SHARLENE HUDSON v. BRINDA WILSON-DEMUTH, 2022 FC 694

Date: 20220511 Docket: T-1523-19 Citation: 2022 FC 694 Ottawa, Ontario, May 11, 2022 PRESENT: The Honourable Mr. Justice Fothergill BETWEEN: SHARLENE HUDSON AND BRINDA WILSON-DEMUTH Plaintiffs and HER MAJESTY THE QUEEN Defendant JUDGMENT AND REASONS Table of Contents I. Overview 3 II. Background 5 A. Facts Relied upon by the Plaintiffs 5 B. Facts Relied upon by the Defendant 11 C. Unionization of CSC Employees 15 III. Internal Grievance and Complaint Procedures 16 A. CSC Grievance Process 17 B. Treasury Board Policies 19 C. Canadian Human Rights Act 20 D. Canada Labour Code 21 E.

Government Employees Compensation Act 22 F. Public Servants Disclosure Protection Act 22 G. Informal Recourse 23 IV. Issues 23 V. Motion for Certification 23 A. Reasonable Causes of Action 25

(1) Federal Public Sector Labour Relations Act , s 236 26

(2) Negligence 38

(3) Canadian Charter of Rights and Freedoms , ss 7 and 15 42 B. Identifiable Class 44 C. Common Questions 50 D. Preferable Procedure 57 E. Representative Plaintiffs 63 F. Precedential Effect of Prior Settlements 65 VI. Motion to Strike 67 VII. Conclusion 67

I. Overview [ 1 ] The Plaintiff, Sharlene Hudson, was employed by the Correctional Service of Canada [CSC] as a correctional officer from 1986 until 2012, when she took medical leave. She retired from CSC in 2017. According to the Amended Statement of Claim, throughout her employment with CSC, Ms. Hudson was subjected to gender-based harassment, discrimination, and sexual assault by several of her male colleagues and superiors. [ 2 ] The Plaintiff, Brinda Wilson-Demuth, was employed by CSC from 1992 until 2018. She initially worked as a psychologist in Prince Albert, Saskatchewan and Kitchener, Ontario.

She was then appointed an Assistant Warden in Prince Albert, Saskatchewan and Bath, Ontario, and subsequently a Warden at the Grand Valley Institution in Kitchener. In 2007, Ms. Wilson-Demuth was posted to Ottawa as Director General, Women Offender Sector, and held this post until 2012. She became Director of Departmental Security in 2016 and Director General of Security the following year. She left CSC in March 2018. [ 3 ] According to the Amended Statement of Claim, throughout her career with CSC, Ms.

Wilson-Demuth was subjected to gender-based harassment and discrimination by male colleagues and superiors, and she experienced adverse differential treatment by her male colleagues. [ 4 ] The Plaintiffs allege that CSC, through its operations and management, encouraged and condoned sexualized harassment, sexualized discrimination, sexual assault, and sexual violence against female employees in the workplace.

The Plaintiffs also allege that CSC failed to provide a reasonable avenue of redress for women who experienced this misconduct. [ 5 ] The Plaintiffs assert that CSC implemented a flawed complaints procedure in which female employees were required to report misconduct to the perpetrators themselves, or to friends or colleagues of the perpetrators.

They say that CSC encouraged and condoned retaliation against female employees who reported misconduct, and the impugned acts and omissions of the Defendant are pervasive and institutional in nature. [ 6 ] The Plaintiffs ask this Court to certify this proceeding as a class action on behalf of the following classes: Class Members: All female current and former employees of the Correctional Service of Canada.

Secondary Class Members: All persons who have a derivative claim, in accordance with applicable family law legislation, arising from a family relationship with a Class Member. [ 7 ] The Defendant opposes certification of the proposed class action.

The Defendant says this Court is without jurisdiction to adjudicate the Plaintiffs’ claims; the Amended Statement of Claim fails to disclose reasonable causes of action; the proposed classes cannot be identified or are overly broad; there are no common issues of fact or law; and a class action is not the preferable procedure for resolving the Plaintiffs’ claims. [ 8 ] In addition to opposing certification of this proposed class proceeding, the Defendant has brought a motion pursuant to Rule 221(1) (

a) of the Federal Courts Rules , SOR/98-106 [ Rules ] to strike the Amended Statement of Claim in its entirety, without leave to amend, on the ground that it fails to disclose any reasonable causes of action. [ 9 ] For the reasons that follow, the Plaintiffs have not established that this Court has jurisdiction to determine the claims advanced in the Amended Statement of Claim. For similar reasons, they have not satisfied the requirement in Rule 334.16(1)(

d) that a class proceeding be the preferable procedure for resolving their complaints. The motion for certification must therefore be refused. [ 10 ] Given the Court’s lack of jurisdiction, the Amended Statement of Claim must be struck in its entirety without leave to amend. II. Background A.

Facts Relied upon by the Plaintiffs [ 11 ] According to the Plaintiffs, CSC’s toxic workplace is aptly described in an organizational assessment of the maximum security Edmonton Institution commissioned in March 2017: You may recall the 1988 movie version of “The Blob”. “The Blob” starts out as a small gelatinous substance of unknown origins. It first swallows a drifter walking down the road and gets bigger. Then it slithers on into the town and swallows increasingly more people and becomes more dangerous and toxic as it grows. As it grows, it becomes more impossible to fight.

Many of the people who become part of it are good people but helpless against its power. Many feel they can’t fight it alone and have just given up. Some are still on the outside but the stress of trying to remain outside the Blob’s power is wearing them down. Some grow weary and are also eventually consumed by it. […] As with most Hollywood movies, in the end the monster is defeated.

In real life, the only way things can change is if resources are provided, people step up and new patterns emerge. [ 12 ] The Plaintiffs allege that CSC’s toxic workplace culture has been known for years, yet CSC has failed to address the issues or take meaningful steps to eliminate them. [ 13 ] The 2012-2013 Annual Report of the Correctional Investigator noted that 31.8% of CSC employees who participated in a 2012 survey said they had been harassed in the workplace during the previous year, most commonly by their immediate supervisors or colleagues in the same work unit.

The Plaintiffs note that these are the same people to whom CSC employees would be expected to

present their grievances and complaints. Survey results also indicated that female CSC employees were more likely than their male colleagues to experience harassment in the CSC workplace. [ 14 ] The 2017-2018 Annual Report of the Correctional Investigator identified the need for organizational change within CSC, and stated: " “staff practices that undermine or degrade human dignity – sexual harassment, bullying, discrimination – can lead to a toxic work culture.

A workplace that runs on fear, reprisal and intimidation is highly dysfunctional; it is the antithesis of modeling appropriate offender behaviour.” " [ 15 ] A report published by the Auditor General of Canada in 2019 reached the following conclusion: Overall, we found that the Canada Border Services Agency’s and Correctional Service Canada’s approaches to dealing with harassment, discrimination, and violence in the workplace did not do enough to promote and maintain respectful workplaces.

The organizations knew that these problems were present in the workplace, yet neither organization had developed a comprehensive strategy to address them, including a way to measure and report on their progress toward reducing harassment, discrimination, and workplace violence. We surveyed employees in both organizations and found that they had serious or significant concerns about organizational culture, and that they feared reprisal if they made complaints of harassment, discrimination, or workplace violence against fellow employees or supervisors.

They also had serious or significant concerns about a lack of civility and respect in their workplaces. [ 16 ] The March 2017 organizational assessment of Edmonton Institution described its workplace as a " “toxic environment that runs on fear, intimidation, and bullying [that] can only be described as a culture of fear, mistrust, intimidation, disorganization, and inconsistency. Rarely is anyone held accountable for their actions” " . [ 17 ] After Ms.

Hudson reported to a supervisor that she was being subjected to persistent sexualized harassment, discrimination, and abuse in the CSC workplace, she found a dead mouse in her mailbox. She understood this to mean that that she was perceived as a " “rat” " for reporting misconduct. She did not report any further incidents of harassment or abuse to CSC management. [ 18 ] Ms. Wilson-Demuth says that her complaints about sexualized harassment and discrimination in the CSC workplace were routinely dismissed by senior officials, some of whom were themselves perpetrators of the misconduct. Ms.

Wilson-Demuth was once advised by a Commissioner of CSC that, as a woman at CSC, she was " “expected to put up with a fair amount of abuse” " . [ 19 ] Both Ms. Hudson and Ms. Wilson-Demuth say they have suffered severe consequences as a result of the adverse treatment they experienced in the course of their employment at CSC, ranging from depression and anxiety to post-traumatic stress disorder.

