Lockhart v. Attorney General of Canada, 2024 ONSC 6573

NEWMARKET COURT FILE NO.: CV-22-770-00CP

DATE: 20241125

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HILARY LOCKART and MELISSA LOCKHART

Plaintiffs

– and –

ATTORNEY GENERAL OF CANADA

Defendant

Darryl Singer, Mathura Santhirasegaram, Kristina Olivo and Michael Blois, for the Plaintiff and Class Members

Sean Gaudet, Tenteng Gai, Melissa Gratta and Alyson Sutton, for the Respondent

HEARD: June 24, 25 and 26, 2024

REASONS FOR DECISION

HEALEY, J.:

Introduction and Overview

[1] This is a motion for certification of this action. As stated in their factum, the Plaintiffs seek to certify the action on behalf of potentially thousands of class members who have been affected by the Defendant’s alleged failures.

[2] The Plaintiffs cast their case against the Defendant, the Attorney General of Canada (“Canada”) as one that involves systemic problems in Canada’s Cadet Program, that has permitted sexual misconduct against female cadets to go unaddressed and unpunished because of its failures to implement proper procedures or abide by existing policies.

[3] The plaintiff, Hilary Lockhart (“HL”), became a member of the Cadet Program in 2008 at the age of 14 and remained a member until 2012. Todd Evans, formerly Master Corporal Todd Evans, was a reservist who was a volunteer in 2008/09 in HL’s Air Cadet squadron. In September 2009, Evans pled guilty to the charge of invitation to sexual touching in relation to HL. He was charged after HL’s mother, the plaintiff, Melissa Lockhart (“ML”), discovered inappropriate messages from Evans on her computer. Before he was charged, HL alleges that she reported his conduct to a cadet supervisor, but no action was taken. After he was charged, neither HL nor ML were offered supports or resources through the Cadet Program.

[4] HL now seeks to be the representative plaintiff to represent a Cadet Class in this action. The Fresh as Amended Statement of Claim (“Claim”) seeks declarations and damages against Canada for negligence, breach of fiduciary duty, negligent misrepresentation, breach of contract and breach of s.7 of the Canadian Charter of Rights and Freedoms due to Canada’s alleged failure to protect female cadet members from misconduct of a sexual nature.

[5] ML seeks to represent the family members of the Cadet Class as part of a Family Class.

[6] The Cadet Class and the Family Class are collectively referred to as the “Class Members” or “Class” in the Claim.

[7] Canada has not yet delivered a Statement of Defence. The action has not been actively case managed.

[8] Throughout their material, the Plaintiffs refer to the program in which HL participated as “Cadets Canada” or “Cadets”. As explained in the evidence filed on behalf of Canada, the proper nomenclature is the “Cadet Program”. Where these terms are used interchangeably throughout these Reasons, they all refer to the same program.

Proposed Class Definition

[9] The definition of the Class went through three iterations over the course of this motion. Ultimately, the class definition that this court has been asked to consider is:

(a) All current and former female cadets who claim to have suffered injury, loss or damages as a result of misconduct of a sexual nature by an adult instructor while enrolled in Cadets Canada from 2000 to present (the “Cadets Class”).

(b) All persons who have a derivative claim, in accordance with applicable provincial family law legislation, arising from a family relationship with the Class Members (the “Family Class”).

Proposed Common Issues

[10] The Notice of Motion sets out 33 common issues for certification. These were considerably pared down by the time that the Plaintiffs prepared their factum; the revised list is attached as Schedule C to the Plaintiffs’ factum.

[11] The proposed Common Issues that this court is asked to certify are as follows:

Negligence

1. Did the Defendant owe a duty of care to the Plaintiffs?

2. If so, did the Defendant breach the standard of care it owed to the Plaintiffs in the operation of the Cadets Canada 2000 to date?

Breach of Fiduciary Duty

3. Did the Defendant owe a fiduciary duty?

4. If so, did the Defendant breach its fiduciary duty to the Class Members?

Breach of s.7 of the Charter

5. Did the actions of the Defendant engage and affect the life, liberty and security of person interest of the Class Members?

6. If so, were its actions saved under s. 1 of the Charter?

Negligent Misrepresentation

7. Did the Defendant make negligent, reckless and/or fraudulent misrepresentations regarding the Cadets Program?

Damages to the Class

8. Can damages be determined on a class-wide aggregate basis?

Punitive Damages

9. Was the Defendant’s conduct in the operation and management of the school[^1] such as to justify an award of punitive damages; and

10. If so, what is the amount of punitive damages to be awarded?

Evidence

The Record

[12] The evidence for this motion consists of:

(a) The affidavit of HL sworn January 25, 2023;

(b) The affidavit of ML sworn January 26, 2023;

(c) The affidavit of Adriana Oulton affirmed September 29, 2023 (the “Oulton affidavit”);

(d) The cross-examination transcript of HL held on December 8, 2023; and,

(e) The affidavit of Lisa Minarovich sworn June 18, 2024, containing the transcript of the cross-examination of ML and Oulton, as well as answers to undertakings from the cross-examination of HL and Oulton.

The Organization and Structure of the Cadet Program

[13] To appreciate the full context of this action, an understanding of the scope of the Cadet Program is required. Canada has offered evidence about the Cadet Program through the Oulton affidavit. Oulton is a member of the Canadian Armed Forces (“CAF”) responsible for personnel administration and policy development in her current role in the Cadets and Junior Canadian Rangers Group (“CJCR Gp”).

[14] The Cadet Program is a national community-based youth development program. The mandate of the Cadet Program is to contribute to the development and preparation of youth for the transition to adulthood, enabling them to meet the challenges of modern society, through a dynamic, community-based program.

[15] There are four Canadian Cadet Organizations (“CCO”): the Royal Canadian Sea Cadets, the Royal Canadian Army Cadets, the Royal Canadian Air Cadets, and the Junior Canadian Rangers. Only the first three are part of the Cadet Program. In 2008, HL was a member of the local Royal Canadian Army Cadet Corps in Dryden, Ontario.

[16] The formation of CCO and its administration is authorized by s. 46 of the National Defence Act, R.S.C. 1985, c. N-5 (“NDA”):

46(1) The Minister may authorize the formation of cadet organizations under the control and supervision of the Canadian Forces to consist of persons of not less than 12 years of age who have not attained the age of 19 years.

(2) The cadet organizations referred to in subsection (1) shall be trained for such periods, administered in such manner and provided with material and accommodation under such conditions, and shall be subject to the authority and command of such officers, as the Minister may direct.

(3) The cadet organizations referred to in subsection (1) are not comprised in the Canadian Forces.

[17] As of August 30, 2023, the CCO was comprised of 41,439 youths in 1,088 corps and squadrons across Canada, located in rural and urban areas within every province and territory.

[18] From 2000 to the end of 2007, it is estimated that 66,462 female cadets were registered in the Cadet Program across Canada.

[19] From 2008 to 2022, a total of 108,424 female cadets were registered in the Cadet Program in Canada.

[20] The Cadet Program is sponsored by the CAF and funded through the Department of National Defence and three civilian non-profit organizations: the Navy League of Canada, the Army Cadet League of Canada, and the Air Cadet League of Canada (“Cadet Leagues”). The Cadet Leagues are not part of the CAF or DND.

[21] In accordance with s. 46 of the NDA, the Canadian Forces are responsible to the Minister of National Defence for the control and supervision of the CCO. In carrying out this responsibility, the Cadet Leagues work with the Canadian Forces to administer the cadet program.

[22] The Cadet Leagues also approve and supervise the local sponsors of each cadet corps and squadron.

The Range of Activities Carried out by the Cadets

[23] The core of the Cadet Program is the corps/squadron program, which normally takes place during the school year and consists of thirty training sessions, normally on weekday evenings. It also includes ten supported full-days normally held on weekends, during which cadets engage in activities such as field training exercises and citizenship tours.

[24] Cadet activities during the school year take place in public buildings such as schools, legions and churches. Some are located on DND facilities such as Royal Canadian Navy, Canadian Army, and Royal Canadian Air Force reserve unit buildings and on Canadian Forces bases.

[25] Local, regional and national activities can occur either on DND facilities or at conference centres, hotels, sporting venues or similar locations.

[26] Activities are also available for cadets during the summer. These activities normally occur at cadet training centres, which are primarily on CAF bases, and sometimes held in other venues, such as conference centres, hotels and private training facilities.

[27] Cadets can also participate in international and domestic cadet exchanges. The Cadet Leagues also organize their own recreational programs for cadets, and provide transportation for local training exercises when not available from the CAF.

The Supervision of Cadets

[28] Cadets are supervised by CAF members, generally members of the Cadets Organizations Administration and Training Service (“COATS”), and civilian instructors.

[29] Supervisors are also assisted by volunteers and senior cadets. Volunteers and senior cadets can only assist in authorized cadet activities and under the supervision and direction of a supervisor.

[30] The COATS is a sub-component of the Reserve Force, and its members are members of the CAF. The primary duty of the COATS members is the supervision, administration, and training of cadets or Junior Canadian Rangers, who are members of the CCO.

[31] The largest contingent of COATS is composed of officers belonging to the Cadet Instructors Cadre (“CIC”). The CIC is a personnel branch of the CAF, the members of which are officers who are specifically trained to provide for the safety, supervision, and training of cadets. The CIC currently consists of approximately 7,800 officers.

[32] Regular Force and Reserve Force members outside of COATS may also instruct and supervise cadets.

[33] Civilian instructors (who are not members of the CAF) are also employed in some instances. Civilian instructors may be employed at a corps, squadron, cadet training centre, or cadet activity program. Civilian volunteers (also not members of the CAF) assist cadet instructors and civilian instructors where there are no qualified CAF members available to fill a position in support of authorized cadet activities.

[34] Senior cadets (16 years of age or older) who have passed the necessary training requirements also supervise authorized cadet activities, although under the supervision and direction of a supervisor.

[35] All COATS members, civilian instructors, and civilian volunteers are governed by policies that require a police record check and vulnerable sector screening. Other persons who have direct contact with the cadets and are not under the constant supervision of a COATS member, civilian instructor, or civilian volunteer, whether other CAF members, DND employees, or civilian contractors are also governed by policy and are required to have, at minimum, a police record check and vulnerable sector screening.

Policies

[36] The overarching policy is set out in the Queens Regulations and Orders for the Canadian Cadet Organizations (“QR (Cadets)”), which came into effect on January 26, 1978. The QR (Cadets) are issued under the authority of the NDA.

[37] Cadet Administrative and Training Orders (“CATOs”) are mandatory policies that supplement the QR (Cadets). CJCR Gp Orders are mandatory policies that are gradually replacing CATOs.

[38] There are multiple CATOs. They exist for harassment prevention and resolution, administrative procedures to be followed in situations where a cadet is facing social issues such as self-destructive thoughts/behaviour, including suicide, the conduct and discipline of cadets, supervision of cadets, recruitment and screening, and reporting of significant incidents. A version of each of these CATOs was in effect during the time that HL was enrolled in the Cadet Program.

[39] Records are held by the Cadet Program consisting of a Cadet Information Card for each cadet. HL’s Cadet Information Card indicates that she was a cadet from September 2008 to January 2012.

[40] As an aside, there is a conflict in the evidence about where HL was located at the time of Evans’ conduct. She states that this occurred in Dryden between 2008/09. The Cadet Information Card produced in the Oultan affidavit states that HL did not move to Army Cadet 2072 RCACC in Dryden until September 2010, and prior to that she was in the Air Cadet RCACS 908 in Fort Frances. However, the recommendation for administrative review pertaining to Evans was initiated on November 10, 2009, and the administrative review decision indicates that the incident occurred while he was volunteering in Dryden. While argument was made about how the inaccurate record keeping of the Cadet Program might reflect on the credibility of Canada’s evidence, the certification motion is not the place to resolve conflicting facts and evidence: Banman v. Ontario, 2023 ONSC 6187, at para.180.

Complaint Procedure

[41] Oultan’s evidence is that cadets, adults and their parents are provided with training on sexual assault and sexual abuse. Such training was provided during the time that HL was a cadet.

[42] Oulton also provided evidence of the complaint procedure that would be followed when a cadet reports a complaint of sexual misconduct, harassment, abuse, etc. The person to whom it was disclosed would ensure the immediate safety of the complainant and generate a safety plan, if necessary, based on training and policies within the Cadet Program. If necessary, their supervisor would be contacted to obtain direction. Depending on the nature and circumstances of the incident, the appropriate police authority may be contacted, and the information would be immediately reported to the chain of command. Less severe incidents, such as inappropriate jokes, not involving individuals external to the Cadet Program are handled internally through enforcement of the code of conduct and alternative dispute resolution.

[43] Persons who receive a disclosure would ensure complete notes are taken on the information contained in the disclosure or complaint of the steps taken, who was contacted and when, and the next steps, if known. This information would then be communicated to the designated Regional Cadet Support Unit (“RCSU”), which is commanded by a Lieutenant Colonel/Commander-level commanding officer. The RCSU would generate the Significant Incident Report and follow-up regarding the incident if necessary.

