COURT FILE NO.: CV 17 2346
DATE: 20180409
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ANGELINA RIVERS, SHARON ZEHR and BARRY ZEHR
Plaintiffs
- and -
WATERLOO REGIONAL POLICE SERVICES BOARD and WATERLOO REGIONAL POLICE ASSOCIATION
Defendants
Counsel: R. Douglas Elliott, Matthew Moloci, Colleen Yamashita and Elena Mamay, for the Plaintiffs James H. Bennett, for the Waterloo Regional Police Services Board; Caroline (Nini) Jones, and Jodi Martin for the Waterloo Regional Police Association
HEARD: March 28, 29, 2018
RULINGS on PRE-CERTIFICATION MOTIONS
Baltman J.
Overview
[1] The Plaintiffs are former police officers with the Waterloo Regional Police Service (“Service”). They seek to certify this action as a class action on behalf of all women who were or are members of the Service, alleging that both the Waterloo Regional Police Services Board (“Board”) and the Waterloo Regional Police Association (“Association”) are liable for systemic gender-based discrimination and sexual harassment by male members, senior officers and management of the Service.
[2] The Plaintiffs further allege that the Defendants breached the Class Members’ right to be free from discrimination under s. 15 of the Charter, and are liable under the tort of harassment for the conduct of the male members of the Service and the extreme emotional distress caused thereby.
[3] Aside from disputing the merits of the allegations, the Defendants maintain this court has no jurisdiction over the matter: they assert that the Plaintiffs’ claims, in essence, allege that the Association has violated its duty of fair representation, and thus must be determined by an arbitrator appointed under the Police Services Act or through other existing remedies.
[4] Both the jurisdiction and certification motions are scheduled to be heard during the week of June 18, 2018. In advance of that hearing, the parties have brought various preliminary motions before me. Below are my rulings on those matters, with brief reasons which I may, if necessary, expand upon at a later date.
Motion re: Refusal by Chief Larkin
[5] Chief Bryan Larkin was cross-examined on the affidavit he filed in respect of the pending motions. One of the questions refused remains in issue, namely to confirm or deny that a male officer currently in a senior management position “fled down the street in a state of undress” after being caught in an adulterous act with a woman, but was not subjected to any discipline despite running naked in public view.
[6] Plaintiffs’ counsel argues the answer is relevant to one of the premises underlying their claim, namely that the police force metes out differential treatment depending on gender: women are subject to disciplinary proceedings for relatively trivial matters, whereas men – especially senior male officers – receive no discipline for serious infractions.
[7] In my view, the alleged contravention (running naked in public view), is likely at the light end of the scale of infractions by a police officer. Any modest probative value the answer may have is outweighed by the excessive invasion of privacy entailed.
[8] The motion is dismissed.
Motion re Refusals by Egers
[9] In support of its jurisdiction motion, the Association filed an affidavit sworn by Mark Egers, President of the Association. Broadly speaking, he states the following in his affidavit:
a) The Association is the exclusive bargaining agent for the uniform and civilian employees of the Service;
b) The employment terms of both the uniformed and civilian members are governed by collective agreements;
c) Dispute resolution processes exist under both the collective agreements and the Police Services Act.
[10] Mr. Egers refused to provide answers to 86 questions on cross-examination, largely on the basis that in his counsel’s view, they were irrelevant to the determination of the issues on the jurisdiction motion. The questions he declined to answer sought the following types of information:
a) Details of grievances brought under the collective agreement on behalf of female members that involve discrimination or harassment;
b) The Association’s role in the development and enforcement of harassment and discrimination processes;
c) Mr. Egers’ and the Association’s knowledge of and expertise in labour relations, sexual harassment and workplace discrimination;
d) The policies, procedures and record-keeping practices of the Association;
e) Whether the Association advises its members on their rights to file complaints against the Association.
[11] All parties agree that Perell J.’s summary in Ontario v. Rothmans Inc., 2011 ONSC 2504 (at para. 143) of the principles governing the scope of cross-examination on a motion should apply, in particular that the questions must be relevant to: (a) the issues on the particular motion; or (b) the matters raised in the affidavit by the deponent, even if those issues are irrelevant to the motion.
[12] Egers’ affidavit is very narrow in scope, focussed on three specific points (see para 9 above). On its own it does not raise the issues the plaintiffs wish to explore. Are the questions refused nonetheless relevant to the issues on the jurisdiction motion? In this case, the jurisdiction motion is to determine whether, as the Association maintains, the existing labour relations regime (including the collective agreement and the remedies available under the Police Services Act) bars the Plaintiffs from pursuing their claims in court.
[13] On the evidence and submissions before me thus far, I have difficulty seeing how the questions refused by Egers are relevant to the jurisdictional issue as it is currently constituted before the court. The impugned questions appear to target the quality and effectiveness of the existing labour relations regime, not whether as a matter of fact and law it precludes this class action.
[14] The plaintiffs submit that before this court can consider dismissing the action on jurisdictional grounds, they should have the benefit of an “evidentiary record and factual matrix” upon which to argue. Again, however, the evidence sought does not fall within the narrow ambit of the jurisdictional motion that the Association has before the court.