Counsel for the Plaintiffs report that they have been contacted by women from across Canada who say they were subjected to gender-based harassment, discrimination, sexual assault, and sexual violence in the CSC workplace. [ 20 ] The Plaintiffs’ motion record contains affidavits from 10 current and former CSC employees whose testimony is intended to illustrate the systemic nature of CSC’s operational failures and its " “paramilitaristic culture of misogyny” " .

The affidavits also describe the harm caused by CSC’s conduct, and the inability of class members to obtain effective redress for the alleged misconduct. [ 21 ] The Plaintiffs have adduced two expert reports. The first is authored by Dr. Jennifer Berdahl, Professor of Sociology at the University of British Columbia and faculty affiliate of VMware Women’s Leadership Innovation Lab at Stanford University. The second is authored by Dr.

Angela Workman-Stark, Associate Professor of Human Resource Management and Organizational Behaviour, and Associate Dean, Operations and Innovation, in the Faculty of Business at Athabasca University. [ 22 ] According to Dr.

Berdahl, women in traditionally male-dominated organizations: […] often suffer from harassment and discrimination at the hands of other members, who are in the majority and usually more powerful and better connected. […] Thus, male-dominated professional societies and unions may fail to investigate gender-based harassment and discrimination and not protect women that try to file a complaint from retaliation. [ 23 ] Dr.

Angela Workman-Stark has observed similar dynamics in other traditionally male-dominated workplaces, such as the Royal Canadian Mounted Police [RCMP], the Calgary Police Service, and the Canadian Armed Forces. In her opinion, hostility towards women appears to be more prevalent in military and paramilitary working environments, including corrections.

A common theme is a " “cult or masculinity” " that dismisses " “feminine” " characteristics as indicative of weakness in these " “hypermasculine” " environments. [ 24 ] The Plaintiffs say that the evidence they have adduced in support of the motion for certification establishes the following: (

a) the internal grievance and complaint process at CSC is “corrupt”, and complaints are routinely dismissed or rejected without due process or are withdrawn by the complainant or are still pending years later; (

b) in 2018, despite the fact that thousands of CSC employees reported being the victim of harassment and discrimination within the last 12 months in the Public Service Labour Relations Survey, the total number of grievances brought by female CSC employees in 2018 was only 56 – and of those, only 3 were upheld – and Canada’s director of labour relations for CSC had no explanation for why so few grievances had been upheld; (

c) in 2019, despite the fact that thousands of CSC employees reported being the victim of harassment and discrimination within the last 12 months in the Public Service Labour Relations Survey, the total number of grievances brought by female CSC employees in 2019 was only 36 – and of those 36, none were upheld; (

d) the fear of retaliatory abuse is “deeply engrained in the culture of CSC”, and many female CSC employees are afraid to file a grievance for fear of repercussions, including further gender-based harassment, discrimination, or sexual assault; (

e) in 2018 and 2019, about half of employees at CSC reported having been the victim of harassment in the prior 12 months

but not filing a grievance or formal complaint because they were afraid of reprisal – and Canada’s director of labour relations for CSC admitted that this is a cause of concern and that there needs to be “safe spaces for people to come forward” so the allegations “can be properly looked into and addressed”; (

f) in 2018 and 2019, 64% and 63% (respectively) of CSC employees did not file a grievance for the harassment that they endured because they did not think it would make a difference; (

g) there are no practical forms of redress for female CSC employees – for example, looking at CSC’s internal procedure for investigation and resolution of harassment complaints – including sexual harassment – between 2013 to 2021, less than ten percent of female CSC employees who brought complaints under the Treasury Board’s harassment policy had their complaints upheld; (

h) the issues raised in this proceeding are national in scope and endemic of CSC as an organization; (

i) CSC employees and managers condone a workplace culture that encourages the degradation and sexualization of female CSC employees; (

j) the culture of CSC is dominated by an “oath of silence” that discourages the reporting of incidents of discrimination, harassment, and assault; (

k) there has been a lack of confidentiality in the chain of command that, combined with a failure to take allegations of sexual harassment and assault seriously, has led to the ostracization of those who complained; (

l) the President of the Union of Canadian Correctional Officers at the Nova Institution for Women has deposed that “a lack of faith in the grievance process is a reason why many female CSC workers do not file grievances after being subjected to gender-based harassment or discrimination in the workplace”, and many complaints are determined to be “unfounded”; (

m) a Class Member did not report her personal experiences of gender-based harassment or discrimination, or those she witnessed, because she felt that no one in CSC management would support her if she reported this conduct, and she feared that she would experience retaliation as a consequence of reporting it; and (

n) a CSC workplace report indicated that employees feel management uses investigations against them for “punitive” reasons and to create a “witch hunt” to blame employees. B. Facts Relied upon by the Defendant [ 25 ] The Defendant disputes Dr. Berdahl’s and Dr. Workman-Stark’s depiction of CSC as a male-dominated and homogenous workplace. Both historically and presently, women outnumber men at CSC. Workplace environments and cultures vary widely depending on the office, institution or facility, and none may be fairly described as " “paramilitaristic” " .

According to the Defendant, CSC is a vast organization consisting of many different workplaces. CSC employs a total of 20,604 people who perform a wide range of functions across the country. [ 26 ] CSC operates under three levels of management: National Headquarters [NHQ], Regional Headquarters [RHQ], and institutional/district parole offices. NHQ is located in Ottawa and is responsible for overall planning, policy development and administration for the organization.

NHQ comprises twelve sectors, each with its own senior executive management and specific sphere of responsibility. [ 27 ] An RHQ is located in a city in each of the five regions (Atlantic, Quebec, Ontario, Prairie and Pacific). The regions are further divided along provincial lines. RHQs are responsible for overseeing the operations of correctional institutions and the supervision of offenders in their respective regions.

Each RHQ has a Regional Deputy Commissioner responsible for the management of CSC operations, implementation of correctional policy, and the provision of advice on criminal justice matters within their region. [ 28 ] CSC manages 43 institutions, 14 community correctional centres and 92 parole offices across Canada. These include men’s institutions, women’s institutions, Indigenous healing lodges, community correctional centres, and regional treatment centres.

Institutions are further categorized based on type (maximum, medium or minimum security, multi-level and clustered), and vary in size, infrastructure, control measures, offender population and culture. [ 29 ] A broad spectrum of work is carried out through institutions and facilities by various employees, including, inter alia : correctional officers; primary workers; parole officers; health professionals; correctional program officers; Indigenous correctional program officers; Inuit correctional program officers; social program officers; education and training staff; tradespeople; and office support staff.

Other institutional staff include those who work in management services, finance, sentence management, chaplaincy, electronics, infomatics and laundry services. [ 30 ] A significant organizational change took place at CSC between 1995 and 2004, with the opening of six separate women’s institutions. Before 1995, there was only one women’s institution in Canada. Now there are women’s institutions in each region. [ 31 ] CSC maintains a database of current and former employees that includes all indeterminate, term, casual and student employees who have worked at CSC at any time since 1998.

As of May 12, 2021, this included 55,905 individuals, 29,222 (or approximately 52%) of whom were identified as female. In addition, female staff outnumber male staff in several employment groups, including the largest employment group, which is approximately 74% female. [ 32 ] On average, approximately 76% of the staff at the six women’s institutions operated by CSC are identified in the database as female. Women are employed at all levels of the institutions.

[ 33 ] None of the RHQs are located in or connected to penitentiaries. With very limited exceptions, NHQ and RHQ staff do not attend institutions as part of their regular work, and inmates do not attend NHQ or RHQ. At NHQ and RHQ, staff work in office buildings in an environment that is similar to other federal government departments. They do not wear uniforms and they are not directly responsible for the security of the premises.

Many NHQ and RHQ staff have worked from home during the COVID-19 pandemic. [ 34 ] The Defendant says that the nature of the institution, facility or office plays an important role in determining the work environment and culture. The environment in maximum security institutions is centered on security, as inmate behaviour is most heavily restricted in these locations. In minimum security institutions, the environment is less structured, and inmates have more freedom of movement and responsibilities for daily living activities.

