Bigeagle v. Canada

Bigeagle v. Canada
Court (s) Database
Federal Court Decisions
Date
2021-05-28
Neutral citation
2021 FC 504
File numbers
T-1304-18
Notes
A correction was made on June 23, 2021
Decision Content
Date: 20210623
Docket: T-1304-18
Citation: 2021 FC 504
Ottawa, Ontario, June 23, 2021
PRESENT: The Honourable Madam Justice McVeigh
BETWEEN:
DIANE BIGEAGLE
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
AMENDED ORDER AND REASONS
TABLE OF CONTENTS
I. Introduction 2
II. Preliminary Issues 5
A. Appropriate Parties 5
B. Affidavits filed by RCMP 7
III. Facts 8
IV. Issue 10
V. Evidentiary Background 10
A. Evidence filed 10
B. Evidentiary Issues 13
(1) Reports 13
(2) Expert Evidence 18
VI. The Law of Class Actions 20
VII. Analysis of Causes of Action 24
A. Systemic Negligence 24
(1) Duty of Care 26
(2) The Law 27
(3) Analysis of duty of care 30
(a) Fiduciary Relationship 31
(b) The Law of Fiduciary Relationship 33
(c) Application of Principles to this Case 36
(i) Branch 1-Undertaking 36
(ii) Branch 2-Defined Class (Vulnerable Individuals) 37
(iii) Branch 3-Legal or Substantial Interest of Beneficiary Affected Adversely by Fiduciary Discretion 39
(d) Established or Recognized Duty of Care (other than Fiduciary) 39
(i) Established Duty of Care Analysis 41
(ii) Duty of Care that is Novel 47
Foreseeability & Proximity – Analysis 48
B. Fiduciary Duty: Cause of Action 54
C. Negligent Police Investigation: Cause of Action 57
(1) Analysis 58
D. Misfeasance in Public Office 60
E. Breach of the Charter 63
F. Violations of Quebec Law 69
(1) Is there a valid cause of action due to of violations of the Civil Code of Quebec? 69
(2) Is there a valid cause of action due to violations of the Quebec Charter of Human Rights and Freedoms? 71
G. Violations of the Crimes Against Humanity Act 73
(1) Genocide 74
(2) Crimes against Humanity 77
VIII. Conclusion 79
I.
Introduction
[1] This is a motion for this action to be certified as a class action under Rule 334.16 of the Federal Courts Rules, SOR/98-106 [Rules]. The Plaintiff in the proposed class action is requesting declarations and monetary damages for the families of victims of missing and murdered Indigenous Canadian women because of the policies and alleged conduct of the Royal Canadian Mounted Police [“RCMP”] over a period of 50 years across Canada.
[2] Specifically, the Second Amended Statement of Claim to the Defendant [“Statement of Claim”] says there has been a failing to “investigate and prosecute” and focus on their investigation of missing and murdered Indigenous women, girls, and members of the Two-Spirit, lesbian, gay, bisexual, transgender, queer, questioning, intersex and asexual [“2SLGBTQQIA”] Indigenous community.
[3] The Applicant is the proposed representative plaintiff, Diane BigEagle [the “Plaintiff”]. Her daughter, Danita, went missing in February of 2007 and is still missing at the time of this decision.
[4] I think it is important to note at the outset the statement by the RCMP in their submissions (paragraph numbers and short forms omitted):
The dark and painful experiences of violence against Indigenous women, girls and 2SLGBTQQIA individuals have been shared through the National Inquiry into missing and Murdered Indigenous Women and Girls.
Together with First nations, Inuit and Metis, Indigenous organizations, and provincial, territorial, and municipal partners, the Government of Canada continues to walk the path of reconciliation, listening to the voices of families and survivors, as well as grassroots organizations and Indigenous leaders, to work collectively to address this national tragedy. The National Inquiry, and the ongoing collective response to the Reclaiming Power and Place: The final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, are ways in which this multivariate, broad ranging public tragedy is being address.
