The Federal Court of Appeal has partially allowed an appeal by a former temporary employee of the Royal Canadian Mounted Police (RCMP), permitting him to amend his statement of claim in a proposed class action alleging systemic bullying, intimidation and harassment within RCMP workplaces.
The Court, however, upheld the lower court’s dismissal of his certification motion and found him unsuitable as a representative plaintiff because his personal claims are statute-barred.
Background
D.M., who worked as a Temporary Civilian Employee (TCE) at the RCMP’s Kelowna Operational Communications Centre between 2003 and 2005, seeks to represent a class comprising various individuals who worked for or with the RCMP across Canada. His claim is framed in negligence, asserting that the RCMP and its management owed a duty of care to class members and breached that duty by condoning abusive workplace behaviour.
Justice Mactavish, writing for a unanimous panel, concluded that the Federal Court did not err in striking D.M.’s statement of claim for failure to plead material facts, except as it relates to TCEs working at the Kelowna OCC during the specified period. The Court found that D.M.’s statement of claim was “devoid of any material facts that could support his allegations, except as they related to individuals working at the Kelowna OCC during the class period.”
The Court noted that while D.M. provided detailed allegations regarding his own experiences and those of other TCEs at the Kelowna OCC, “the statement of claim is completely devoid of any material facts relating to the rest of the proposed class that he seeks to represent.” The Court emphasized the importance of pleading material facts in sufficient detail to support the claim and relief sought, particularly in a class action involving a large and diverse proposed class.
D.M. argued that it was impractical to provide evidence for each category of employees and each work site within the proposed class. However, the Court held that “a representative plaintiff must provide more than mere bald allegations and conclusory statements to support a claim.”
Leave to amend statement of claim
Despite upholding the striking of the broader claims, the Court found that the Federal Court erred in denying D.M. leave to amend his statement of claim. The Court stated that “leave to amend a statement of claim in a proposed class proceeding should only be denied in the clearest of cases,” and that the defects identified were potentially curable by amendment.
The Crown, representing the RCMP, cross-appealed, asserting that it is plain and obvious that no private law duty of care is owed to TCEs engaged through contracts of employment. The Crown argued that employees cannot bring negligence claims against their employers for workplace harassment, and that such matters are better addressed through employment law remedies.
The Court rejected the Crown’s argument, noting that while appellate authority is divided on whether an employer owes a common law duty of care to employees, “the door has not been firmly and forever shut on the question.” The Court found that it was not plain and obvious that D.M.’s negligence claim was bound to fail, citing other cases where courts have allowed similar claims to proceed.
Dismissal of certification motion
Regarding the certification motion, the Court agreed with the Federal Court’s decision to dismiss it. The Court held that D.M.’s statement of claim did not disclose a reasonable cause of action for the broader class and that he was not an adequate representative plaintiff because his personal claims were statute-barred under the applicable limitation period.
D.M. had argued that his mental health issues prevented him from bringing the claim earlier, invoking the postponement provisions of the Limitation Act. The Court found insufficient evidence to support this, noting that “there was no evidence that D.M. was unaware of his injuries before 2021” and that his “emotional fortitude” was not a relevant factor in assessing the applicability of a limitation period.
The Court concluded that “as there was no basis in fact elicited to show that D.M.’s pre-April 1, 2005 claims could be viable in the face of the provisions of the 1996 Limitation Act, the Federal Court did not err in concluding that the ‘adequate representative plaintiff’ branch of the certification test had not been met.”
For more information, see McMillan v. Canada, 2024 FCA 199 (CanLII).
