Supreme Court Declines To Review Certification Of RCMP Bullying And Harassment Class Action

• Published date: 30 March 2022
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Class Actions, Trials & Appeals & Compensation
• Law Firm: Torys LLP
• Author: Ms Sylvie Rodrigue, Sarah E. Whitmore, Irfan Kara and Morag McGreevey

On March 17, 2022, the Supreme Court of Canada dismissed the federal government's application for leave to appeal a decision certifying a class action against the RCMP. The class action, which was certified by the Federal Court in 2020, alleges that RCMP leadership fostered and condoned a work environment of systemic bullying, intimidation and harassment.

What you need to know

• The federal government, on behalf of the RCMP, unsuccessfully argued that the plaintiff employees' claims should not proceed as a class action because there are "legislative remedies and internal processes within the RCMP" that could provide redress¹.
• The Federal Court rejected this argument, in part because the internal processes referenced by the government formed a "core component" of the claims advanced by the plaintiffs², and certified all of the plaintiffs' proposed common issues³.
• The Federal Court also rejected the government's argument that the claim did not disclose a reasonable cause of action. In doing so, the Federal Court indicated a willingness to recognize a new tort of workplace harassment⁴.
• The Federal Court of Appeal affirmed this approach, noting that there is "divided appellate authority" on whether such a tort exists but it is not "plain and obvious" that the claim will fail⁵.
• The issue of aggregate damages continues to have mixed success in being certified in workplace class actions⁶. An aggregate damages issue was certified by the Federal Court but de-certified on appeal because the plaintiffs tendered no evidence to suggest a method for the assessment, and their litigation plan was equally silent on the issue⁷.
• The case highlights an increased focus on employers' internal procedures and systems for remedying bullying and harassment in class certification decisions.

The details

Federal Court decision

In January 2020, the Federal Court certified a class action against the RCMP on behalf of a class of people who have worked for or with the RCMP⁸. The claim alleged systemic negligence in the form of bullying, intimidation and general harassment.

The federal government opposed certification on the basis that the claims were "workplace disputes" which have various legislative remedies and internal processes of redress within the RCMP⁹. It argued that these mechanisms are the preferable procedure for resolving the plaintiffs' complaints, and that the Court should decline to exercise its jurisdiction over the claim.

The Federal Court rejected both the...