicle to advance or defend similar claims by members of a group.

For plaintiffs, pursuit of such claims via a class proceeding, commenced by one or a few representatives on behalf of members of a larger class, is meant to facilitate access to justice, advance judicial economy and encourage defendants and potential defendants to modify behaviours that give rise to liability.

In the Federal Court, as elsewhere in Canada, a representative plaintiff who wishes to pursue a class proceeding must have a judge certify (i.e. authorize) the proceeding as a class proceeding before it can proceed. [ 2 ] Certification is a procedural step that does not create substantive rights or give rise to new causes of action. Under the Federal Courts Rules , SOR/98-106 (the Rules ),

Part 5.1 of which governs class proceedings, certification is available only if the judge hearing the certification motion determines that five criteria are met. [ 3 ] As set out in subsection 334.16(1) of the Rules , these criteria are the following in the context of an action that a plaintiff wishes to have certified. First, the pleadings must disclose a reasonable cause of action. Second, there must be an identifiable class of two or more plaintiff members.

Third, the claims of the class members must raise common questions of law or fact, whether or not such questions predominate over questions affecting only individual members. Fourth, the class proceeding must be the preferable procedure for the just and efficient resolution of such common questions of fact or law. Finally, the representative plaintiff must meet the criteria set out in paragraph 334.16(1) (

e) of the Rules . Those applicable to the representative plaintiffs relevant in the case at bar are that they: (

i) would fairly and adequately represent the interests of the class; (ii) have prepared a litigation plan that sets out a workable method of advancing the proceeding; and (iii) do not have, in respect of the common issues, an interest that is in conflict with the interests of other class members. [ 4 ] In an order issued January 23, 2020, and amended on consent on April 21, 2020, reasons for which are reported as Greenwood v. Canada , 2020 FC 119 , the Federal Court ( per McDonald J.) certified a class proceeding on behalf of a class consisting of, at a minimum, over two hundred thousand potential members.

The class includes, with certain exceptions, virtually everyone who has ever worked for or with the Royal Canadian Mounted Police (the RCMP ) or at RCMP premises, regardless of whether they were members or employees of the RCMP or employed in the public service and assigned to work with the RCMP . [ 5 ] In their underlying action, the representative plaintiffs seek, on their own behalf and on behalf of class members, damages for non-sexual bullying, intimidation and harassment, which they allege is systemic in RCMP workplaces, and for related reprisals they say have been suffered by those who have raised complaints.

They further request damages for the consequential loss of care, companionship and guidance suffered by the families of class members under the Ontario Family Law Act , R.S.O. 1990, c. F.3 or comparable legislation in other provinces. [ 6 ] Under the amended certification order, the class certified by the Federal Court more specifically includes: 2. […] All persons who worked with or for the RCMP being all current or former: (

a) RCMP Members: including all Regular Members, Civilian Members, Special Constable, Special Constable Members,

Supernumerary Special Constables, Reservists, and Recruits; (

b) Public Services Employees (“PSEs”) who are not able to grieve under s. 208 of the Federal Public Sector Labour Relations Act , S.C. 2003, c. 22, s. 2 (“ FPSLRA ”); (

c) Others who work within RCMP workplaces: including but not limited to: temporary civilian employees, community constables, auxiliary constables, cadets, pre-cadets, students, independent and subcontractor employees (including Commissionaires, custodial worker, guards/matrons, individuals employed through temporary agencies, and interns – e.g.

Youth Internship Program), other government employees (including municipal, regional or similar levels of government employees and seconded officers and employees, including Interchange Canada participants) who are not entitled to grieve under s. 208 of FPSLRA , volunteers, and non-profit organization employees; individuals working or attending courses on RCMP premises; and other individuals who worked with or for the RCMP and who have a Human Resources Management Information Services (“HRMIS”) identification. 2.1 This Class Proceeding excludes claims that are covered under Merlo v Her Majesty the Queen , Federal Court File No.

T-1685-16, Ross et al v Her Majesty the Queen, Federal Court File No. T-370-17, Gaétan Delisle et al c Sa Majesté La Reine Québec Superior Court No. 500-06-000820-163, and Tiller v Her Majesty the Queen, Federal Court File No. T-1673-17. [ 7 ] The class proceedings mentioned in paragraph 2.1 of the amended certification order comprise, generally speaking, previously certified class proceedings in which damages were sought for some of those who would otherwise come within the class certified by the Federal Court in the case at bar. In those previously certified proceedings, damages were claimed in respect of: (

i) sexual discrimination, bullying and harassment experienced by females; (ii) sexual orientation-based discrimination, bullying and harassment; and (iii) in the province of Quebec, discrimination, harassment or abuse of authority by reason of grounds other than sex or sexual orientation, including by reason of linguistic profile or desire to form a trade union. [ 8 ] The common questions certified by the Federal Court were: Negligence

(1) Did the RCMP, through its agents, servants and employees owe a duty of care to the plaintiffs and other Primary Class Members to take reasonable steps in the operation or management of the Force to provide them with a work environment free from bullying, intimidation and harassment?

(2) If yes, was there a breach of this duty by the RCMP through its agents, servants and employees?

