COURT FILE AND PARTIES

COURT FILE NO.: CV-15-42473600CP
DATE: 20151222

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

LINDA GILLIS DAVIDSON
Plaintiff

– and –

ATTORNEY GENERAL OF CANADA

Defendant

Won J. Kim, Megan B. McPhee, and Sean D. McGarry for the Plaintiff

Gina M. Scarcella, Victoria Yankou, and Andrew Law for the Defendant

HEARD: December 10, 2015

Proceeding under the Class Proceedings Act, 1992

PERELL, J.

REASONS FOR DECISION

A. INTRODUCTION

[1] In this proposed class action under the Class Proceedings Act, 1992, S.O. 1992, c. 6, the Plaintiff, Linda Gillis Davidson, a former officer of the Royal Canadian Mounted Police (“RCMP”), sues the Attorney General of Canada (“Canada” or “the Crown”) in negligence and for breach of an employment contract. Ms. Davidson alleges that she and fellow female officers and also female civilian members of the RCMP were victims of sexual harassment and sexual discrimination by the RCMP as an institution for which Canada is liable. She alleges that she and her female colleagues were subjected to sexual discrimination, bullying, and harassment by male members of the RCMP between 1986 and 2009. She states that the RCMP - and therefore Canada – is liable for damages for failure to provide her with a “workplace free of gender - and sexual-orientation-based discrimination, bullying and harassment.”

[2] Pursuant to rule 21.001 of the Rules of Civil Procedure, Canada, which I will refer to hereafter as the Crown, moves to have Ms. Davidson’s Statement of Claim struck without leave to amend and to have her claim dismissed for failure to disclose a reasonable cause of action. If The Crown’s motion is successful, it would follow that Ms. Davidson’s action cannot satisfy the s. 5(1)(a) criterion (cause of action criterion) for certification as a class action. Conversely, if the Crown’s motion fails, then the s. 5(1)(a) criterion will have been satisfied and the proposed class action can proceed to a certification hearing to determine whether the other four criterion for certification are satisfied.

[3] The Crown makes a three-part argument. First, it submits that under the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, the Crown can only be liable vicariously for the negligence of individual Crown agents and not for the institutional or systemic misconduct of the RCMP as an institution. It submits that Ms. Davidson’s claim is a claim of direct as opposed to vicarious Crown liability and, therefore, the common law rule of Crown immunity prevails to preclude the systemic negligence claim made against the Crown directly. Second, the Crown submits that there is no breach of contract claim against it because the employer–employee relationship between the Crown and the proposed Class Members is statutory and not contractual in nature. Third, the Crown submits that it is plain and obvious that Ms. Davidson’s personal claim for negligence or breach of contract is statute-barred under the Limitations Act, 2002, S.O. 2002, c.24, Sch. B. and therefore her action should be dismissed.

[4] For the reasons that follow, I strike the claim in contract, but, otherwise, I dismiss the Crown’s motion. Ms. Davidson may deliver a Fresh as Amended Statement of Claim deleting the breach of contract claim.

B. FACTUAL BACKGROUND

1. The RCMP

[5] The RCMP is Canada's national police force. It is continued and governed by s. 3 of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10. The Commissioner of the RCMP, who has the control and management of the force, is appointed by the Governor General in Council and is under the direction of the Minister of Public Safety.

[6] The management of the RCMP’s human resources is governed by the Royal Canadian Mounted Police Act, the Royal Canadian Mounted Police Regulations, 2014, SOR/2014-281 and the Commissioner's Standing Orders, enacted pursuant to the Act.

[7] The RCMP is part of the core public administration as defined in the Financial Administration Act, R.S.C., 1985, c. F-11 and pursuant to s. 7 of that Act Treasury Board is empowered to set general administrative policy, financial management, and human resources management. Those powers include the power to determine the terms and conditions of employment of public servants within the core public administration. Pursuant to s. 22 of the Royal Canadian Mounted Police Act, Treasury Board establishes the pay for RCMP members.

[8] The RCMP’s National Headquarters are located in Ottawa, and the force is divided into 16 divisions, comprised of local detachments. The RCMP employs over 28,000 persons, the majority of whom fall into one of three categories: (1) Officer Members; i.e., sworn police officers; (2) Civilian Members, who provide operational, scientific and other technical support; and (3) public service employees, who provide services for the RCMP and who are employed under the Public Service Employment Act, SC 2003, c 22.

[9] Ms. Davidson intends to amend her Statement of Claim to remove public service employees as members of the class. She will, however, not be removing the Civilian Members who had that status during the class period for the proposed class action.

[10] The police officers or the RCMP are appointed by the Governor General in Council pursuant to ss. 6(3)(a) or the Royal Canadian Police Act and serve at pleasure pursuant to ss. 12(1) of the Act.