[44] The Oultan affidavit is silent as to whether a formal complaint was ever recorded by a cadet supervisor in Dryden’s Air Cadet squadron before Evans’ behaviour came to the attention of the police.

[45] If the perpetrator is a CAF member, civilian instructor, cadet, or volunteer, they may be suspended from the Cadet Program until such time as the incident investigation has been completed. Depending on the outcome of the investigation, the respondent may be subject to additional administrative action such as release from the CAF or removal from the Cadet Program.

[46] Mr. Evans was released from the CAF for unsatisfactory conduct in February 2010. He challenged the recommendation of release but, following the administrative review, the unit commanding officer maintained the recommendation that he be released from the CAF.

HL’s Evidence

[47] HL joined the Cadet Program in 2008 when she was 14 years old. She attended once a week and participated in field training exercises and camping trips. It was then that she met Evans, who was a Cadet instructor. He was 23 years old at the time.

[48] It is her evidence that he began to groom her by offering her rides to and from meetings and friended her on Facebook, asking to communicate with her on MSN messenger.

[49] He began to make sexually inappropriate jokes toward her. As a result of her discomfort with his behaviour, in mid-November 2008, HL alleges that she approached the only female cadet instructor and reported his behaviour. HL’s account is that the female instructor dismissed her complaints and accused her of lying. That instructor did not communicate HL’s complaint to ML, nor did the instructor request that HL make a written complaint or investigate the complaint any further. HL was also never provided with alternate support or resources through the Cadet Program as a result of her report.

[50] HL’s evidence is that she began to believe that she may have overreacted and began to question her own perception of what had occurred with Evans, all after being disbelieved by the female cadet instructor.

[51] Evans continued to provide her with rides to and from the cadet meetings. During this time, it is her evidence that she suffered from numerous health conditions and was being severely bullied at school. This was a turning point in the dynamics with Evans, and she began to confide in him about the issues that she was facing. Their chats on Messenger became more frequent. HL’s evidence is that Evans groomed her into believing that they were evolving into a “relationship”.

[52] On an occasion in January 2009, she began using a web camera with Evans. During this interaction, Evans suggested that she remove her clothing for his sexual gratification. He also began to make plans for the two of them to meet in a hotel in Dryden and described the sexual activities in which they would engage.

[53] Fortunately, this did not come to pass. HL’s parents lived in two different homes, and HL ended up going to spend time at her father’s home. In HL’s absence, her mother discovered the chats with Evans on HL’s computer and reported his conduct to the police.

[54] Evans was charged with invitation to sexual touching, sexual exploitation, and child luring contrary to ss. 152, 153(1)(b), and 172.1(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46.

[55] Evans pled guilty to the charge under s. 152 of the Code as part of a plea deal. HL describes that the entire criminal proceeding was extremely difficult, including participating in the sentencing hearing.

[56] Throughout these events she received no support from the Cadets Program. She was feeling extremely emotional and mentally distraught. During a cadets meeting, she states that she confided in one of her friends about feeling suicidal due to the trauma that was caused by Evans and the lack of support by the Cadet Program. The same female instructor to whom she had originally told about Evans overheard her conversation and instructed her that she was not permitted to talk about these topics during a meeting. The instructor offered no assistance, and did not report the conversation to ML.

[57] HL describes a downward spiral after Evans’ sentencing. It is her evidence that she has been hospitalized due to her mental health on numerous occasions, has attempted suicide, has been placed on numerous psychotropic drugs, was placed in foster homes when even her parents could not handle her violent outbursts and mental health issues. She was required to live in group homes and was also homeless.

[58] This changed in around November 2012 when she moved in with her grandmother, obtained her high school diploma and completed a college diploma. Her affidavit indicates that she is currently attending York University. However, even after this action was commenced and she had to relive the events during her time as a cadet, she was again hospitalized due to her Post Traumatic Stress Disorder symptoms. She attributes these events to her experience with Evans, but also her experience in the aftermath of trying to report his misconduct, being disbelieved, and being provided with no support.

ML’s Evidence

[59] ML’s evidence is that after she discovered the messages, she learned from HL that she had attempted to reach out to “individuals” within the Cadets Program to alert them to what was happening, but no response had been forthcoming. ML also states that she raised her concerns with a member of the Cadet Program, but nothing was done.

[60] ML alleges that she has also suffered damages as a result of HL’s experience in the Cadet Program and the difficulties that developed in their lives thereafter, and due to receiving no support or resources from the Cadet Program.

Recent Reforms Relating to Sexual Misconduct

[61] The Oulton affidavit also provides evidence about recent reforms made by the CAF and DND to address the issue of sexual misconduct, which provide additional support for cadets.

[62] The Sexual Misconduct Support and Resource Centre (“SMSRC”) was created in 2015 in response to the recommendation from the Honourable Marie Deschamps in her March 2015 External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces (the “Deschamps Report”) that such a centre be created outside of the CAF chain of command so that it can confidentially receive reports of sexual misconduct and harassment.

[63] Under its current mandate, the SMSRC provides and facilitates access to support services and resources for persons affected by sexual misconduct within DND/CAF. The clientele who are able to access SMSRC services include cadets aged 16 and older and their family members. These services include a 24/7 Response and Support Line and the Response and Support Coordination Program. Counsellors are trained in supporting individuals affected by sexual misconduct and crisis intervention.

[64] The Response and Support Coordination Program provides ongoing support, advocacy and personalized case management services for those directly affected by sexual misconduct.

[65] Cadets aged 16 and older, or the parent or legal guardian of those under the age of 18, are also eligible to participate in the Independent Legal Assistance Program. This program facilitates access to free and independent legal assistance for victims of sexual misconduct.

The Issue

[66] The only issue to be decided is whether the Plaintiffs have met the requirements for certification prescribed by s. 5 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (“CPA”).

Decision

[67] After a consideration of the applicable law and the facts of this case, this court has determined that this action should not be certified.

[68] This decision is not intended to detract from the gravity of what occurred to HL due to Evans’ conduct, or its effect on her or any of her family members. Sexual misconduct offences against children are heinous crimes, recognized by our highest court to inflict grievous, long-lasting injury on those whose trust has been violated by adult offenders: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424: paras. 58, 77-82. A class action, however, is not the vehicle by which this wrong can be appropriately addressed on the particular facts of this case.

The Test for Certification

[69] Section 5(1) of the CPA requires that the court certify a class proceeding if all of the requirements of that section are met. The Plaintiffs must meet all of the following five criteria:

(a) the pleadings disclose a cause of action;

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

(c) the claims of the class members raise common issues;

(d) a class proceeding would be the preferable procedure for the resolution of the common issues; and

(e) there is a representative plaintiff who would fairly and adequately represent the interests of the class, has produced a workable litigation plan for advancing the proceeding on behalf of the class and does not, on the common issues, have a conflict of interest with other class members.

[70] The test for certification is to be applied in a purposive and generous manner, to give effect to the goals of class actions; namely: (1) to provide access to justice for litigants; (2) to encourage behaviour modification; and (3) to promote the efficient use of judicial resources: Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158, at paras. 15 and 16; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534, at paras. 26 to 29.

[71] The law is clear that the certification stage is not meant to be a test of the merits of the action. The focus is on whether the claim can appropriately proceed as a class action: Hollick, at para. 16.

[72] For the first requirement, the claim will disclose a cause of action unless it is plain and obvious that it cannot succeed.

[73] For the last four requirements, the Plaintiffs must show “some basis in fact” for each of the certification requirements. This is a lower evidentiary standard than a balance of probabilities. Nonetheless, certification is a meaningful screening device; although the merits are not to be determined, “nor does it involve such a superficial level of analysis into the sufficiency of the evidence that it would amount to nothing more than symbolic scrutiny”: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 S.C.R. 477, at paras. 99-103.

[74] In Pro-Sys, at paragraph 104, the Supreme Court of Canada explained that “some basis in fact” means that “there must be sufficient facts to satisfy the applications judge that the conditions for certification have been met to a degree that should allow the matter to proceed on a class basis without foundering at the merits stage”.

[75] It is the position of Canada that none of the certification criteria have been met by the Plaintiffs, and that the Claim should be dismissed without leave to amend. Accordingly, each of the requirements must be analyzed.

Does the Claim Disclose a Reasonable Cause of Action?

[76] The claim must be read generously, and it will be unsatisfactory only if it is plain, obvious and beyond a reasonable doubt that the plaintiff cannot succeed: Hollick, at para. 25.

[77] The test for determining whether a pleading discloses a cause of action derives from Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959. The test is the same as on a motion to strike under r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O 1990, Reg. 194.

[78] The court must assume that the facts as stated in the pleading can be proved and must read the pleading generously, making allowance for drafting deficiencies.

[79] A claim fails to disclose a reasonable cause of action where (a) the plaintiff pleads allegations that do not give rise to a recognized cause of action; (b) the plaintiff fails to plead a necessary element of a recognized cause of action; or (c) the allegations in the pleadings are simply conjecture, assumptions or speculation unsupported by material facts: Hunter v. Bravener, 2003 CanLII 28855 (Ont. C.A.), at paras. 3-5, leave to appeal refused, [2003] S.C.C.A. No. 306; Abbasbayli v. Fiera Foods Company, 2021 ONCA 95, 456 D.L.R. (4th) 668, at para. 20; Graff v. Network North Reporting and Mediation, 2017 ONSC 7451, 75 C.C.L.I. (5th) 70, at para. 25; and Gjonaj v. Ontario Lottery and Gaming Corporation, 2018 ONSC 2404, at para. 6.

[80] Where a claim fails to meet s. 5(1)(a) of the CPA because it is plain and obvious that it fails to disclose a cause of action, it should be struck: Hollick, at para. 25.

Theory of the Plaintiffs’ Claim

[81] Paragraphs 13 to 28 of the Amended Claim outline the overarching theory of the Plaintiffs’ case. Their theory is that the Cadet Program is infected by a discriminatory and sexualized culture that condones and encourages sexual assault and sexual harassment toward young female cadets. It is the same culture that was identified as existing in the Canadian Armed Forces in the Deschamps Report.

[82] This systemic culture is a result of the leadership’s long-standing failure to implement the appropriate policies to properly train its members to identify, report, investigate and properly resolve incidents of sexual assault and sexual harassment.

[83] Where such policies exist, the Cadet Program violates such policies by failing to generate written reports, report to police when required, or to provide a support network for its female cadets.

[84] The Claim makes no allegation of vicarious liability. The Plaintiffs have not pled that Canada is liable vicariously for acts committed by Evans or any perpetrator.

[85] The Claim alleges that HL’s experience of reporting the abuse but having no follow up by the Cadet Program is not an isolated incident, as other female cadets have experienced the same level of negligent reporting. No material facts have been pled to support this bald allegation relating to the negligent reporting experienced by other cadets.

[86] The Claim alleges that from 2006 to 2015 alone, there were 245 cases of sexual misconduct involving cadets, some involving adult instructors or reserve officers. Further, the pleading alleges that there is data showing that in 2015, 27% of all sexual misconduct cases across the CAF involved cadets.

[87] It is alleged that young female cadets are reluctant to report incidents of sexual assault, sexual harassment, and gender-based discrimination due to widespread fear of reprisal and negative repercussions, which allows sexual misconduct to go unpunished.

[88] Further, it is alleged that young female cadets who report incidents face negative consequences that discourage further reporting, and that Canada has failed to provide support and resources for those female cadets who have experienced such conduct.

[89] There is an inherent power imbalance in the Cadet Program because the cadets are minors, operating in an organization based on military principles, with adult supervisors in command. This creates an environment in which gender-based sexual misconduct has been permitted to proliferate.

[90] The Claim also pleads that beginning in the 1990s, the Cadet Program introduced a mandatory “Cadet Harassment and Abuse Prevention” program aimed at cadets and instructors that included a series of videos. The program was updated several years ago and renamed “Positive Social Relations for Youth.”

[91] It is alleged that these policies were put in place as a direct result of the known culture of harassment and abuse prevalent within the Cadet Program, which continues despite those policies.

Breach of Contract

[92] No argument was presented from the Plaintiffs in their factum or submissions about their claim for damages for breach of contract, from which I infer it is not being seriously pursued. There are also no facts contained in the claim to support this cause of action. With no material facts pleaded, there is no reasonable cause of action for breach of contract.

Breach of Fiduciary Duty

[93] Paragraphs 35-46 of the Claim pleads the cause of action of breach of fiduciary duty, as follows:

35. The Defendant breached its fiduciary duties to the Class Members in the administration of Cadets Canada.

36. Cadets Canada, by design, is for the benefit of the Cadet Class. Class Members were and are dependent on and at the mercy of Canada. The Cadets Class are vulnerable to the exercise of its authority.