(3) If yes, was the Crown vicariously liable for the failure of its agents, servants and employees at the RCMP , to take reasonable steps in the operation and management of the Force to provide a work environment free from bullying, intimidation and harassment? Damages

(4) Can the Court make an aggregate assessment of any damages as part of the common issues trial? If so, to whom? In what amount?

(5) Does the conduct justify an award of aggravated, exemplary and/or punitive damages? [ 9 ] In this appeal, the appellant, Her Majesty the Queen (whom for ease of reference I call, simply, the Crown) alleges that the Federal Court erred in certifying this class and in its application of each of the criteria for certification. The Crown in addition submits that the Federal Court made several other reviewable errors.

It seeks to have this Court overturn the Federal Court’s certification order, arguing that claims of the sort advanced by the representative plaintiffs cannot be pursued by way of class proceeding. [ 10 ] For the reasons more fully detailed below, I disagree. It is my view that, with two exceptions, the Federal Court did not commit a reviewable error. The first exception concerns the scope of the class certified, which is overly broad.

The second concerns the fourth question certified by the Federal Court, which is not an appropriate common question in the circumstances of this case. [ 11 ] I would accordingly grant this appeal in part to amend the class definition and common questions certified by the Federal Court. [ 12 ] In terms of the class definition, I would narrow it to include only RCMP members (i.e. regular members, special constable members and civilian members) and reservists.

I would also temporally limit the class by establishing a class period that commences on January 1, 1995, and ends, for each category of class member, on the date a collective agreement comes or came into force for the bargaining unit to which such class members belong. I would further amend the certification order to delete the fourth question certified as a common question. I. Background [ 13 ] It is useful to commence with a review of the claims made in the statement of claim and of the pertinent evidence that was before the Federal Court on the motion for certification.

I note, parenthetically that, as is often the case in class proceedings, the Crown elected to refrain from filing a defence prior to the disposition of the certification motion. A.

The Statement of Claim [ 14 ] In their statement of claim, the two representative plaintiffs, who are full-time regular members of the RCMP , claim on their own behalf and on behalf of class members: • a declaration that the Crown was negligent in failing to provide them and other class members with a workplace that is free from bullying and harassment; • a declaration that that the Crown failed to fulfil and/or breached its common law, contractual and statutory duties to provide them

and other class members with a workplace free from bullying and harassment; • general damages in the amount of $1,000,000,000 plus damages equal to the cost of administering the plan of distribution of the recovery in the action; • damages for loss of income, including for loss of promotional opportunities, early retirements and losses to pension; • special damages in an amount to be determined for medical expenses and other out-of-pocket expenses incurred by class members; • exemplary and punitive damages in the amount of $100,000,000; • damages under the Family Law Act , R.S.O. 1990, c.

F-3 ( FLA ) and comparable legislation in other provinces in the amount of $30,000,000; • an order directing a reference or providing other directions to determine issues not settled at the common issues trial; and • interest and costs. [ 15 ] They describe the nature of their claims in paragraphs 2 to 9 of the statement of claim. Because the scope of a claim is directly tied to the common questions and the scope of the class that may be certified in respect of them, it is useful to reproduce these paragraphs in full. They provide: THE NATURE OF THIS ACTION 2.

This action concerns the systemic bullying, intimidation and harassment of individuals who worked for the Royal Canadian Mounted Police (“ RCMP ”) and/or with the RCMP . 3. For decades, the RCMP leadership fostered and condoned a culture of bullying and intimidation and general harassment within the Force, creating a toxic workplace. The harassment of the RCMP Members was bolstered by statutory and institutional barriers that prevented RMCP Members from engaging in collective bargaining and/or obtaining other meaningful redress for their grievances. 4.

These barriers, codified in the Royal Canadian Mounted Police Regulations, amplified a stark power imbalance which was exacerbated by the paramilitary structure of the RCMP , and had the effect of silencing RCMP Members who fell victim to bullying and intimidation and harassment, as their sole recourse was through the chain of command who were often protective of the very individuals who had inflicted and perpetuated the bullying, intimidation, and harassment. 5. This cultivated the existence of a toxic work environment characterized by abuse of power and fear of reprisal.

In this environment, the plaintiffs allege that they and the other Class Members … experienced pervasive bullying, intimidation and harassment which was either inflicted, condoned, or tolerated by the RCMP , through its agents, servants and employees. Any efforts by the plaintiffs and other Class Members to report, speak out, complain or pursue internal grievances respecting harassment were diminished, ignored, dismissed, and/or mischaracterized, including as interpersonal conflict. 6.

Complaints of any kind were treated as an affront to the chain of command in the paramilitary structure of the RCMP , leading to direct and indirect retaliatory conduct against the plaintiffs and other Class Members, including but not limited to unjustifiable and improper use of the following: loss of promotional opportunities, negative performance evaluations, involuntary transfers, denial of leave, social isolation, and assignment of menial tasks below the Class Member’s capabilities in order to demean the Class Member. 7.

In allowing this culture to manifest and permeate the organization from its highest levels, the RCMP , through its agents, servants and employees, failed to fulfill its statutory, contractual, and common law duties to provide the plaintiffs and the other Class Members with a work environment free of bullying, intimidation and harassment. 8. As a result of the bullying, intimidation and harassment in the RCMP , the plaintiffs and other Class Members have suffered significant career limitations, as well as serious physical and psychological damages, along with out-of-pocket expenses and loss of income. 9.