Canada acknowledges the experience of the families, extended families, estates and community members of the Indigenous victims whose murders or disappearances remain unresolved. However, this proposed class action is not an appropriate mechanism to remedy this tragedy.
[5] The Defendant is named as Her Majesty the Queen, the Royal Canadian Mounted Police.
[6] This motion is the first step in a complicated action, and is, subsequently, a complicated motion.
[7] The Class as pled is defined as:
(a) All persons in Canada who have one or more Indigenous Immediate Family Members who are Victims (the “Immediate Family Class”);
(b) All persons in Canada who have one or more Indigenous Extended Family Members who are Victims (the “Extended Family Class”);
(c) All persons in Canada who, by reason of his or her relationship to a Class Member or Victim, are entitled to make claims under any of the Dependant Statutes as a result of injury to the Class Member or Victim (the “Statutory Dependants Class”);
(d) The heirs, assigns, and estates of all Victims (the “Estate Class”); and
(e) All persons in Canada who are in relation to a Victim,
(collectively, the “Class”, “Class Members”, or “Plaintiffs”).
(Statement of Claim, at para 6)
[8] The Plaintiff declared that this is not a novel case because in previous class actions, all of the causes of action she is claiming have been certified. The Plaintiff submits that this matter is “eminently suited for certification”. She said that this case is analogous to institutional abuse and systemic discrimination class actions because “the wrongs have been perpetuated against an identified group of vulnerable Indigenous women and their families through the implementation and operationalization of discriminatory polices and an institutional tolerance for systemic racism.” (Plaintiff’s Memorandum of Fact and Law, at para 5 [“PMFL”])
[9] The RCMP have vigorously defended each part of the certification test with no concessions. I note this because some of the jurisprudence relied on by the Plaintiff, the viability of the causes of action, are either by consent or only some causes of actions are disputed.
[10] Though I do not agree with all of Canada’s challenges to this motion, for the reasons that follow, I will dismiss the certification motion.
II. Preliminary Issues
A. Appropriate Parties
[11] During oral arguments, the Plaintiff appeared to extend the action to include, as defendants, all federal government departments because the action was against “Her Majesty the Queen”. Though it occurred in the Plaintiff’s Reply, I need to address this as a preliminary issue.
[12] Pursuant to the Federal Courts Act, RSC, 1985, c F-7 s 48 and schedules, the appropriate action is brought against Her Majesty the Queen. In the Statement of Claim at paragraph 3, the pleading names the defendant, Her Majesty the Queen, represents the federal government of Canada and the RCMP and relies on the Crown Liability and Proceedings Act, RSC 1985, c C-50 ss 3, 23(1), and 36.
[13] The Statement of Claim, starting at paragraph 7, sets out the allegations and material facts against the RCMP as a defendant. Starting at paragraph 73, it pleads only the duty of care owed by the RCMP as well as the alleged breaches, again, only by the RCMP. The written submissions to this motion only set out the causes of action against the RCMP. In submissions, the Plaintiff indicates the claim is “…aimed at Canada’s vicarious liability for the misconduct of the RCMP officers and administrators whose actions have let to and enabled the negligence complained of.” (PMFL, at para 67).
[14] It is not appropriate to submit, for the first time, at the reply stage, that the Defendant is to be expanded beyond the RCMP. The other departments have not had the opportunity to respond. More importantly, there are no allegations pled beyond the RCMP or damages sought from any department but the RCMP.
[15] Just as in Canada (Attorney General) v Jodhan, 2012 FCA 161 at paragraphs 85-89, where the pleadings were against the treasury board and the applicants then put forward new grounds against and additional 106 departments—which had not been pointed to in the Pleadings—the parties in the instant case must be limited to the policies at issue and to the actions of the at-issue department. Here, that means the RCMP.