There are no armed correctional officers inside minimum security institutions. [ 35 ] There is also wide variability among multi-level institutions, for example: (

a) Women’s institutions accommodate pregnant women and children under five years of age. They have playgrounds and child- friendly quarters, and minimum and medium security inmates live in housing units with communal living areas, where they are responsible for fulfilling their daily needs. (

b) Indigenous healing lodges are managed in collaboration with Indigenous communities, and aim to address inmates’ needs through ceremonies, contact with elders and interaction with nature. (

c) Regional treatment centres are a hybrid between penitentiaries and psychiatric treatment centres, as they admit individuals who are not able to receive care in mainstream institutions due to mental or physically disabilities. [ 36 ] Community Correctional Centres [CCCs] and parole offices are community-based facilities. CCCs are apartment-style " “halfway houses” " that are home to offenders on various forms of release. There are no correctional officers at CCCs. If safety concerns arise, CCC staff rely on commissionaires on site or local police.

Offenders attend parole offices to meet with their parole officers. C. Unionization of CSC Employees [ 37 ] With limited exceptions, CSC employees are appointed to their positions pursuant to s 29 of the Public Service Employment Act , SC 2003, c 22 . Appointments may be made on an indeterminate, term, casual, seasonal, or part-time basis. Ms. Hudson and Ms.

Wilson- Demuth were both appointed to their positions on an indeterminate basis. [ 38 ] Free collective bargaining has been available to members of the federal public service since the enactment of the Public Service Staff Relations Act , RSC, 1985, c P-35 in 1967 .

The vast majority of CSC employees are unionized. [ 39 ] Depending on their job classification, CSC employees are represented by one of six bargaining agents: the Union of Canadian Correctional Officers; the Public Service Alliance of Canada; the Professional Institute of the Public Service of Canada; the Canadian Association of Professional Employees; the Association of Canadian Financial Officers; or the International Brotherhood of Electrical Workers.

Each bargaining unit is subject to its own collective agreement that is renegotiated periodically by the bargaining agent and the Treasury Board Secretariat on behalf of the Treasury Board [TB]. [ 40 ] Some employees are excluded or otherwise unrepresented by a bargaining agent. Three occupational groups are unrepresented in the core public administration: the Executive [EX] and Law Management [LC] groups, which represent the executive cadre, and the Personnel and Administration Group [PE], which comprises positions that provide advice on human resources management.

A number of positions are also excluded from unionization if they are considered managerial or confidential. Positions can only be excluded from a bargaining unit on this ground by order of the Federal Public Sector Labour Relations and Employment Board [Board] based on criteria defined by the Federal Public Sector Labour Relations Act , SC 2003, c 22, s 2 [ FPSLRA ]. [ 41 ] There are currently approximately 10,430 women employed by CSC, representing 51.1% of its workforce. Approximately 9,504 (or 91.1%) of female employees at CSC are represented by a bargaining agent.

The 926 employees (or 8.9%) who are not represented comprise excluded employees, casual employees, students, and term employees who have been employed for less than three months. III. Internal Grievance and Complaint Procedures [ 42 ] The Defendant has identified the following internal grievance and complaint procedures available to women employed by CSC: A. CSC Grievance Process [ 43 ] Grievance and harassment complaints are usually initiated at the local level, by an employee bringing a grievance or complaint to their immediate supervisor or manager.

The right to file a grievance is extended to both unionized and non-unionized employees. Former employees may grieve any issue that arose during the course of their employment. [ 44 ] There are three types of grievances under the FPSLRA : individual, policy and group. An individual grievance may be brought by any employee who is aggrieved by: (

a) the

interpretation or application to them of a provision of a statute, regulation, or direction that deals with terms and conditions of employment, a provision of a collective agreement, or an arbitral award; or (

b) any occurrence or matter affecting the employee’s terms and conditions of employment. A group grievance may be brought by a bargaining agent on behalf of a group of employees who feel commonly aggrieved by the

interpretation or application of a provision of a collective agreement or arbitral award. A policy grievance may be brought by a bargaining agent in respect of the

interpretation or application of a collective agreement or arbitral award as it relates to the bargaining unit. [ 45 ] The scope of matters that may be grieved is very broad, and includes grievances related to gender-based workplace harassment and

discrimination. While collective agreements that cover CSC employees contain provisions prohibiting gender-based discrimination and harassment, these are grievable issues whether or not there is an applicable provision of a collective agreement or arbitral award. [ 46 ] Individual grievances brought by CSC employees and/or their bargaining agents are addressed internally through a process set out in collective agreements. There are three levels of review and decision, culminating with the Assistant Commissioner, Human Resources Management.

If at any point the person designated to hear a grievance is the subject of the complaint, that level of the process is bypassed. [ 47 ] If a grievance is not resolved to an employee’s satisfaction, the final decision can be judicially reviewed or referred to the Board for independent adjudication, assuming the Board has jurisdiction over the matter. Pursuant to s 209(1) of the FPSLRA , the Board’s jurisdiction over an individual grievance includes matters involving the

interpretation or application of a collective agreement or an arbitral award. Unionized employees within CSC may, with the approval of their bargaining agent, refer to the Board grievances citing their collective agreement’s prohibitions on discrimination or sexual harassment. Non-unionized employees may challenge final level decisions of non-adjudicable grievances by judicial review in this Court. [ 48 ] The scope of remedies available through the grievance process is broad. At the first three levels, decision-makers have wide discretion to provide redress for discrimination or harassment.

Among other things, they may interpret and apply the Canadian Charter of Rights and Freedoms , award damages, and/or refer a matter for disciplinary investigation. [ 49 ] If the Board determines that a grievance is founded, it has the power to make any order it considers appropriate in the circumstances. This includes awarding compensation for losses suffered (including damages for lost career opportunities), rescindment of a disciplinary action, and/or other monetary compensation (including interest in cases involving termination, demotion, suspension or financial penalty).

The Board also has the power to apply and grant relief in accordance with the Canadian Human Rights Act , RSC, 1985, c H-6 , and any other Act of Parliament relating to employment matters. [ 50 ] Pursuant to s 186(2)(a)(iii) of the FPSLRA , it an unfair labour practice for the employer and managers to retaliate against any employee for exercising the right to file a grievance. B. Treasury Board Policies [ 51 ] Between October 1, 2012 and December 31, 2020, the relevant TB policy was the Policy on Harassment Prevention and Resolution .

This policy and the associated Directive set out a general framework for the investigation and resolution of workplace harassment complaints. They apply across the entire core public administration. [ 52 ] In accordance with the TB Guide on Applying the Harassment and Resolution Process , CSC has implemented internal procedures for the investigation and resolution of workplace harassment complaints by CSC employees.

Between 2013 and 2021, 1,382 harassment complaints were brought by CSC employees, including approximately 703 complaints by women. [ 53 ] As of January 1, 2021, the investigation and resolution of harassment complaints is guided by regulation under the Canada Labour Code , RSC, 1985, c L-2 . C. Canadian Human Rights Act [ 54 ] The Canadian Human Rights Act [CHRA] prohibits discrimination and harassment in employment on the basis of sex, gender identity or expression.

Any individual or group at CSC who alleges that CSC has engaged in a discriminatory practice may file a complaint to the Canadian Human Rights Commission [Commission] pursuant to the CHRA. [ 55 ] The Commission is the screening body for the Canadian Human Rights Tribunal [Tribunal]. The Commission may assign an independent investigator to conduct an investigation into the complaint and prepare a report on whether the complaint should be referred to the Tribunal. The Commission also provides mediation services with the consent of both parties, and may appoint a conciliator with a view to settling the complaint.

If separate complaints raise substantially similar issues of fact and law, the Commission may deal with those complaints together. [ 56 ] If settlement of a human rights complaint is not possible, the Commission may refer the matter to the Tribunal. The Commission may decide to participate in the proceedings before the Tribunal, and may adduce evidence and make submissions in the public interest. If the Tribunal determines that a complaint is founded, it may grant individual remedies, including reinstatement, monetary relief and/or systemic remedies.

A complainant who is not satisfied with the Commission’s handling of a complaint, or with the Tribunal’s disposition, may bring an application for judicial review in this Court. [ 57 ] Between 2015, when CSC began collecting national data on human rights complaints, and May 25, 2021, there have been a total of 260 complaints to the Commission brought by CSC employees, 54% of which were brought by female employees. There have been 78 complaints alleging discrimination on the basis of sex, 90% of which were brought by women. D.