While the RCMP has admitted a toxic “culture of harassment” and provided redress to members who experienced gender based harassment ( Merlo and Davidson v. Her Majesty the Queen , Federal Court Action No. T-1685-16 (“ Merlo Davidson ”) and LGBT members ( Ross, Roy and Satalic v. Her Majesty the Queen , Federal Court Action No. T-370-17 [ Ross, Roy and Satalic ], it has not provided redress to the majority of the members of the Force who are not part of these actions.

The scope of this claim excludes gender- based harassment and discrimination matters covered under Merlo Davidson and Ross, Roy and Satalic . [ 16 ] In the balance of the statement of claim, the representative plaintiffs set out their own experiences of suffering bullying, intimidation, harassment and reprisals. They further detail the negative impact they claim this had on their careers, health and family members.

They also provide some generalized assertions regarding the alleged systemic nature of bullying, intimidation and harassment in the RCMP , which they claim was condoned by RCMP leadership and fostered by the paramilitary structure of the RCMP and by statutory and institutional barriers that, until 2017, prevented RCMP members from unionizing and engaging in collective bargaining. They further allege that the remedies available to at least some class members to raise harassment complaints were ineffective.

They plead on the latter point in paragraph 26 of the statement of claim that “although an independent agency was created for the adjudication of civilian complaints, no independent adjudicative body exists for RCMP Member grievances”. They also plead what they allege were admissions by RCMP leadership and findings of several official inquires as to the existence of systemic bullying, intimidation and harassment in the RCMP and the lack of effective remedy to redress these problems. [ 17 ] Of particular relevance to this appeal are the particulars of systemic negligence.

In paragraph 110 of their statement of claim, the representative plaintiffs allege the RCMP owed class members the following duties:

110. Specifically, the RCMP , through its agents, servants and employees, had a duty of care to:

a) use reasonable care to ensure the safety and well-being of the plaintiffs and the other Class Members;

b) provide safe workplace environments free from bullying, intimidation, and harassment;

c) provide equal employment training and advancement opportunities to the plaintiffs and the other Class Members;

d) establish and enforce appropriate policies, codes, guidelines, and procedures to ensure that the plaintiffs and the other Class Members would be free from bullying, intimidation, and harassment;

e) implement standards of conduct for the RCMP work environment and for RCMP Employees, to safeguard the plaintiffs and the other Class Members from bullying, intimidation, and harassment;

f) educate and train RCMP Employees to promote a universal understanding amongst all RCMP Employees that bullying, intimidation, and harassment are dangerous and harmful and will not be tolerated;

g) properly supervise the conduct of RCMP Employees so as to prevent the plaintiffs and the other Class Members from being and/or being exposed to bullying, intimidation, and harassment;

h) investigate and adjudicate complaints of bullying, intimidation, and harassment fairly and with due diligence and make efforts to prevent retaliation;

i) act in a timely fashion to resolve situations of bullying, intimidation, and harassment, and to work to prevent re-occurrence; and

j) ensure that the plaintiffs and the other Class Members would not suffer from reprisals or retaliation by RCMP Employees for reporting or objecting to incidents of bullying, intimidation, harassment and other misconduct. B. The Evidence before the Federal Court [ 18 ] The representative plaintiffs each filed an affidavit and also filed an affidavit from an associate lawyer at the law firm acting for them that attached various reports and other documents.

The Crown filed affidavits from civilian members of the RCMP with responsibility for human resources and labour relations matters, from a regular member of the RCMP with responsibility for overseeing programs related to harassment, and from a disability benefits specialist at Veterans Affairs.

All affiants were cross-examined. [ 19 ] No evidence was filed regarding the conduct of an aggregate damages assessment and no suggestion was made in the proposed litigation plan to provide any meaningful detail regarding how such assessment could be undertaken. [ 20 ] Because of the nature and number of arguments raised by the Crown in this appeal, it is necessary to review the evidence that was before the Federal Court in some detail.

(1) The Class [ 21 ] The RCMP is a “police force for Canada”, to quote

section 3 of its constituent statute, the Royal Canadian Mounted Police Act , R.S.C., 1985, c. R-10 (the RCMP Act ). It operates across the country and is divided into 15 separate Divisions, based on provincial and territorial boundaries. Many Divisions are further subdivided into Districts. In each District (or Division, where there are no District subdivisions), there are a number of Detachments, where various categories of personnel work.

According to one of the Crown’s affiants, the RCMP is the most decentralized department of the federal government, with over 700 service points located across the country. [ 22 ] The RCMP is also unique among agencies and departments of the federal government in that it engages a wide variety of personnel, many of whom have different legal status vis-à-vis the Crown.

Depending on the date and the provisions of the Act then in force, such personnel include or have included: regular members, civilian members, special constable members, auxiliary constables, reservists, supernumerary special constables, public service employees, temporary civilian employees, recruits and cadets, volunteers, employees of municipalities or subcontractors and independent contractors. Individuals from all of these categories were included by the Federal Court in the class it certified. (

a) RCMP Members [ 23 ] Turning first to RCMP members, they are comprised of regular members, civilian members and special constable members. They are all appointed pursuant to the RCMP Act . [ 24 ] Regular members are appointed to a rank and are responsible to carry out the RCMP ’s policing functions. The ranks range from Governor in Council appointees at the top end, through various levels of commissioned and non-commissioned officers to constable, at the lower end.

