DIANE BIGEAGLE Plaintiff v. HER MAJESTY THE QUEEN, 2021 FC 504

Date: 2021 0623 Docket: T-1304-18 Citation: 2021 FC 504 Ottawa, Ontario, June 23 , 2021 PRESENT: The Honourable Madam Justice McVeigh BETWEEN: DIANE BIGEAGLE Plaintiff and HER MAJESTY THE QUEEN Defendant AMENDED ORDER AND REASONS TABLE OF CONTENTS I. Introduction 2 II. Preliminary Issues 5 A. Appropriate Parties 5 B. Affidavits filed by RCMP 7 III. Facts 8 IV. Issue 10 V. Evidentiary Background 10 A. Evidence filed 10 B. Evidentiary Issues 13

(1) Reports 13

(2) Expert Evidence 18 VI. The Law of Class Actions 20 VII. Analysis of Causes of Action 24 A. Systemic Negligence 24

(1) Duty of Care 26

(2) The Law 27

(3) Analysis of duty of care 30 (

a) Fiduciary Relationship 31 (

b) The Law of Fiduciary Relationship 33 (

c) Application of Principles to this Case 36 (

i) Branch 1-Undertaking 36 (ii) Branch 2-Defined Class (Vulnerable Individuals) 37 (iii) Branch 3-Legal or Substantial Interest of Beneficiary Affected Adversely by Fiduciary Discretion 39 (

d) Established or Recognized Duty of Care (other than Fiduciary) 39 (

i) Established Duty of Care Analysis 41 (ii) Duty of Care that is Novel 47 Foreseeability & Proximity – Analysis 48

B. Fiduciary Duty: Cause of Action 54 C. Negligent Police Investigation: Cause of Action 57

(1) Analysis 58 D. Misfeasance in Public Office 60 E. Breach of the Charter 63 F. Violations of Quebec Law 69

(1) Is there a valid cause of action due to of violations of the Civil Code of Quebec ? 69

(2) Is there a valid cause of action due to violations of the Quebec Charter of Human Rights and Freedoms ? 71 G. Violations of the Crimes Against Humanity Act 73

(1) Genocide 74

(2) Crimes against Humanity 77 VIII. Conclusion 79 I. Introduction [ 1 ] This is a motion for this action to be certified as a class action under Rule 334.16 of the Federal Courts Rules , SOR/98-106 [ Rules ].

The Plaintiff in the proposed class action is requesting declarations and monetary damages for the families of victims of missing and murdered Indigenous Canadian women because of the policies and alleged conduct of the Royal Canadian Mounted Police [“RCMP”] over a period of 50 years across Canada. [ 2 ] Specifically, the Second Amended Statement of Claim to the Defendant [“Statement of Claim”] says there has been a failing to " “investigate and prosecute” " and focus on their investigation of missing and murdered Indigenous women, girls, and members of the Two-Spirit, lesbian, gay, bisexual, transgender, queer, questioning, intersex and asexual [“2SLGBTQQIA”] Indigenous community. [ 3 ] The Applicant is the proposed representative plaintiff, Diane BigEagle [the “Plaintiff”].

Her daughter, Danita, went missing in February of 2007 and is still missing at the time of this decision. [ 4 ] I think it is important to note at the outset the statement by the RCMP in their submissions (paragraph numbers and short forms omitted): The dark and painful experiences of violence against Indigenous women, girls and 2SLGBTQQIA individuals have been shared through the National Inquiry into missing and Murdered Indigenous Women and Girls.

Together with First nations, Inuit and Metis, Indigenous organizations, and provincial, territorial, and municipal partners, the Government of Canada continues to walk the path of reconciliation, listening to the voices of families and survivors, as well as grassroots organizations and Indigenous leaders, to work collectively to address this national tragedy.

The National Inquiry, and the ongoing collective response to the Reclaiming Power and Place: The final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls , are ways in which this multivariate, broad ranging public tragedy is being address. Canada acknowledges the experience of the families, extended families, estates and community members of the Indigenous victims whose murders or disappearances remain unresolved.

However, this proposed class action is not an appropriate mechanism to remedy this tragedy. [ 5 ] The Defendant is named as Her Majesty the Queen, the Royal Canadian Mounted Police. [ 6 ] This motion is the first step in a complicated action, and is, subsequently, a complicated motion. [ 7 ] The Class as pled is defined as: (

a) All persons in Canada who have one or more Indigenous Immediate Family Members who are Victims (the “Immediate Family Class”); (

b) All persons in Canada who have one or more Indigenous Extended Family Members who are Victims (the “Extended Family Class”); (

c) All persons in Canada who, by reason of his or her relationship to a Class Member or Victim, are entitled to make claims under any of the Dependant Statutes as a result of injury to the Class Member or Victim (the “Statutory Dependants Class”); (

d) The heirs, assigns, and estates of all Victims (the “Estate Class”); and (

e) All persons in Canada who are in relation to a Victim,

(collectively, the “Class”, “Class Members”, or “Plaintiffs”). (Statement of Claim, at para 6) [ 8 ] The Plaintiff declared that this is not a novel case because in previous class actions, all of the causes of action she is claiming have been certified. The Plaintiff submits that this matter is " “eminently suited for certification” " .

She said that this case is analogous to institutional abuse and systemic discrimination class actions because " “the wrongs have been perpetuated against an identified group of vulnerable Indigenous women and their families through the implementation and operationalization of discriminatory polices and an institutional tolerance for systemic racism.” " (Plaintiff’s Memorandum of Fact and Law, at para 5 [“PMFL”]) [ 9 ] The RCMP have vigorously defended each part of the certification test with no concessions.

I note this because some of the jurisprudence relied on by the Plaintiff, the viability of the causes of action, are either by consent or only some causes of actions are disputed. [ 10 ] Though I do not agree with all of Canada’s challenges to this motion, for the reasons that follow, I will dismiss the certification motion. II. Preliminary Issues A. Appropriate Parties [ 11 ] During oral arguments, the Plaintiff appeared to extend the action to include, as defendants, all federal government departments because the action was against " “Her Majesty the Queen” " .

Though it occurred in the Plaintiff’s Reply, I need to address this as a preliminary issue. [ 12 ] Pursuant to the Federal Courts Act , RSC, 1985, c F-7 s 48 and schedules, the appropriate action is brought against Her Majesty the Queen. In the Statement of Claim at paragraph 3, the pleading names the defendant, Her Majesty the Queen, represents the federal government of Canada and the RCMP and relies on the Crown Liability and Proceedings Act , RSC 1985, c C-50 ss 3, 23(1), and 36. [ 13 ] The Statement of Claim, starting at paragraph 7, sets out the allegations and material facts against the RCMP as a defendant.

Starting at paragraph 73, it pleads only the duty of care owed by the RCMP as well as the alleged breaches, again, only by the RCMP. The written submissions to this motion only set out the causes of action against the RCMP. In submissions, the Plaintiff indicates the claim is " “…aimed at Canada’s vicarious liability for the misconduct of the RCMP officers and administrators whose actions have let to and enabled the negligence complained of.” " (PMFL, at para 67). [ 14 ] It is not appropriate to submit, for the first time, at the reply stage, that the Defendant is to be expanded beyond the RCMP.

The other departments have not had the opportunity to respond. More importantly, there are no allegations pled beyond the RCMP or damages sought from any department but the RCMP. [ 15 ] Just as in Canada (Attorney General) v Jodhan , 2012 FCA 161 at paragraphs 85-89 , where the pleadings were against the treasury board and the applicants then put forward new grounds against and additional 106 departments—which had not been pointed to in the Pleadings—the parties in the instant case must be limited to the policies at issue and to the actions of the at-issue department.

Here, that means the RCMP. [ 16 ] The Crown is immune to liability directly; only the actions or omissions of servants (or agents) of the Crown are to be assessed ( Hinse v Canada (Attorney General) , 2015 SCC 35 at para 58 ). The agent of the Crown whose acts or omissions in question in the Pleadings of the Plaintiff is the RCMP. [ 17 ] Further, determining exactly what or who is a public servant is not always easy. Peter Hogg, on Crown agency, explains that: The Crown includes the departments of government that are headed by a minister. It is the control of the minister that provides the link to the Crown.

Municipal bodies, school boards, universities, hospitals, regulatory agencies, administrative tribunals and public corporations, even if they are performing “governmental” functions, are not agents of the Crown, unless they are controlled by a minister or expressly declared by statute to be an agent of the Crown.

A question often arises as to whether a public body is or is not an agent of the Crown. (Peter Hogg, Patrick J Monahan & Wade K Wright, Liability of the Crown , 4th ed (Toronto: Carswell, 2011) at 13) [ 18 ] Because of the strict requirements to determine what an agent of the Crown is, it is necessary to plead specifically who the agent alleged is. The RCMP was named in the Statement of Claim, and no other branch of government is specifically mentioned. This infers that the only agent of the Crown alleged of any wrongdoing in this action would be the RCMP.