37. The Class Members relied on the skills and expertise of the Defendant to administer Cadets Canada. The Cadet Class, who are vulnerable because of their age, had the reasonable expectation that they would be free from sexual assault and sexual harassment during their time in Cadets Canada.

38. At all material times, Canada administered, established, funded, oversaw, operated, managed, supervised, controlled, maintained and supported Cadets Canada.

39. At all material times Canada, through employees, agents and officers, undertook the express and implied responsibility to act in the best interests of the Class through its funding and administration of Cadets Canada. Canada’s actions or failures materially affect the Class Members’ legal and substantive interests, including their physical and mental well-being.

40. At all materials times Canada was aware that the Cadet Class was and is dependent and vulnerable because of their young age.

41. At all material times Canada was aware of the Class Members’ vulnerability and that they were within its power and/or control and were subject to its unilateral exercise of power or discretion, or its employees’, agents’ and officers’ unilateral exercise of the power or discretion.

42. At all material times the Class Members relied on Canada to administer Cadets Canada and prioritize the safety of the Cadet Class.

43. At all material times the Class had a reasonable expectation that it would protect and prioritize their mental and physical well-being and keep them safe from incidents of abuse.

44. The particulars of the breach of Canada’s fiduciary duty include:

a. failing to properly investigate reports of sexual assault and sexual harassment by [the] Cadet Class;

b. failing to implement policies, support programs and resources to assist the Cadet Class after incidents of sexual assault and sexual harassment;

c. where such policies exist, failing to abide by and carry out those policies in a way that achieves the actual effectiveness of the policies to allow the beneficiaries of those policies to obtain the intended benefit;

d. failing to provide employees, agents and officers of Cadets Canada with adequate training to address sexual assault and sexual harassment;

e. failing to adequately screen employees, agents and officers of Cadets Canada; and

f. failing to safeguard the physical and psychological needs of Class Members during their time with Cadets Canada and afterwards.

45. Canada has an obligation to exercise its power and authority in the best interests of Class Members, who are wholly dependent on it to safeguard their physical and mental well-being. Canada has a duty to fulfill its obligations to Class Members and not to subordinate those obligations to other interests, namely its own.

46. Canada’s breach of its fiduciary duties has caused and continues to cause the Plaintiffs and Class Members physical, mental and financial damage and harm as set out below.

[94] The question is whether the pleading discloses a supportable cause of action, taking all the facts pleaded as true. For breach of fiduciary duty, the leading case governing this question is Elder Advocates of Alberta Society v. Alberta, 2011 SCC 24, [2011] 2 S.C.R. 261.

[95] The relationship between a cadet and Canada is not one that falls into any of the traditional categories and is not comparable to the historically recognized category of parent-child or guardian-ward. Accordingly, in order for there to be a viable claim, the Plaintiffs must establish the elements of an ad hoc fiduciary relationship as described in Elder Advocates, at paragraph 36:

(a) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary above the interest of all others, in relation to the specific legal interest at stake;

(b) a defined person or class of persons who must be vulnerable to the fiduciary in the sense that the fiduciary has a discretionary power over them;

(c) a legal or substantial practical interest of the beneficiary or beneficiaries that stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control.

[96] However, as explained in Elder Advocates, where it is alleged that the government owes a fiduciary duty to an individual or class of individuals, a claimant must go further to establish the existence of limited and special circumstances in which such a fiduciary duty will arise: at para. 37. These instances will be rare. McLachlin C.J.C. noted that a Crown fiduciary duty has only been recognized in two contexts: Crown-Aboriginal relations and where the Crown acts as the public guardian and trustee: at para. 40.

[97] First, the Crown’s broad responsibility to act in the public interest means that situations where it is shown to have a paramount duty of loyalty to the class of beneficiaries over all others are rare: at paras. 42-44. If the undertaking of utmost loyalty to the beneficiary class is alleged to flow from a statute, the language of the legislation must clearly support it. The mere statutory grant of discretionary power to affect a person’s interest will not suffice: at para. 45.

[98] If the alleged undertaking arises by implication from the relationship between the parties, the content of the obligation owed by the government will vary depending on the nature of the relationship and should be determined by focusing on analogous cases. The Court stated, at paragraph 46, that generally speaking, it will be necessary to find a strong correspondence with one of the traditional categories of fiduciary relationship before imposing a fiduciary duty on the government.

[99] Similarly, it may be difficult to establish the second requirement of a defined person or class of persons vulnerable to the fiduciary’s exercise of discretionary power, as it necessitates the claimant to show a forsaking of the interests of all others in favour of the beneficiary class. However, where the government duty is in effect a private duty being carried out by the government, this requirement may be established: at para. 49.

[100] Last, the Court in Elder Advocates explained that where the alleged fiduciary is the government, the claimant must show that the interest affected is a specific private law interest to which the person had a pre-existing distinct legal entitlement. Examples provided include “the type of fundamental human or personal interest that is implicated when the state assumes guardianship of a child”: at para. 51.

Analysis

[101] Reading the Claim broadly and generously, paragraph 45 can be interpreted as alleging that Canada has a duty of loyalty to act in the interest of the Class Members above all others, as it alleges that Canada has a duty to fulfill its obligations to Class Members and not to subordinate those obligations to other interests, namely its own.

[102] The Claim does not point to any statute or regulation from which the undertaking would flow. However, under the separate heading of “Negligence” in the Claim, the following paragraphs have been drafted:

48. Cadets Canada is governed by several pieces of legislation such as the National Defence Act, RSC 1985, c N-5; the Regulations and Policies established by the Department of National Defence, such as Cadet Harassment and Abuse Prevention Program, and; the Cadet Organizations Administration and Training Service. Further, although not specific to Cadets Canada, the Youth Criminal Justice Act applies to any cadet who may be involved in a legal proceeding.

49. At all material times, Canada, through Cadets Canada, acted as the administer and operator of Cadets Canada. Canada owed a common law and statutory duty of care, by virtue of the legislation governing Cadets Canada, to the Plaintiffs and to the Class Members, including but not limited to a duty:

a. to take reasonable care of the Class Members’ physical and mental health and well-being;

b. to ensure the proper administration of the sexual misconduct reporting mechanism of Cadets Canada;

c. to adopt, implement and ensure compliance with the sexual misconduct policies of Cadets Canada;

d. to ensure that its sexual misconduct policies were being met and followed;

e. to take reasonable steps to rectify any failures or deficiencies in the implementation or administration of Cadets Canada;

g. to avoid causing the health and well-being of the Class Members to suffer or deteriorate; and

h. to give proper consideration to and to take reasonable care of, the Class Members’ physical and mental well-being.

[103] In their reply factum, the Plaintiffs appear to allege an express undertaking created by regulation, specifically Current Cadet Administration and Training Order 11-03 Cadet Training Mandate, dated May 2005 (“CATO 11-03”) and (QR Cadet), Chapter 2 – Government and Organization, dated June 1, 2005.

[104] The Plaintiffs point to article 2.30 of the latter regulation. This provision is entitled “Responsibilities of The Canadian Forces”. It states that the Canadian Forces are responsible for the provision of control, supervision and administration of cadet corps, as well as policy on the enrolment, appointment, promotion, transfer and release of cadet instructors: art. 2.30(a) and (k). There is nothing within the regulation that permits an interpretation of an express undertaking to give primacy to the interests of putative Class Members over any other governmental interest.

[105] Similarly, there is no provision in the NDA or CATO 11-03 that establishes such an undertaking.

[106] The Plaintiffs also argue that the alleged undertaking arises by implication from the relationship between the parties, as specifically pled in paragraph 39 of the Claim. However, there are no material facts pled to explain either how this implied undertaking arose, or the content of the duty.

[107] The Plaintiffs have provided a number of cases in which a claim against the Crown for breach of fiduciary duty has been certified.

[108] The first is Heyder v. Canada (Attorney General), 2019 FC 1477. Heyder involved a motion to consolidate and certify two actions as a class proceeding for settlement purposes, where a final settlement agreement had been reached by the parties in both actions. The proceedings and settlement encompassed two classes consisting of men and women who experienced sexual misconduct while serving in the CAF, the Department of National Defence or as staff.

[109] In addressing whether the proposed class proceeding should be certified, Fothergill J. stated, at paragraph 24:

Where the parties have negotiated a settlement agreement in a proposed class action and jointly move to have the action certified and the agreement approved on consent, the threshold for certification is lower and the [c]ourt may apply a less rigorous approach (Boute Estate v. Canada, 2014 FC 773 [Boute] at para 8; and Merlo v. Canada, 2017 FC 51 [Merlo] at para 10).

[110] Accordingly, the court in Heyder simply listed the elements required to establish a fiduciary relationship, as set out in Elder Advocates, followed by the brief conclusion that the material facts supporting each of these elements were sufficiently pleaded in the statements of claim: at para. 28. No analysis was provided as to how a fiduciary relationship was created in the circumstances of the case. Accordingly, it is of limited assistance.

[111] In Seed v. Ontario, 2012 ONSC 2681, 31 C.P.C. (7th) 76, the action arose out of the Crown’s operation, administration, and management of a school for the visually impaired. The plaintiff was a student at the school from age 7 to 18. Horrigan J. stated, at paragraph 99, that it was not disputed that the law recognizes that a fiduciary duty is owed in the facts of the case, because “parents, guardians, school boards and other persons with care of children owe a fiduciary duty to those children”, citing E.D.G. v. Hammer (1998), 1998 CanLII 15064 (BC SC), 53 B.C.L.R. (3d) 89, at para. 40 (S.C.), aff’d 2001 BCCA 226, aff’d 2003 SCC 52, [2003] 2 S.C.R. 459, at para. 22 and K.L.B. v. British Columbia, 2003 SCC 51, [2003] 2 S.C.R. 403, at para. 38. Horrigan J. concluded that the claim sufficiently pled the elements of a fiduciary relationship and concluded that a viable claim existed.

[112] The seminal case of Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184 (“Rumley (SCC)”), involved a class proceeding against the province brought by former students of a residential school for blind and deaf children. The Court affirmed the decision of the British Columbia Court of Appeal to define one of the common issues as whether the defendant was negligent or in breach of their fiduciary duty in failing to take reasonable measures in the operation or management of the school to protect students from misconduct of a sexual nature by employees, agents, or other students at the school. The question of whether the claim disclosed a viable cause of action for breach of fiduciary duty was not examined in either of the higher courts. It was only at first instance that the viability of the claim was examined, where Kirkpatrick J. concluded, at paragraph 37, that it is “arguable that the defendant owed a fiduciary duty to the students”: Rumley v. British Columbia (1998), 1998 CanLII 3957 (BC SC), 65 B.C.L.R. (3d) 382 (S.C.), rev’d in part on other grounds. In reaching this conclusion, Kirkpatrick J. cited Hodgkinson v. Simms, 1994 CanLII 70 (SCC), [1994] 3 S.C.R. 377; Norberg v. Wynrib, 1992 CanLII 65 (SCC), [1992] 2 S.C.R. 226; and E.D.G.

[113] E.D.G. was not an action against the government, but rather against a school janitor and school board for damages for sexual assault occurring on school property. Norberg involved a doctor and patient relationship. Hodgkinson involved a relationship between accountant and client.

[114] The Plaintiffs also rely on Cloud v. Canada (Attorney General) (2003), 2003 CanLII 72353 (ON SCDC), 65 O.R. (3d) 492, (Div. Ct.), rev’d (2004), 2004 CanLII 45444 (ON CA), 73 O.R. (3d) 401 (C.A.) (“Cloud (ONCA)”), leave to appeal refused, [2005] S.C.C.A. No. 50. That case involved a motion to certify an action against the federal government involving, among other causes of action, a claim for breach of fiduciary duty for abuse suffered by students in a residential school. It was agreed by the parties in that case that the pleadings met the cause of action criterion, including the claims for breach of fiduciary duty. This case also does not assist the plaintiffs, as it is recognized in the law that the fiduciary duty owed by the Crown toward this nation’s Aboriginal persons has a unique nature and cannot “serve as a template for the duty of the government to citizens in other contexts”: Elder Advocates, at paras. 38-40.

[115] The Plaintiffs argue that cadets who are engaged in the Cadet Program are in a situation similar to youths who attend summer camps or schools. Canada assumes the responsibility and duties associated with a parent by taking on a supervisory role in exercising authority and control.

[116] I find that the relationship is not analogous to that of parent and child, or that of residential school authorities and students. The Minister is not charged with day-to-day care of the cadets, unlike the typical parent and child relationship. And unlike claimants such as those in Rumley and Seed, the cadets are not in a residential program, entirely dependent on Canada for their safety and security while living under the control of its administrators. Unlike the parent or school with direct supervision of the child, Canada is permitted by legislation to delegate the duty of supervision within the Cadet Program to individuals who qualify.