[11] A member of the Royal Canadian Mounted Police is a Crown servant. This is confirmed by s. 36 of the Crown Liability and Proceedings Act, which states:

36. For the purposes of determining liability in any proceedings by or against the Crown, a person who was at any time a member of the Canadian Forces or of the Royal Canadian Mounted Police shall be deemed to have been at that time a servant of the Crown.

[12] Recently, RCMP officers were held to have a right to collectively bargain with the Crown about the terms of their employment relationship; see: Mounted Police Assn. of Ontario / Assoc. de la Police Montée de l'Ontario v. Canada (Attorney General), 2015 SCC 1.

[13] Before the coming into force of amendments to the Royal Canadian Police Act in 2014, Civilian Members were appointed pursuant to ss. 7(1)(a) of the Act, but on a date to be published by Treasury Board pursuant to s. 86 of the Enhancing Royal Canadian Mounted Police Accountability Act, S.C. 2013, c. 18, Civil Members who do not fit the category of member as determined by Treasury Board, will be deemed to be persons appointed under the Public Service Employment Act; i.e., they will cease to be Civilian Members and become public service employees providing services to the RCMP.

[14] The statutory Regulations for the RCMP were also amended in 2014; i.e., the RCMP Regulations, 1988 and the majority of Commissioner's Standing Orders were repealed and replaced. The old Regulations and Standing Orders provided and the new regulations and new Standing Orders provide a code governing the practices and conduct of RCMP members. They also provided and provide a discipline and grievance process. The grievance process is available pursuant to Part III of the Royal Canadian Mounted Police Act. Pursuant to s. 31 of the Act, police officers and Civilian Members have the right to challenge any decision, act or omission made in the administration of the affairs of the RCMP in respect of which no other process for redress is provided for in the Act, the Regulations or the Commissioner's Standing Orders. With the 2014 amendments, there is now a standalone Commissioner's Standing Order that sets out procedures to address complaints of harassment.

[15] As of September 1, 2015, the RCMP employs approximately 18,292 police officers and 3,838 Civilian Members.

2. Ms. Davidson’s Proposed Class Action

[16] In 1985, Ms. Davidson joined the RCMP as a trainee officer at the RCMP Academy in Regina, Saskatchewan, and from 1986 to 2009, she rose through the ranks and served as a Constable, Corporal, Sergeant, and Inspector, at detachments in Newfoundland and Ontario. She served as a Travel Officer in the Prime Minister's Protection Detail in Ottawa as an Inspector, from 2006 to 2012.

[17] The alleged discrimination, bullying, and harassment of Ms. Davidson is alleged to have begun in 1986 when she joined the Grand Falls detachment in Newfoundland. Incidents occurred between the years 1986 and 2009, excluding 2004 to 2005. In 2009, she left active service on an extended medical leave. She remained on medical leave until her retirement from the RCMP on October 31, 2012.

[18] Ms. Davidson commenced her action on March 25, 2015.

[19] Although in the discussion part of these reasons, I shall set out seven paragraphs (paras. 18-24) that describe a portion of Ms. Davidson’s personal claim for sexual harassment and sexual discrimination, it is not necessary to detail from the Statement of Claim Ms. Davidson’s personal career history as an officer of the RCMP, which is set out in 67 paragraphs of the 106 paragraph Statement of Claim.

[20] Putting aside for the moment, Ms. Davidson’s personal claim, for the immediate purpose of determining whether there is a viable cause of action for the proposed class action, the portion of her Statement of Claim set out below address the class wide causes of action. It is important, however, to note that her personal allegations and the class wide allegations implicate by act or omission all male police officers of the RCMP and all male Civilian Members of the RCMP and that if her allegations are proven, then she and the putative Class Members were treated in a vile, despicable, dishonorable, and reprehensible way by male colleagues at every rank of the RCMP. The pertinent allegations for the class wide claim are set out below:

RELIEF SOUGHT

1. The plaintiff, Linda Gillis Davidson, claims on her own behalf and on behalf of the Class Members, as defined below:

(a) an order certifying this action as a class proceeding and appointing her as the representative plaintiff for the Class and any appropriate sub-classes;

(b) a declaration that the defendant was negligent in failing to provide the Class Members with a workplace free from gender- and sexual-orientation-based discrimination, bullying and harassment;

(c) a declaration that the defendant breached its statutory duties to provide the Class Members with a workplace free from gender- and sexual-orientation-based discrimination, bullying and harassment;

(d) a declaration that the defendant breached its contractual duties to provide the Class Members with a workplace free from gender- and sexual-orientation-based discrimination, bullying and harassment;

(e) general damages in the amount of $500,000,000.00, or such other sum as this Honourable Court deems just, plus damages equal to the costs of administering the plan of distribution of the recovery in this action;

(f) punitive damages in the amount of $100,000,000.00;

(g) special damages in an amount to be determined, including but not limited to past and future medical expenses, on behalf of the plaintiff and the other Class Members and the subrogated interests of the Ontario Health Insurance Plan, pursuant to ss. 30 and 31 of the Health Insurance Act, R.S.O. 1990, c. H.6, as amended, and the other provincial and territorial health insurers, pursuant to the legislation in the Class Members’ respective provinces or territories; ….