So, the Defendant as named in the Pleadings at paragraph 3 being " “Her Majesty the Queen represents the Federal Government of Canada” " cannot now be extended to any other branch other than the RCMP in this action. B. Affidavits filed by RCMP [ 19 ] The Plaintiff alluded that the RCMP purposely put forth affidavits from witnesses not tendered as representatives of Canada or the RCMP, circumventing the requirement for disclosure of material facts as required by Rule 334.15(5) of the Rules . [ 20 ] I wish to address that point early in the decision because I find that allegation to be baseless.

The witnesses put forth were ones that had direct knowledge regarding specifics that were pled. The RCMP’s witnesses were cross-examined and gave undertakings and there

was a motion for refusals. There was no requirement for Canada to put forth a proper officer at this stage and I find that they put forth witnesses that were appropriate for a certification motion ( Fischer v IG Investment Management Ltd. , 2016 ONSC 4405 ). III. Facts [ 21 ] The proposed representative Plaintiff in the action is Diane BigEagle, the mother of Danita BigEagle. Danita was born March 6, 1984. Diane and Danita resided in the City of Regina at the time of her disappearance.

Danita was a member of the Ocean Man First Nation and she and her family had " “travelled back and forth from time to time between Regina and Ocean Man” " at the time she was reported missing by her family. [ 22 ] Danita has been missing since Sunday, February 11, 2007, and is presumed to be deceased. She is also presumed to be a victim. Danita is survived by her two children, mother and family members. [ 23 ] An additional six members of the proposed class have sworn affidavits. They are Crystal Sylvestre, Loreen Jack, Lorna Thomas- Twin, Linda MacNeil, Lorraine Blyan, and Jan Turner.

All of them allege RCMP policies and inaction in the cases of loved ones who are either missing or deceased.

A further 36 Indigenous women are listed as victims in the motion record. [ 24 ] It is of note that the alleged incidents related by family and community members of victims range from 1968 to 2016, as well as over many different provinces and municipalities and cities that have their own police forces as well as some that engage the RCMP as their policing power, and there is nothing in the Statement of Claim that specifies a limited period of time for potential victims or class members. [ 25 ] The Plaintiff claims that the policies, actions and inactions of the RCMP have caused damage to some members of the Indigenous communities across the country.

The Plaintiff defines a " “Victim” " of the actions of the RCMP as: …an Indigenous woman or two-spirited individual who (1) was murdered (and whose murder was reported to the RCMP but remains unresolved) or (2) has been missing for more than 30 days and whose disappearance was reported to the RCMP. (Statement of Claim, at para 5) [ 26 ] The Plaintiff’ Second Amended Statement of Claim (filed October 4, 2019) brought the action on behalf of the class as defined as: " “Immediate Family” " ; " “Extended Family” " ; " “Statutory Dependants” " ; those in the " “Estate Class” " ; and " “Community Members in relation to a Victim” " . [ 27 ] At the hearing, the Plaintiff requested to amend the Second Amended Statement of Claim to change the " “Community Members in relation to a Victim” " definition to " “all persons in Canada who reside on a First Nation where a Victim resided at the time of the Victim’s murder or disappearance” " .

The Plaintiff’s amendment was accepted by direction at the hearing. [ 28 ] The Motion asks for an Order certifying a class action including a number of classes with Diane BigEagle as the representative plaintiff.

The claims asserted include systemic negligence, breach of common law duties, breach of the Charter of Rights and Freedoms , breach of the Civil Code of Quebec , CQLR c CCQ-1991 [“ CCQ ”], breach of the Quebec Charter of Human Rights and Freedoms , CQLR c C-12 [“ Quebec Charter ”], breach of the Crimes against Humanity and War Crimes Act , SC 2000, c 24 [“ Crimes Against Humanity Act ”] and that the relief sought is in the nature of general, special, aggravated, punitive, or exemplary damages, as well as other procedural orders. [ 29 ] The common issues asked to be certified are attached as Annex “B”. IV.

Issue [ 30 ] The issue is whether the action should be certified as a class proceeding. V. Evidentiary Background A. Evidence filed [ 31 ] The Plaintiff has supported her certification motion with the following evidence: Affidavit of Diane BigEagle, sworn May 7 2019 i . Overview of Resource Allocation in Canadian Police Services, 2007 ii . List of Parties with Standing in the National Inquiry, February 5, 2019 iii . Agency Response Guide to Missing Persons Situations in Saskatchewan, March 3, 2014 iv . Thunder Bay Police Services Board Investigation Final Report, November 1, 2014 v .

Missing and Murdered Indigenous Women’s Inquiry Wages Court Fight for RCMP Files-CBC, April 29, 2019

vi . RCMP Regulations, 2014- Code of Conduct, April 30, 2019 vii . The National Inquiry into Missing and Murdered Indigenous Women and Girls- Interim Report, 2007 Second Affidavit of Diane BigEagle, sworn June 5, 2019 i . National Inquiry Calls for Transformative change to Eradicate Violence Against Indigenous Women, Girls and 2SLGBTQQIA, June 03, 2019 ii . The Final Report on The National Inquiry into Missing and Murdered Indigenous Women and Girls- Volume 1a, 2019 iii . The Final Report on The National Inquiry into Missing and Murdered Indigenous Women and Girls- Volume 1b, 2019 iv .

A Supplementary Report on The National Inquiry into Missing and Murdered Indigenous Women and Girls- Volume 2, 2019 v . Supplementary Report on The National Inquiry into Missing and Murdered Indigenous Women and Girls- A Legal Analysis of Genocide, 2019 vi . Executive

Summary of The Final Report on The National Inquiry into Missing and Murdered Indigenous Women and Girls, 2019 vii . " “Trudeau Says Deaths and Disappearances of Indigenous Women and Girls Amount to Genocide” " - CBC News, June 04, 2019. viii . Transcript of the Cross Examination of Diane BigEagle, February 12, 2020 ix . Letter from Tim Schwartz to Diane BigEagle, January 21, 2011 x . Search Called in Regina for Missing Woman- An

Article by Andrew Matte Sage from Saskatchewan Sage, January 01, 2020 xi . Native Women’s Association of Canada - Storytelling: Danita’s Story xii . Response to Undertakings of Diane BigEagle 1 . RPS Witness Statement - February 22, 2007 2 . RPS Witness Statement - March 4, 2007 3 . RPS Witness Statement - August 9, 2007 Affidavit of Lorraine Blyan, sworn August 23, 2018 i . " “Coroner doubts evidence at inquest” " - The Edmonton Journal, August 3, 1968 ii . Certificate of Coroner Before Summoning Jury, July 1968 Affidavit of Loreen Jack, sworn May 3, 2019 i .

Crime Stoppers Flyer regarding a Missing Family Affidavit of Linda MacNeil, sworn May 01, 2019 i . Response to Written Examination of Linda MacNeil, February 28th, 2020 Affidavit of Crystal Sylvestre, sworn January 24, 2019 i . " “Janet Sylvestre” " - CBC News, dated July 07, 2019 ii . Opinion: Looking Back at Just Another Indian - Eagle Feather News, August 17, 2016 Affidavit of Lorna Thomas-Twin, sworn August 23, 2018 Affidavit of Jan Turner, sworn April 29, 2019 i . Statement given by Jan Turner, 2015 ii . Three polygraph test results iii . Video Interview of Jan Turner by Cpl.

Fitzpatrick, February 25, 2020 iv . Email Brian Merriman to Jan Turner, October 15, 2019 v . Transcript of the Cross Examination of Jan Turner, February 21, 2020

vi . Response to Undertakings of Jan Turner Affidavit of Dr. Thomas Gabor, sworn April 15, 2019 i . Expert Report of Dr. Thomas Gabor, April 05, 2019 [ 32 ] The Defendant filed the following evidence: Affidavit of Cst. Cathleen Falebrinza, sworn November 23, 2019 i . Transcript of the Cross Examination of Cathleen Falebrinza, February 25, 2020 ii . Excerpt from RCMP “E” Division’s operational manual re

chapter 37-3, “Missing Persons” iii . RCMP National Policy on Missing Persons iv . Notes of Cst. Cathleen Falebrinza v . Response to Undertakings of Cst. Cathleen Falebrinza vi . Response to Refused Questions of Cst. Cathleen Falebrinza Affidavit of Cheryl Mancell, sworn November 21, 2019 i . Aboriginal Peoples in Canada ii . Aboriginal Peoples Highlight Table iii . Membership in a First Nation or Indian Band iv . National Household Survey: Aboriginal Peoples v . Transcript of the Cross Examination of Cheryl Mancell dated February 21, 2020 Affidavit of Dr. Ronald-Frans Melchers, sworn November 28, 2019 i .