According to the RCMP ’s Human Resources Management System (HRMS), its computerized records containing data on some of those who worked for the RCMP or at RCMP premises, up to the date materials were sworn for filing with the Federal Court, there have been 42,528 regular members of the RCMP . [ 25 ] RCMP members and reservists were excluded from collective bargaining until 2017. Non-managerial RCMP members and reservists were afforded the right to engage in collective bargaining in 2017 via amendments to what is now called the Federal Public Sector Labour Relations Act , S.C. 2003, c. 22, s. 2 (the FPSLRA ).

The amendments were enacted in response to the 2015 decision of the Supreme Court of Canada in Mounted Police Association of Ontario v. Canada (Attorney General ), 2015 SCC 1 , [2015] 1 S.C.R. 3, which held that the exclusion of RCMP Members from collective bargaining violated the freedom of association guaranteed to them by the Canadian Charter of Rights and Freedoms [ Charter ]. [ 26 ] However, under these amendments, non-managerial RCMP members and reservists, unlike members of the public service, are

only entitled to file and submit to independent third party adjudication grievances alleging a breach of their collective agreements ( FPSLRA, sections 238.24 , 238.25 ). RCMP members and reservists thus cannot access third party adjudication under the FPSLRA for the broader range of employer actions that are open to being grieved and adjudicated by public servants under the FPSLRA . [ 27 ] Public servants to whom

Part II of the FPSLRA applies can grieve a wide range of employer decisions and a narrower range of decisions may be referred to adjudication.

For non-managerial public servants, adjudicable decisions are those resulting in certain types of discipline, certain types of demotions, deployments or terminations, decisions alleging breach of provisions in the Accessible Canada Act , S.C. 2019, c. 10 and claims of breach of the collective agreement by the employer ( FPSLRA, sections 209 and 209.1 ). [ 28 ] That said, it is my view that non-managerial RCMP members and reservists would be able to access adjudication before the Federal Public Sector Labour Relations and Employment Board (the FPSLREB) for grievances related to bullying, harassment or intimidation if prohibitions against the same were included in a collective agreement applicable to them.

While the FPSLRA limits the matters that may be included in a collective agreement applicable to RCMP members and reservists, in my view, such limitation would not prohibit inclusion of provisions in a collective agreement dealing with harassment, bullying and intimidation, although this issue falls within the exclusive jurisdiction of the FPSLREB to determine.

It is, however, necessary for this Court to consider this issue in the context of the present appeal as the Crown has asserted that the availability of collective bargaining means that the Federal Court erred in certifying a class proceeding in the instant case. [ 29 ]

Section 238.19 of the FPSLRA , applicable to RCMP members and reservists, provides: Restriction 238.19 A collective agreement that applies to the bargaining unit determined under

section 238.14 must not, directly or indirectly, alter or eliminate any existing term or condition of employment or establish any new term or condition of employment if (

a) doing so would require the enactment or amendment of any legislation by Parliament, except for the purpose of appropriating money required for the implementation of the term or condition; or (

b) the term or condition is one that has been or may be established under the Royal Canadian Mounted Police Superannuation Act , the Royal Canadian Mounted Police Pension Continuation Act , the Public Service Employment Act , the Public Service Superannuation Act or the Government Employees Compensation Act . [ 30 ] While the RCMP Commissioner is provided authority under paragraph 20.2(1) (

l) of the RCMP Act to establish procedures to resolve and investigate harassment of RCMP members, subsection 31(1.1) of the RCMP Act excludes from the internal RCMP grievance procedures those grievances that allege a breach of a collective agreement.

Section 31 of the RCMP Act provides in relevant part as follows: Member’s right 31

(1) Subject to subsections (1.01) to (3), if a member is aggrieved by a decision, act or omission in the administration of the affairs of the Force in respect of which no other process for redress is provided by this Act, the regulations or the Commissioner’s standing orders, the member is entitled to present the grievance in writing at each of the levels, up to and including the final level, in the grievance process provided for by this Part. Limitation

(1.01) A grievance that relates to the

interpretation or application, in respect of a member, of a provision of a collective agreement or arbitral award must be presented under the Federal Public Sector Labour Relations Act . Limitation

(1.1) A member is not entitled to present a grievance in respect of which an administrative procedure for redress is provided under any other Act of Parliament, other than one provided for in the Canadian Human Rights Act . Limitation

(1.2) Despite subsection (1.1), a member is not entitled to present a grievance in respect of the right to equal pay for work of equal value. Limitation

(1.3) A member is not entitled to present a grievance relating to any action taken under any instruction, direction or regulation given or made by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada. Order to be conclusive proof

(1.4) For the purposes of subsection (1.3), an order made by the Governor in Council is conclusive proof of the matters stated in the order in relation to the giving or making of an instruction, direction or regulation by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada. [ 31 ] In my view, the combined effect of the foregoing provisions allows for the inclusion in a collective agreement applicable to RCMP Members provisions dealing with workplace harassment, bullying and intimidation.