[15] Consequently, the motion is dismissed. This ruling is subject to revision should further evidence and/or submissions alter the parameters of this issue.
Motion re Admissibility of Dr. Hogarth’s evidence
[16] In support of the certification motion the Plaintiffs have filed an affidavit from Dr. Kathy Hogarth, an Associate Professor in the School of Social Work at Waterloo University. Dr. Hogarth identifies as “an expert in the field of racial and gender discrimination”. In addition, she deposed that over a three year period (2014-2017) she worked informally with the Waterloo Chief of Police (Bryan Larkin) to address systemic sexual harassment within the Waterloo police force.
[17] In his affidavit of December 21, 2017, Chief Larkin denied that he and Dr. Hogarth had any discussions about gender discrimination, stating that their meetings and conversations were confined to “racism issues”. But in cross-examination this was easily dispelled: aside from declaring that he “think[s] the world of” and has “the utmost respect” for Dr. Hogarth, Chief Larkin acknowledged the following:
• He has publicly referred to Dr. Hogarth as his “advisor” on inclusion and diversity;
• He invited her to participate in the Service’s Women and Leadership Forum in June 2015;
• The Women and Leadership Forum had nothing to do with race; its purpose was to “provide women in policing …a safe space to talk about challenges within the organization…”
• He appointed Dr. Hogarth to the sexual assault task force that he created in May of 2017;
• The underlying concern of the task force was that the “unfounded” rates of sexual assault reflected the reluctance of women to complain to police for fear of being disbelieved;
• The task force had nothing to do with race; it was about sexual assaults.
[18] In addition, it is undisputed that during her 3 year involvement with the Service, Dr. Hogarth spoke with several female officers regarding their experiences of gender discrimination.
[19] Consequently, while Dr. Hogarth may have had many conversations about racial profiling with Chief Larkin, there is no question a significant component of her work with the Service involved gender equity and discrimination.
[20] The Plaintiffs originally proffered Dr. Hogarth as both a participant expert (“witness as to facts”) and a litigation expert (opinion on workplace discrimination), and produced separate reports from her for each category. However, they now advance her solely as a participant expert, based on her interaction with the Waterloo police force as summarized above.
[21] The Defendants move to strike Dr. Hogarth’s affidavit and accompanying report. They argue that she is not properly qualified and her reports and opinions are irrelevant to the pending motion(s).
[22] In my view this motion is premature. The evidence of Dr. Hogarth is, at least in part, being advanced to show there is some basis in fact for the assertion that the action meets the requirements for certification in s. 5 of the CPA, in particular that there is an identifiable class of two or more persons (ss.(1)(b)) and that their claims raise common issues (ss.(1)(c)). As of yet, the Defendants have not conceded either of those points, and irrespective of any alleged deficiencies in her “opinion” evidence, Dr. Hogarth’s “on the ground” experience is arguably relevant to both. Consequently, I believe it is preferable to address the admissibility of Dr. Hogarth’s evidence in the context of the issues before the court on the certification motion.
[23] That said, given Plaintiffs’ counsel’s advice (part way through submissions) that the Plaintiffs do not intend to rely upon Dr. Hogarth as a litigation expert, the “expert opinion” portion of her report (pp. 9-14) is excluded. Any remaining concerns regarding her evidence may be addressed, if required, in future.
Motion to strike allegations in Affidavits of S. Zehr, B. Zehr, and K. Eder
[24] In their respective affidavits Sharon Zehr, Barry Zehr and Karin Eder referred to medical and/or employment-related difficulties which they attribute to the alleged discriminatory treatment by the Defendants. When these Deponents were being cross-examined, Plaintiff’s counsel provided certain supporting details and medical documents but declined others, on the basis that the request at this pre-certification stage was overly broad.
[25] The Board argues these records are relevant to causation, and that the deponents “cannot have it both ways”: they should either produce all the related documentation or the relevant portions in their affidavits should be struck.
[26] Again, this motion is premature. As Belobaba J. explained in Dine v. Biomet, 2015 ONSC 1911, paras. 6 -15, at this pre-certification stage the Plaintiff is required to produce only those records that demonstrate “some basis in fact” for each of the certification requirements (other than the requirement in s. 5(1)(a) that the claim discloses a cause of action). The Board has not shown how the additional documentation sought is relevant to the issues on certification. Indeed, in his submissions counsel conceded the defendants “don’t need it at this stage”.
[27] Consequently, if necessary, this issue may be revisited after the certification motion has been determined.
Costs
[28] As success was divided on these motions, there shall be no costs to either party.
Baltman J
Released: April 9, 2018
COURT FILE NO.: CV 17 2346
DATE: 20180409
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
ANGELINA RIVERS, SHARON ZEHR and BARRY ZEHR
Plaintiffs
- and –
WATERLOO REGIONAL POLICE SERVICES BOARD and WATERLOO REGIONAL POLICE ASSOCIATION
Defendants
RULING
Baltman J
Released: April 9, 2018