[16] The Crown is immune to liability directly; only the actions or omissions of servants (or agents) of the Crown are to be assessed (Hinse v Canada (Attorney General), 2015 SCC 35 at para 58). The agent of the Crown whose acts or omissions in question in the Pleadings of the Plaintiff is the RCMP.
[17] Further, determining exactly what or who is a public servant is not always easy. Peter Hogg, on Crown agency, explains that:
The Crown includes the departments of government that are headed by a minister. It is the control of the minister that provides the link to the Crown. Municipal bodies, school boards, universities, hospitals, regulatory agencies, administrative tribunals and public corporations, even if they are performing “governmental” functions, are not agents of the Crown, unless they are controlled by a minister or expressly declared by statute to be an agent of the Crown. A question often arises as to whether a public body is or is not an agent of the Crown.
(Peter Hogg, Patrick J Monahan & Wade K Wright, Liability of the Crown, 4th ed (Toronto: Carswell, 2011) at 13)
[18] Because of the strict requirements to determine what an agent of the Crown is, it is necessary to plead specifically who the agent alleged is. The RCMP was named in the Statement of Claim, and no other branch of government is specifically mentioned. This infers that the only agent of the Crown alleged of any wrongdoing in this action would be the RCMP. So, the Defendant as named in the Pleadings at paragraph 3 being “Her Majesty the Queen represents the Federal Government of Canada” cannot now be extended to any other branch other than the RCMP in this action.
B. Affidavits filed by RCMP
[19] The Plaintiff alluded that the RCMP purposely put forth affidavits from witnesses not tendered as representatives of Canada or the RCMP, circumventing the requirement for disclosure of material facts as required by Rule 334.15(5) of the Rules.
[20] I wish to address that point early in the decision because I find that allegation to be baseless. The witnesses put forth were ones that had direct knowledge regarding specifics that were pled. The RCMP’s witnesses were cross-examined and gave undertakings and there was a motion for refusals. There was no requirement for Canada to put forth a proper officer at this stage and I find that they put forth witnesses that were appropriate for a certification motion (Fischer v IG Investment Management Ltd., 2016 ONSC 4405).
III. Facts
[21] The proposed representative Plaintiff in the action is Diane BigEagle, the mother of Danita BigEagle. Danita was born March 6, 1984. Diane and Danita resided in the City of Regina at the time of her disappearance. Danita was a member of the Ocean Man First Nation and she and her family had “travelled back and forth from time to time between Regina and Ocean Man” at the time she was reported missing by her family.
[22] Danita has been missing since Sunday, February 11, 2007, and is presumed to be deceased. She is also presumed to be a victim. Danita is survived by her two children, mother and family members.
[23] An additional six members of the proposed class have sworn affidavits. They are Crystal Sylvestre, Loreen Jack, Lorna Thomas-Twin, Linda MacNeil, Lorraine Blyan, and Jan Turner. All of them allege RCMP policies and inaction in the cases of loved ones who are either missing or deceased. A further 36 Indigenous women are listed as victims in the motion record.
[24] It is of note that the alleged incidents related by family and community members of victims range from 1968 to 2016, as well as over many different provinces and municipalities and cities that have their own police forces as well as some that engage the RCMP as their policing power, and there is nothing in the Statement of Claim that specifies a limited period of time for potential victims or class members.
[25] The Plaintiff claims that the policies, actions and inactions of the RCMP have caused damage to some members of the Indigenous communities across the country. The Plaintiff defines a “Victim” of the actions of the RCMP as:
…an Indigenous woman or two-spirited individual who (1) was murdered (and whose murder was reported to the RCMP but remains unresolved) or (2) has been missing for more than 30 days and whose disappearance was reported to the RCMP.
(Statement of Claim, at para 5)
[26] The Plaintiff’ Second Amended Statement of Claim (filed October 4, 2019) brought the action on behalf of the class as defined as: “Immediate Family”; “Extended Family”; “Statutory Dependants”; those in the “Estate Class”; and “Community Members in relation to a Victim”.