And, were such a provision included in a collective agreement applicable to RCMP members, an alleged breach of the provision could be referred to the FPSLREB for adjudication.

[ 32 ] On July 12, 2019, the FPSLREB certified the National Police Federation as bargaining agent on behalf of a national bargaining unit comprised of all reservists and RCMP members, excluding civilian members and those of the rank of Inspector or above, who were deemed to be managerial ( National Police Federation v. Treasury Board , 2019 FPSLREB 74 ).

Encompassed in the bargaining unit therefore are the following categories of individuals: regular and special constable members, below the rank of inspector, and reservists. [ 33 ] As of the date this appeal was argued, a collective agreement had not yet been finalized by the parties in respect of this bargaining unit, but a posting on the website of the Minister of Public Safety and Emergency Preparedness indicates that an agreement in principle has recently been reached, which is out for ratification (< https://www.canada.ca/en/public-safet y- canada/news/2021/06/government-of-canada-reaches-first-collective-agreement-for-rcmp-members-and-reservists.html > ). [ 34 ] In 1988, amendments to the Royal Canadian Mounted Police Regulations , 1988, SOR/88-361 , as repealed and replaced by Royal Canadian Mounted Police Regulations, 2014 , SOR/2014-281,

section 58 , introduced the rank of special constable member. Special constable members are engaged to perform specific functions (such as escorting prisoners or guarding certain sites, like embassies or the Prime Minister’s residence) as opposed to performing the full range of police duties. HRMS indicates that, as of the date materials were sworn for filing with the Federal Court, there have been 1,646 special constable members of the RCMP .

They were previously excluded from collective bargaining, but, as noted, since July 2019 have been included within the national bargaining unit of RCMP members certified by the FPSLREB. [ 35 ] The RCMP engages reservists to temporarily fill regular member vacancies for periods of up to three years. Only former RCMP regular members or police officers from provincial or municipal police forces are eligible to be reservists. As noted, reservists are included in the same national bargaining unit as regular and special constable members that was certified by the FPSLREB in July 2019.

HRMS indicates that, as of the date materials were sworn for filing with the Federal Court, there have been 612 reservists. [ 36 ] Civilian members of the RCMP are appointed to their positions under the RCMP Act , but are appointed to a position as opposed to a rank. They provide support for RCMP operations through operational, scientific and other technical expertise. HRMS indicates that, as of the date materials were sworn for filing with the Federal Court, there have been 7,902 civilian members of the RCMP .

They were likewise previously excluded from collective bargaining, but were afforded the right to engage in collective bargaining under the same 2017 amendments to the FPSLRA that extended the right to unionize to RCMP regular members, special constable members and reservists. [ 37 ] The Public Service Alliance of Canada (the Alliance) was certified by the FPSLREB on November 26, 2020, for 14 occupational groups of civilian RCMP members: Public Service Alliance of Canada v. Treasury Board , 2020 FPSLREB 105 ; Public Service Alliance of Canada v.

Treasury Board , 2020 FPSLREB 106 ; Public Service Alliance of Canada v. Treasury Board , 2020 FPSLREB 107 ; Public Service Alliance of Canada v. Treasury Board , 2020 FPSLREB 108 ; Public Service Alliance of Canada v. Treasury Board , 2020 FPSLREB 109 . Each group has been included within the larger bargaining units represented by the Alliance for such groups within the federal public service. RCMP civilian members are subject to the same collective agreements that apply to the federal public service in these bargaining units.

It is impossible to ascertain from the materials that were before the Federal Court or that are in the reported case law of the FPSLREB whether the foregoing certification orders encompass all groups of non-managerial civilian members of the RCMP . (

b) Civilian employees [ 38 ] Turning now to the non-RCMP members of the class certified by the Federal Court, the RCMP Act authorizes the Commissioner of the RCMP to employ civilian employees necessary for carrying out the functions and duties of the RCMP . Pursuant to

section 10 of the RCMP Act , such employees are, and for some time have been, appointed under the Public Service Employment Act , S.C. 2003, c. 22, sections 12 and 13 . Since 1994, these employees have included indeterminate public service employees (i.e. those occupying permanent positions), term employees, casual employees, seasonal employees and students. The majority of these employees are included within federal public service bargaining units. [ 39 ] Under the amendments made on consent to the Federal Court’s certification order in the instant case, public service employees who have the right to file grievances under

section 208 of the FPSLRA are excluded from the class. Under the FPSLRA, those who cannot file such grievances (and who accordingly come within the scope of the class certified by the Federal Court in the case at bar) are those who do not meet the definition of “employee” in

section 206 of that Act. These include those regularly working less than one third the normal hours of work (typically, those working less than 12.5 hours per week), those employed on a casual basis, those employed for terms of less than three months and students ( FPSLRA, paragraphs 206(1) (c), (e), (

f) and (h).) [ 40 ] There is no indication from the materials that were before the Federal Court whether the RCMP employed anyone who regularly worked less than one third the normal hours per week. [ 41 ] Temporary civilian employees were utilized by the RCMP to perform specific functions for a specific period of time. Effective November 28, 2014, the RCMP was no longer entitled to employ temporary civilian employees. Instead, since then, it has engaged casual or term employees to fill its short-term needs. [ 42 ] The HRMS data is less complete for civilian employees than it is for RCMP members.