Canada Labour Code [ 58 ] Prior to the coming into force of the Work Place Harassment and Violence Prevention Regulations , SOR/2020-130 [ WPHVPR ] on January 1, 2021, the Canada Occupational Health and Safety Regulations , SOR/86-304 required all employers to develop a policy for preventing and addressing workplace violence. As of January 1, 2021, the Canada Labour Code provides CSC employees with recourse for gender-based workplace harassment and violence under the WPHVPR . [ 59 ] To give effect to the requirements of the WPHVPR , CSC has issued a Policy on Harassment and Violence Prevention in the Work

Place . Between January 1, 2021 and April 30, 2021, there were 78 notices of occurrences submitted by CSC employees. [ 60 ] Under s 128 of the Canada Labour Code , employees can refuse work if there is reasonable cause to believe they face danger in the workplace. The Code also prohibits an employer from retaliating against employees who have provided information and/or testified in respect of conditions of work affecting them or other employees. E.

Government Employees Compensation Act [ 61 ] Subject to review and approval by a provincial worker’s compensation board, any person paid a direct wage or salary on behalf of Her Majesty the Queen in right of Canada may be entitled to compensation for workplace injuries, including injuries arising from workplace harassment and discrimination under the Government Employees Compensation Act , RSC, 1985, c G-5 [ GECA ] . All CSC employees, including students and casual employees, are eligible for benefits under the GECA for workplace injuries, in cluding injuries to mental health. F.

Public Servants Disclosure Protection Act [ 62 ] Complaints of harassment that constitute a serious breach of a TB policy or CSC code of conduct may be made to an employee’s supervisor, a designated senior officer and/or the Public Service Integrity Commissioner [PSIC] pursuant to the Public Servants Disclosure Protection Act , SC 2005, c 46 [ PSDPA ].

Where the disclosure is made to a supervisor or a designated senior officer, and if wrongdoing is found, the PSIC must publish any recommendations and corrective action, or explain why no corrective action was taken. [ 63 ] The PSIC may investigate any disclosure to determine if wrongdoing has occurred, and report findings and make recommendations for corrective action to the department’s chief executive. If wrongdoing is found, the PSIC provides a report to Parliament, including the PSIC’s opinion as to whether the chief executive’s response to the recommendations is satisfactory.

The PSDPA also permits complaints for alleged reprisals. [ 64 ] The PSIC has conducted two investigations in respect of harassing behaviour by CSC employees. In response to the PSIC’s recommendations, CSC adopted further measures, including additional training and awareness sessions, developing a workplace wellness action plan in collaboration with bargaining agents, and convening disciplinary hearings against the managers involved. G.

Informal Recourse [ 65 ] In addition to the formal recourse mechanisms described above, CSC employees may informally report issues of workplace harassment and/or discrimination through CSC’s tip line and informal conflict management via the Office of Conflict Management. IV. Issues [ 66 ] The issues raised by these motions are whether this proceeding should be certified as a class action, and whether the Amended Statement of Claim should be struck without leave to amend. V. Motion for Certification [ 67 ] The test for certification of a proposed class action is found in Rule 334.16(1):

334.16(1) Subject to subsection (3), a judge shall, by order, certify a proceeding as a class proceeding if (

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 questions predominate 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 a representative plaintiff or applicant who i. would fairly and adequately represent the interests of the class, ii. has prepared a plan for the proceeding that sets out a workable method of advancing the proceedings on behalf of the class and of notifying class members as to how the proceeding is progressing, iii. does not have, on the common questions of law or fact, an interest that is in conflict with the interests of other class members, and iv. provides a

summary of any agreements respecting fees and disbursements between the representative plaintiff of application and the solicitor of record. " " 334.16(1)

Sous réserve du paragraphe (3), le juge autorise une instance comme recours collectif si les conditions suivantes sont réunies: (

a) les actes de procédure révèlent une cause d’action valable; (

b) il existe un groupe identifiable formé d’au moins deux personnes; (

c) les réclamations des membres du groupe soulèvent des points de droit ou de fait communs, que ceux-ci prédominent ou non sur ceux qui ne concernent qu’un membre; (

d) le recours collectif est le meilleur moyen de régler, de façon juste et efficace, les points de droit ou de fait communs; (

e) il existe un représentant demandeur qui: i. représenterait de façon équitable et adéquate les intérêts du groupe, ii. a élaboré un plan qui propose une méthode efficace pour poursuivre l’instance au nom du groupe et tenir les membres du groupe informés de son déroulement, iii. n’a pas de conflit d’intérêts avec d’autres membres du groupe en ce qui concerne les points de droit ou de fait communs, iv. communique un

sommaire des conventions relatives aux honoraires et débours qui sont intervenues entre lui et l’avocat inscrit au dossier. " " A. Reasonable Causes of Action [ 68 ] It is fundamental to the trial process that a plaintiff plead material facts in sufficient detail to support the claim and the relief sought ( Mancuso v Canada (National Health and Welfare) , 2015 FCA 227 [ Mancuso ] at para 16 . Pleadings play an important role in providing notice and defining the issues to be tried.

The Court and opposing parties cannot be left to speculate as to how the facts might be variously arranged to support various causes of action. If the Court were to allow parties to plead bald allegations of fact, or mere conclusory statements of law, the pleadings would fail to perform their role in identifying the issues ( Mancuso at paras 16-17 ). [ 69 ] A plaintiff must plead, in

summary form but with sufficient detail, the constituent elements of each cause of action or legal ground raised. The pleading must tell the defendant who, when, where, how and what gave rise to its liability. Plaintiffs cannot file inadequate pleadings and rely on a defendant to request particulars, nor can they supplement insufficient pleadings to make them sufficient through particulars ( Mancuso at paras 19-20 ). [ 70 ] The normal rules of pleading apply with equal force to a proposed class action. The Court must view the pleading as it has been drafted, not as it might be drafted.

The launching of a proposed class action is a matter of great seriousness, potentially affecting many class members’ rights and the liabilities and interests of defendants. Complying with the Rules is not trifling or optional; it is mandatory and essential ( Merchant Law Group v Canada Revenue Agency , 2010 FCA 184 at para 40 ).

(1) Federal Public Sector Labour Relations Act, s 236 [71] The Plaintiffs acknowledge that CSC is part of the "“core public administration”" within the meaning of the FPSLRA, and itsemployees are subject to s 236. This provision reads as follows: No Right of Action Disputes relating toemployment 236

(1) The right of anemployee to seek redress byway of grievance for anydispute relating to his or herterms or conditions ofemployment is in lieu of anyright of action that theemployee may have in relationto any act or omission givingrise to the dispute. Application (2) Subsection (1) applieswhether or not the employeeavails himself or herself of theright to present a grievance inany particular case and whetheror not the grievance could bereferred to adjudication. […] Absence de droit d’action Différend lié à l’emploi 236

(1) Le droit de recoursdu fonctionnaire par voie degrief relativement à toutdifférend lié à ses conditionsd’emploi remplace ses droitsd’action en justicerelativement aux faits —actions ou omissions — àl’origine du différend. Application

(2) Le paragraphe (1)s’applique que lefonctionnaire se prévale ounon de son droit de présenterun grief et qu’il soit possibleou non de soumettre le griefà l’arbitrage. […] [72] The right to grieve is available to employees as defined in s 206(1) of the FPSLRA. Both unionized and non-unionized employeesmay file a grievance. The Defendant says that the Plaintiffs’ right to grieve encompasses the allegations contained in the AmendedStatement of Claim, because they concern their "“terms and conditions of employment”", as that expression is used in s 208 of theFPSLRA: Right of employee 208

(1) Subject to subsections(2) to (7), an employee isentitled to present an individualgrievance if he or she feelsaggrieved (

a) by theinterpretation or application, inrespect of the employee, of (

i) a provision of a statute orregulation, or of a direction orother instrument made orissued by the employer, thatdeals with terms and conditionsof employment, or (ii) a provision of a collectiveagreement or an arbitral award;or (

b) as a result of anyoccurrence or matter affectinghis or her terms and conditionsof employment. Droit du fonctionnaire 208

(1) Sous réserve desparagraphes (2) à (7), lefonctionnaire a le droit deprésenter un grief individuellorsqu’il s’estime lésé

a) parl’interprétation oul’application à son égard : (

i) soit de toute dispositiond’une loi ou d’un règlement,ou de toute directive ou detout autre document del’employeur concernant lesconditions d’emploi, (ii) soit de toute dispositiond’une convention collectiveou d’une décision arbitrale;

b) par suite de tout faitportant atteinte à sesconditions d’emploi. [73] Subsection 236(1) of the FPSLRA has been recognized as an "“explicit ouster”" of the courts’ jurisdiction (Bron v Canada (AttorneyGeneral), 2010 ONCA 71 [Bron] at para 4).