[117] The proposed cause of action also suffers in failing to plead material facts supporting the allegation that Canada implicitly put the interests of the Class or the Cadet Class above all others, or facts supporting how Canada undertook to protect the Cadet Class’ entitlement to be free from sexual misconduct to the exclusion of the same or different interests of others. The Cadet Program has many participants – male cadets, supervisors, volunteers, and those who are part of Cadet Leagues. There is no basis offered in the pleading for how the interests of the Cadet Class were promised or ensured a priority over the interests of others.

[118] And certainly, the relationship between Canada and the Family Class is not analogous to any of the recognized categories of fiduciary relationship. The relationship between the government and the Family Class as disclosed by the pleadings is devoid of the three essential ingredients necessary to ground a fiduciary relationship.

[119] Even if it could be established that there is an implied duty of loyalty to the Cadet Class above all others, there are no material facts pled establishing what interests of its own were promoted by Canada at the expense of the interests of the Cadet Class. While there is a bald assertion in the Claim that Canada has a duty to fulfill its obligations to Class Members and not to subordinate those obligations to other interests, namely its own, those interests that were served by the various breaches alleged in the Claim go unidentified.

[120] And it is difficult to conceive of what that interest would be. In the context of sexual misconduct against a child, the breach of trust is committed by the prioritizing of the perpetrator’s own sexual gratification or need for power and control over a more vulnerable victim. These were private interests of Evans as they would be of all sexual predators, which are not shared by Canada. No interest is identified that would adhere to Canada by failing to administer or enforce policies that would protect cadets against sexual misconduct.

[121] In summary, there is no basis in law for recognizing this cause of action as between Canada and either the Cadet Class or the Family Class when the requirements of the cause of action are examined. Further, the Claim fails to disclose a reasonable cause of action for breach of fiduciary duty against Canada because the Plaintiffs have failed to plead a necessary element of this cause of action, namely the first requirement to act in the interest of the Class above all others. Further, where the elements are pled, the Claim does not contain facts capable of establishing those elements, leaving mere conjecture or speculation. As such, it is plain and obvious that the claim for breach of fiduciary duty will not succeed.

Negligence

[122] The cause of action in negligence is pled at paragraphs 47 to 55 of the Claim as follows:

47. Canada has administered, established, funded, oversaw, operated, managed, supervised, controlled, maintained and supported Cadets Canada negligently. By doing so, Canada breached its duty of care to the Class. It has created an atmosphere of fear, intimidation for those who have experienced sexual abuse and sexual harassment.

48. Cadets Canada is governed by several pieces of legislation such as [the] National Defence Act, RSC 1985, c N-5; the Regulations and Policies established by the Department of National Defence, such as Cadet Harassment and Abuse Prevention Program, and; the Cadet Organizations Administration and Training Service[.] Further, although not specific to Cadets Canada, the Youth Criminal Justice Act applies to any cadet who may be involved in a legal proceeding.

49. At all material times, Canada, through Cadets Canada, acted as the administer and operator of Cadets Canada. Canada owed a common law and statutory duty of care, by virtue of the legislation governing Cadets Canada, to the Plaintiffs and to the Class Members, including but not limited to a duty:

a. to take reasonable care of the Class Members’ physical and mental health [and] well-being;

b. to ensure the proper administration of the sexual misconduct reporting mechanism of Cadets Canada;

c. to adopt, implement and ensure compliance with the sexual misconduct policies of Cadets Canada;

d. to ensure that its sexual misconduct policies were being met and followed;

e. to take reasonable steps to rectify any failures or deficiencies in the implementation or administration of Cadets Canada;

[subparagraph f. does not exist]

g. to avoid causing the health and well-being of the Class Members to suffer or deteriorate; and

h. to give proper consideration to and to take reasonable care of, the Class Members' physical and mental well-being.

50. Canada breached the standard of care it owed to the Class to ensure the safety, well-being and positive development of cadets enrolled in Cadets Canada.

51. At all material times there was a direct and proximate relationship to its youth members and there were specific interactions between the Class Members and Canada, including but not limited to communications between Canada, its agents and the Class Members regarding protection of cadets.

52. At all materials times Canada knew or ought to have known that the Class Members were and are dependent on Canada during their time with Cadets Canada. This was especially pronounced given that the Cadet Class were all minors.

53. Canada has breached and continues to breach its duty of care to the Class Members, particulars of which include but are not limited to the following:

a. failing to safeguard the physical, mental, and emotional health and well-being of the Class Members;

b. failing to ensure the Cadets Canada was administered properly, including but not limited to having and utilizing a sexual misconduct reporting mechanism;

c. failing to supervise the Cadets Canada to ensure allegations of sexual misconduct do not go ignored;

d. failing to ensure that the staff members and volunteers hired by the Cadets Canada [were] adequately screened and trained to interact with members of the Cadets Class;

e. failing to ensure that the staff members and volunteers hired by Cadets Canada followed the policies and procedures in place to report sexual misconduct;

f. failing to abide by its own policies for handling allegations of sexual misconduct;

g. failing to rectify identified failures of its own policies as it relates to protection and safeguarding of members of the Cadets Class;

h. failing to rectify identified failures of its own policies as it relates to how sexual misconduct allegations are reported and handled;

i. failing to rectify how reported sexual misconduct allegations are handled and how the alleged victims are treated as a result of the reporting;

j. failing to protect and afford priority to the interests of Class Members;

k. failing to report allegations of suicide and sexual misconduct reported by the Cadets Class to the Family Class;

l. failing or delaying to provide services and resources to Class Members who experienced sexual misconduct during their time with Cadets Canada;

m. failing to provide accurate and timely information regarding the sexual misconduct reporting process;

n. failing to take a proper and good faith interest in the protection of the Cadets when allegations of sexual misconduct are reported;

o. failing or delaying the reporting of allegations of sexual misconduct to the proper police authorities; and

p. failing to safeguard the physical and psychological needs of the Class Members, who Canada, its employees, agents and/or officers knew or ought to have known experienced sexual misconduct during their time with Cadets Canada.

54. As a result of Canada’s breaches of its duty of care, Hilary, Melissa and the Class Members suffered damages and harm to their physical and mental well-being.

55. The harm and damage suffered by Hilary, Melissa and the Class Members because of Canada’s breaches of its duty of care was a reasonably foreseeable consequence of Canada’s acts and omissions.

[123] The scope of Canada’s alleged duty to the class members is set out in paragraph 49, and the alleged breaches at paragraph 53. Many of these allegations are broad and unspecified, such as a duty: (a) to take reasonable care of the Class Members’ physical and mental health [and] well-being; and (g) to avoid causing the health and well-being of the Class Members to suffer or deteriorate. The other aspect of the alleged duty is for Canada to ensure proper administration and compliance with regard to sexual misconduct policies, including its reporting mechanism.

[124] Overall, the Plaintiffs’ pleading is one that alleges systemic negligence. In such cases, the theory is that the acts or omissions of the defendant are negligent because they resulted in a system that was inadequate to protect the class from harm: Levac v. James, 2023 ONCA 73, at para. 47; White v. Canada (Attorney General), 2002 BCSC 1164, 4 B.C.L.R. (4th) 161, at para. 48.

[125] A negligence action requires the plaintiff to demonstrate: 1) that the defendant owed him a duty of care; 2) that the defendant’s behaviour breached the standard of care; 3) that the plaintiff sustained damages; and 4) that the damage was caused, in fact and in law, by the defendant’s breach: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3.

[126] To establish that they have a reasonable cause of action in negligence against Canada, the Plaintiffs must show that the pleading provides a basis upon which Canada could be said to owe a duty of care to them: Taylor v. Canada (Attorney General), 2012 ONCA 479, 111 O.R. (3d) 161, at para. 21. The Plaintiffs assert both a statutory and a common law duty of care owed by Canada to the Class Members.

[127] The Plaintiffs have not identified a duty of care recognized in an analogous case. Their position is that the duty of care applicable to Canada is the same as has been recognized to apply to school authorities in the case of Myers v. Peel County Board of Education, 1981 CanLII 27 (SCC), [1981] 2 S.C.R. 21, which is that of a careful or prudent parent. However, they have not pled such a duty of care and have not produced any authority that would impose that duty on the Crown in similar circumstances to the Cadet Program. To state the obvious, we are not dealing here with a school authority, and there is no claim against an individual employee, as was the case in Myers.

[128] That being the case, the existence of a duty must be determined in accordance with the two-step analysis set out in Anns v. Merton London Borough Council (1977), [1978] A. C. 728 (U.K.H.L.), at pp. 751-52. The first step is to inquire whether there is a sufficiently close relationship between the plaintiff and the defendant that the defendant owes the plaintiff a prima facie duty of care. This requires an evaluation of whether the relationship is one in which a duty of care to guard against foreseeable harm may rightly be imposed: Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, at para. 32.

[129] The second stage of the Anns test requires a consideration of whether any residual policy considerations exist that ought to eliminate or reduce the scope of the duty or the class of persons to whom the duty is owed: at p. 752.

[130] The pleading, despite its lack of specificity, appears sufficient to support a claim that the harms alleged to have been experienced by those experiencing sexual abuse and sexual harassment against a backdrop of systemic failure to address sexual misconduct would be a reasonably foreseeable consequence of a breach of a duty to follow existing policies, as alleged, and that harm could extend to the family members of those affected.

[131] However, to establish proximity, it must be determined whether Canada owes a private law duty as articulated in paragraph 49 of the Claim.

[132] Canada does not involve itself in the day-to-day conduct of supervision of cadets, nor in supervising the adults. By virtue of s. 46(2) of the NDA, the Canadian Forces are responsible to the Minister of National Defence for the control and supervision of the Cadet Program, including implementing policy. This lack of involvement in the day-to-day conduct of the Cadet Program weakens the nexus between Canada and the members of the Class injured as a consequence of sexual misconduct. However, ultimate responsibility for appropriate policies related to sexual misconduct, and ensuring compliance with those policies to avoid harm to cadets, ultimately falls to Canada. This is sufficient, I find to establish a prima facie duty of care both to the Cadet Class and the Family Class. That duty would extend to administrative steps, including policy, related to sexual misconduct. The duty could never extend so broadly, as pleaded, to include a duty to take reasonable care of the Class Members’ physical and mental health generally.

[133] With respect to a statutory duty of care, the Plaintiffs have referenced the NDA and the regulations and policies established by the DND in paragraph 48 of the Claim. However, they do not reference any particular provision, nor explain how this legislation or the policies create the duty of care articulated in paragraph 49. The legislative scheme is central to the proximity question. The facts pled could not permit a finding as to whether the legislative scheme allows or forecloses a private law duty of care to the Class Members, or if not determinative, whether there is a sufficiently close and direct relationship created by the statutory scheme to justify the imposition of a duty of care.

[134] The second stage of the Anns test requires the court to examine whether there may be a reason to negate or limit the duty. This involves considering whether the duty involves a policy or operational function. Even though paragraph 47 makes the bare allegation that Canada’s funding of the Cadet Program has been negligent, the issue of funding is not raised again in the lists of alleged duties or their breach. Further, the failure to create policies is not listed among the specifics of Canada’s negligent conduct, but only the failure to administer, implement and ensure compliance.

[135] There is no policy reason to justify curtailing the duty of care owed to Class members.

[136] In summary, I find that the Claim adequately pleads a duty of care toward Class members to administer and enforce reporting requirements and policies to prevent and respond to sexual misconduct, and asserts a theory of systemic negligence by asserting that the impugned acts and omissions of Canada resulted in a system that was not adequate to protect the Class from harm.

Negligent Misrepresentation

[137] This cause of action is pled at paragraphs 56 to 59 of the Claim, as follows:

56. Canada made a series of negligent misrepresentations to the Class Members.

57. As creator, manager, overseer and funder of Cadets Canada, and as set out above, Canada was and is in a special relationship of trust and proximity with the Class Members, such that the Class Members were dependent and reliant on Canada for protecting the Cadet Class’ safety and security and ensuring their physical, mental, and emotional well-being when they were under their care.

58. Furthermore, the Class Members were dependent and reliant on Canada to abide by the laws and regulations in place to protect the rights and well-being of the Cadets Class. These regulations are meant to protect the Cadet Class and provide safety standards, child protection, and anti-discrimination to ensure that the Cadet Class are not subject to physical, mental, and emotional harm due to negligence, abuse, or other forms of misconduct.

59. Canada made oral and written representations to the Class Members on dates and at times and places known to Canada. These representations, among other things, relate to Cadets Canada and ensuring the safety and security to the Cadet Class. Particulars of Canada’s representations are as follows:

a. Canada would ensure that the Cadets Class received adequate protection and safety during the time under Canada’s care;

b. Canada would not allow, cause or contribute to the deterioration of the Class Members’ health and well-being;

c. Canada would report criminal allegations, including sexual misconduct to authorities when it was reported to staff and volunteers;

d. Canada would supervise Cadets Canada properly in regard to allegations of sexual misconduct;

e. Canada would ensure that Cadets Canada was adequately staffed by appropriate persons qualified to take care of the youth;

f. Canada would ensure that Cadets Canada was staffed by persons who were properly trained to identify misconduct and properly report such misconduct;

g. Canada would ensure that its staff and volunteers would follow policies and procedures in place to report sexual misconduct; and

h. Canada would report any allegations of suicide and/or sexual misconduct to the Family Class.