Expert Report of Dr. Ronald-Frans Melchers ii . Transcript of the Cross Examination of Dr. Ronald-Frans Melchers dated February 6, 2020 iii . List of Reference Documents iv . Thunder Bay Police Service Board Investigation v . Statistics Canada Report, Criminal Victimization in Canada 2014, November 23, 2015 vi . Report of P. Feinstein and M. Pearce dated February 26, 2015 vii . Missing and Murdered Aboriginal Women: A National Operational Overview- RCMP, dated 2014 viii . Impact Evaluation and Development Report - NONIE ix .

Collected Data on Aboriginal People in the Criminal Justice System- Statistics Canada, May, 2005 x . Measuring Violence Against Women - Statistics Canada, October, 2006 xi . Criminal Victimization in Canada - Statistics Canada, November 23, 2015 xii . Victimization of Aboriginal People in Canada - Statistics Canada, dated June 28, 2016 xiii . The Canadian Police Performance Metrics Framework: Standardized Indicators for Police Services in Canada - Statistics Canada, September 11, 2019 xiv .

The Canadian Police Performance Metrics Framework: Standardized Indicators for Police Services in Canada - Statistics Canada, September 11, 2019 Affidavit of Cst. Tim Schwartz i . Transcript of the Cross Examination of Cst. Tim Schwartz dated February 11, 2020 ii . RCMP Notes iii . RCMP Sources of Information iv . Response to Undertakings of Cst. Tim Schwartz

Affidavit of Superintendent Jeanette Theisen, sworn November 28, 2019 i . Transcript of the Cross Examination of Jeanette Theisen dated February 26, 2020 ii . Missing Persons Policy, January 24, 2019 iii . Operational Manual excerpt (Part 37,

Chapter 3), dated November 21, 2016 iv . Response to Undertakings of Supt. Jeanette Theisen v . 62 Responses to Refused Questions of Supt. Jeanette Theisen B. Evidentiary Issues [ 33 ] I do not need to determine the weight or credibly of any of the evidence. However, a determination of admissibility is necessary to find whether the reports filed can be used as material facts given the inquiries different evidentiary burdens of the inquiries than at trial. I must also consider how to treat the expert reports and the proposed methodology contained within.

(1) Reports [ 34 ] Many reports from inquiries and commissions were filed, and it would seem are relied on by the Plaintiff as material facts, to base the causes of actions on. The main report relied on is the " “Final Report on The National Inquiry into Missing and Murdered Indigenous Women and Girls” " [Final Report]. [ 35 ] A number of newspaper articles were also filed and relied on.

This included, among others, articles about the Prime Minister’s response to the Final Report, as well as the RCMP Commissioner’s comments. [ 36 ] It must be stated that the reports and inquires are all of great importance and they address a real and tragic public concern. That is, however, not the concern that is being addressed here. [ 37 ] The RCMP expressed concerns about these reports being submitted as evidence and thus the basis for the material facts for this motion.

Though the RCMP agreed that it was acceptable to admit the reports and inquiries, they added the caveat that they are wholly unreliable and riddled with issues including hearsay and inadmissibility. This was due to the nature of how the information was gathered at the inquiries. Generally, the utility of the reports was questioned given the hearsay (and on occasion triple hearsay) resulting from the nature of the fact gathering at the hearings. [ 38 ] It is acknowledged that the Final Report was created after an inquiry, and an inquiry does not have the same evidentiary tests as a civil case does.

The inquiry was a place for women and members of the Indigenous communities to tell their stories without boundaries or evidentiary rules. [ 39 ] It is without question that the information in reports is given without the same evidentiary rules as required by a court. The information from the reports is not taken under oath, can be hearsay, there is no opportunity for cross-examination, and no due process or procedural fairness necessary. The report contains anecdotal and opinion remarks from non-experts.

The findings are based on information that would not be evidence at a trial and given without judicial scrutiny regarding possible exceptions to the rules of evidence.

This is not surprising given that the reports are not intended for use in courts, but rather for, among other things, healing, reconciliation, and to encourage government action. [ 40 ] On occasion, reports from inquiries have not been admitted into class action proceedings for the differences of evidentiary standards at hearings: Ernewein v General Motors of Canada Ltd , 2005 BCCA 540 (US secretary of Transport Report); Robb Estate v St Joseph’s Health Care Centre , [1998] OJ No 5394, (Ont GD) (Royal Commission of Inquiry into the Blood System-Grace & Krever Reports); LR v British Columbia , 2003 BCSC 234 (Ombudsman and Berger Reports). [ 41 ] This type of evidence being used in certification motions was dealt with in the " “Motherisk Drug Testing Laboratory” " case by the Ontario Superior Court.

Justice Perell in RG v Hospital for Sick Children , 2017 ONSC 6545 [ Motherisk ONSC ] was appealed to the Ontario Divisional Court, and was affirmed there ( RG v Hospital for Sick Children , 2018 ONSC 7058 [ Motherisk DC ]). That case involved testing mothers’ hair to screen for drugs and alcohol where the positive tests were then used to refer the individual to child protection agencies. [ 42 ] Motherisk ONSC is a helpful review of the dilemma faced by the certification motion judge. In that case, the admissibility of an " “Independent Review Report” " was at issue.

The defendant argued the report ought to be inadmissible evidence for the certification review for various reasons—largely because of the non-adjudicative process, presence of hearsay, and lack of due process protections ( Motherisk ONSC , at paras 16-18 ). The plaintiff in that motion argued that the report ought to be admissible for certification since the motion is procedural and not a determination on the merits ( Motherisk ONSC , at para 20 ).

Further, the plaintiff argued that there was no prejudice to the defendant " “…from admitting the Independent Review for the limited purposes of establishing some basis in fact for four of the five certification criteria…” " ( Motherisk ONSC , at para 22 ). Of note, it was apparently not used for determining if the causes of actions were sufficiently pled in order not to be struck. [ 43 ] Justice Perell allowed the report in for the limited purposes of the certification motion. He did so with much skepticism and criticism of both parties’ use of the report.

The report was allowed, not for proof of the merits of the claim or for issue estoppel, but for uncontentious facts, the issues (as they were not hearsay), and recognized exceptions to the hearsay rule such as business records. He concluded that " “the fact of the Independent Review having occurred is part of the historical background to Ms. Green’s and the putative class members’ claims and some of the Independent Review is admissible simply for having been said—but not necessarily for the truth of what was said” " ( Motherisk ONSC , at para 26 ).

Justice Perell went on to say that " “the Independent Review is admissible and the use

to be made of it will depend on a contextual analysis of the matter in issue in the discussion that follows”" (Motherisk ONSC, at para 27). [44] On appeal of Motherisk ONSC, Justice F L Myers, on upholding Justice Perell’s dismissal of the certification motion commented: It is apparent that the plaintiff has drawn her allegations of systemic negligence from the independent review report.Ignoring for this motion or appeal any admissibility issue relating to the use of the report at trial, the plaintiff has chosen toapproach the case based on the findings in a report that were not intended to be a statement of civil liability.

Norwere they intended to state a cause of action (a right to sue) for any individual or group. (Motherisk DC, at para 22, emphasis added) [45] Additionally and importantly for this case, Justice de Montigny in Canada v John Doe, 2016 FCA 191 [John Doe] warned aboutaccepting reports and evidence at the cause of action stage as "“enough”" to support a cause of action. He said: "“…to the extent that themotions judge turned his mind to the requirement of pleading material facts in support of each cause of action, he seems to be satisfiedwith the Privacy Commissioner’s Report and the other evidence filed.

This is clearly an error, as he failed to draw a distinctionbetween elements in the pleadings and those that are in evidence on the motion”" (John Doe, at para 37, emphasis added). Justice deMontigny goes on to say that: In my view, the motions judge erred in accepting, without much discussion, that this pleading was sufficient to ground thecause of action. First of all, there is a total lack of any material facts to support this pleading, and that is in and itself asufficient basis to dismiss that cause of action. (John Doe, at para 45, emphasis added.

See also paras 53,56 and57 for elements of the cause of action set out and then nomaterial facts to support the elements) [46] The approach taken in the Motherisk decisions and John Doe, is a just approach in respect to allowing the report to be admitted, butnot for the truth of the facts or as material facts.

The reports and inquiries are admitted, but only to help put the facts pled into context(Johnson v Ontario, 2016 ONSC 5314, at para 67; Ewert v Canada (Attorney General), 2016 BCSC 962, at paras 39-40). [47] The newspaper articles that were filed concerning statements of the Prime Minister or the RCMP commissioner will likewise beadmitted, not for the truth of the statements, but for context. The existence of those articles hint at evidence that could exist to beproduced at trial, and I am prepared to admit them for that purpose, which is relevant to the common issues and litigation plan.