It indicates that, as of the date materials were sworn for filing with the Federal Court, there have been the following individuals who were engaged by the RCMP , some of whom would come within the scope of the amended class: 4,130 casual employees; 179 term employees employed for less than three months; prior to 1994, 2,533 temporary civilian employees working on an as and when required basis; prior to 2014, 1,867 other temporary civilian employees; 60 seasonal employees; and 1,374 students. (

c) Non-employees [ 43 ] Coming within the scope of the class certified by the Federal Court are also the following categories of individuals, none of whom were, or are, employed by the RCMP or in the federal public service: independent contractors; employees of subcontractors, such as employees of the Corps of Commissionaires, who perform security functions in some detachments; employees of municipalities, who are seconded to work in some RCMP detachments; volunteers and employees of non-profit organizations, who might provide services

like victim counselling, crime watch or neighbourhood watch services; auxiliary constables; supernumerary special constables; and cadets. The class also included recruits, a category that was abolished in 1994. [ 44 ] The final four categories require some explanation.

Auxiliary constables, utilized only in some provinces, are volunteers, who may participate in activities such as safety education, crime prevention or assisting RCMP members at major events, with activities like traffic control or general duty patrol. [ 45 ] Supernumerary special constables are typically members of municipal police forces outside their home jurisdictions or of foreign security services and are designated as supernumerary special constables to acquire the ability to exercise the authority of a peace officer on a temporary basis while working on policing matters with RCMP members.

The RCMP Commissioner has authority to designate individuals as supernumerary special constables for a period not exceeding 12 months. Supernumerary special constables remain employed by their home organizations during the period of the designation. [ 46 ] Before 1994, recruits were RCMP members and were trained at an RCMP training facility and then gradually assumed the duties expected of RCMP regular members. In 1994, the Cadet Training Program, a new form of induction into the RCMP , was established.

Cadets are trained at a centralized training facility in Regina, Saskatchewan and are students as opposed to employees.

Upon successful completion of their courses and passing applicable security and reliability screening criteria, they may be offered a position as a regular member, in which case they will undergo further training and be subject to probation for two years. [ 47 ] Some of the foregoing categories of personnel employed by other organizations include individuals who are unionized and subject to collective agreements between their own bargaining agents and employers, as would be the case, for example, with many municipal employees and many members of municipal police forces. [ 48 ] HRMS indicates that, between 1998 and the date materials were sworn for filing with the Federal Court, there have been in excess of 167,000 individuals who would fall within the class certified by the Federal Court who had no employment relationship with the RCMP .

Given the unlimited class period established by the Federal Court, it is to be anticipated that there would likely be several hundreds of thousands more who would come within the scope of the certified class as part of these non-employee groups.

(2) Evidence Before the Federal Court Regarding Instances of Harassment, Intimidation and Bullying in RCMP Workplaces [ 49 ] I turn next to detail the relevant evidence before the Federal Court regarding the alleged systemic non-sexual harassment, bullying and intimidation in RCMP workplaces. [ 50 ] The two representative plaintiffs detail in their affidavits their own experiences with bullying, harassment and intimidation and provide their impressions of the general work climate prevalent within the RCMP . As noted, both are regular members of the RCMP . [ 51 ] Mr.

Greenwood relayed that he experienced harassment and incidents of retaliation when he raised concerns over potential corruption within the RCMP , while working in Yellowknife between 2005 and 2010. As a result of what he alleges were retaliatory and unfounded Code of Conduct complaints launched against him in response to his reports of corruption, he says he was ineligible for promotion and blocked from obtaining other positions.

He filed a harassment complaint under the RCMP ’s Harassment Policy, but it was dismissed by senior RCMP officers in the Division where he worked, even though an external review indicated that several of his concerns were ones that could be grieved. Mr. Greenwood states that he felt incapable of pursuing the matter further and that the incidents he experienced have plagued him since, causing his career to stagnate. He also asserts that his physical and psychological health were negatively impacted as a result. [ 52 ] Mr.

Greenwood applied for and was awarded disability benefits under the Pension Act , R.S.C., 1985, c. P-6 , which provides for compensation to RCMP members in respect of service-related disabilities. A portion of the benefits were awarded for post-traumatic stress disorder. A questionnaire submitted in respect of his application for PTSD-related benefits [post-traumatic stress disorder] indicated that Mr. Greenwood’s psychological health was negatively impacted by traumatic events he experienced in connection with the death of a colleague, with whom he was working on an undercover operation.

While the questionnaire mentions nightmares and other symptoms associated with the unfounded complaints brought against him, it is unclear whether the benefits awarded for PTSD were awarded by reason of the same facts as he relies on in support of his claim in this proceeding. [ 53 ] Mr. Gray described several instances of bullying, intimidation and harassment. While assigned to perform between 1995–1998 in the RCMP equestrian show, the Musical Ride, he says he was forced to ride in the trailer with the horses, and believes he was treated differently for speaking out against what he felt was an unsafe practice.