[138] The five elements of the tort of negligent misrepresentation are set out in Singh v. Trump, 2016 ONCA 747, 408 D.L.R. (4th) 235, at para. 99, leave to appeal refused, [2016] S.C.C.A. No. 548. These are:

(a) A duty of care based on a special relationship;

(b) A misleading representation;

(c) Negligence in making that misrepresentation;

(d) Reasonable reliance on the representation; and

(e) Damage caused by the reliance.

[139] The Plaintiffs have not pled an essential element of this tort, which is their detrimental reliance on a representation made by Canada, causing them to forego other, more beneficial courses of action that they would have taken, absent Canada’s inducement: 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, [2020] 3 S.C.R. 504, at para. 40. This factor is determinative of whether proximity can be established in cases of negligent misrepresentation: Maple Leaf Foods, at para. 32.

[140] Additionally, the Claim fails to plead any specific representations made by Canada. Instead, it makes unsupported assertions without specifics. As the pleading states that the oral and written representations were made to Class Members “on dates and at times and places known to Canada”, it can be inferred that the Plaintiffs do not have information to support their allegations that misleading representations were made. They also failed to identify the statutory provisions relied on either to establish the necessary relationship of proximity, or for the purpose of identifying a representation.

[141] I conclude that it is plain and obvious that the claim for negligent misrepresentation cannot succeed.

Charter s.7

[142] The Claim seeks a declaration that Canada has violated the rights of the Class Members under s. 7 of the Charter in a manner that was not justified and seeks a remedy or remedies under ss. 24(1). The claim is set out in paragraphs 29 to 34 of the Claim as follows:

29. The conditions particularized above violate the rights of Class Members to life, liberty and security of the person under section 7 respectively of the Canadian Charter of Rights and Freedoms (the “Charter”).

30. As a government actor, Canada owed and owes duties to the Class Members to respect and uphold their rights and freedoms under the Charter.

31. Section 7 of the Charter guarantees every individual the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

32. Canada has denied or jeopardized Class Members' section 7 right by failing to take adequate and timely steps to protect this vulnerable group of young female cadets in their time of need.

33. Canada failed to adopt and enforce appropriate investigative techniques and to protect the Cadet Class from foreseeable harm.

34. Canada’s conduct and failure to administer appropriate policies to properly train its members, employees, agents and officers and to identify, report, investigate and properly resolve incidents of sexual assault, sexual harassment and gender-based discrimination resulted in a violation of the right of the Class Members to life and security of the person, contrary to section 7 of the Charter. There is no justification in a free and democratic society for Canada’s conduct and failures under section 1 of the Charter.

[143] At paragraphs 61 and 62 of the Claim, the same damages are said to flow from each cause of action. There are no distinct and separate damages that have been pled to flow from the alleged Charter breach.

[144] Section 7 of the Charter provides:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[145] In support of this claim, the pleading alleges certain failures on the part of Canada: a failure to take adequate and timely steps to protect; a failure to adopt and enforce appropriate investigative techniques; and a failure to administer appropriate policies.

[146] To establish a violation of s. 7, a claimant must establish that a law or governmental act deprived them of life, liberty or security of the person, and that the deprivation contravened a principle of fundamental justice.

[147] Canada takes the position that the Charter claim cannot succeed for two reasons. The first is that it has been framed as a failure to take positive actions, whereas s. 7 does not generally give rise to positive obligations on the part of state actors. The Plaintiffs have not pled any law or governmental action that has deprived the plaintiffs of any protected interest. Further, the Plaintiffs have not identified the principle of fundamental justice that is engaged in this case.

[148] Second, Canada says the Claim cannot succeed because it is duplicative of the claims of breach of fiduciary duty and negligence.

[149] In support of the argument that breach of s. 7 cannot be established when it is asserted that the state actor had a positive obligation to take measures to safeguard one of the Charter protected interests, Canada relies on Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429, at paras. 81-83 and Robertson v. Ontario, 2024 ONCA 86, at para. 75. In its earlier decision of Rogers v. Faught (2002), 2002 CanLII 19268 (ON CA), 212 D.L.R. (4th) 366 (Ont. C.A.), the Court rejected the argument that a failure on the part of the Royal College of Dental Surgeons of Ontario and the College of Dental Hygienists of Ontario to establish programs and standards of practice amounted to a violation of the appellant’s rights under section 7 of the Charter to security of the person. At para. 32, the MacPherson J.A. stated:

I disagree with the appellant’s submissions. As a general proposition, the application of the Charter is confined to government action, not inaction: see Ferrel v. Ontario (Attorney General) (1998), 1998 CanLII 6274 (ON CA), 42 O.R. (3d) 97 (Ont. C.A.), leave to appeal to the Supreme Court of Canada refused December 9, 1999 [Ferrel v. Ontario (Attorney General), [1999] S.C.C.A. No. 79 ]. The Colleges have the authority under the RHPA and the Code to develop and maintain programs and standards of practice for the professions of dentistry and dental hygiene. However, the Charter does not impose on the Colleges an affirmative duty to establish specific programs and standards of practice to deal with discrete medical problems.

[150] Both Robertson and Rogers were recently cited by Morgan J. in Pugliese v. Chartwell, 2024 ONSC 1135 as a basis for concluding that the plaintiffs could not rely on the Charter for a cause of action or remedy, as the core submission was the defendant’s failure to design and put in place infection prevention and control policies and protocols that were needed during the pandemic.

[151] The core of the Claim is about inaction on the part of Canada. Paragraph 14, under the heading “Nature of the Action”, asserts that “the discriminatory and sexualized culture in Cadets Canada is a result of the leadership’s long-standing failure to implement the appropriate policies to properly train its members and to identify, report, investigate and properly resolve incidents of sexual assault and sexual harassment”. Each one of the alleged breaches of fiduciary duty is identified as being a failure, as is each alleged breach of the duty of care.

[152] I see no reason to distinguish this case from Robertson or Pugliese. The fact that the defendant in this case is the government does not alter the outcome; in Robertson the defendant was the government of Ontario. The fact that the Cadet Class is composed of vulnerable minors also does not change the outcome, as the protection of minors has not been identified as a principle of fundamental justice nor is this group afforded special rights under the Charter.

[153] With respect to Canada’s second argument, the Plaintiffs argue that the Charter claim is separate and distinct from its tort claims. They rely on Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, submitting that Ward leaves open the possibility that the court could award Charter damages even where there are other possible private law claims for similar damages. While this is true, Ward establishes that where an alternative remedy such as a tort claim is available to achieve the objects of compensation, vindication or deterrence and the same allegations are the foundation for both bases of liability, the plaintiffs would not be entitled to any additional damages for a Charter breach: paras. 33-34, 68.

[154] The Plaintiffs argue in their reply factum that the impacts and consequences arising from the Charter breaches and the tortious acts and omissions are not identical. They do not explain why this is so, nor is it at all apparent from the content of their Claim. As indicated, the damages alleged to have been caused by Canada’s conduct do not differentiate between the various bases of liability that have been pled.

[155] I can find no distinction in the pleading between the negligence claim and the Charter claim. In this case the Charter claim should not proceed. As stated by Benotto J.A. in J.B. v. Ontario (Child and Youth Services), 2020 ONCA 198, 445 D.L.R. (4th) 642, at para. 60:

The basis for these claims – in my view – is also in negligence. As the motions judge noted, allegations of negligence cannot be “dressed up as Charter breaches”. The motions judge did not err in striking these claims for failure to disclose a reasonable cause of action.

[156] It is plain and obvious that the Charter claim cannot succeed.

Whether the Certified Cause of Action is Statute-Barred

[157] In Banman, at paragraph 185, Perrell J. set out a methodology for analyzing the certification criterion, in which he listed the analytical steps. The first step is to determine, as I have done, what causes of action satisfy the cause of action criteria.

[158] The second analytical step is to determine whether any of those certifiable causes of action are statute barred on the face of the statement of claim.

[159] The Plaintiffs argue that in the absence of a statement of defence that pleads a limitation defence, this court cannot make such a determination.

[160] The parties have not adequately addressed the issue of whether this action is statute barred in their factums.

[161] In its argument with respect to whether HL is a suitable representative plaintiff, Canada argued that because vicarious liability has not been pled, liability would have to be imposed on the Crown through the federal Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, s. 3. This legislation requires a finding of, depending on the applicable province, damage caused by the fault of a servant of the Crown or a tort committed by a servant of the Crown. In the circumstances of this case, Canada says the limitation period would be governed by s. 269 of the NDA. Prior to an amendment in 2015 that changed the limitation period for bringing an action against the Crown to two years, the limitation period was six months. During the time in which HL’s cause of action arose, the former limitation period applied.

[162] Canada relies on the case of McMillan v. Canada, 2023 FC 1752, at para. 110, which was not included in its factum, for the proposition that the representative plaintiff must be “anchored in the proceeding”. If the representative plaintiff’s individual claim is definitively barred because of a limitation period, the representative plaintiff is not anchored in the proceeding and so is unsuitable as a representative plaintiff.

[163] Because of the cursory way in which this issue was dealt with during argument and in the factums, I am not able to reach a determination as to whether Canada’s limitation argument should succeed.

Identifiable Class Criterion

[164] This criterion requires the court to determine whether there is some basis in fact for concluding that the class definition is satisfactory.

[165] The proposed class definition has been refined from that found in the Plaintiffs’ notice of motion. Initially, they sought an order defining the Class as:

(a) All current and former female cadets who experienced sexual assault, sexual harassment and/or gender-based discrimination as part of their time in Cadets Canada from 2000 to present (the “Cadet Class”); and

(b) Any and all family members of current and former female cadets who experienced sexual assault, sexual harassment and/or gender-based discrimination as part of their time in Cadets Canada from 2000 to present, pursuant to the Family Law Act, R.S.O. 1990, c. F.3 and equivalent legislation (the “Family Members Class”).

[166] As explained by HL in her affidavit, the sexual misconduct to which she was subjected to by Evans did not involve touching and no sexual assault took place. His conduct occurred in 2008 and 2009. Her evidence does not suggest that she faced gender-based discrimination in the sense that she received less favourable treatment than those of a different gender or was denied opportunities because of her gender.

[167] To repeat, the latest proposed Class definitions are:

(a) All current and former female cadets who claim to have suffered injury, loss or damages as a result of misconduct of a sexual nature by an adult instructor while enrolled in Cadets Canada from 2000 to present (the “Cadets Class”).

(b) All persons who have a derivative claim, in accordance with applicable provincial family laws legislation, arising from a family relationship with the Class Members (the “Family Class”).

[168] The definition of an identifiable class serves three purposes: (1) it identifies the persons who have a potential claim against the defendant; (2) it defines the parameters of the lawsuit so as to identify those persons bound by the result of the action; and (3) it describes who is entitled to notice: Banman, at para. 263.

[169] An identifiable class is one that is defined by objective criteria, and which has a rational relationship between it and the common issues: Pearson v. Inco Ltd. (2006), 2006 CanLII 913 (ON CA), 78 O.R. (3d) 641, at para. 57 (Ont. C.A.), rev’d (2004), 2004 CanLII 34446 (ON SCDC), 183 OAC 168 (Div. Ct.). Whether a given person is a member of the class must be able to be determined without reference to the merits of the action: Hollick, at para. 16.

[170] Accordingly, the Plaintiffs bear the burden of showing that there is some basis in fact that: (1) the class is defined by objective criteria; (2) the class can be defined without reference to the merits of the action; and (3) that there is a rational connection between the common issues and the proposed class definition.

[171] The Plaintiffs must demonstrate that the class is defined narrowly enough to meet these requirements. Where the class could be defined more narrowly, the court should either disallow certification or allow certification on condition that the definition of the class be amended: Hollick, at para. 21.

[172] The evidence must also show some basis in fact that two or more persons fit within the class definition, as required by s. 5(1)(b) of the CPA: Sun-Rype Products Ltd. v. Archer Daniels Midland Company, 2013 SCC 58, [2013] 3 S.C.R. 545, at para. 72. Not only must the Plaintiffs meet that criteria, it is also a fundamental principle that for an action to be certified, there must be some evidence that two or more class members suffered compensatory harm: Lilleyman v. Bumblebee Foods LLC, 2023 ONSC 4408, 2023 CarswellOnt 14688 (Ont. S.C.J.), at para. 259, aff’d 2024 ONCA 606, 2024 CarswellOnt 11881 (Ont. C.A.)

[173] I will deal first with the requirement to show some basis in fact for there to be two individuals, at a minimum, that come within the class definition. As stated in Keatley Surveying Ltd. v. Teranet Inc., 2015 ONCA 248, 125 O.R. (3d) 447, at para. 70, “it is … incumbent on the proposed representative plaintiff to show that there are two or more individuals who have the same claim as the representative plaintiff to advance”. This does not mean that other members of the class have to fully share the cause of action, but only that there are others who have a shared interest in the resolution of the common issues.