(2) Expert Evidence [48] The Plaintiff proffered an expert report by Dr. Thomas Gabor to suggest a methodology to determine whether "“provided sufficientdocumentation, it would be possible to determine whether the RCMP carried out its duties to the class/victims in a ‘markedly differentmanner’ than with other citizens.”" [49] The RCMP filed an expert report by Dr.

Ronald-Frans Melchers that essentially states the methodology set out by the Plaintiff’sexpert would make it impossible to answer the question and then describes what, in his opinion, is a viable methodology. [50] Both expert reports are not put forward regarding the merits of the causes of action, but regarding the certification requirements. [51] The parties do agree that on a certification motion, I do not examine the expert reports and make a finding on the merits or on whichexpert to rely on (Irving Paper Ltd v Atofina Chemicals Inc, 2010 ONSC 2705, at paras 55 and 64).

They disagree on whether thePlaintiff’s expert met the legal test on whether there is a viable methodology on a class-wide basis. [52] The RCMP claim that the reports proposed by the Plaintiff’s expert are not admissible at the common issues trial. The RCMPindicate that the methodology is not demonstrably better than other methods to find missing and murdered Indigenous women and girlsalready being used. And finally, that the methodology regarding determining the differences in the RCMP’s tactics when dealing withIndigenous versus non-Indigenous persons is not grounded in facts.

In contrast, the Plaintiff argues that if I look at which methodology isbetter, it amounts to the weighing of evidence. [53] In Pro-Sys Consultants Ltd v Microsoft Corporation, 2013 SCC 57 [Pro-Sys], the Supreme Court of Canada [“SCC”] discussed howa motion judge should treat evidence in a certification motion, and that it should not be subjected to rigorous scrutiny (Pro-Sys, at para103). [54] The test at this stage is to only review to see if the methodology set forth by the Plaintiff’s expert is a "“credible or plausiblemethodology”" (Pro-Sys Consultants Ltd v Infineon Technologies AG, 2009 BCCA 503, at para 68, leave to appeal to SCC refused, (June 3, 2010)). [55] To summarize, I do not make the determination of which expert to prefer—a certification court is ill equipped to do assessments ofevidentiary weight.

As well, I am not to determine how strong the Plaintiff’s expert is, but just to satisfy myself that the methodology hassome basis in fact to satisfy the commonality requirement. "“The methodology cannot be purely theoretical or hypothetical, but must begrounded in the facts of the particular case in question. There must be some evidence of the availability of the data to which themethodology is to be applied”" (Pro-Sys, at para 118).

Neither do I weigh the conflicting expert reports at this stage as doing so couldonly lead to a merit-based evaluation (Tluchak Estate v Bayer Inc, 2018 SKQB 311, at para 60, leave to appeal to SKCA refused, 2019SKCA 64 (July 25, 2019); leave to appeal to SCC refused, (February 20, 2020)). [56] The report proffered by the Plaintiff, when subjected to modest scrutiny, does set out a methodology that is not theoretical orhypothetical, and that meets the some basis of fact for the commonality requirement.

VI. The Law of Class Actions [57] The requirements for an action to be certified as a class action are set out in the Rules at 334.16(1)(a)-(e) (attached in Annex “A”). [58] Justice Stratas writing for the Federal Court of Appeal [“FCA”] in Wenham v Canada (Attorney General), 2018 FCA 199, atparagraph 17 [Wenham], echoes the Rules, indicating that to be certified as a class proceeding, the Court required these things: (

a) the pleadings disclose a reasonable cause of action; (

b) there is an identifiable class of two or more persons; (

c) the claims of the class members raise common questions of law or fact, whether or not those common questionspredominate over questions affecting only individual members; (

d) a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact;and (

e) there is an adequate representative plaintiff or applicant. [59] These requirements make up the sub-issues in this motion: 1. Is it plain and obvious that there is a cause of action i. for systemic negligence? ii. because of a negligent police investigation? iii. for misfeasance in public office? iv for a breach of the Charter

a) under s. 7?

b) under s. 15? v. because of breaches and violations for residents of Quebec:

a) of the CCQ?

b) of the Quebec Charter? vi. due to breaches of Crimes Against Humanity Act? 2. Is there an identifiable class of two or more persons? 3. Is there a common question of law or fact to be resolved? 4. Is the class proceeding the preferable procedure? 5.

Is the representative plaintiff a suitable representative for the class? [60] The language in the Rules is mandatory so that if the test is met, the Court has no discretion, and must certify (Murphy v Cie AmwayCanada, 2015 FC 958, at para 30 and Samson Cree Nation v Samson Cree Nation (Chief and Council), 2008 FC 1308, at paras 34-35,aff’d 2010 FCA 165). [61] In the Order sought, the Plaintiff reminded the Court that it has "“liberal and flexible”" remedial options if the criteria are notsatisfied.

Including that the Court may unconditionally certify, adjourn to permit further evidence or an opportunity to amend, or tocertify on conditions that specified changes are made to the class definition, common issues, or litigation plan. [62] The SCC in Pro-Sys has set tests and the burdens for certification of actions (Pro-Sys, at paras 63 and 99-104).

There are twostandards for the five certification criteria: one for the cause of action, and another for the four remaining criteria. [63] To determine if there is a cause of action, I must review each alleged cause of action and determine if it is plain and obvious that itwill fail (Hunt v Carey Canada Inc, (SCC), [1990] 2 SCR 959, at p 980, 74 DLR (4th) 321; R v Imperial TobaccoCanada Ltd, 2011 SCC 42, at paras 23 and 25 [Imperial Tobacco]).

The test is the same as whether to strike a pleading or not. [64] When assessing whether it is plain and obvious that a cause of action will fail, the material facts must be taken to be true and I amnot to weigh evidence (John Doe, at para 23; Wenham, at paras 24-25).

But, it must not be forgotten that the facts pled are assumed to betrue unless the facts are "“manifestly incapable of being proven”" (Atlantic Lottery Corp Inc v Babstock, 2020 SCC 19, at para 87[Atlantic Lottery] citing Imperial Tobacco, at para 22). [65] Chief Justice McLachlin said "“[t]his is not a decision on the merits of the action, but on whether the causes of action pleaded aresupportable at law.

The question is whether the pleadings, assuming the facts pleaded to be true, disclose a supportable cause of action.If it is plain and obvious that the claim cannot succeed, it should be struck out”" (Alberta v Elder Advocates of Alberta Society, 2011

SCC 24 , at para 4 [ Alberta Elders ]). [ 66 ] A class action motion for certification has been described as a procedural motion with the court in the role of a gatekeeper. Although this is essentially a procedural screening exercise it must still be meaningful and be more than symbolic scrutiny of the evidence or else it would be a meaningless exercise where all class action motions are granted. [ 67 ] Justice Rothstein emphasised this point: Nevertheless, it has been well over a decade since Hollick was decided, and it is worth reaffirming the importance of certification as a meaningful screening device.

The standard for assessing evidence at certification does not give rise to “a determination of the merits of the proceeding” (CPA, s. 5(7 )); nor does it involve such a superficial level of analysis into the sufficiency of the evidence that it would amount to nothing more than symbolic scrutiny.” ( Pro-Sys , at para 103 , emphasis added) [ 68 ] In addition, the allegations cannot be baseless: " “Bald assertions of conclusions are not allegations of material fact and cannot support a cause of action…” " ( John Doe , at para 23 ).

The FCA has stated that " “[w]hile the facts alleged are assumed to be true, they must still be pleaded in support of each cause of action ” " ( John Doe , at para 23 , emphasis added).

" “As previously mentioned, material facts must be pleaded in support of each cause of action alleged” " ( John Doe , at para 33 ; see also Merchant Law Group v Canada (Revenue Agency) , 2010 FCA 184 , at para 34 [ Merchant Law ]). [ 69 ] It is not my role to assess challenges the Plaintiff may face at trial or as Justice Stratas said " “[w]agering on whether the cause of action will cross the finish line is not part of the court’s task” " ( Wenham , at para 29 ). [ 70 ] For the remaining four criteria, the test to be met is whether there is " “some basis of fact” " to support the certification order ( Hollick v Toronto (City) , 2001 SCC 68 , at para 25 ). [ 71 ] With these warnings to not evaluate the evidence ringing in my ears, I will begin by examining: whether the Plaintiff has pled material facts—that are not manifestly incapable of being proven or bald assertions incapable of being proven—to support each element of each cause of action, or if is it plain and obvious that the cause of action will fail and should be struck.