Once it is established that a matter must be the subject of a grievance, the grievance processcannot be circumvented, even for reasons of efficiency, by relying on a court’s residual jurisdiction (Bouchard c Procureur général duCanada, 2019 QCCA 2067). [74] Subsection 236(1) of the FPSLRA was enacted in 2005 in direct response to the Supreme Court of Canada’s decisions in Vaughan vCanada, 2005 SCC 11 , [2005] 1 SCR 146 [Vaughan] and Weber v Ontario Hydro, (SCC), [1995] 2 SCR 929[Weber] (see Attorney General of Canada, on behalf of Correctional Service of Canada v Robichaud and MacKinnon, 2013 NBCA 3

[Robichaud] at para 3). Vaughan and Weber stand for the proposition that courts should usually decline to exercise any residualjurisdiction they may have to intervene in employment-related matters.

Before a court will intervene in an employment-related dispute,there must be a gap in labour adjudication that causes a "“real deprivation of ultimate remedy”" (Weber at para 57). [75] This principle was succinctly stated by the Federal Court of Appeal in Canada v Greenwood, 2021 FCA 186 [Greenwood] atparagraph 130 (leave to appeal ref’d, (SCC)): Vaughan and the cases that apply it hold that, in most instances, claims from employees subject to federal public sectorlabour legislation in respect of matters that are not adjudicable before the FPSLREB should not be heard by the courts, asthis would constitute an impermissible incursion into the statutory scheme.

However, an exception to this general ruleallows courts to hear claims that may only be grieved under internal grievance mechanisms if the internal mechanisms areincapable of providing effective redress. [76] The Defendant says the effect of s 236 of the FPSLRA is to remove any residual discretion this Court may have to intervene inlabour disputes involving employees with grievance rights.

The Defendant argues that s 236 serves to revoke any statutory grant ofjurisdiction this Court might otherwise possess. [77] According to the Defendant, following the enactment of s 236 of the FPSLRA, no court, whether having statutory or inherentjurisdiction, has ever intervened in a labour dispute that involves employees who possess grievance rights.

The most one can find in thejurisprudence is obiter commentary suggesting that an exception might be found if the integrity of the grievance procedure is shown tobe compromised based on the evidence presented in a particular case (Lebrasseur v Canada, 2007 FCA 330 [Lebrasseur]).

The onus ofestablishing that there is room for the exercise of a court’s residual discretion lies with an applicant (Lebrasseur at paras 18-19). [78] In Robichaud, the Court of Appeal of New Brunswick suggested that if the residual discretion to hear a labour dispute continues toexist, despite s 236 of the FPSLRA, it will be only in "“exceptional”" cases: "“The truly problematic cases will be those where thegrievance process is itself ‘corrupt’”" (at para 10). [79] While evidence is not generally admissible to satisfy the "“reasonable cause of action”" criterion of the test for certification, it maybe admitted where a jurisdictional question arises.

Evidence as to the nature and efficacy of the suggested alternate processes is necessaryto provide a basis for the Court’s determination of whether it ought to decline jurisdiction in favour of the alternate administrativeremedies (Greenwood at paras 95-96). [80] The Plaintiffs’ Amended Statement of Claim includes the following allegations: 5. The impugned conduct was not a matter affecting Class Members’ terms and conditions of employment and was not anaccident arising out of and in the course of Class Members’ employment. 6.

In the alternative and in any event, there were systemic issues with the internal dispute resolution processes andmechanisms within CSC. There was no effective, adequate, or reasonable legislative remedy or internal mechanism withinCSC through which Class Members could report incidents of sexual violence, threats of sexual violence, sexual assaults,sexual harassment, gender based discrimination, physical assaults and reprisals.

Neither was there an effective, adequate, orreasonable legislative remedy or internal mechanism within CSC to address Class Members’ complaints of or grievancesrelated to the impugned conduct. 7.

The internal recourses were ineffective because they were dependent on the “chain of command”, comprised ofindividuals who abused their power and who were either responsible for the offending behavior or who acted to protect otherperpetrators, thus perpetuating the toxic misogynistic culture of CSC and thus normalizing and condoning sexual violence,threats of sexual violence, sexual assaults, sexual harassment, gender based discrimination, physical assaults and reprisals.Any grievances that were filed were improperly and inadequately investigated by CSC and were routinely, consistently andunreasonably held to be unfounded. 8.

CSC’s internal processes were also not equipped to provide redress or compensation for negatively impacted career pathsor for harm endured by family members of the Class who were impacted by the impugned conduct. [81] The Amended Statement of Claim contains a number of other allegations concerning the inadequacy of CSC’s grievance regime, butneither the pleadings nor the evidence adduced in support of the motion for certification directly address the full range of recoursemechanisms described under the heading Internal Grievance and Complaint Procedures, above.

Nor do they acknowledge the central roleplayed by unions in the resolution of workplace disputes where employees benefit from collective bargaining. [82] One of the affidavits submitted by the Plaintiffs is affirmed by Chad George McDougall, who worked as a correctional officer atStony Mountain Institution. He deposes that between October 2018 and September 2019, he volunteered as Executive Secretary for theUnion of Canadian Correctional Officers [UCCO] at Stony Mountain’s Rockwood Site.

In this role, he became aware that UCCO hadfiled grievances on behalf of many female members working at CSC institutions throughout Canada who had reported gender-basedharassment, discrimination, sexual assault, or sexual violence in the workplace. He says that CSC often determined these kinds ofgrievances to be unfounded, and they were routinely dismissed or rejected. [83] According to the affidavits of Lee-Anne Root, Sharlene Hudson, Miranda Kuester and Ashley Alblas, CSC employees rarely reportsexual misconduct to their union, and indeed union representatives are among the worst perpetrators.

They claim that unionrepresentatives have generally failed to provide assistance. They say this is confirmed by statistics regarding the small number ofgrievances filed, and the even smaller number that are upheld. [84] The Defendant objects to the Plaintiffs’ reliance on public service surveys as inadmissible hearsay. Beyond that, the Defendant saysthe evidence regarding the failure of union representatives to provide adequate assistance is sparse and anecdotal.

[85] The duty of fair representation is the necessary corollary of a union’s right to exclusive representation of the employees whocomprise the bargaining unit (Centre Hospitalier Régina Ltée v Labour Court, (SCC), [1990] 1 SCR 1330 at p 1345).The duty is codified in s 187 of the FPSLRA: Unfair representation bybargaining agent 187 No employee organizationthat is certified as the bargainingagent for a bargaining unit, andnone of its officers andrepresentatives, shall act in amanner that is arbitrary ordiscriminatory or that is in badfaith in the representation of anyemployee in the bargaining unit.

Représentation inéquitable parl’agent négociateur 187 Il est interdit à l’organisationsyndicale, ainsi qu’à sesdirigeants et représentants, d’agirde manière arbitraire oudiscriminatoire ou de mauvaisefoi en matière de représentationde tout fonctionnaire qui faitpartie de l’unité dont elle estl’agent négociateur. [86] Bargaining agents enjoy considerable latitude in decisions respecting the representation of their members (Navikevicius v PublicService Alliance of Canada, 2016 PSLREB 12 at para 15).

It is legitimate for the union to consider collective agreement language,industry or workplace practices, the credibility of a grievor, the existence of potential witnesses in support of the grievor’s version of theevents, and the decisions of arbitrators in similar circumstances (Ross v Public Service Alliance of Canada, 2017 FPSLREB 13 at para91). [87] There is insufficient evidence before the Court to assess the adequacy of union representation for all proposed Class Members.

Norwould it be appropriate for this Court to determine this question without notice to the implicated bargaining agents or without providingan opportunity to be heard. To the extent that unions have failed to comply with their duty of fair representation, the Class Members’complaints are with their bargaining agents, not the Defendant. [88] The Plaintiffs argue that the question at this stage of the analysis is not whether the Amended Statement of Claim discloses strongcauses of action, or whether it is likely that they will ultimately succeed. They note that novelty is not a bar to certification.

Given theegregious nature of the facts pleaded, the Plaintiffs say it is not plain and obvious that their claims do not meet the threshold ofexceptional circumstances sufficient to evoke the Court’s residual jurisdiction to proceed to a trial on the merits. [89] The requirement that the pleadings disclose a reasonable cause of action is ordinarily assessed on the same standard that applies to amotion to strike.

