On September 21, 2021, the Federal Court of Appeal ("FCA") upheld the Federal Court's decision to certify a class action about systemic workplace harassment against the Royal Canadian Mounted Police ("RCMP") in Canada v. Greenwood.[1] Apart from the scope of the certified class, and certification of the common issue on aggregate damages, the FCA upheld the Federal Court's certification order, including certification of the claim in systemic negligence related to workplace harassment. It is worth noting at the time of this article, the Crown has filed an application for leave to appeal to the Supreme Court of Canada ("SCC"), and the outcome of that application is pending.
While the FCA's decision to certify the claim in systemic negligence may be surprising to some given existing jurisprudence suggesting that negligence for workplace harassment claims are not viable causes of action, a reading of the FCA's reasons shows that certification of this cause of action in fact, rested on a very narrow exception – namely, that the claims belonged to individuals who experienced workplace harassment, but who did not have written or unwritten contracts of employment.
Background
This was a class action commenced by two full-time RCMP Members for systemic bullying, intimidation and harassment of individuals who worked for the RCMP. The class, as certified by the Federal Court initially, was broad and included individuals ranging from RCMP Members (comprised of Regular Members, Civilian Members and Special Constable Members, all of whom are statutorily appointed) to recruits, cadets, volunteers, employees of municipalities, etc. On appeal, the class was subsequently limited to current or former RCMP Members and Reservists who worked for the RCMP between January 1, 1995 and the date a collective agreement becomes or became applicable to a bargaining unit to which they belong.[2]
The representative plaintiffs described the action as one which "concerns the systemic bullying, intimidation and harassment of individuals who worked for the …RCMP and/or with the RCMP", noting that the RCMP leadership "fostered and condoned a culture of bullying and intimidation and general harassment within the Force, creating a toxic workplace."[3]
One of the causes of action raised and dealt with at the FCA, was the systemic negligence claim. In their Statement of Claim, the representative plaintiffs alleged that the RCMP owed a duty of care to Class Members to use reasonable care to ensure their safety and well-being, to provide safe workplace environments free from bullying, intimidation and harassment, and to establish and enforce appropriate policies, codes, guidelines, etc. to ensure the plaintiffs and the class would be free from bullying, intimidation and harassment, and to investigate and adjudicate complaints of harassment, etc.[4]
The Federal Court found that the representative plaintiffs' claim for systemic negligence met the cause of action requirement, noting that systemic negligence claims have been recognized before, and that claims of systemic harassment within the RCMP were found to meet the cause of action requirement in Merlo v. Canada,[5] and Tiller v. Canada.[6] The Federal Court also rejected the Crown's proposition that the claim was foreclosed by the Ontario Court of Appeal (ONCA) decisions in Merrifield v. Canada (Attorney General), and Piresferreira v. Ayotte.[7] In Merrifield, the ONCA declined to recognize the tort of harassment in the employment context, while in Piresferreira, the ONCA held that there could be no recovery for negligent infliction of mental suffering in the employment context.[8]
In rejecting the Crown's reliance on Merrifield and Piresferreira, the Federal Court noted that the nature of the claims proposed were "not 'just' workplace disputes" but were claims based on systemic negligence for bullying, intimidation and harassment and they attack the "processes and systems" the Crown claims can and should provide a remedy.[9]
On appeal, the Crown argued that the Federal Court erred in (1) finding that there was a reasonable cause of action in negligence related to workplace harassment, (2) presuming that different requirements apply to a systemic negligence claim; and (3) finding that the alleged class-wide duty of care is sustainable at law.[10] The Crown again based it's argument that no reasonable cause of action was disclosed relying on the decisions in Piresferreira and Merrifield.
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