VII. Analysis of Causes of Action A. Systemic Negligence [ 72 ] The first cause of action in the Statement of Claim is systemic negligence. The elements of negligence are:

a) existence duty of care;

b) breach of that duty; and

c) damages flowing from the breach of the duty of care. [ 73 ] To be systemic it must be a widespread harm to a number of individuals: " “[the] negligence [is] not specific to any one victim but rather to the class of victims as a group” " ( Rumley v British Columbia , 2001 SCC 69 , at para 34 [ Rumley ]) .

The Plaintiff indicates that the individual nature of the wrongs should not be focused on, as significant elements of the wrong can be decided on a class-wide basis and the individualization does not have to be so pervasive that it overwhelms what is plead as a systemic wrong. [ 74 ] The central question is whether the material facts, assuming them true as plead, have the elements necessary for systemic negligence including whether the RCMP have a duty of care to the class members. [ 75 ] The Pleadings for this

section are at paragraphs 73b to 78 of the Statement of Claim, with paragraph 73 setting out " “The RCMP’s Duties of Care” " (attached in Annex “C”). [ 76 ] The Plaintiff claims damages for the " “systemic negligence of the RCMP for which the defendant is vicariously liable” " and also included damages for the breach of the Charter and aggravated, punitive and exemplary damages. [ 77 ] Further, the Plaintiff suggests that because of the injuries suffered, the Plaintiff and the class have sustained certain special damages, losses and expenses for medical treatment, rehabilitation, psychological counselling, and other care. [ 78 ] She asserted it is systemic because of colonial thinking.

The memorandum submits that: " The breaches of the duty for which compensation is sought are not breaches of the duty in individual, specific cases (although they provide the backdrop against which systemic conduct is evaluation), but failures on the part of Canada to implement policies, practices, procedures and protocols that ensure the protection of Victims and, by extension, Class Members.

These failures were systemic, occurred over a long period of time, and were the result of a general failure to devise, develop, and implement appropriate policies that would have protected Victims and Class Members (as described above) from the harms which ultimately occurred.

" (PMFL, at para 68, referring to the Statement of Claim, at paras 72j, 74b and 75c) [ 79 ] The Plaintiff’s position is that because many other class actions have been certified against government and institutions for systemic negligence resulting from design and implementation of policies and that " “…many examples confirm that this cause of action is reasonably asserted in a class context” " , then this Court should certify the proceeding. [ 80 ] The Plaintiff provided a list of systemic negligence class actions, all certified, and suggests that should be enough in this situation.

She included examples such as Tippett v Canada , 2019 FC 869 , a decision about diversion program operated by Canadian Armed Forces

[CAF], where class members physically and sexually abused by CAF members. She also cites Pederson v Saskatchewan (Minister ofSocial Services), 2016 SKCA 142, where Social Services failed to pursue legal action for injuries sustained by minors in foster care.

(1) Duty of Care [81] The causes of action are set out above in paragraph 59. The causes of action of systemic negligence and negligent policeinvestigation both require the element of a duty of care. [82] The Plaintiff stated that the RCMP have a duty of care to the members of the class. The Plaintiff presented that the duty of care isone that is already established so this element is established. [83] In the alternative, she says that simply because this duty has not been recognized to date does not mean that it does not exist.

It justmeans that the Plaintiff has an uphill battle in trying to prove that it does. [84] As a subset of that argument, the Plaintiff’s submissions are that the duty of care is in an already established category due to therebeing a fiduciary duty from the RCMP to the Indigenous female population. In that alternative, they argue if I find it not to be anestablished category then it could arise as a novel fiduciary duty. [85] The Plaintiff declared that there is a RCMP duty—not to the deceased, but for the benefit of the family, the close community, and tobring closure to those close to the victims.

The Plaintiff indicates that the derivative claims are not hopeless as there are provincialstatutes that allow for recovery, and even if there is no statute, that this area of law is developing—but this is more a standing issue. Thissubmission is in relation to the fact that the duty of care of the RCMP is alleged to be to the class member who is a family or communitymember and not to the victim themselves.

(2) The Law [86] The FCA, in Paradis Honey Ltd v Canada (Attorney General of Canada), 2015 FCA 89 [Paradis Honey], said the first step for aduty of care analysis is to ask these two questions in the context of that case: 1. Do the facts pleaded give rise to a relationship of proximity in which Canada’s failure to take reasonable care mightforeseeably cause loss or harm to the beekeepers? 2.

Are there policy reasons why a duty of care should not be recognized? (Paradis Honey, at para 88) [87] They summed up the test to meet as follows: 47 As noted above, the law on the liability of public authorities in negligence is determined by the test in Anns v. MertonLondon Borough Council (1977), [1978] A.C. 728 (U.K. H.L.) (Anns), adopted by the Supreme Court of Canada in Nielsenv. Kamloops (City), (SCC), [1984] 2 S.C.R. 2 (S.C.C.), and explained in Cooper v. Hobart, 2001 SCC 79,[2001] 3 S.C.R. 537 (S.C.C.).

This law was most recently canvassed in Imperial Tobacco, cited above. 48 The Anns test is a two part test: (1) do the facts disclose a prima facie duty of care, that is, a relationship of proximitywhich makes it just and reasonable to impose an obligation to take reasonable care to prevent foreseeable harm; and (2) arethere policy reasons why this prima facie duty of care should not be recognized. (Paradis Honey, at paras 47-48.

See also Anns v Merton London Borough Council (1977), [1978] AC 728 (UK HL) [Anns];Cooper v Hobart, 2001 SCC 79 [Cooper]) [88] I agree with the Plaintiff that just because a cause of action has never been recognized does not mean that will preclude it from goingahead at this preliminary stage. Conversely, it does not mean that simply because it is novel, it will go ahead just so that the judiciary canadvance the reform or extend legal doctrine. This is best said by Justice Stratas: When the courts consider a novel claim, they must keep in mind a line.

On one side of the line is a claim founded upon aresponsible, incremental extension of legal doctrine achieved through accepted pathways of legal reasoning. On the other isa claim divorced from doctrine, spun from settle preconceptions, ideological visions or freestanding opinions about what isjust, appropriate and right.

The former is the stuff of legal contestation and the courts; the latter is the stuff of publicdebate and the politicians we elect. (Paradis Honey, at para 117, emphasis added) [89] Chief Justice McLachlin in Alberta Elders taught the approach to determine if there is a duty of care at the cause of action stage in acertification motion. [90] I will have to do the same analysis as she did, and thus I will rigidly follow her approach and methodology. [91] First, she stressed that "“[t]his is not a decision on the merits of the action, but on whether the causes of action pleaded aresupportable at law”" (Alberta Elders, at para 4).

To test the claim, she then set out the plaintiff’s pleadings and analyzed them against thelengthy background she had set up regarding the elements of a fiduciary duty pleading. She stated that: "[i]t thus emerges that a rigorous application of the general requirement for fiduciary duty will of necessity limit the range ofcases in which a fiduciary duty on the government is found. … Plaintiffs suing for breach of fiduciary duty must be preparedto have their claims tested at the pleadings stage, as for any cause of action. "

"(""Alberta Elders"", at para ""54"")" [92] When the Chief Justice analyzed the negligence claim she said: [t]he first and central question is whether the pleadings, assuming the facts alleged to be true, support a duty of care onAlberta to members of the plaintiff class. This requires us to determine first whether Alberta and the class members were ina relationship that gave rise to a prima facie duty of care, based on foreseeability and proximity. If a prima facie duty ofcare is established, the second step is to ask whether it is negated by policy considerations: see Anns v.

Merton LondonBorough Council, [1978] A.C. 728 (H.L.); City of Kamloops v. Nielsen, (SCC), [1984] 2 S.C.R. 2; Cooperv. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, at para. 30; and Reference re Broome v. Prince Edward Island, 2010 SCC 11,[2010] 1 S.C.R. 360, at para. 14. (Alberta Elders, at para 66, emphasis added) [93] The Chief Justice then surveyed the law, analyzed the pleadings and found that "“assuming the facts pleaded to be true, thenegligence claim is bound to fail at the first step of the Anns/Cooper inquiry.

Absent a statutory obligation to do the things that theplaintiffs claim were done negligently, the necessary relationship of proximity between Alberta and the claimants cannot be made out.”"(Alberta Elders, at para 73). In the end, she found that "“[p]ut simply, the pleadings against the Crown are too vague to permit theinference of a fiduciary duty on the Crown toward the plaintiff class”" (Alberta Elders, at para 60).

She determined that the "“pleas offiduciary duty, negligence and bad faith in the exercise of discretion disclose no cause of action and should be struck out in their entirety,but that the claim for unjust enrichment should survive”" (Alberta Elders, at para 5).

(3) Analysis of duty of care [94] What will become clear in the analysis is that this particular certification motion is unique, and does not fit into the boxes that thePlaintiff alleges it does. The class members are not the victims themselves as the alleged incidents range over 50 years, and are alleged tohave taken place across Canada, including in areas that have their own police forces—without the RCMP involvement or jurisdiction, aswell as incidents within the RCMP’s jurisdiction.