[27] At the hearing, the Plaintiff requested to amend the Second Amended Statement of Claim to change the “Community Members in relation to a Victim” definition to “all persons in Canada who reside on a First Nation where a Victim resided at the time of the Victim’s murder or disappearance”. The Plaintiff’s amendment was accepted by direction at the hearing.
[28] The Motion asks for an Order certifying a class action including a number of classes with Diane BigEagle as the representative plaintiff. The claims asserted include systemic negligence, breach of common law duties, breach of the Charter of Rights and Freedoms, breach of the Civil Code of Quebec, CQLR c CCQ-1991 [“CCQ”], breach of the Quebec Charter of Human Rights and Freedoms, CQLR c C-12 [“Quebec Charter”], breach of the Crimes against Humanity and War Crimes Act, SC 2000, c 24 [“Crimes Against Humanity Act”] and that the relief sought is in the nature of general, special, aggravated, punitive, or exemplary damages, as well as other procedural orders.
[29] The common issues asked to be certified are attached as Annex “B”.
IV. Issue
[30] The issue is whether the action should be certified as a class proceeding.
V. Evidentiary Background
A. Evidence filed
[31] The Plaintiff has supported her certification motion with the following evidence:
Affidavit of Diane BigEagle, sworn May 7 2019
Overview of Resource Allocation in Canadian Police Services, 2007
List of Parties with Standing in the National Inquiry, February 5, 2019
Agency Response Guide to Missing Persons Situations in Saskatchewan, March 3, 2014
Thunder Bay Police Services Board Investigation Final Report, November 1, 2014
Missing and Murdered Indigenous Women’s Inquiry Wages Court Fight for RCMP Files-CBC, April 29, 2019
RCMP Regulations, 2014- Code of Conduct, April 30, 2019
The National Inquiry into Missing and Murdered Indigenous Women and Girls- Interim Report, 2007
Second Affidavit of Diane BigEagle, sworn June 5, 2019
National Inquiry Calls for Transformative change to Eradicate Violence Against Indigenous Women, Girls and 2SLGBTQQIA, June 03, 2019
The Final Report on The National Inquiry into Missing and Murdered Indigenous Women and Girls- Volume 1a, 2019
The Final Report on The National Inquiry into Missing and Murdered Indigenous Women and Girls- Volume 1b, 2019
A Supplementary Report on The National Inquiry into Missing and Murdered Indigenous Women and Girls- Volume 2, 2019
Supplementary Report on The National Inquiry into Missing and Murdered Indigenous Women and Girls- A Legal Analysis of Genocide, 2019
Executive Summary of The Final Report on The National Inquiry into Missing and Murdered Indigenous Women and Girls, 2019
“Trudeau Says Deaths and Disappearances of Indigenous Women and Girls Amount to Genocide” - CBC News, June 04, 2019.