On two occasions, he felt exposed when a female corporal entered the male showers while he was naked, and, although he wondered why this was allowable, says he felt he could not say anything as she was one of the people who would be completing his assessment. In addition, he was twice wrongfully accused of stealing a horse blanket. Further, an RCMP sergeant once struck Mr. Gray under his ribs with the tip of a metal tipped riding crop, apparently because he thought Mr. Gray had mocked the Musical Ride. Mr. Gray was bruised and sought medical treatment.

He believes he was punished as a result of reporting the incident. For his last year on the RCMP Musical Ride, Mr. Gray was provided with a horse who he says was known to buck and kick other horses, and he sustained injuries when the horse reared up and they both fell. He also says he was also forced to ride after injuring his back, which exacerbated his injury, and was humiliated by being forced to wear a blazer that was too small for him. [ 54 ] Later, while posted in Nunavut between 2000 and 2002, Mr. Gray reported inappropriate treatment of indigenous people by denouncing the behaviour of an RCMP corporal.

Mr. Gray says he suffered retaliation, was denied promotional opportunities as a result and that the environment in the detachment became so toxic that he sought relief work in other units. He claims that his wife, who worked in the detachment as an employee of the Corps of Commissionaires, suffered discrimination after Mr. Gray denounced the corporal. He states that his wife was denied the opportunity to continue to work when she became pregnant, even though other pregnant women continued to work in similar positions in the detachment.

He advances her treatment in support of a claim under the FLA . [ 55 ] In October 2016, while working in Hinton, Alberta, a harassment complaint was filed against Mr. Gray, which was later held to be unfounded. Mr. Gray believes the RCMP handled the situation poorly. Following the complaint, Mr. Gray says he was excluded and

ostracized. Mr. Gray believes his reputation, health and career prospects have been negatively affected as a result of these events. [ 56 ] Mr. Gray also applied for and was awarded disability benefits under the Pension Act , a portion of which were for musculoskeletal injuries, including back and knee injuries.

He did not make a claim under the Pension Act for psychological injuries. [ 57 ] Both representative plaintiffs provided generalized assertions that other class members have experienced instances of bullying, intimidation and harassment and claimed that they have witnessed bullying behaviour on the part of other RCMP members, including those in positions of leadership, with whom they have worked. However, with the exception of the evidence about Mr.

Gray’s wife, neither gave any details of what category of employee or individual might have been subjected to such alleged bullying, harassment or intimidation nor of the impact on others of the alleged toxic work environment in RCMP workplaces. And, as noted, Mr.

Gray alleged his spouse was singled out for discriminatory treatment as a retaliatory measure against him. [ 58 ] The employee of the law firm acting for the representative plaintiffs indicated in her evidence that the firm had received inquiries from several hundred individuals who would fall within the scope of class certified by the Federal Court, but, once again, no details were given as to their experiences. [ 59 ] The employee of the law firm, as noted, attached a number of reports to her affidavit (collectively, the Reports), namely: a June 2007 Report entitled A Matter of Trust , authored by an independent investigator appointed by the Minister of Public Safety and the President of the Treasury Board, who investigated irregularities in respect of RCMP pension and insurance matters and documented harassment experienced by the individuals who reported the irregularities; a December 2007 report entitled Rebuilding the Trust , from a multi-member task force established by the Minister of Public Safety and the President of the Treasury Board, which made recommendations on governance and cultural change within the RCMP in the wake of the previous report; a 2012 report from the RCMP on gender-based harassment entitled

Summary Report on Gender Based Harassment and Respectful Workplace Consultations ; a February 2013 report from the Commission for Public Complaints Against the RCMP entitled Public Interest Investigation into RCMP Workplace Harassment ; a 2013 report from the Senate Standing Committee on National Security and Defence entitled Conduct Becoming: Why the Royal Canadian Mounted Police Must Transform its Culture ; a 2014 report presented by a Member of Parliament and a Senator entitled Shattered Dreams: Addressing Harassment and Systemic Discontent within the RCMP [Shattered Dreams Report]; a March 2017 report from the former Auditor General entitled Review of four cases of civil litigation against the RCMP on Workplace Harassment ; a February 2017 Report from the Office of the Auditor General of Canada entitled Mental Health Support for Members— Royal Canadian Mounted Police ; and, finally, an April 2017 Report from the Civilian Review and Complaints Commission for the RCMP entitled Report into Workplace Harassment in the RCMP . [ 60 ] Some of the Reports document the existence of a workplace culture that permitted bullying and harassment to occur within the RCMP as well as a dysfunctional grievance process that failed to adequately respond to complaints of harassment filed by RCMP members and public service employees assigned to work with the RCMP .

On the latter point, several reports document members’ concerns about the negative impact speaking out against bullying and harassment might have on their careers. [ 61 ] However, with one exception, the Reports contain no specifics of harassment, bullying or intimidation experienced by individuals who were not members of the RCMP or of the public service in a permanent position assigned to work with the RCMP .

The one exception concerns an allegation of sexual harassment documented in 2014 Shattered Dreams Report, which documents an allegation of sexual harassment made by an RCMP member with respect to her experiences as a cadet while at the RCMP Training Facility in Regina. [ 62 ] While the Reports and evidence of one of the Crown’s witnesses do contain mentions of non-sexual harassment and bullying complaints made by RCMP members and public service employees, assigned to work with the RCMP , there is no indication that any of these complaints might have been made by a public service employee falling within the scope of the amended class or by a temporary civilian employee.