While the National Inquiry covered such wide subject matter, and rightly so given itspurpose and procedures, the facts stemming from it are less amenable to finding a duty of care that is viable at law (see also the use ofreports, above). As Justice Stratas said in Paradis Honey: some matters are best left for politicians to determine (Paradis Honey, at para117). (

a) Fiduciary Relationship [95] Fiduciary duty as a cause of action in itself is dealt with in the next

section of these reasons. However, I also have to deal with here itto respond to the Plaintiff’s arguments that a duty of care relationship is established by a fiduciary relationship, which in turn allows thefirst step in a claim for systemic negligence. The Plaintiff argues the private law duty of care is established because of the fiduciaryrelationship of the RCMP and the class members.

She submitted that the fiduciary duty arises in at least two ways in this case. [96] Her submissions are that courts have accepted that a fiduciary duty arises when the crown accepts "“discretionary control over somespecific aboriginal interest (often, but not exclusively land interests)…”" (PMFL, at para 73).

To support this, the Plaintiff cites Brown vCanada (Attorney General), 2013 ONSC 5637, at paragraph 37 [Brown]. [97] The Plaintiff presents that the duty arises is that "“the RCMP is tasked with preserving the peace and upholding generally the lawsof Canada and the laws of the various provinces in which they work.”" She argues that the RCMP has a special role to protect Indigenouspeople as "“an arm of the Federal Government [and is] is subject to Charter oversight (with s. 7 and s. 15 being of particular applicationhere).”" The Plaintiff says that, regarding investigation and pursuit of cases of victims, "“…the exercise of ‘discretionary control’ has ledto the harms alleged in this case”", and that the "“RCMP failed to take sufficient steps to protect this peculiarly vulnerable population”"that they have a fiduciary relationship with (PMFL, at para 74). [98] The Plaintiff further purports that the RCMP owes an existing duty to Indigenous persons because the SCC said there is a "“trust-like, rather than adversarial”" relationship between Canada and Indigenous persons (R v Sparrow, (SCC), [1990] 1SCR 1075, at 1108 [Sparrow]).

Because of this, she suggests that the class members fit into an established category because there is afiduciary duty between the class members and the RCMP. [99] The second way the Plaintiff argues for a fiduciary duty to be found is the fact the Indigenous women (alleged wards of the statewhose care and welfare are a political trust of the highest obligation) are vulnerable and at a disproportionate risk of harm.

This, sheasserts, makes the duty a heightened one. [100] She says that there are three elements required for a fiduciary relationship to be found: an undertaking, a defined vulnerable person,and a legal or practical interest.

The Plaintiff submits that all the three elements are present to find an ad hoc fiduciary duty. [101] Regarding the undertaking element, the Plaintiff submits that the Royal Canadian Mounted Police Act, RSC, 1985, c R-10 [RCMPAct] is an undertaking by the Federal Crown to "“…provide policing services to all Canadians, and which purports to guaranteeimpartiality and equal access and protection including to the Indigenous peoples.”" As well, each member is subject to a code of conduct. [102] Secondly, the Plaintiff says that there is a defined class of victims of which is "“peculiarly vulnerable, whose social circle andfamily members are therefore equally more peculiarly vulnerable.”" In fact, she argues these class members’ vulnerability is heightenedbecause they are more dependant on the RCMP. [103] The final element, a legal or practical interest, is also present in this action, according to the Plaintiff.

She voices that this elementis met because "“[t]here is therefore a ‘glimmer of actionability” in the allegation that Canada should have done more to ensure adequatepolicing in respect of the Victims, and in failing to do so, it breaches its trust with Indigenous persons and thus acted disloyally.”" She

submits that paragraph 51 of Brown is analogous. [104] Finally, the Plaintiff argued that if the duty of care is to be deemed novel, that analysis is subject matter for the trial judge and notfor the motion’s judge to determine. (

b) The Law of Fiduciary Relationship [105] Chief Justice McLachlin in Alberta Elders sets out the requirements for a fiduciary relationship to be recognized at this preliminarystage to be a duty of care. Alberta Elders was a class action alleging that the government conduct in artificially elevating elderlyindividual’s required contributions to reside in Alberta care homes breached fiduciary duties, negligence, bad faith and unjustenrichment.

The reasoning behind the case was that the government is responsible for the medical care of residents, but that the residentscan contribute to costs related to housing and meals by paying accommodation costs. The class argued that the government raised theaccommodation fees artificially, so they could subsidize the government of Alberta’s medical expenses. She struck the causes of actionfor fiduciary duty, negligence and bad faith but not the cause of action for unjust enrichment. [106] At paragraph 36 of Alberta Elders, there is a

summary of the three requirements to find an ad hoc fiduciary duty.

As indicated bythe Plaintiff, the requirements are: (1) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary or beneficiaries; (2) a defined person or class of persons vulnerable to a fiduciary’s control (the beneficiary or beneficiaries); and (3) a legal or substantial practical interest of the beneficiary or beneficiaries that stands to be adversely affected by thealleged fiduciary’s exercise of discretion or control. (Alberta Elders, at para 36) [107] She explained that "“[a]d hoc fiduciary relationships must be established on a case-by case basis”" (Alberta Elders, at para 33).She then says that the general principles apply to private actors but also can apply to government.

She cautions, though, that because"“...special characteristics of government responsibilities and functions mean that governments will owe fiduciary duties only in limitedand special circumstances”" (Alberta Elders, at para 37).

Her reliance on Guerin v Canada, (SCC), [1984] 2 SCR 335[Guerin] and Wewaykum Indian Band v Canada, 2002 SCC 79 [Wewaykum] is for support that "“[p]ublic law duties, the performance ofwhich requires the exercise of discretion, do not typically give rise to a fiduciary duty”" (Guerin, at p 385 (Dickson J)), and regarding therelationship to the Indigenous people "“therefore, in this sui generis relationship, it is not improper to regard the Crown as a fiduciary”"(Wewaykum, at para 96).

She finds that in Sparrow at page 1108, the sui generis relationship raises a fiduciary duty to the"“…Aboriginal peoples with respect to their lands…”" (Alberta Elders, at para 39, emphasis added). [108] The Chief Justice indicates that "“[i]t is now clear that vulnerability alone is insufficient to support a fiduciary claim”" (AlbertaElders, at para 28, emphasis added).

The "“hallmarks”" of establishing a fiduciary duty are not only vulnerability arising from therelationship; the alleged fiduciary must have given an undertaking of responsibility to act in the best interests of a beneficiary (AlbertaElders, at paras 30-32 and 36). That undertaking must be "“[t]he party asserting the duty must be able to point to a forsaking by thealleged fiduciary of the interests of all others in favor of those of the beneficiary’s interest, in relation to the specific legal interest atstake”" (Alberta Elders, at para 31).

This undertaking can be imposed by statue or "“…an express agreement to act as trustee of thebeneficiary’s interests”" (Alberta Elders, at para 32). [109] Regarding the second condition that must be met, the Chief Justice noted that "“the duty must be owed to a defined person or classof persons who must be vulnerable to the fiduciary in the sense that the fiduciary has a discretionary power over them.

Fiduciary dutiesdo not exist at large; they are confined to specific relationships between particular parties”" (Alberta Elders, at para 33). [110] The final condition is that "“…the claimant must show that the alleged fiduciary’s power may affect the legal or substantialpractical interests of the beneficiary…”" (Alberta Elders, at para 34). This legal or practical interest of the beneficiaries is one "“…thatstands to be adversely affected by the alleged fiduciary’s exercise of discretion or control”" (Alberta Elders, at para 36). (

c) Application of Principles to this Case [111] Following the SCC in Alberta Elders, I will examine if the three branches of the test for an ad hoc fiduciary duty are set out in thiscase as well as the vulnerability arising from the relationship (Alberta Elders, at para 36 referring to Frame v Smith, (SCC), [1987] 2 SCR 99, 42 DLR (4th) 81, Wilson J; see also Lac Minerals Ltd v International Corona Resources Ltd, (SCC), [1989] 2 SCR 574, 61 DLR (4th) 14)). (

i) Branch 1-Undertaking [112] The Pleadings do mention the RCMP Act and refer to the code of conduct at paragraph 73, item (

l) and the Criminal Code, RSC,1985, c C-46 [Criminal Code], at paragraph 73(

a) to explain why they held that the RCMP owed a duty to class members. However,there is nothing in those pieces of legislation that support an undivided loyalty towards the claimant class as those acts only support theinterests of all Canadians generally. There is no obligation or undertaking in those statutes that would create a trust relationship betweenthe class members and the RCMP other than that they would be included in the general public duty. There are no facts plead thatestablish a private duty to the class members.