A plaintiff satisfies this requirement unless, assuming all facts pleaded to be true, it is plain and obvious that theplaintiff’s claim cannot succeed (Pro-Sys Consultants Ltd v Microsoft Corporation, 2013 SCC 57 at para 63). [90] However, as Prothonotary Mireille Tabib held in Murphy v Canada (Attorney General), 2022 FC 146 [Murphy], before determiningwhether to exercise any discretion to consider a proceeding, the Court must first be satisfied that the grievance process is not availableand would not provide any remedy (at para 32, citing Public Service Alliance of Canada v Canada (Attorney General), 2020 FC 481).She continued at paragraph 33: Consequently, and as also suggested in Lebrasseur v Canada, 2007 FCA 330, at para 19, once it is established that a personhas recourse to a statutory grievance scheme, it is up to the applicant, and not the respondent seeking to have the applicationdismissed as premature, to establish that the procedure is clearly not available.

That is the necessary conclusion, sinceconcluding otherwise and allowing access to the courts whenever the admissibility of a grievance is challenged would havethe effect of bypassing the exhaustive scheme Parliament intended. It would amount to asking the Court to prejudge theadmissibility of a grievance and to usurp the role of the grievance authority in respect of the

interpretation and application ofthe provisions governing the grievance procedure. [91] Even at this preliminary stage, the onus is on the Plaintiffs to establish the Court’s jurisdiction over the claims advanced in theAmended Statement of Claim. I am not persuaded they have done so. [92] The classes proposed by the Plaintiffs are extraordinarily broad. They encompass all female current and former employees of CSC,without differentiation based on time or place of employment.

Secondary Class Members comprise all persons who have a derivativeclaim, in accordance with applicable family law legislation, arising from a family relationship with a Class Member. [93] The pleadings and evidence of the Plaintiffs do not establish that the internal recourse procedures available to female employees ofCSC are, in all circumstances, in every workplace, and at all times, "“corrupt”" and incapable of providing effective redress.

As theFederal Court of Appeal held in Lebrasseur, the onus is on a plaintiff to demonstrate that the integrity of internal recourse mechanisms iscompromised based on the evidence presented in a particular case (at para 19).

Based on the limited evidence presented in support of themotion for certification, it is simply not possible for all members of the broadly-defined classes to meet this threshold. [94] In closing argument on the motion for certification, the Plaintiffs suggested that the proposed classes could be narrowed in thefollowing ways: Revised Class Definition (In the Alternative) All female current and former employees of the Correctional Service of Canada (CSC) who worked in a CSC institution.

Revised Class Definition (In the Further Alternative) All female current and former employees of the Correctional Service of Canada (CSC) who worked in a CSC institution

between 1986 and the date of certification. Revised Class Definition (In the Still Further Alternative) All female current and former employees of the Correctional Service of Canada (CSC) who worked in a CSC institutionbetween 1986 and the date of certification who allege that they were subjected to sexual harassment, discrimination, assaultor violence in the CSC workplace. [95] The effect of these alternative

definitions would be to limit the proposed class to female employees of CSC who (

a) worked ascorrections officers rather than in more conventional public service settings; (

b) during the time periods covered by the evidence adducedby the Plaintiffs; and (

c) who specifically allege they were subjected to sexual harassment, discrimination, assault or violence in a CSCworkplace. [96] While there is some evidence before this Court that toxic work environments characterized by sexual harassment and discriminationare more likely to be found in penitentiaries such as the maximum security Edmonton Institution or the multi-level Stony MountainInstitution, this is insufficient to demonstrate that CSC’s internal recourse procedures provide no meaningful redress for all employeeswho work as corrections officers across all institutional settings.

Even among different CSC institutions, which encompass maximum,medium and minimum security facilities, as well as women’s institutions, Indigenous healing lodges, regional treatment centres, andcommunity correctional centres, workplace conditions and cultures vary widely. [97] There is insufficient evidence before this Court that all of the recourse mechanisms described under the heading Internal Grievanceand Complaint Procedures, above, are compromised for all female employees working in these environments.

Nor is there sufficientevidence demonstrating that these employees’ collective bargaining units are institutionally incapable of assisting them with theirgrievances and complaints. [98] The Plaintiffs argue that the CSC grievance procedure is flawed because female employees must report misconduct to theperpetrators themselves, or to friends or colleagues of the perpetrators. However, as noted above, if the person designated to hear agrievance is the subject of the complaint, that level of the process is bypassed.

Furthermore, the requirement to report misconduct topossible perpetrators does not arise in many of the other redress mechanisms described under the heading Internal Grievance andComplaints Procedures, above. [99] The Defendant emphasizes the availability of complaints under the CHRA, which ensures that a complaint will be determined by aneutral third party.

Complaints of harassment may also be brought under the PSDPA directly to the PSIC, which again ensures that thematter is determined by a neutral third party. [100] A central theme in the Plaintiffs’ allegations is that Class Members have not, and will not, avail themselves of internal recoursemechanisms due to a fear of reprisal. Several of the women who submitted affidavits in support of the certification motion cite this astheir reason for not pursuing grievances.

The Plaintiffs note that, according to public service surveys conducted in 2018 and 2019,approximately half of CSC employees reported having been the victim of harassment in the preceding 12 months, but not filing agrievance or formal complaint because they were afraid of reprisal. [101] Here, again, the role of collective bargaining agents is key. The Plaintiffs make broad accusations against union representatives,claiming that they are among the worst offenders, they are complicit, or they are ineffective.

But there is no evidence before the Courtthat these circumstances, to the extent they exist, prevail across all CSC institutions. Nor is there any evidence that concerted attemptshave been made to advance grievances with the assistance of bargaining agents, or that there have been complaints of unfairrepresentation when assistance has not been forthcoming. [102] The Plaintiffs cannot escape the operation of s 236 of the FPSLRA by pleading that their claims are not "“ordinary workplacedisputes”".

As the Ontario Court of Appeal held in Bron, the right to grieve is "“very broad”" and "“[a]lmost all employment-relateddisputes can be grieved under s 208 of the FPSLRA”" (at paras 14-15). [103] Allegations of gender-based harassment, discrimination, and even assault may be grieved under s 208 of the FPSLRA. Jane Doe vCanada (Attorney General), 2018 FCA 183 [Jane Doe] concerned a grievance brought by an employee of the Canada Border ServicesAgency who alleged that her employer had failed to provide her with a harassment-free workplace.

The employee claimed she hadendured prolonged sexual harassment, including an admitted sexual assault by a co-worker. The Board upheld the grievance, finding thatthe employer had failed to provide a harassment-free workplace, but did not award compensation.

The Federal Court of Appeal grantedthe application for judicial review, holding that the Board had unreasonably denied the employee compensation for pain and suffering(Jane Doe at para 44; see also Doro v Canada Revenue Agency, 2019 FPSLREB 6). [104] Provincial superior courts have also recognized that sexual or gender-based harassment and discrimination are grievable, and havegenerally declined to exercise any residual jurisdiction they may have in favour of the applicable labour relations scheme (see, forexample, A(

K) v Ottawa (City) (2006), (ON CA), 80 OR (3d) 161; Greenlaw v Scott, 2020 ONSC 2028). [105] The motion for certification must therefore be dismissed on jurisdictional grounds alone. This conclusion applies equally tomembers of the proposed class whose claims arose before 2005. The Plaintiffs have not demonstrated that the circumstances of thoseclass members constitute "“exceptional cases”", or that there is a gap in labour adjudication that causes a "“real deprivation of ultimateremedy”" (Weber at para 57; Vaughan at paras 22, 39). [106] Should I be wrong in this conclusion, I will address the substance of the proposed causes of action and the remaining criteria ofRule 334.16(1).

(2) Negligence [107] The Defendant says the Plaintiffs’ claims of negligence fail to disclose a reasonable cause of action. According to the Defendant,

the Crown’s public duties to take steps to prevent and provide redress for gender-based workplace harassment, discrimination and assaultcannot serve as the basis for a private law duty of care owed to the Plaintiffs. [108] The existence of a duty of care is determined by applying the two-stage framework recognized by the Supreme Court of Canada inCooper v Hobart, 2001 SCC 79 [Cooper]. Before applying the test, the Court must first consider whether the relationship between theparties falls within a category that has previously been recognized as giving rise to a duty of care (Cooper at para 41).