[174] With respect to whether there is more than one member of the class, the Plaintiffs rely on three sources of evidence. It is Canada’s submission that all of this impugned evidence is either unreliable or inadmissible. As explained below, I agree.

[175] The first derives from HL’s affidavit, in which she states, at paragraph 44:

Through my experience in communications with the various Class Members, they have all suffered similarly but to different degrees. The various Class Members have also suffered similar damages, but to different degrees. It appears it would be almost impossible for people to calculate their specific losses on an individual basis.

[176] No affidavits have been provided by any of these individuals with whom HL states that she has been communicating.

[177] The second is an online newspaper article from the National Post dated May 24, 2016, titled: “Predators and prey: Canada’s military cadets and the sex misconduct problems few talk about” and information obtained online from the Government of Canada’s Department of Justice website: justice.gc.ca. This second category of material is referenced only in the Plaintiffs’ factum, and not in their evidence.

[178] The third is information obtained from reports and referenced in HL’s affidavit: the 2015 Deschamps Report and the Report of the Independent External Comprehensive Review of the Department of National Defence and the Canadian Armed Forces prepared by the Honourable Louise Arbour in May 2022 (the “Arbour Report”). In her affidavit, HL states that her personal experience in dealing with Cadets is consistent with the findings outlined in both reports. Her affidavit asserts that the Cadets Program is poisoned by the same discriminatory and sexualized culture that condones and encourages sexual assault and sexual harassment as seen in the CAF. HL also maintained during the cross-examination on her affidavit that what is described in these reports is consistent with her experience as a cadet.

[179] The direct evidence from HL that she has communicated with unidentified individuals, “Class Members” who also “suffered similarly but to different degrees”, does not meet the minimum threshold. It is hearsay evidence that does not allow the court to objectively evaluate whether such individuals would fit within the proposed class definition. It is not enough to suggest that they would qualify by referring to them, as the affidavit does, as members of the Cadet Class. At least one other individual should have been identified who could provide independent evidence about her membership in the Cadet Program, that she experienced sexual misconduct, and its timing.

[180] The newspaper article from the National Post relied on by the Plaintiffs reported that from 2006 to 2015, there were 245 reported cases of sexual misconduct involving cadets. Newspaper articles are generally inadmissible as hearsay, lacking in reliability: Democracy Watch v. Canada (Attorney General), 2024 FCA 75, at para. 7; RWDSU v. Saskatchewan, 1987 CanLII 90 (SCC), [1987] 1 S.C.R. 460, at para. 63.

[181] In Johnson v. Ontario, 2016 ONSC 5314, 364 C.R.R. (2d) 17, on a certification motion Grace J. was faced with the plaintiff’s reliance on newspaper articles, as well as inquest material, an Ombudsman’s report and reasons for sentence. Noting that newspaper articles are generally inadmissible, and that a certification motion “is not to be treated as an evidentiary free for all”, he permitted the newspaper article and the other documents to provide additional support to the evidence of the two plaintiffs: paras. 51, 54 and 65. In Johnson, both had provided sworn evidence of the treatment that they endured while incarcerated. This is distinguishable from the case before me, where there is evidence only from HL as a member of the proposed Cadet Class. Grace J. also stated, at paragraph 63, that the newspaper articles and additional material would not, standing alone, provide some basis in fact for the remaining elements of the certification test.

[182] The information on sexual assaults cited in the “Overview” section of the Plaintiffs’ factum talks about the incidents of reporting of sexual assaults, derived from the Government of Canada’s official website. This too has been offered to form some basis in fact for there being more victims than HL. This information does not assist the Plaintiffs in establishing this criterion, as the information is not specific to the Cadets Program and does not even reference cadets.

[183] The third category is the Deschamps and Arbour Reports. The Plaintiffs argue that, as Canada has referenced the Deschamps Report in its material to explain the development of reforms made within the cadets to address sexual misconduct, they too should be able to rely on them as evidence on this motion.

[184] In Rumley (SCC), the Supreme Court of Canada relied on reports of the Ombudsman and of special counsel retained by the Attorney General of British Columbia in upholding a certification decision. However, both of those reports had been commissioned to investigate the topic of sexual and physical abuse of children throughout the history of the Jericho Hill School, which was also the basis of the class action. Further, as pointed out by Cullity J. in Dolmage v. Ontario, 2010 ONSC 1726, 6 C.P.C. (7th) 168, at paragraph 59, there is no indication that an objection had been taken to reliance on those reports until after the decision of the Supreme Court of Canada.

[185] The Arbour and Deschamps Reports are not similarly placed. They were not commissioned to address the topic of sexual misconduct within the Cadet Program. Further, there is no way to determine if the authors of the reports relied on evidence that may not be admissible in a civil trial, as their conclusions and the basis for them cannot be tested. Neither of the reports was made for the purpose of being used in a civil trial. In Robb v. St. Joseph’s Health Care Centre, [1998] O.J. No. 5394 (Gen. Div.), at paragraph 24, Macdonald J., referring to the Report of the Royal Commission of Inquiry into the Blood System, stated:

To admit the Krever report as evidence in this trial would have the effect of converting a commission of inquiry into something that it was never intended to be. A commission of inquiry is a means by which the executive branch of government can be informed on a particular issue. A commission of inquiry cannot have the collateral purpose of providing evidence in civil proceedings.

[186] In Dolmage, Cullity J. rejected the proposition that reports might be admissible for the truth of their contents for the purpose of certification: paras. 59-61. He noted that the reasoning in Robb has been cited and applied in other cases including Ernewein v. General Motors of Canada Ltd. 2005 BCCA 540, 46 B.C.L.R. (4th) 234, leave to appeal refused, [2005] S.C.C.A. No. 545; R. v. Dykstra, 2008 CanLII 34355 (ON SC), [2008] O.J. No. 2745 (S.C.), and Radke v. M.S. (Litigation Guardian of) 2005 BCSC 1355, 48 B.C.L.R. (4th) 178.

[187] The Plaintiffs have raised a final argument with respect to the admissibility of the Arbour and Deschamps reports. They submit that they should be admitted under the public document exception to the hearsay rule. They rely on Perell J.’s decision in R.G. v. The Hospital for Sick Children, 2017 ONSC 6545, at paras. 21-26. In that case, at issue was the admissibility of an independent review completed by the Honourable Susan Lang: the Independent Review of the Motherisk Drug Testing Laboratory at Toronto’s Hospital for Sick Children. Perell J. did not in fact decide the issue of whether the review was admissible under the public document exception. For the reasons outlined at paragraph 26 of R.G., he found that many of the facts contained in the review were admissible for the purpose of the certification hearing, although they could not be admitted as proof of the merits of the plaintiff, Ms. R.G.’s claim.

[188] The same conclusion could never be drawn in this case. The basis of the action in R.G. was harm occasioned by inaccurate testing results produced by the Motherisk Drug Testing Laboratory operated by the Hospital for Sick Children, the same topic that formed the basis of the independent review.

[189] I conclude that where there are commissioned reports that address the same underlying issues that form the basis of the action, there is authority to take them into account as some evidence of this criterion, as was the situation in Rumley (SCC) and R.G..

[190] As previously stated, the Deschamps and Arbour Reports were not undertaken to explore the culture within the Cadet Program, or its policies and adherence to them. The Reports did not extrapolate on whether their findings could be extended to include the Cadet Program. The Deschamps Report was restricted to examining sexual misconduct within the CAF. The mandate for the Arbour Report was an examination of the handling of sexual misconduct by the military justice system, and to examine recruitment, training, performance evaluation, posting and promotion systems in the CAF. The Honourable Louise Arbour’s fact gathering, submissions and consultations were with members from both DND and CAF. However, as she stated when discussing her mandate, on page 20, the focus of the report is on the CAF. The Cadet Program was never mentioned.

[191] As a result, it is impossible to draw the conclusion, as Perrell J. did in R.G., that many of the facts contained in the reports are not contentious or are common ground among the parties or are not hearsay with respect to the issues to be determined on the certification motion, or contain facts admissible pursuant to the recognized hearsay exceptions for business records or admissions by a party.

[192] The evidentiary requirement to meet the last four certification requirements is not onerous. But the court must have some admissible evidence upon which to conclude that the criterion has been met.

[193] There is one further source of evidence of potential class members. In its answers to undertakings provided at the cross-examination of Adriana Oulton, Canada has provided evidence of the number of reported complaints that have come to their attention. Their answers are as follows:

The number of reported complaints made by cadets of sexual assault and sexual harassment against adults in authority from 2015-2023 is as follows:

• Sexual Assault: 20

• Sexual Harassment: 3

The number of reported complaints by cadets of sexual assault and sexual harassment against adults in authority from 2008-March 31, 2015 is as follows:

• Sexual Assault: 7

• Sexual Harassment: 0

[194] Canada argued that these answers are unhelpful to the plaintiff, as the numbers are not broken down by gender and no evidence was provided about the source of the information, how the statistics were gathered or anything about the nature of the complaints. While this is true, more important is that numbers alone do not offer evidence of the systemic negligence due to failure to follow polices that is alleged by the Plaintiffs. No information is provided about the response within the Cadets Program to those complaints. No information is provided that would link these complaints to a breach of any of the duties of care alleged in the claim. And while it is statistically likely that female cadets are among the number of complainants, the onus was on the Plaintiffs to secure that information from Canada, as the court cannot speculate. There is also no evidence as to whether an “adult in authority” was a participant in the Cadet Program, or whether this also captures complaints made about teachers, parents, and other adults in a cadet’s life.

[195] What the court is left with is HL’s evidence of what occurred to her, and her only. As other cases have recognized, there is a need for the Plaintiff to show that her claim is not just idiosyncratic: Ducharme v. Solarium de Paris Inc. (2007), 2007 CanLII 14346 (ON SC), 48 C.P.C. (6th) 194 (Ont. S.C.) at para. 29, aff’d [2008] O.J. No. 1558 (Div. Ct.) and Zicherman v. Equitable Life Insurance Co. of Canada (2000), 2000 CanLII 50952 (ON SC), 47 C.C.L.I. (3d) 39 (Ont. S.C.), at paras. 7-9.

[196] In the result, this action cannot be certified due to s. 5(1)(b) of the CPA not being satisfied.

[197] For completeness, I will continue the analysis despite concluding that the Plaintiffs have not produced sufficient evidence to meet the class criterion.

[198] I will next consider whether the class is defined by objective criteria.

[199] The Plaintiffs’ revised class definition comes from Rumley v. British Columbia, 1999 BCCA 689, 72 B.C.L.R. (3d) 1 (“Rumley (BCCA)”) in which the Court of Appeal defined the class at para. 51 as:

Students at the Jericho Hill School between 1950 and 1992 who reside in British Columbia and claim to have suffered injury, loss or damage as a result of misconduct of a sexual nature occurring at the school.

[200] The Court of Appeal’s decision was upheld by the Supreme Court of Canada (Rumley (SCC)). Two years later, a decertification motion was heard in the case by Humphries J. (Rumley et al. v. HMTQ, 2003 BCSC 234). While she did not grant the motion to decertify, Humphries J. redefined the common issues.

[201] It is apparent from her Reasons that the action had become unwieldy because, contrary to what had been assumed by the higher courts, there was no admission of wide-spread abuse throughout the school’s history. At paragraph 30, she stated that the assertion that “it is now clear that sexual and physical abuse of children took place at the school throughout its history”, which had not yet been proved, “puts the defendant to the task of identifying an unending series of circumstances in order to attempt to answer, refute or admit on a piece-meal basis the facts which underlie that assertion”.

[202] The certified common issues covered a 42-year period, during which there was variation in the standard of care. At paragraph 61, Humphries J. stated:

At some point, the complexity, variety and number of findings required for useful determination of the common issues over 42 years must give way to the acknowledgement that each set of circumstances in this case is so individual that a class proceeding simply may not be the preferable procedure.

[203] The question is whether “misconduct of a sexual nature” can be defined by objective criteria, such that this action does not likewise turn into an unmanageable morass.

[204] There are three other cases provided by the Plaintiffs in which the class definition included “sexual misconduct”. One of those is Heyder. Again, that certification proceeded on consent, with little analysis by the presiding judge in the face of the relaxed criterion.

[205] In Heyder the classes were proposed to be defined as follows at para. 31:

CAF Class: All current or former CAF Members who experienced Sexual Misconduct up to and including the Approval Date, who have not Opted Out of the Heyder or Beattie Class Actions.

DND/SNPF Class: All current and former employees of DND and of the Staff of the Non-Public Funds, Canadian Forces, who experienced Sexual Misconduct up to and including the Approval Date, who have not Opted Out of the Heyder or Beattie Class Actions.

[206] At paragraph 32, Fothergill J. simply concluded that “[t]hese classes are clearly identifiable based on objective criteria and meet the requirement of Rule 334.16(1)(b) [of the Federal Court Rules].”

