Since early 2012, Klein Lawyers, has been involved in a class action lawsuit brought by female members of the Royal Canadian Mounted Police against their employer. The case was recently in the news when the defendant – the Government of Canada – tried to sideline the litigation by arguing that, among other things, the RCMP was not liable for its actions under the Canadian Charter of Rights and Freedoms, as a matter of contract law, or under the law of negligence. After a hearing in June 2013, the Supreme Court of British Columbia decided that, despite the government’s argument, the case could go ahead to be considered for class action certification (where a lawsuit is “certified” as a class action).
These developments were highlighted in a recent edition of Canadian Lawyer magazine:
While it seems a no-brainer, the question the B.C. Supreme Court will have to decide during certification arguments for Canada’s first gender-based class action brought against the RCMP is whether the country’s national police force is bound by the Charter of Rights and Freedoms as an employer.
The question of the RCMP’s duty was brought forward in an early June hearing where the defendants, the attorney general of Canada and the minister of Justice of B.C., tried unsuccessfully to get their objections heard at a July court date that would strike down portions of the statement of claim filed by former RCMP constable Janet Merlo. The defendant’s July hearing pre-dated the certification hearing.
The defendants’ position, as summarized in the June reasons, is that “no Canadian Charter of Rights and Freedoms claim is possible because the activity alleged is not a government activity.” The governments also argue there is no possible claim for breach of contract because no contract of employment exists between the RCMP and the federal Crown. They state no direct claim of negligence is possible in law against the federal or provincial government. A final argument is Merlo has waited too long to file her statement of claim, filing more than two years after leaving the force.
Supreme Court Justice Miriam Gropper ruled there would not be a separate hearing to argue the defendants’ points as it could delay proceedings with appeals, add costs to the process, and not promote a settlement. “I do not see any advantage in hearing the defendants’ motion before the certification hearing. The motion must be considered in the context of a class proceeding, and the most efficient means of hearing it is in the certification application;” Gropper wrote.
The decision was seen as a success for the plaintiff’s co-counsel from Klein Lawyers, of Vancouver and Watkins Law in Thunder Bay; Ont. “It is what we wanted and what we asked the courts for and that the certification hearing should not be pre-empted by allowing the RCMP to strike parts of the claim;” said Klein Lawyers’ Jason Murray. “The gist of the class action is that women in the RCMP were subject to gender-based discrimination, gender bullying, and gender-based harassment and that the RCMP failed to fulfill its duty to the women in the force to provide a work environment that was free of gender-based harassment, bullying, and discrimination.”
The firms have now heard from 282 women across Canada that worked for or are still working for the RCMP. Approximately 100 are currently employed with the force. Murray says this is the first known class action suit of its kind against the RCMP, although individual women have brought suit against the RCMP. “Some have been settled, some went to trial, and others are currently being litigated;” he says, adding the RCMP and the two levels of government have not been open to mediating the class action claim to date.
Gropper, who didn’t rule on the validity of any of the arguments, set out a schedule for both sides to file arguments for a five-day class action hearing to be held in April or May 2014.
(J. Sorensen, “Meaning of ‘Government Activity’ at Heart of RCMP Class Action” Canadian Lawyer 37:8 (August 2013) at 12-13.)
This RCMP lawsuit alleges that she and female members, civilian members and public service employees of the force were subject to gender-based discrimination, bullying and harassment and that the RCMP failed to exercise the duty to women in the RCMP to ensure that they could work in an environment free of gender-based discrimination, bullying and harassment.
Klein Lawyers, is moving this class action to certification,
The next court date will be scheduled in April or May 2014.