Transcript of the Cross Examination of Diane BigEagle, February 12, 2020
Letter from Tim Schwartz to Diane BigEagle, January 21, 2011
Search Called in Regina for Missing Woman- An Article by Andrew Matte Sage from Saskatchewan Sage, January 01, 2020
Native Women’s Association of Canada - Storytelling: Danita’s Story
Response to Undertakings of Diane BigEagle
RPS Witness Statement - February 22, 2007
RPS Witness Statement - March 4, 2007
RPS Witness Statement - August 9, 2007
Affidavit of Lorraine Blyan, sworn August 23, 2018
“Coroner doubts evidence at inquest” - The Edmonton Journal, August 3, 1968
Certificate of Coroner Before Summoning Jury, July 1968
Affidavit of Loreen Jack, sworn May 3, 2019
Crime Stoppers Flyer regarding a Missing Family
Affidavit of Linda MacNeil, sworn May 01, 2019
Response to Written Examination of Linda MacNeil, February 28th, 2020
Affidavit of Crystal Sylvestre, sworn January 24, 2019
“Janet Sylvestre” - CBC News, dated July 07, 2019
Opinion: Looking Back at Just Another Indian - Eagle Feather News, August 17, 2016
Affidavit of Lorna Thomas-Twin, sworn August 23, 2018
Affidavit of Jan Turner, sworn April 29, 2019
Statement given by Jan Turner, 2015
Three polygraph test results
Video Interview of Jan Turner by Cpl. Fitzpatrick, February 25, 2020
Email Brian Merriman to Jan Turner, October 15, 2019
Transcript of the Cross Examination of Jan Turner, February 21, 2020
Response to Undertakings of Jan Turner
Affidavit of Dr. Thomas Gabor, sworn April 15, 2019
Expert Report of Dr. Thomas Gabor, April 05, 2019
[32] The Defendant filed the following evidence:
Affidavit of Cst. Cathleen Falebrinza, sworn November 23, 2019
Transcript of the Cross Examination of Cathleen Falebrinza, February 25, 2020
Excerpt from RCMP “E” Division’s operational manual re chapter 37-3, “Missing Persons”
RCMP National Policy on Missing Persons
Notes of Cst. Cathleen Falebrinza
Response to Undertakings of Cst. Cathleen Falebrinza
Response to Refused Questions of Cst. Cathleen Falebrinza
Affidavit of Cheryl Mancell, sworn November 21, 2019
Aboriginal Peoples in Canada
Aboriginal Peoples Highlight Table
Membership in a First Nation or Indian Band
National Household Survey: Aboriginal Peoples
Transcript of the Cross Examination of Cheryl Mancell dated February 21, 2020
Affidavit of Dr. Ronald-Frans Melchers, sworn November 28, 2019
Expert Report of Dr. Ronald-Frans Melchers
Transcript of the Cross Examination of Dr. Ronald-Frans Melchers dated February 6, 2020
List of Reference Documents
Thunder Bay Police Service Board Investigation
Statistics Canada Report, Criminal Victimization in Canada 2014, November 23, 2015
Report of P. Feinstein and M. Pearce dated February 26, 2015
Missing and Murdered Aboriginal Women: A National Operational Overview- RCMP, dated 2014
Impact Evaluation and Development Report - NONIE
Collected Data on Aboriginal People in the Criminal Justice System- Statistics Canada, May, 2005
Measuring Violence Against Women - Statistics Canada, October, 2006
Criminal Victimization in Canada - Statistics Canada, November 23, 2015
Victimization of Aboriginal People in Canada - Statistics Canada, dated June 28, 2016
The Canadian Police Performance Metrics Framework: Standardized Indicators for Police Services in Canada - Statistics Canada, September 11, 2019
The Canadian Police Performance Metrics Framework: Standardized Indicators for Police Services in Canada - Statistics Canada, September 11, 2019
Affidavit of Cst. Tim Schwartz
Transcript of the Cross Examination of Cst. Tim Schwartz dated February 11, 2020
RCMP Notes
RCMP Sources of Information
Response to Undertakings of Cst. Tim Schwartz
Affidavit of Superintendent Jeanette Theisen, sworn November 28, 2019
Transcript of the Cross Examination of Jeanette Theisen dated February 26, 2020
Missing Persons Policy, January 24, 2019
Operational Manual excerpt (Part 37, Chapter 3), dated November 21, 2016
Response to Undertakings of Supt. Jeanette Theisen
62 Responses to Refused Questions of Supt. Jeanette Theisen
B. Evidentiary Issues
[33] I do not need to determine the weight or credibly of any of the evidence. However, a determination of admissibility is necessary to find whether the reports filed can be used as material facts given the inquiries different evidentiary burdens of the inquiries than at trial. I must also consider how to treat the expert reports and the proposed methodology contained within.
