The Ontario Superior Court of Justice has refused to certify a proposed class action alleging systemic negligence and other breaches by the Attorney General of Canada in the administration of Canada’s Cadet Program.
The plaintiffs, H.L. and her mother, M.L., sought to represent thousands of female cadets and their family members, claiming the program’s alleged failures allowed sexual misconduct against young participants to persist without proper intervention or support.
What happened
The plaintiffs’ claim centred on events involving H.L., who joined the Cadet Program at age 14. She alleged that in 2008 and 2009, T.E., an adult cadet volunteer and reservist, groomed her online, encouraged sexualized conversations, and proposed a sexual encounter.
Although T.E. later pled guilty to a criminal charge of invitation to sexual touching, H.L. asserted that when she attempted to report his behaviour internally at the time, her complaint was neither acted upon nor properly recorded. Both H.L. and M.L. further alleged that no support or resources were offered by the Cadet Program following the incident.
Proposed class
The plaintiffs’ proposed class encompassed all current and former female cadets dating back to 2000 who suffered injury as a result of sexual misconduct by adult instructors, as well as their family members. They advanced claims in negligence, breach of fiduciary duty, breach of contract, negligent misrepresentation, and a breach of s. 7 of the Canadian Charter of Rights and Freedoms. They alleged that Canada’s failure to implement and enforce robust sexual misconduct policies, training, and reporting mechanisms created an environment allowing sexual abuse and harassment to occur unchecked.
Justice Healey, however, concluded that the plaintiffs failed to meet the statutory criteria required under s. 5 of the Class Proceedings Act, 1992. The court’s analysis focused on whether it was “plain and obvious” that no cause of action existed and whether there was “some basis in fact” to certify the proposed class.
Fiduciary duty issue
In dismissing the claims of breach of fiduciary duty, the court found that while the plaintiffs alleged Canada had duties of loyalty, care, and good faith toward cadets, the evidence did not support a legal relationship akin to those recognized fiduciary duties. According to the decision, neither the statutory framework nor the facts pled demonstrated that Canada undertook to act in the cadets’ best interests above all others.
The court wrote, “It is plain and obvious that the claim for breach of fiduciary duty will not succeed.”
Negligence claim
The negligence claim was also curtailed. Although the plaintiffs attempted to frame the allegations as a systemic failure to protect cadets, the court found that they offered no admissible evidence indicating widespread wrongdoing or a pattern of non-compliance with established policies.
The plaintiffs relied heavily on the experiences of H.L. and her difficulties in reporting abuse, as well as media articles and reports focusing on the Canadian Armed Forces (CAF), not specifically the Cadet Program. This fell short of establishing that sexual misconduct was pervasive, or that Canada’s alleged failures were systemically entrenched. The court stated that, without evidence showing multiple cases of similar harm, it could not conclude that the claims of other potential class members would share common factual and legal underpinnings.
In reference to the s. 7 Charter argument, Justice Healey noted that the allegations essentially represented a claim of inaction rather than state action infringing protected rights. The court concluded that “the Charter does not impose on the defendant an affirmative duty” to create particular policies, and as such, no separate Charter cause of action was made out.
Similarly, the claims of negligent misrepresentation and breach of contract were dismissed due to a lack of pled facts indicating reliance on specific, identifiable representations from Canada, or any contractual relationship that would support damages claims.
Proposed class definition
In rejecting the motion for certification, the court carefully examined the proposed class definition. The definition included any female cadet who experienced “misconduct of a sexual nature,” but this term was never clearly defined. Moreover, the plaintiffs presented no admissible, class-wide evidence that additional individuals beyond H.L. could confirm similar experiences, making it impossible to find “some basis in fact” that two or more persons fell within the proposed class.
The common issues proposed by the plaintiffs were also found wanting. Many were phrased so broadly that they failed to meaningfully advance the litigation. Without demonstrated systemic wrongdoing or uniform omissions that could be addressed collectively, assessing liability would inevitably devolve into individual inquiries, undercutting the purpose of a class proceeding.
The court wrote that the decision “is not intended to detract from the gravity of what occurred to H.L. due to [T.E.’s] conduct,” and acknowledged the serious harm caused by sexual misconduct against minors. However, it concluded that the complexity and individual nature of the allegations meant that a class action was “not the vehicle by which this wrong can be appropriately addressed.”
In the result, the plaintiffs’ motion for certification was dismissed in its entirety. The parties were left to address costs, with further submissions scheduled if they could not agree.
For more information, see Lockhart v. Attorney General of Canada, 2024 ONSC 6573 (CanLII).