In other words, there is no indication that short service employees, casual employees or student employees might have experienced similar problems with bullying and harassment.

Perhaps this is not surprising, given their shorter-term affiliations with the RCMP . [ 63 ] Similarly, there was no evidence before the Federal Court to indicate whether the vast number of class members who were not members or employees of the RCMP or employed in the public service might have been subject to non-sexual harassment, intimidation or bullying or experienced a toxic work environment at RCMP premises as a result of such harassment.

(3) Alternate Remedies Available [ 64 ] In terms of the relevant factual backdrop, it is necessary to next detail the alternate recourses that might be available to class members in respect of the sort of intimidation, harassment and bullying for which redress is sought in this proceeding. [ 65 ] For individuals employed by other employers, recourses were and currently are available under their own collective agreements or terms and conditions of employment.

In most if not all Canadian jurisdictions, employers are required to maintain and enforce policies directed at preventing workplace harassment, which are enforceable via complaint and, in at least certain instances, via grievance in unionized workplaces (see, for example, Occupational Health and Safety Act , R.S.O. 1990, c. O.1 ,

Part III.0.1). The evidence filed with the Federal Court is silent on the nature and efficacy of such processes. [ 66 ] For others, the RCMP has had in place for several years policies that attempt to prevent harassment and which provide an internal redress mechanism for some class members.

Under the current iteration of its harassment policy, RCMP members, employees and public service employees (both in and excluded from the class certified by the Federal Court) are entitled to file complaints. (Previously, a separate policy applied to public service employees.) [ 67 ] While the current policy provides for a centralized intake system and investigation of complaints, there is no recourse to independent adjudication. Final decision making authority rests with the RCMP Commissioner.

Class members who are not RCMP Members, RCMP employees or public service employees cannot file complaints under the RCMP ’s harassment policy. Likewise, they have no right to file grievances with the RCMP . However, the RCMP ’s harassment policy, like most workplace policies, does prohibit them and, indeed, anyone on RCMP premises, from engaging in conduct that violates the policy.

[ 68 ] There are additional statutory recourses for non-sexual harassment, bullying and intimidation available to at least some class members. [ 69 ]

Part II of the Canada Labour Code , R.S.C., 1985, c. L-2 , (the Code ) and the regulations under the Code , currently, the Work Place Harassment and Violence Prevention Regulations , SOR/2020-130 (the WPHVP Regulations ), which have been in effect since January 2021, apply to the RCMP . They cast duties on the RCMP with respect to the prevention, investigation and correction of workplace violence and harassment. Previously,

Part XX of the Canada Occupational Health and Safety Regulations , SOR/86-304 governed employer obligations in matters of workplace violence, but did not squarely address workplace harassment. [ 70 ] For employers the size of the RCMP , relevant duties since January 2021 of this year include the following. First, the adoption of a workplace policy on harassment and violence prevention, which must be jointly developed through the applicable joint occupational health and safety policy committee (the JOHSC) on which an equal number of employee representatives sit, who are to be appointed by the union(

s) representing employees in unionized workplaces ( WPHVP Regulations,

section 10 ). Second, development or identification of training programs in respect of workplace violence and harassment jointly with the JOHSC ( WPHVP Regulations,

section 12 ). Third, investigation of occurrences of workplace violence and harassment by investigators selected by the JOHSC, or, failing their ability to agree on an investigator, by someone named from a list compiled by the Canadian Centre for Occupational Health and Safety ( WPHVP Regulations, sections 25 and 27 ). Fourth, implementation of investigators’ recommendations to prevent a recurrence of workplace violence or harassment to which the JOHSC agrees ( WPHVP Regulations,

section 31 ). If no agreement is reached, the employer may proceed unilaterally, provided it acts in compliance with its statutory obligations regarding workplace violence and harassment ( WPHVP Regulations,

section 2 ). The Code also prohibits reprisal of those who complain ( Code,

section 147 ). [ 71 ] If an employer fails to carry out its obligations with respect to harassment and workplace violence, complaints may be made under

Part II of the Code , which may be referred to an independent adjudicator, whose decisions may be appealed to the FPSLREB ( Code, sections 127.1 –129 and 133; FPSLRA,

section 2 , subparagraph 240 (a)(ii)). In addition, an employer may be subject to prosecution for failure to comply with

Part II of the Code ( Code,

section 148 ). [ 72 ] The Public Servants Disclosure Protection Act , S.C. 2005, c. 46 (the PSDPA ) provides a mechanism for RCMP members and public service employees to disclose wrongdoings and obtain protection from reprisal for such disclosures. Disclosures may be made to the Public Sector Integrity Commissioner, who may investigate and recommend corrective action ( PSDPA, sections 19 and 22 ). The Commissioner is also required to report systemic problems giving rise to wrongdoing to Parliament ( PSDPA,

section 38 ). Complaints of reprisal may be made to the Public Servants Disclosure Protection Tribunal, which is comprised of federally appointed judges ( PSDPA,

section 20.4 ).

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