(1) Reports
[34] Many reports from inquiries and commissions were filed, and it would seem are relied on by the Plaintiff as material facts, to base the causes of actions on. The main report relied on is the “Final Report on The National Inquiry into Missing and Murdered Indigenous Women and Girls” [Final Report].
[35] A number of newspaper articles were also filed and relied on. This included, among others, articles about the Prime Minister’s response to the Final Report, as well as the RCMP Commissioner’s comments.
[36] It must be stated that the reports and inquires are all of great importance and they address a real and tragic public concern. That is, however, not the concern that is being addressed here.
[37] The RCMP expressed concerns about these reports being submitted as evidence and thus the basis for the material facts for this motion. Though the RCMP agreed that it was acceptable to admit the reports and inquiries, they added the caveat that they are wholly unreliable and riddled with issues including hearsay and inadmissibility. This was due to the nature of how the information was gathered at the inquiries. Generally, the utility of the reports was questioned given the hearsay (and on occasion triple hearsay) resulting from the nature of the fact gathering at the hearings.
[38] It is acknowledged that the Final Report was created after an inquiry, and an inquiry does not have the same evidentiary tests as a civil case does. The inquiry was a place for women and members of the Indigenous communities to tell their stories without boundaries or evidentiary rules.
[39] It is without question that the information in reports is given without the same evidentiary rules as required by a court. The information from the reports is not taken under oath, can be hearsay, there is no opportunity for cross-examination, and no due process or procedural fairness necessary. The report contains anecdotal and opinion remarks from non-experts. The findings are based on information that would not be evidence at a trial and given without judicial scrutiny regarding possible exceptions to the rules of evidence. This is not surprising given that the reports are not intended for use in courts, but rather for, among other things, healing, reconciliation, and to encourage government action.
[40] On occasion, reports from inquiries have not been admitted into class action proceedings for the differences of evidentiary standards at hearings: Ernewein v General Motors of Canada Ltd, 2005 BCCA 540 (US secretary of Transport Report); Robb Estate v St Joseph’s Health Care Centre, [1998] OJ No 5394, (Ont GD) (Royal Commission of Inquiry into the Blood System-Grace & Krever Reports); LR v British Columbia, 2003 BCSC 234 (Ombudsman and Berger Reports).
[41] This type of evidence being used in certification motions was dealt with in the “Motherisk Drug Testing Laboratory” case by the Ontario Superior Court. Justice Perell in RG v Hospital for Sick Children, 2017 ONSC 6545 [Motherisk ONSC] was appealed to the Ontario Divisional Court, and was affirmed there (RG v Hospital for Sick Children, 2018 ONSC 7058 [Motherisk DC]). That case involved testing mothers’ hair to screen for drugs and alcohol where the positive tests were then used to refer the individual to child protection agencies.
[42] Motherisk ONSC is a helpful review of the dilemma faced by the certification motion judge. In that case, the admissibility of an “Independent Review Report” was at issue. The defendant argued the report ought to be inadmissible evidence for the certification review for various reasons—largely because of the non-adjudicative process, presence of hearsay, and lack of due process protections (Motherisk ONSC, at paras 16-18). The plaintiff in that motion argued that the report ought to be admissible for certification since the motion is procedural and not a determination on the merits (Motherisk ONSC, at para 20). Further, the plaintiff argued that there was no prejudice to the defendant “…from admitting the Independent Review for the limited purposes of establishing some basis in fact for four of the five certification criteria…” (Motherisk ONSC, at para 22). Of note, it was apparently not used for determining if the causes of actions were sufficiently pled in order not to be struck.
[43] Justice Perell allowed the report in for the limited purposes of the certification motion. He did so with much skepticism and criticism of both parties’ use of the report. The report was allowed, not for proof of the merits of the claim or for issue estoppel, but for uncontentious facts, the issues (as they were not hearsay), and recognized exceptions to the hearsay rule such as business records. He concluded that “the fact of the Independent Review having occurred is part of the historical background to Ms. Green’s and the putative class members’ claims and some of the Independent Review is admissible simply for having been said—but not necessarily for the truth of what was said” (Motherisk ONSC, at para 26). Justice Perell went on to say that “the Independent Review is admissible and the use to be made of it will depend on a contextual analysis of the matter in issue in the discussion that follows” (Motherisk ONSC, at para 27).