[207] In White v. Canada (Attorney General), 2004 BCSC 99, 24 B.C.L.R. (4th) 347 (“White (2004)”) the court certified an action in which the class definition was “all former members of the Canadian Sea Cadets, Captain Vancouver Corps, at HMCS Discovery who suffered sexual abuse or sexual misconduct between 1967 and 1977”: at para. 5. The defendant challenged the class definition on the basis that it was unclear and overinclusive because it failed to connect the sexual abuse to the Sea Cadet Program. It also failed to put the class definition on an objectively discernible basis, for example, not limiting it to a specific geographical area. But the breadth and certainty of the term “sexual misconduct” was not challenged.

[208] White (2004) is not binding on me and, as I will discuss later, can be differentiated from the Plaintiffs’ proposed class action in several respects. For now, suffice to say that the case does not resolve the problem of whether this class definition communicates to a person that they can claim membership in the class.

[209] In Steele v. Leduc (City), 2023 ABKB 460, the court certified a class action in which the identifiable class was “all female current and former employees who worked for [the City of] Leduc between 2002 and the date of certification who allege that they were subject to discrimination, sexual misconduct, or sexual assault at Leduc”: at para. 15. The parties had reached a settlement through mediation, which the court was also asked to approve. Accordingly, like Heyder, it proceeded on consent. There was no analysis in the case as to why the class criterion was satisfied, other than the court noting that there were nine women who provided affidavits stating that they were subject to discrimination, sexual misconduct and/or sexual assault at Leduc in that timeframe. Accordingly, that case is also of limited assistance.

[210] The phrase “misconduct of a sexual nature” is undefined and problematic. Identifying when behaviour is sexual in nature is not always straightforward. It is unclear whether the alleged perpetrator would have to have a sexual purpose in mind before the incident would qualify as conduct of a sexual nature, or whether the subjective perception of the potential class member would be enough. If the latter, then the criterion cannot be said to be able to be determined on an objective basis. One former cadet may perceive that overhearing a single lewd joke is “conduct of a sexual nature”, while another may perceive that gender-based discrimination qualifies as conduct of a sexual nature. If the alleged perpetrator’s state of mind is the qualifying factor, each complaint would have to be evaluated on its merits to determine the intent of the alleged perpetrator, including an examination of the entire circumstances so that the act or conduct could be looked at in context to see if there was sexual intent.

[211] The Plaintiffs’ counsel rightly points out that the term “misconduct of a sexual nature” is used in subsection 16(1)(h.1) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. However, that term is not defined in the Limitations Act, 2002, and this court was not referred to any cases that interpreted that phrase.

[212] During their submissions, the Plaintiffs’ counsel has made it clear that their revised definition could include sexual assault, sexual harassment and/or gender-based discrimination.

[213] The Criminal Code offences with which Evans was charged are undoubtedly captured by the term “misconduct of a sexual nature”. But when one considers the sheer number of cadets and adults in the organization and the variety of situations that may have to be considered, it is difficult to see how this definition is objective and ascertainable.

[214] This definitional quandary may explain why some cases involving sexual misconduct have avoided it completely.

[215] For example, in Elwin v. Nova Scotia Home for Coloured Children, 2013 NSSC 411, 339 N.S.R. (2d) 35, the plaintiffs alleged that they suffered physical, mental and sexual abuse while in the institution, but the proposed class was defined as “residents or former residents, who, as wards of the Province, were placed in the NSHCC as residents”: at para. 1. This is obviously a closed class, ascertainable on an objective basis.

[216] Similarly, in Seed, the action’s underlying allegation was abuse, including sexual abuse, perpetrated against students at a school for the visually impaired. The proposed class did not refer to sexual abuse, but only included “all persons who have attended or resided at Ross MacDonald from January 1, 1951 to the present day and who were alive as of February 22, 2009” and their family members: at para. 113.

[217] The other reason that this proposed definition is overly broad is because it proposes to begin in 2000, and it would include non-consensual sexual contact, otherwise known as sexual assault. There is no evidence that HL was sexually assaulted, and no evidence of any experience by her prior to 2008. There is no evidentiary basis to allow for a class definition that would extend to sexual assault, or that would start earlier than 2008.

[218] The last requirement is that the proposed class definition be rationally linked to the common issues. This too is problematic. Again, this claim is cast as a systemic negligence action arising out of lack of policies or procedures, or failure to follow them, that allowed harms to be suffered. In HL’s case, the harm arises not just from the sexual misconduct of Evans, but from what happened or did not happen following that. It is alleged that there was a failure to follow-through after the incident was reported to the supervisor, and either no policies existed, or they were not followed to attempt to provide help to HL. By limiting the Cadet Class only to those who suffered harm and damages due to misconduct of a sexual nature, the link to the common issues is not established.

[219] The Plaintiffs’ counsel submitted that the Plaintiffs should be permitted to amend the class definition if it was found not meet the required criterion. Mr. Singer relies on Knisley v. Attorney General of Canada, 2024 ONSC 3528. The Plaintiffs also suggest that there is precedent for redrafting the class definition or common issues from appellate courts that have done so on appeal, such as in Rumley (BCCA), at paras. 51 and 52.

[220] In Knisley, rather than refusing to certify the class action, Sutherland J. opted to certify it on the condition that the class definition be amended. He did not state an alternative, acceptable version. With respect, this approach appears to be at odds with the duty of the motions judge to certify only if all of the preconditions for certification have been met.

[221] In Keatley Surveying Ltd. v. Teranet Inc., 2014 ONSC 1677, 119 O.R. (3d) 497 (Div. Ct.) (“Keatley (Div. Ct.)”), Sachs, J. reviewed the cases in which courts hearing a certification motion, or appellate courts, had exercised or declined to exercise such authority. She noted that there appeared to be two lines of authority touching on this issue in the class action context: at para. 17.

[222] In Brown v. Canada (Attorney General), 2013 ONCA 18, 114 O.R. (3d) 355, the motion judge found that the pleadings did not disclose a cause of action, but nonetheless certified the class action conditionally upon the plaintiffs amending their cause of action. The motion judge also adopted a class definition that was different than that suggested by the plaintiffs. Rosenberg J.A. commented on this active exercise of power at paras. 44-46 as follows:

I agree with the Divisional Court that the case management judge erred in conditionally certifying the class proceeding in the absence of a statement of claim that disclosed a cause of action. As this case demonstrates, identification of a cause of action is fundamental. It is impossible for the defendant to meaningfully respond to an application for certification without knowing the cause of action.

There is no question that class proceedings evolve as they work their way through the certification and case management process and that the case management judge plays an important role in guiding the evolution of the proceeding. But, certifying a class action in the absence of a statement of claim that discloses viable causes of action is not case management. Even the power to amend other aspects of the claim, such as the proposed common issues, should be exercised with caution and restraint: [McCracken v. Canadian National Railway, … 2012 ONCA 445, 111 O.R. (3d) 745], at para. 144.

Once the case management judge concluded that the statement of claim did not disclose a cause of action, it was not open to him to conditionally certify the class proceeding…

[223] In McCracken v. Canadian National Railway, 2012 ONCA 445, 111 O.R. (3d) 745, the motion judge rejected proposed common issues because they lacked commonality, and then created a revised set of common issues. On appeal, Winkler C.J.O. rejected these revised issues and stated, at paragraph 144:

I also note that the motion judge fundamentally altered the plaintiff’s proposed common issues. While this is a power that may be exercised by the motion judge, it should be exercised with caution and restraint and should be the exception rather than the norm.

[224] Winkler C.J.O. also referenced his earlier decision in Caputo v. Imperial Tobacco Ltd. (2004), 2004 CanLII 24753 (ON SC), 236 D.L.R. (4th) 348 (Ont. S.C.), at para. 41, where he stated:

What the plaintiffs suggest is akin to having the court perform the role of class counsel by making wholesale changes to arrive at a definition that the court itself would accept. That goes beyond a simple exercise of discretion and verges into the prohibited territory of descending “into the arena” with the parties to the motion.

[225] Sachs J. concluded, at paragraph 18 of Keatley (Div. Ct.), that the Court of Appeal has consistently held that “provided the defendant is not prejudiced, it is open to a plaintiff to recast its case to make it more suitable for certification” based on Markson v. MBNA Canada Bank, 2007 ONCA 334, 85 O.R. (3d) 321, at para. 39, leave to appeal refused, [2007] S.C.C.A. No. 346; Kumar v. Mutual Life Assurance Company of Canada (2003), 2003 CanLII 48334 (ON CA), 226 D.L.R. (4th) 112 (Ont. C.A.), at para. 30; and Pearson v. Inco Ltd. (2005), 2006 CanLII 913 (ON CA), 78 O.R. (3d) 641 (C.A.), at para. 55.

[226] In this case, the Plaintiffs have already amended the proposed definition of the class three times, the last time during the three-day long argument of the motion. At this point, Canada would be manifestly prejudiced by any further change made by the court at the invitation of the Plaintiffs, especially without alternative phrasing being proposed by them. Canada will not have an opportunity to respond to any new proposed definition, and altering the definition of the class could recast many of Canada’s positions and arguments. I decline to wade into the litigation arena to make any changes.

[227] This is of course, an academic point entirely, since regardless of any problems with the class definition, the class criteria was not satisfied.

Common Issues Criterion

[228] For the purposes of analysis only, this section assumes that the class criteria was satisfied.

[229] It is a condition for certification that the claims or defences of the class members raise common issues.

[230] This requirement has been described as a low bar: Cloud (ONCA), at para. 52. However, there must be an evidentiary basis – again, some basis in fact – for establishing the existence of a common issue that exists beyond a bare assertion in the pleadings: Fulawka v. Bank of Nova Scotia, 2012 ONCA 443, 111 O.R. (3d) 346, at para. 79, leave to appeal refused, [2012] S.C.C.A. No. 326.

[231] An issue will be common where its resolution is necessary to resolve each of the class members’ claims: Hollick, at para. 18. The point behind a common issue is that its resolution will avoid duplication of fact-finding or legal analysis of an issue that is a substantial ingredient of each class member’s claim: Western Canadian Shopping Centres Inc., at para 39. Its resolution will advance the litigation for or against the class: Fulawka, at para. 81.

[232] A common issue cannot be dependent upon individual findings of fact that have to be made with respect to each individual claimant: Williams v. Mutual Life Assurance Co. of Canada, 2000 CanLII 22704 (ON SC), 51 O.R. (3d) 54 (S.C.), at para. 39, aff’d (2003) 2003 CanLII 48334 (ON CA), 226 D.L.R. (4th) 112 (C.A.) and 2003 CanLII 21250 (ON CA), 226 D.L.R. (4th) 131 (C.A.); Fulawka, at para. 81.

[233] The common issues are not to be stated in the most general terms: Rumley (SCC), at para. 29. To do so, “would not serve the ends of either fairness or efficiency” and inevitably such an action would ultimately break down into individual proceedings: Rumley (SCC), at para. 29.

[234] If questions relating to causation or damages are proposed as common issues, the plaintiff must demonstrate that there is a workable methodology for determining such issues on a class-wide basis: Chadha v. Bayer Inc. (2003), 2003 CanLII 35843 (ON CA), 63 O.R. (3d) 22 (C.A.), at para. 52, leave to appeal refused, [2003] S.C.C.A. No. 106; Fulawka, at para. 81.

[235] Out of the eight proposed common questions, only questions 1 and 2 (negligence); 8 (damages); and 9 and 10 (punitive damages) remain following my conclusions about the causes of action that are viable.

[236] For ease of reference, the remaining proposed common issues are:

Negligence

1. Did the Defendant owe a duty of care to the Plaintiffs?

2. If so, did the Defendant breach the standard of care it owed to the Plaintiffs in the operation of the Cadets Canada 2000 to date.

Damages to the Class

8. Can damages be determined on a class-wide aggregate basis?

Punitive Damages

9. Was the Defendant’s conduct in the operation and management of the school such as to justify an award of punitive damages; and

10. If so, what is the amount of punitive damages to be awarded?

[237] I will deal first with questions relating to negligence.

[238] Question 1 is so broad as to be meaningless. It begs the question, a duty of care to do/not do what? At a minimum, a common issue relating to a duty of care should at least bear some relationship to the duties of care alleged in the pleading. This proposed common issue suggests an all-encompassing duty of care to each female cadet in all circumstances. It does not reference the duties alleged at paragraph 49 of the Claim. Those alleged duties are: to ensure implementation and compliance with the policies of the Cadet Program; the duty to take reasonable steps to rectify any failures or deficiencies in the implementation or administration of the Cadet Program (presumably related to training, screening and supervision of adult members); and duties related to avoid causing injury to the health and well-being of the Class Members (presumably from harms occasioned by sexual misconduct and the response/non-response from the organization). By answering whether the defendant owed a duty of care to the Plaintiffs alone, in an indeterminate timeframe and in indeterminate circumstances, does not advance the litigation for the Class Members.