The Court shouldthen consider the particular factors that justified recognizing the prior category in order to determine whether the relationship at issue istruly the same or analogous (Deloitte & Touche v Livent Inc (Receiver of), 2017 SCC 63 at para 28). [109] The Defendant asserts that the duty of care alleged by the Plaintiffs has not been previously recognized, and the Cooper frameworkapplies.

The Court must consider whether a prima facie duty of care exists between the parties based on the foreseeability of the allegedharm and the proximity of the relationship (Nelson (City) v Marchi, 2021 SCC 41 [Nelson] at para 17). If there is a prima facie duty ofcare, the question at the second stage of the test is whether there are residual policy concerns outside the parties’ relationship that shouldnegate the existence of a duty of care.

At this stage of the test, the Court is concerned with the effect that recognizing a duty of care willhave on other legal obligations, the legal system, and society more generally (Nelson at para 18). [110] The Defendant says it is plain and obvious that the Plaintiffs’ negligence claim will fail at the second stage of the Cooper test.Canadian courts have generally been unwilling to permit negligence claims in the employment context.

In Piresferreira v Ayotte, 2010ONCA 384 [Piresferreira], the Ontario Court of Appeal rejected the proposition that an employer owed its employees a duty innegligence to ensure "“a safe and harassment-free environment without verbal abuse, intimidation or physical assault”" (at paras 32, 45).The Court held that complaints of this nature are compensable through intentional tort remedies and/or principles of employment lawsuch as constructive or wrongful dismissal.

The Court concluded that it is neither desirable nor necessary to import negligence principlesinto everyday workplace affairs (Piresferreira at paras 55-63). [111] In Greenwood, the Federal Court of Appeal (per Gleason JA) observed that a claim in negligence for workplace harassment,whether brought on an individual or systemic basis, is liable to be struck if brought on behalf of persons governed by contracts ofemployment.

However, the Court also found that the holding in Piresferreira did not apply to RCMP members, because no employmentcontract applied to them (Greenwood at paras 155-157). [112] The Plaintiffs say that the nature of their employment relationship with CSC is sufficient to sustain an allegation of systemicnegligence, as recognized by the Supreme Court of Canada in Rumley v British Columbia, 2001 SCC 69 [Rumley], and by this Court in anumber of cases involving allegations of workplace harassment within the RCMP. (See also White v Attorney General of Canada, 2002BCSC 1164; aff’d, 2003 BCCA 53.) [113] In Sauer v Canada (Attorney General), 2007 ONCA 454, the Ontario Court of Appeal cautioned that courts should be"“circumspect”" in finding it plain and obvious that there is no duty of care in novel circumstances (at para 45): […] It is to be remembered that at this point we have only the statement of claim.

Ridley has not filed a defence. In [Childs vDesormeaux, 2006 SCC 18 , [2006] 1 SCR 643], the court said that at the second stage, the defendant (in this caseRidley) bears the evidentiary burden of showing countervailing policy considerations sufficient to negate the prima facieduty of care. It is for this reason that this court has said that it should be circumspect in determining so early in an action thatresidual policy considerations make it plain and obvious that there is no duty of care. See Haskett v.

Equifax Canada Inc.(2003), (ON CA), 63 O.R. (3d) 577 at para. 24 (C.A.). [114] As the Federal Court of Appeal held in Greenwood, "“it cannot be said that it is plain and obvious that there is no cause of actionin negligence for workplace harassment experienced by an RCMP Member”" (at para 162).

Furthermore, the Ontario Court of Appeal inMerrifield v Canada (Attorney General), 2019 ONCA 205 [Merrifield] "“left the door open to the recognition of a new tort of workplaceharassment in an appropriate ""case”" (Greenwood at para 58). [115] The Plaintiffs therefore say that the law governing the circumstances in which an employer may owe a duty of care to itsemployees in relation to systemic misogyny, harassment, discrimination, and assault is not settled.

In the words of the Ontario Court ofAppeal in Merrifield, "“we do not foreclose the development of a properly conceived tort of harassment that might apply in appropriatecontexts”". [116] I agree with the Plaintiffs that the Court should be "“circumspect”" in finding at this preliminary stage that the Defendant owes noduty of care to the Plaintiffs and other proposed Class Members. Furthermore, the Defendant acknowledges that the Plaintiffs’ Charterclaims meet the low threshold necessary to survive a motion to strike, and therefore satisfy the requirement in Rule 334.16(1)(

a) that thepleadings disclose a reasonable cause of action.

(3) Canadian Charter of Rights and Freedoms, ss 7 and 15 [117] The Plaintiffs’ Amended Statement of Claim alleges breaches of ss 15 and 7 of the Canadian Charter of Rights and Freedoms, PartI of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. CSC exercises authority under afederal statute, namely the Corrections and Conditional Release Act, SC 1992, c 20.

CSC’s conduct therefore constitutes "“state action”"for the purposes of the Charter (RWDSU v Dolphin Delivery Ltd, (SCC), [1986] 2 SCR 573 at para 41; GreaterVancouver Transportation Authority v Canadian Federation of Students, 2009 SCC 31 at para 16). [118] The Plaintiffs plead that the impugned state action, on its face or in its impact, creates a distinction based on enumerated oranalogous grounds, and imposes burdens or denies benefits in a manner that has the effect of reinforcing, perpetuating, or exacerbatingdisadvantage (Fraser v Canada (Attorney General), 2020 SCC 28 [Fraser] at para 27).

Section 15 may be infringed not only throughstate action that is explicitly discriminatory, but by seemingly neutral state action that has an adverse impact or that has a discriminatoryeffect in its application (Meekis v Ontario, 2021 ONCA 534; Fraser at paras 30, 52-53; Little Sisters Book and Art Emporium v Canada(Minister of Justice), 2000 SCC 69).

[119] The Plaintiffs say they have been denied the right to equal protection and benefit of the law without discrimination based on sex.They say the breach of Class Members’ rights under s 15 of the Charter cannot be justified under s 1. [120]

Section 7 of the Charter is breached by state action that deprives someone of the right to life, liberty, or security of the person,contrary to a principle of fundamental justice (Canadian Foundation for Children, Youth and the Law v Canada (Attorney General),2004 SCC 4 at para 3).

Section 7 protects individual autonomy and dignity, and encompasses control over one’s personal integrity, freefrom state interference.

It is engaged by "“state interference with an individual’s physical or psychological integrity, including any stateaction that causes physical or serious psychological suffering”" (Carter v Canada (Attorney General), 2015 SCC 5 at para 64). [121] The Amended Statement of Claim alleges that the acts and omissions of CSC have resulted in risk to Class Members’ lives, liberty,and security of the person, in a manner that is grossly disproportionate and arbitrary and therefore contrary to the principles offundamental justice.

The Plaintiffs say that the alleged breach of Class Members’ rights under s 7 of the Charter cannot be justifiedunder s 1. [122] The Plaintiffs assert that Class Members are entitled to damages under s 24(1) of the Charter. [123] While the Defendant opposes certification of the Plaintiffs’ Charter claims based upon the other criteria for certification, it doesnot deny that these claims meet the low threshold necessary to survive a motion to strike.

Accordingly, even if the Plaintiffs’ allegationsof negligence were to be struck, the Plaintiffs’ claim could still proceed on the basis of the Charter claims alone. [124] Subject to the finding that this Court does not have jurisdiction to adjudicate the claims advanced in the Amended Statement ofClaim by virtue of s 236 of the FPSLRA, the Plaintiffs’ pleadings satisfy the criterion in Rule 334.16(1)(

a) of disclosing a reasonablecause of action. B. Identifiable Class [125] Rule 334.16(1)(

b) requires that there be "“an identifiable class of two or more persons”". The Plaintiffs must provide some basis infact to satisfy this requirement (Hollick v Toronto (City), 2001 SCC 68 at para 25). [126] The purpose of a class definition is to identify those persons with a potential claim for relief against the defendant, define theparameters of the lawsuit to identify who will be bound by its result, and describe who is entitled to notice of the lawsuit (WesternCanadian Shopping Centres Inc v Dutton, 2001 SCC 46 [Dutton] at para 38).

There should be a rational relationship between the classand the common questions. Over– or under–inclusion is not fatal, so long as the class definition is not illogical or arbitrary. [127] A rational connection between a class definition and a claim may exist even if it includes potential class members who have notsuffered harm (Tiboni v Merck Frosst Canada Ltd, (ON SC), [2008] OJ No 2996 (ONSC) at paras 71-72).