Even with a generous reading of the Pleadings and with no weighing of any evidence it isplain and obvious that the Pleadings do not support a fiduciary duty. (ii) Branch 2-Defined Class (Vulnerable Individuals)

[113] Just as in Alberta Elders at paragraph 56, these Pleadings do emphasise the vulnerability of the class members. And like in thatdecision, I do not find that the state of vulnerability is enough to find a fiduciary relationship because I do not find that vulnerabilitycomes from the relationship of the class members with the RCMP (Alberta Elders, at para 57). [114] It is uncontroversial that there is a special relationship between Indigenous people and Canada. However, the duty of loyalty as setout in Alberta Elders has not been extended to all Indigenous people in all situations.

In Alberta Elders, the context of the duty is in termsof land rights and, possibly, where there is a private duty being carried out by the government. Clearly, on these facts the RCMP are onlypreforming a public duty. Further, the Plaintiff does not reproduce the quote in context, and cuts off the end in her submissionscompletely changing the meaning: For similar reasons, where the alleged fiduciary is the government, it may be difficult to establish the second requirement ofa defined person or class of persons vulnerable to the fiduciary’s exercise of discretionary power.

The government, as ageneral rule, must act in the interest of all citizens… In the Aboriginal context, an exclusive duty in relation to Aboriginallands is established by the special Crown responsibilities owed to this sector of the population and none other.

Similarly,where the government duty is in effect a private duty being carried out by government, this requirement may be established.Outside such cases, a specific class of persons to whom the government owes an exclusive duty of loyalty is difficult toposit. (Alberta Elders, at para 49, emphasis added) [115] Fiduciary duty is not a cloak that settles on all Indigenous peoples in all situations. I think it is unfair to project this antiquated ideathat Indigenous people are "“wards of the state”" (St Ann’s Island Shooting and Fishing Club Ltd v Canada, (SCC),[1950] SCR 211, [1950] 2 DLR 225).

In Alberta Elders, after surveying many of the cases relied on by the plaintiff for this proposition,Chief Justice McLachlin states: The unique and historic nature of Crown-Aboriginal relations described in these cases negates the plaintiff class’ assertionthat they serve as a template for the duty of the government to citizens in other contexts.

The same applies to the only othersituation where a Crown fiduciary duty has been recognized-such as where the Crown acts as the public guardian andtrustee. (Alberta Elders, at para 40) [116] I do not find that there is an automatic fiduciary duty in this action just because it involves Indigenous peoples who are the classmembers and the RCMP in the investigation of murdered and missing Indigenous women.

There is no jurisprudence that has found thatthis is an existing category, and so based on the reasons as set out in Alberta Elders, the exercise of determining if there is a novelfiduciary duty must be done. [117] Regarding the class, though they may be vulnerable individuals in their own right, the Pleadings do not support the second branchof this test. The RCMP does have discretionary power over individuals in Canada as a whole. This power is via the Canadian CriminalCode, the RCMP Act and other federal statues and agreements with some provinces and territories.

The RCMP do not have adiscretionary power over the class members any more so than they have with the public at large. There is no specific relationshipbetween the RCMP and the members of this class even if the victims or class members are vulnerable members of Canadian society. (iii) Branch 3-Legal or Substantial Interest of Beneficiary Affected Adversely by Fiduciary Discretion [118] Given that the Plaintiff does not meet the other two branches there is no need to deal with branch 3. [119] I conclude that on the material facts pled there is no ad hoc fiduciary duty owed by the RCMP to the class members. (

d) Established or Recognized Duty of Care (other than Fiduciary) [120] The Plaintiff submits that "“there can be no question that a duty of care exists between the RCMP (as an agent of the FederalCrown with obligations to protect the interest of Indigenous peoples) and victims”" (PMFL, at para 80). The Plaintiff submits that theclass members are dependent on the RCMP because 1) the RCMP Act guarantees impartiality and equal access and protection to allCanadians including Indigenous peoples; and 2) there is a defined class of peoples who are particularly vulnerable (class members andvictims).

This means, according to the Plaintiff, that they acted disloyally. She cites Brown at paragraph 56 to make the point that if afiduciary duty exists, then that will establish a prima facie duty of care. [121] The question for a trial judge, according to the Plaintiff, will be whether there is enough of a relationship between the classmembers and the RCMP to establish foreseeability—that is whether the RCMP should have reasonably foreseen the potential for harm.She asserts that the answer is "“yes”" because the RCMP exercised specific judgments to not communicate with the class members.

Shealso notes that there need not be a direct relationship between a government actor and the finding of a duty of care. [122] The Plaintiff’s position is that when the Anns⁄Cooper test is applied, there is sufficient proximity between the class members andthe RCMP as well as the harms being reasonably foreseeable.

She says that proximity was established when the government entities didnot "“make rational, evidence-based decisions (in this case, the treatment of Victims, Victims’ families, and the investigation of crimesrelated to Victims) has been found in the past to warrant a finding of proximity.”" (PMFL, at para 78). The Plaintiff acknowledges that: "Courts have been very wary about refusing to recognize a duty of care on speculative assertions that to do so wouldinterfere with police investigations or the ability of police to generally do their job.

In this case, the suggestions, if it weremade, that treating victims and their families as equals to non-Indigenous Canadians would somehow interfere with theRCMP’s public duties cannot be given any credence particularly in the absence of any evidentiary record on point. "

"(PMFL, at para 79") [123] Further, the Plaintiff noted that "“there need not be a direct relationship between a government actor and the individual harmed fora duty of care to be found.”" (PMFL, at para 80).

This argument was explained as "“…the RCMP exercised specific judgments to notcommunicate or keep class members up-to-date—an indication that their role was considered but disregarded.”" (PMFL, at para 80).Sometimes, according to the Plaintiff, there would be direct contact between the class members and the RCMP, and sometimes there wasnot, but that does not "“negate proximity because the harm to these individuals remains at all times foreseeable.”" (PMFL, at para 83). [124] She stated that the second stage of the test determining whether there will be any policy considerations rendering a duty of care tobe impractical or inadvisable has been traditionally left to the trial, rather than on a pleadings motion, and cites Walsh Estate v CoadyEstate, 2016 NSCA 60, at paragraphs 56, 65, 68-73 and 88-96.

She asserts that expert evidence will be required, and that thesedeterminations are not pure matters of law. [125] This, she argues, means that I should not apply an overly strict approach to the Pleadings and if "“…there is in a pleading aglimmer of a cause of action, even though vaguely or imperfectly stated, it should…be allowed to go forward”" (Shubenacadia IndianBand v Canada (Minister of Fisheries and Ocean), 2001 FCT 181, at para 6). [126] The Plaintiff’s position is that when the Anns⁄Cooper test is applied, it is easily met in this case because any potential policyimplications should be left for the trial judge to determine given it would include the weighing of evidence.

Thus, she argues that "“[i]tis not ‘plain and obvious’ or beyond a ‘glimmer’ to assert that the duty owed by the RCMP to victims would not extend to the ClassMembers”" (PMFL, at para 83). (

i) Established Duty of Care Analysis [127] The cases that are relied on by the Plaintiff are distinguishable from the facts in the instant case. Rumley was a case where the classwas certified for students attending a provincial residential school for the deaf who were physically, sexually and emotionally abused. Inthat case, the systemic negligence of the duty of care was conceded in respect of sexual abuse of the students, but the liability was not.There was proximity and foreseeability, given that they were students at a residential school, and the abuse was by staff and peers.

Thecause of action for the fiduciary claim and the systemic negligence for the family members was found not to be legally supportable(Rumley, at paras 21 and 41). [128] Cloud v Canada (Attorney General) (2004), (ON CA), 247 DLR (4th) 667, [2004] OJ No 4924 (Ont CA) is acase that involved allegations by former students of the Mohawk Institute Residential School, in Brantford, Ontario. At the Ontario Courtof Appeal, the parties had agreed to that there were causes of action and a duty of care to support those causes. They focused on othercertification issues.

However, finding a duty of care in residential school actions is not transferable to this set of facts, as there is a clearduty from those who run the school to the students that is not evident between the RCMP and Indigenous women and girls—andespecially not a clear duty to their families. [129] In Tippett, Justice Southcott certified an action. This action involved a sea cadet program operated by the CAF that was partneredwith the British Columbia Department of Youth and Child development to run a program as an alternative to incarceration for juvenileoffenders.

The juvenile offenders were not cadets themselves but some, including the plaintiff, did live on the base with CAF members,while others were day participants. The allegation was that a supervising CAF member that lived in the same bunkhouse abused him. Inthat case, the defendant conceded that there was a duty of care owed to the youth participants of the program and accepted that the claimdisclosed a cause of action for negligence though not that it was breached (Tippett, at para 35).