[239] As in other cases alleging systemic negligence, such as Cloud or Rumley, the resolution of whether a duty of care is owed to all members of the class, and the specific nature of that duty, would be a significant component of the claim of every class member. But the way this common issue is framed bears no relationship to the Claim. A common issue that fails to define the scope of the duty of care inevitably would lead to inefficiency.

[240] Question 2 suffers from the same central problem of being overly broad, but to a greater degree. The standard of care is not put forward as a common issue. The Claim alleges that the standard of care required policies to be implemented and followed in order to protect minors from suffering physical and emotional harm from sexual misconduct, and that standard of care was not met. HL’s evidence explains her experience of how that standard was not met in her case. However, this will not necessarily reflect the experience of other class members. As the makeup of the Cadets Program indicates, there are a staggering number of individuals involved. There are over a thousand cadet organizations, and the statistics provided in the Oultan affidavit indicates that there were 108,424 female cadets enrolled from 2008 forward. The claim has no geographical restriction and any number of potential perpetrators including CIC officers, parent volunteers, league members, civilian volunteers, civilian instructors and senior cadets. To make findings of liability, a court will be required to consider and assess the relationship between each victim, the alleged perpetrator, and the knowledge and response of those in charge to determine if their situation can fit within the rubric of systemic failures alleged in the Claim.

[241] Further, as the Oultan affidavit indicates, there are many policies and procedures that have been adopted by the Cadet Program. Allegations of non-compliance by each class member would require individual factual findings and legal analysis that will differ on a case-by-case basis, depending on which policy or procedure has been run afoul.

[242] While it may be common across the class to share an interest in the question of whether Canada failed to have in place adequate procedures and enforcement to ensure the proper administration of its sexual misconduct policies and procedures, whether Canada failed to respond in accordance with those policies to complaints of sexual misconduct in each instance could never be a common issue.

[243] The Plaintiffs submit that the proposed common issue with respect to the standard of care requires expert and fact evidence, and the certification of this issue will avoid duplication of fact-finding and legal analysis, which would otherwise have to be performed “hundreds, if not thousands of times across the actions”. The Plaintiffs have not presented expert evidence on this motion, nor have they identified specifically what issue a proposed expert report would address that would be common across the Class.

[244] Further, in order to make findings of liability, as discussed earlier when considering a proposed class that had experienced “misconduct of a sexual nature”, a contextualized inquiry needs to be done to determine whether there has been any breach. These determinations cannot be determined in common across the class.

[245] In practice, this broadly worded common issue will in fact break down, out of necessity, into a multitude of individual issues.

[246] Accordingly, the proposed common issue does not negate the need for individual inquiries into a breach of the standard of care.

[247] I agree with the argument of Canada that this proposed class action can be distinguished from White (2004), the only other class action involving cadets. The allegations of sexual abuse in White (2004) were confined to a single local cadet corps with a limited number of perpetrators (five) whose positions and identities were known. Two of the perpetrators had already been convicted of criminal offences, and charges were pending against another. The case involved allegations occurring at a single location, which was a Navy reserve facility in Vancouver, over a ten-year period: paras. 5, 15 and 20-25. By contrast, in this proposed class action, in addition to a vast number of potential perpetrators, at a common issues trial, the court could be dealing with a wide array of locations and circumstances, some in which there is supervision and some not, and others that could have occurred outside the premises for authorized cadet activities. As HL’s evidence outlined, most if not all of Evans’ misconduct took place outside of organized cadet activities.

[248] The Plaintiffs submit that the proposed common issues with respect to the existence and breach of Canada’s duty of care are analogous to similar common issues courts have certified in negligence claims, citing Rumley (SCC), Robertson, Johnson, and Cavanaugh v. Grenville Christian College, 2014 ONSC 290. These cases can be easily differentiated in a way that explains why it may have been possible in those cases to certify common issues. In Rumley (SCC), the case was decided by the Supreme Court of Canada as though the existence of abuse was admitted. The proposed common issues were also limited to students from a single school, as was the case in Cavanaugh, Elwin, and Seed. In Johnson the common issues were limited to inmates from a single provincial correctional facility and confined to a period of less than a year. Robertson was focused on a narrow allegation of delay in issuing mandatory Covid-19 directives for long-term care homes in Ontario.

[249] Further, the Plaintiffs’ affidavits do not show some basis in fact for the proposed common issue. As previously stated, HL’s affidavit is limited to her individual experience of sexual misconduct and does not provide a basis for a common issue involving breach of a standard of care in the Cadet Program over 23 years. As I have already found, the Deschamps and Arbour Reports cannot be used as substantive evidence on this motion to provide some basis in fact for breach of a standard of care across the Class.

[250] In Banman, Perell J. certified common issues of negligence because there was a common issue about a breakdown in the system in the Psychosocial Treatment Program at the St. Thomas Psychiatric Hospital. In doing so, he found that there was some basis in fact for the issue of systemic breakdown, which the individual issues could not negate: paras. 107, 285. He reasoned that the resolution of the common issues would advance the class members’ causes of action, acting as the catalyst for the further progression of the individual actions: paras. 287-88.

[251] In contrast, there is no basis in fact for systemic wrongdoing that has been presented on the evidence. The Plaintiffs have not provided evidence showing some basis in fact that the alleged breach of the policies form common issues that actually exist. Without some basis in fact for systemic fault, the class members’ claims of negligence would need to be determined on an individual basis.

[252] I have considered whether (assuming the class criterion had been met) this court could have permitted the Plaintiffs to amend the proposed Common Issues relating to negligence. I have considered the common issues that were initially proposed for this cause of action in the notice of motion, as questions 8 through 11. These are as follows:

8. Since the Class Members were minors, were they dependent on the Defendant, Canada, during their time with Cadets Canada?

9. If the answer to common issue (8) is “yes”, did the Defendant, Canada, owe a duty to the Class Members, including but not limited to, a duty to give proper consideration to and to take reasonable care of the Class Members’ physical and mental well-being?

10. If the answer to common issue (9) is “yes”, did the Defendant, Canada, have a direct or indirect impact on the Class Members?

11. If the answer to common issue (10) is “yes”, was the harm suffered by the Class Members a reasonably foreseeable consequence of the Defendant, Canada’s acts and omissions?

[253] In my view, the substitution of any or all of these questions does not resolve or alleviate any of the problems that prevent questions 1 and 2 from being certified.

[254] Moving on to common issue 8 regarding damages, it follows that damages cannot be determined in common due to both the individualized nature of the allegations, and because there is a lack of evidence for damages beyond that presented for HL individually.

[255] As stated in Banman, at para. 303, “a precondition to an aggregate damages common question being available pursuant to s.24 (1) of the Class Proceedings Act, 1992 is that liability or a minimum level of liability can be established at the common issues trial”, citing Ramdath v. George Brown College of Applied Arts and Technology, 2015 ONCA 921, 392 D.L.R. (4th) 490 and Fulawka.

[256] In this case, both causation and damages will never be established at the common issues trial and accordingly this prerequisite for aggregate damages is not satisfied.

[257] In Lilleyman, at paragraph 362, Perell J. again explained the basis upon which an award of aggregate damages may be made:

For there to be an award of aggregate damages, the plaintiff must advance a methodology or show that there is a reasonable likelihood of assessing the defendant’s aggregate liability to the class without proof by individual class members. Aggregate damages cannot be ordered where “individual questions of fact relating to the determination of each class member’s damages remain to be determined”, or where there is no available data to determine what individual class members were owed. Aggregate damages are not appropriate where the use of non-individualized evidence is not sufficiently reliable, or where the use of that evidence will result in unfairness or injustice to the defendant, such as overstatement of its liability for damages. In other words, the Plaintiff must present a methodology that offers a realistic prospect of establishing aggregate damages on a class-wide basis. [citations omitted]

[258] There is no evidence to support the conduct of an aggregate damages assessment. While the Plaintiffs’ counsel provided the court with a sample aggregate chart, it was for demonstrative purposes only and was not included in the motion record. There is also nothing in the proposed litigation plan with respect to the procedure for such an assessment. In Canada v. Greenwood, 2021 FCA 186, the court was faced with similar lack of evidence. At paragraph 188, the court stated:

Which leaves the fourth question regarding an aggregate assessment of damages. As noted, the representative plaintiffs tendered no evidence to suggest a method for the conduct of such assessment and their litigation plan is similarly silent on the point. There was accordingly no basis in fact for the certification of a common question related to an aggregate damages assessment given the factual vacuum on the point before the Federal Court.

[259] Moving on to common issues 9 and 10 regarding punitive damages, the issue of whether punitive damages are warranted can only be established following the determinations to be made at individual trials and so lacks commonality.

Preferable Procedure Criterion

[260] Once again, this criterion is being examined only to complete the academic exercise.

[261] This criterion is prescribed by sections 5(1)(d) and 5(1.1) of the CPA. Section 6 of the CPA guides the court on the grounds upon which the court should not rely to refuse to certify a proceeding. The addition of s. 5(1.1) through the 2020 amendments to the CPA imposes a stricter test for preferability than the former one: Banman, at paras. 317-18.

[262] Subsection 5(1.1) requires determining whether:

a. The design of the class action is manageable as a class action;

b. There are reasonable alternatives;

c. The common issues predominate over the individual issues; and

d. The proposed class action is superior to the alternatives.

[263] For a plaintiff to establish that the class action would be the preferred procedure, the Plaintiffs must establish some basis in fact that the proposed class action would be a fair, efficient and manageable method of advancing the claim, and that it is better than any other reasonably available means of resolving the claims of the proposed Class Members: Hollick, at paras. 28, 31; AIC Limited v. Fisher, 2013 SCC 69, [2013] 3 S.C.R. 949, at para. 48. These two tests are to be measured through the lens of the purposes of the CPA, namely, access to justice, behaviour modification and judicial economy: Banman, at para. 315.

[264] The common issues are to be looked at together to determine whether they predominate over the individual issues, in order to ensure that the objective of judicial economy is achieved and that access to justice is achieved by having the claims of the class members sufficiently advanced through the mechanism of a class action: Banman, at para. 321.

[265] The first step in the preferred procedure analysis is whether the class action would be manageable. Even though the causes of action have been pared down to include only negligence, as the proceeding discussion has illustrated, this has done little to circumscribe the case. The scope and breadth of this national organization, the number of different activities in which it engages at different locations, the number of adults who interact with cadets and their status, the various policies, and the breadth of conduct that may or may not constitute sexual misconduct, all impact on the standard of care and whether there has been a breach.

[266] As I have concluded, there is little way to avoid the proposed class action devolving into individual actions on the question of liability alone. Causation and damages would be a whole other area of individual, case-by-case analysis with no evidence common across the proposed class.

[267] As I have determined, there are no proposed common issues that meet the threshold for certification. Accordingly, it is a false exercise to attempt to look at the proposed common issues collectively to determine whether they predominate over the individual issues.

[268] Even if there were common issues that could be certified, the nature of the action is such that the individual issues would still predominate, preventing the class action from being a superior means over individual trials. Viewing this through the lens of judicial economy and access to justice, there is no basis on which the court can determine that a class action would be superior to individual actions.

Is HL an appropriate representative plaintiff?

[269] Assuming for the moment that the class period was restricted to begin in 2008 and that the proposed identified class definition could be certified (and all the other criteria had been met), I conclude that HL would be an appropriate representative plaintiff.

[270] There is no evidence contradicting her sworn evidence that she would act in the best interests of the proposed Cadet Class. There is no evidence that she has a conflict of interest with other members of the Cadet Class.

[271] The same is true for ML as a representative plaintiff for the Family Class. However, as a derivative class, the Family Class cannot be certified if the Cadet Class is not certified: Ann Schwoob et al. v. Bayer Inc., 2013 ONSC 2207, at para. 30.

[272] I have not gone so far as to determine whether the litigation plan provided by the Plaintiffs is remotely workable given the other conclusions reached in these Reasons.

Conclusion

[273] For the above reasons, this court orders that the Plaintiffs’ motion to certify their action pursuant to the CPA is dismissed.

Costs

[274] If the parties are unable to reach a decision on costs within 30 days of the release of these Reasons, they may each submit brief written costs outlines. They are due on the following schedule: The Defendant’s submissions are due by January 10, 2024, the Plaintiffs’ by January 20, 2024 and any reply, if necessary by January 24, 2025. Written submissions are limited to 5 double-spaced pages, plus a costs outline and any settlement offers. Counsel may extend these dates by mutual agreement, with notice to me through BarrieSCJJudAssistants@ontario.ca.

[275] The submissions are to be filed with the court, with a copy emailed to my judicial assistant at BarrieSCJJudAssistants@ontario.ca, in addition to being uploaded to Case Center with hyperlinks as required.

Madam Justice S.E. Healey

Released: November 25, 2024

[^1]: During argument, it was never explained why there is a reference to “school” in this question but presumably “Cadet Program” was intended.