It neednot be shown at the certification stage that each Class Member would be successful in establishing a claim for one or more remedies(Cloud v Canada (Attorney General), (ONCA) at paras 45-47). [128] The proposed classes are defined as follows: Class Members: All female current and former employees of the Correctional Service of Canada.

Secondary Class Members: All persons who have a derivative claim, in accordance with applicable family law legislation,arising from a family relationship with a Class Member. [129] With respect to Secondary Class Members, the Plaintiffs note that similar family classes have been certified in other classproceedings alleging systemic negligence against government agencies (citing Slark (Litigation Guardian of) v Ontario, 2010 ONSC1726). [130] The Defendant says that the Plaintiffs’ proposed class

definitions are overly broad and unmanageable. They include all femalecurrent and former employees of CSC, and all persons who have a derivative claim arising from a family relationship with a ClassMember.

If certified, the classes would include women who have not experienced the alleged gender-based misconduct, and also thosewhose claims are barred by limitations statutes or otherwise, e.g., women who are or could be in receipt of pension benefits pursuant tothe Pension Act, RSC, 1985, c P-6, or disability benefits under the GECA. [131] The Defendant maintains that there is no nexus between a female employee of CSC who did not experience gender-basedworkplace harassment, discrimination or violence and any of the proposed common questions.

There is no evidence pertaining to theproposed Secondary Class Members, and no proposed representative plaintiff for this group. [132] According to the Defendant, if the Plaintiffs’ proposed class

definitions were certified, they would raise similar concerns ofunmanageability to those identified in Amyotrophic Lateral Sclerosis Society of Essex v Windsor (City), 2015 ONCA 572 [ALS], wherethe proposed class had the potential of reaching back to 1969 or 1970 (at para 42). [133] In the present case, the Plaintiffs plead various incidents occurring in different provinces and territories.

Regardless of whether aprovincial or federal limitation period applies, if the proposed classes are certified, then the Defendant says that a similar approachshould be taken to the one adopted in ALS and Knight v Imperial Tobacco Canada Limited, 2006 BCCA 235.

The classes should belimited to claims falling within the federal limitation period of six years from certification, and then the issue of whether or not aprovincial limitation period applies may be deferred. [134] The Defendant also objects to the inclusion of claims prior to 1986, because the Plaintiffs have not provided any evidence ofclaims arising prior to that year. The Defendant notes that the Plaintiffs’ and the other affiants’ experiences cannot be extrapolated toprovide some basis in fact for other groups of employees (citing Greenwood at para 173).

[ 135 ] The affidavits filed by the Plaintiffs in support of the motion for certification provide " “some basis in fact” " for the following assertions: (

a) At different times, beginning as early as 1986, some corrections officers employed by CSC have experienced gender-based harassment, discrimination, abuse, and related retaliation by male employees and management.

The workplaces in which this occurred include Atlantic Institution, Renous, New Brunswick; Dorchester Penitentiary, Dorchester, New Brunswick; Bowden Institution, Innisfail, Alberta; Edmonton Institution, Edmonton, Alberta; Grand Valley Institution for Women, Kitchener, Ontario; Mountain Institution, Agassiz, British Columbia; Pacific Institution, Abbotsford, British Columbia; Millhaven Institution, Bass, Ontario; Stony Mountain Institution, Winnipeg, Manitoba; Nova Institution for Women, Truro, Nova Scotia (Sharlene Hudson, Brinda Wilson-Demuth, Janet Hamilton, Lee-Anne Root, Heather Pederson, Nicole Losier, Miranda Kuester, Ashley Alblas, Chad McDougall, Lyndsey McMullin). (

b) Since 1992, gender-based harassment, discrimination, abuse, and related retaliation have also been experienced by at least one woman working as a psychologist in Prince Albert, Saskatchewan and Kitchener, Ontario, as an Assistant Warden in Prince Albert and Bath, Ontario, as a Warden at Grand Valley Institution, Kitchener, and in various capacities at NHQ in Ottawa (Brinda Wilson-Demuth). (

c) One woman who held the positions of Administrative Assistant, Pay & Benefits and Social Program Officer, and senior management positions on a temporary basis, experienced or witnessed gender-based harassment, discrimination, abuse, and related retaliation. This occurred at Millhaven Institution, Bath, Ontario; Fenbrook Institution, Gravenhurst, Ontario; Bath Institution, Bath, Ontario; Grand Valley Institution for Women, Kitchener, Ontario; and the Regional Treatment Centre in Kingston, Ontario (Vicki Rombough). (

d) During a CSC training course for the Emergency Response Team in September of 2016, male instructors berated and humiliated female participants. CSC convened a Board of Inquiry to investigate, but the report cast aspersions on the complainants and failed to take the matter seriously (Nubia Davis). [ 136 ] Government reports, studies and surveys regarding CSC’s workplace, and the expert reports of Dr. Berdahl and Dr.

Workman- Stark, are summarized under the heading Factual Background, above. [ 137 ] The evidence adduced by the Plaintiffs establishes " “some basis in fact” " for their allegations of gender-based harassment, discrimination, abuse, and related retaliation by male employees and management, but primarily in relation to institutions. The evidence of similar systemic misconduct in other workplace settings is sparse, and cannot be extrapolated to CSC as a whole. [ 138 ] The expert evidence of Dr. Berdahl and Dr. Workman-Stark is restricted to male-dominated, military or paramilitary working environments.

It is doubtful whether the factual assumptions that underlie their opinions have been established by the evidence. To the limited extent they may be, it appears that these working environments arise primarily, and almost exclusively, in penitentiaries. [ 139 ] There is no evidence to establish " “some basis in fact” " for the claims of Secondary Class Members. [ 140 ] Subject to the finding that this Court does not have jurisdiction to adjudicate the claims advanced in the Amended Statement of Claim by virtue of s 236 of the FPSLRA , the Plaintiffs’ pleadings satisfy the criterion in Rule 334.16(1)(

b) that there be " “an identifiable class of two or more persons” " only with respect to the alternative class

definitions proposed by the Plaintiffs.

The evidence adduced by the Plaintiffs establishes " “some basis in fact” " to support the following alternative class definition [Alternative Class]: All female current and former employees of the Correctional Service of Canada (CSC) who worked in a CSC institution between 1986 and the date of certification who allege that they were subjected to sexual harassment, discrimination, assault or violence in the CSC workplace. [ 141 ] Where the resolution of a limitations issue depends on a factual inquiry, such as when the plaintiff discovered or ought to have discovered the claim, the issue should not be decided on a motion for certification ( ALS at para 41 ).

The Ontario Court of Appeal in ALS imposed an ultimate limitation period of 15 years upon the class definition in the interests of manageability.

However, the Federal Court of Appeal did not apply any limitation period to the class definition approved in Greenwood , holding at paragraph 133 : In terms of the commencement date of this period, the evidence that was before the Federal Court is incapable of supporting a class period commencing prior to 1995, the earliest possible date that one of the representative plaintiffs experienced harassment. […] [ 142 ] The class approved in Greenwood was defined as follows (at para 202): All current or former RCMP Members ( i.e .

Regular, Civilian and Special Constable Members) and Reservists who worked for the RCMP between January 1, 1995 and the date a collective agreement becomes or became applicable to a bargaining unit to which they belong. [ 143 ] Consistent with Greenwood , I do not consider it necessary or appropriate to address limitation periods or statutory bars to compensation at the certification stage. These issues are heavily dependent on factual inquiry.

Allegations of sexual misconduct present unique considerations with respect to discoverability and in some jurisdictions benefit from exceptions in limitations legislation. C. Common Questions [ 144 ] Rule 334.16(1)(

c) requires that the claims of the class members raise common questions of law or fact, whether or not those common questions predominate over questions affecting only individual members. In Fulawka v Bank of Nova Scotia , 2012 ONCA 443 , the Ontario Court of Appeal ( per Winkler CJO) identified several legal principles that pertain to this requirement (at para 81, citing

Singer v Schering-Plough Canada Inc , 2010 ONSC 42 ): (

a) there must be a basis in the evidence to establish the existence of the common issues; (

b) the resolution of a common issue must avoid duplication of fact-finding or legal analysis; (

c) the common issue criterion is not a high legal hurdle, and an issue can be a common issue even if it makes up a very limited aspect of the liability question and

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