The facts in Tippett, however, are quitefar removed from the instant case given the proximity that live-in programs of youths had to the supervising members. In comparison,the RCMP do not operate any school or live in program of which the class members were a part. [130] I do not accept this action is analogous to any of the certified actions brought up by the Plaintiff, and so further analysis must bedone. [131] I do not find the RCMP have a private law duty to the members of the members of this class.

While it is true that there areexceptions to this foundational statement, on these facts it is plain and obvious that the RCMP cannot be found to owe a private law dutyof care to the families and community members of victims. [132] Support for this finding is found in the jurisprudence. There have been a number of cases where it was found that the public duty ofpolice could not be found to be a private duty such as is sought in this pleading.

Any exceptions to that "“rule”" are exceptional and aswill be seen that there are not the material facts pled in this wide, vague, temporally wide pleading to fit into an exception. [133] Good v Toronto (City) Police Services Board, 2013 ONSC 3026 [Good] was a class action brought against the Toronto PoliceServices (and other defendants) for actions that occurred during the G20 summit held Toronto in June 2010.

The motion for certificationhad the proposed defendants: the Attorney General of Canada, Her Majesty the Queen in the Right of Ontario, the RegionalMunicipality of Peel Services Board and included multiple causes of action including causes applicable to our case being "“abuse ofpublic office, systemic negligence, and breaches of the [Charter]…”" (Good v Toronto Police Services Board, 2014 ONSC 4583, at para9 [Good 2014]; aff’d 2016 ONCA 250, leave to appeal to SCC refused, [2016] SCCA No 255 (November 10, 2016). [134] The RCMP owe a general duty to all of the Canadian public (Good, at paras 59, 72 and 73).

The findings related to the causes ofaction not certified in the motion hearing were not overturned, as the appeal courts did not consider any causes of action as issues (Good2014, at para 17). The motion judge determined that none of the claims against some defendants (Canada, Ontario and the Peel police)disclosed a cause of action in the pleadings that could meet the test. She only allowed the claim to proceed against Toronto PoliceServices for false imprisonment, battery (except against individuals detained; assault; conversion and trespass to chattels, the Charterand human rights).

The claims for systemic negligence and abuse of public office were struck. The Divisional Court, on appeal,confirmed that the plaintiff had dropped the cause of actions that the motions judge had not made out.

[135] The finding that the police have a public duty to all the public is not a novel finding and has been held in a number of cases wherevictims and families of victims seek to have the police found negligent or negligent in their investigation (Wellington v Ontario, 2011ONCA 274, at para 20, leave to appeal to SCC refused, [2011] SCCA No 258; Goldman v Weinberg, 2019 ONCA 224, at para 6;Connelly v Toronto (City) Police Services Board, 2018 ONCA 368, at para 3, leave to appeal to SCC refused,(SCC); RVB v Levin, 2018 ABQB 887, at para 36; Jones v Canada (Attorney General), 2018 NBCA 86, at para 30; Spencer v Canada(Attorney General), 2010 NSSC 446, at para 58; Deloitte Restructuring Inc v Canada (Attorney General), 2019 NBQB 201, at paras 233and 235-236; McLean v McLean, 2017 SKQB 127, at para 29; and Odhavji Estate v Woodhouse, 2003 SCC 69, at para 40 (in obiter)[Odhavji]). [136] In certain cases, a police officer has been found to owe a private duty of care.

The proximity that is necessary for the exceptions hasbeen found between the police and a person in custody or a particular suspect is under investigation, or to a very specific group ofindividuals that are known to be at a particular risk from a particular person.

Each of those situations has been found to have a proximitybetween the police and the particular interests of the individual after a careful review that determined in that circumstance there was aduty of care. [137] Nowhere in this case is it pled that the Plaintiff or class member was a suspect under investigation as was the case in Hill vHamilton-Wentworth Regional Police Services Board, 2007 SCC 41 [Hill], in custody, or of a similar proximity as was found in JaneDoe v Toronto (Metropolitan) Commissioners of Police, (1998), (ON SC), 160 DLR (4th) 697, 39 OR (3d) 487[Jane Doe]. [138] In Jane Doe, the police failed to warn the plaintiff of a man who was sexually assaulting and targeting single women that lived onsecond and third floor apartments in a certain geographical areas.

The victims were all white, single, and female. The rapist gained entrythrough all of their balcony doors. The police knew this, and did not warn potential victims because they feared scaring the rapist awaybefore catching him (Jane Doe, at para 129). The judge found both foreseeability and proximity and in these very limited factualsituations, leading to a finding that the police had a private duty to that plaintiff.

She was from a distinct group of potential victims from aspecific threat in a small area of a city within their jurisdiction, and it was foreseeable that the rapist would target the plaintiff. [139] Jane Doe is distinguished because this case does not have a distinct and specific group of potential victims as pled that isproximate and foreseeable. As pled the material facts are all Indigenous girls and women in Canada and across Canada over a very longtime period without a specific threat within the jurisdictions of numerous police forces.

Jane Doe stands for a very narrow exception tothe generally accepted principle that the police do not owe a private duty of care, and Jane Doe does not assist the Plaintiff in putting herclaim into an established category. [140] In Good, the plaintiff alleged that the systemic negligence that claimed the duty arose from the planning of the G20 summit andthe overseeing of police operations. Just as in this case the duty is alleged to arise from some policing agreements across the country aswell as RCMP policies.

There is no recognized duty that would assist the Plaintiff in this motion to find a private duty of care.

ThePlaintiff or potential class members have no legal interest in the investigation or the prosecution as these are squarely in the publicinterest and public law. [141] The Plaintiff’s argument to leave this determination to the trial judge also fails given I am preforming the same analysis as whatChief Justice McLachlin in Alberta Elders did to determine whether the cause of action as pled was plain and obvious it would fail. [142] The Pleadings are plain and obvious, and there is not an established duty of care. (ii) Duty of Care that is Novel [143] Given it has not been established that the duty of care already exists, the Court must rigorously go through the Anns⁄Cooper test onthe material facts pled.

Following Alberta Elders, this is done at this stage based on the pleadings rather than leaving it to the trial judge(Alberta Elders, at paras 66-75). [144] Justice Karakatsanis, writing for the majority in Rankin (Rankin’s Garage & Sales v JJ, 2018 SCC 19 [Rankin] when describingthe methodology to use, said: [18] …If it is necessary to determine whether a novel duty exists, the first stage of the Anns/Cooper test asks whether thereis a relationship of proximity in which the failure to take reasonable care might foreseeably cause loss or harm to thePlaintiff: (Imperial Tobacco, at para 39; see also Childs v.

Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643, at para 12;Cooper, at para 30). Once foreseeability and proximity are made out, a prima facie duty of care is established. [19] Whether or not a duty of care exists is a question of law and I proceed on that basis: Galaske v. O’Donnell, (SCC), [1994] 1 S.C.R. 670, at p. 690. The plaintiff bears the legal burden of establishing a cause of action, and thus theexistence of a prima facie duty of care: Childs, at para. 13.

In order to meet this burden, the plaintiff must provide asufficient factual basis to establish that the harm was a reasonably foreseeable consequence of the defendant’s conduct in thecontext of a proximate relationship.

In the absence of such evidence, the claim may fail: see, e.g., Childs, at para. 30. [20] Once the plaintiff has demonstrated that a prima facie duty of care exists, the evidentiary burden then shifts to thedefendant to establish that there are residual policy reasons why this duty should not be recognized: Childs, at para. 13;Imperial Tobacco, at para. 39. (Rankin, at paras 18-20) [145] In the earlier SCC decision of Cooper, the issue was grappled with of when policy considerations should be considered whenlooking at a novel duty.

The Court indicated that "“[t]he importance of Anns lies in its recognition that policy considerations play an

important role in determining proximity in new situations…”" (Cooper, at para 25). The Court held: In brief compass, we suggest that at this stage in the evolution of the law, both in Canada and abroad, the Anns analysis isbest understood as follows. At the first stage of the Anns test, two questions arise: (1) was the harm that occurred thereasonably foreseeable consequence of the defendant’s act? and (2) are there reasons, notwithstanding the proximitybetween the parties established in the first part of this test, that tort liability should not be recognized here?

The proximityanalysis involved at the first stage of the Anns test focuses on factors arising from the relationship between the plaintiff andthe defendant. These factors include questions of policy, in the broad sense of that word. If foreseeability and proximity areestablished at the first stage, a prima facie duty of care arises. At the second stage of the Anns test, the question still remainswhether there are residual policy considerations outside the relationship of the parties that may negative the imposition of aduty of care.

It may be, as the Privy Council suggests in Yuen Kun Yeu, that such considerations will not often prevail.However, we think it useful expressly to ask, before imposing a new duty of care, whether despite foreseea

[…]