THE NATURE OF THIS ACTION

2. This action concerns the discrimination, bullying and harassment of female Royal Canadian Mounted Police (“RCMP”) employees on the basis of their gender and/or sexual orientation.

3. The plaintiff alleges that she and the other Class Members (as defined below) were subject to gender- and sexual-orientation-based discrimination, bullying and harassment by other RCMP employees. The plaintiff further alleges that this occurred because the RCMP failed to fulfill its statutory, common law and contractual duties to provide her and the other Class Members with a work environment free of gender- and sexual-orientation-based discrimination, bullying and harassment. …

THE CLASS

12. The plaintiff brings this action on behalf of all persons in Canada, excluding persons resident in the province of Québec, who were or are Regular Members, Civilian Members or Public Service Employees of the RCMP who identify as female (the “Class Members”)

13. Additionally, the plaintiff seeks to maintain this action on behalf of all individuals who are entitled to assert a claim pursuant to the Family Law Act, R.S.O. 1990, c. F.3 and equivalent or comparable legislation in other provinces and territories (the “Family Class Members”). ….

THE FACTS …

61. Due to the effects of the gender- and sexual-orientation-based discrimination, bullying and harassment she experienced throughout her time with the RCMP, Ms. Davidson’s family physician referred her to a psychologist. The psychologist diagnosed Ms. Davidson with Post-Traumatic Stress Disorder (“PTSD”), stress and anxiety, and recommended that she take some time off of work.

62. On the medical advice of her psychologist, Ms. Davidson went on leave from the RCMP and the Prime Minister’s Protection Detail in or around 2009.

Resignation from the RCMP

63. Despite undergoing extensive treatment for her PTSD, stress and anxiety, and making considerable efforts to improve her health, Ms. Davidson was never cleared to return to work by her treating physicians.

64. On October 31, 2012, Ms. Davidson retired from the RCMP, approximately a decade earlier than she had planned to retire. ….

65. Due to the systemic culture of harassment, bullying and discrimination in the RCMP Ms. Davidson and other female RCMP employees were ostracized and their career advancement prospects were limited. Ms. Davidson eventually found that it was not possible to perform her job properly, since supervising male Members refused to grant her the appropriate freedom to act and subordinate male Members refused to accept her authority.

66. At all material times during her career and in each detachment she served, Ms. Davidson observed that female RCMP employees were treated differently than male RCMP employees, particulars of which include but are not limited to:

(a) sexually explicit comments were frequently made to or about female employees by male employees, without consequence;

(b) implicit and explicit comments dismissing female employees’ ability to carry out their duties were made by male employees, without consequence;

(c) demeaning comments about sexual orientation and lesbian relationships were made by male employees, without consequence;

(d) male employees engaged in unwanted physical touching of female employees;

(e) male employees precipitated unwanted sexual situations with female employees, including unwanted sexual touching;

(f) as between male and female employees of equivalent rank and experience, the men received more accommodation with regard to sick leaves, vacation requests, and transfer requests;

(g) as between male and female Members of equivalent rank and experience, the men were assigned to more complex, high-profile files;

(h) as between male and female Members of equivalent rank and experience, the men received better career education and training opportunities;

(i) as between male and female Members of equivalent rank and experience, the men received better career counselling and formal mentorship;

(j) as between male and female Members of equivalent rank, experience, and job performance, the men received generally more positive consideration on their performance reviews; and,

(k) as between male and female Members of equivalent rank, experience, and testing scores, the men received more successful consideration for promotion.

All of this behaviour has had the effect of demeaning, humiliating, and limiting the careers of female RCMP employees, including Ms. Davidson.

Damages

72. It was extremely difficult for Ms. Davidson to excel in her work when she was subject to continual systemic harassment, bullying and discrimination on the basis of her gender and sexual orientation while at the RCMP.

73. Due to the systemic harassment, bullying and discrimination, Ms. Davidson experienced, and in some cases continues to experience, a range of health effects, including but not limited to: post-traumatic stress disorder; irritable bowel syndrome; stress; anxiety; depression; trouble sleeping; difficulty concentrating; difficulty comprehending written text; suicidal ideation; alcohol abuse; bouts of crying; obsessive behaviour; lack of energy; and, reclusiveness. ….

74. RCMP management has known for many years that harassment, bullying and discrimination on the basis of gender and sexual orientation was, and continues to be, an endemic concern within the RCMP. Successive groups of leadership have completely failed to take the necessary steps to provide female RCMP employees with a safe and supportive work environment free of mistreatment on the basis of their gender and sexual orientation. ….

[The remainder of the judgment continues exactly as in the source, including paragraphs 21 through 80 of the Discussion, Analysis, and Conclusion sections.]

Perell, J.

Released: December 22, 2015