[44] On appeal of Motherisk ONSC, Justice F L Myers, on upholding Justice Perell’s dismissal of the certification motion commented:
It is apparent that the plaintiff has drawn her allegations of systemic negligence from the independent review report. Ignoring for this motion or appeal any admissibility issue relating to the use of the report at trial, the plaintiff has chosen to approach the case based on the findings in a report that were not intended to be a statement of civil liability. Nor were they intended to state a cause of action (a right to sue) for any individual or group.
(Motherisk DC, at para 22, emphasis added)
[45] Additionally and importantly for this case, Justice de Montigny in Canada v John Doe, 2016 FCA 191 [John Doe] warned about accepting reports and evidence at the cause of action stage as “enough” to support a cause of action. He said: “…to the extent that the motions judge turned his mind to the requirement of pleading material facts in support of each cause of action, he seems to be satisfied with the Privacy Commissioner’s Report and the other evidence filed. This is clearly an error, as he failed to draw a distinction between elements in the pleadings and those that are in evidence on the motion” (John Doe, at para 37, emphasis added). Justice de Montigny goes on to say that:
In my view, the motions judge erred in accepting, without much discussion, that this pleading was sufficient to ground the cause of action. First of all, there is a total lack of any material facts to support this pleading, and that is in and itself a sufficient basis to dismiss that cause of action.
(John Doe, at para 45, emphasis added. See also paras 53,56 and57 for elements of the cause of action set out and then no material facts to support the elements)
[46] The approach taken in the Motherisk decisions and John Doe, is a just approach in respect to allowing the report to be admitted, but not for the truth of the facts or as material facts. The reports and inquiries are admitted, but only to help put the facts pled into context (Johnson v Ontario, 2016 ONSC 5314, at para 67; Ewert v Canada (Attorney General), 2016 BCSC 962, at paras 39-40).
[47] The newspaper articles that were filed concerning statements of the Prime Minister or the RCMP commissioner will likewise be admitted, not for the truth of the statements, but for context. The existence of those articles hint at evidence that could exist to be produced at trial, and I am prepared to admit them for that purpose, which is relevant to the common issues and litigation plan.
(2) Expert Evidence
[48] The Plaintiff proffered an expert report by Dr. Thomas Gabor to suggest a methodology to determine whether “provided sufficient documentation, it would be possible to determine whether the RCMP carried out its duties to the class/victims in a ‘markedly different manner’ than with other citizens.”
[49] The RCMP filed an expert report by Dr. Ronald-Frans Melchers that essentially states the methodology set out by the Plaintiff’s expert would make it impossible to answer the question and then describes what, in his opinion, is a viable methodology.
[50] Both expert reports are not put forward regarding the merits of the causes of action, but regarding the certification requirements.
[51] The parties do agree that on a certification motion, I do not examine the expert reports and make a finding on the merits or on which expert to rely on (Irving Paper Ltd v Atofina Chemicals Inc, 2010 ONSC 2705, at paras 55 and 64). They disagree on whether the Plaintiff’s expert met the legal test on whether there is a viable methodology on a class-wide basis.
[52] The RCMP claim that the reports proposed by the Plaintiff’s expert are not admissible at the common issues trial. The RCMP indicate that the methodology is not demonstrably better than other methods to find missing and murdered Indigenous women and girls already being used. And finally, that the methodology regarding determining the differences in the RCMP’s tactics when dealing with Indigenous versus non-Indigenous persons is not grounded in facts. In contrast, the Plaintiff argues that if I look at which methodology is better, it amounts to the weighing of evidence.
[53] In Pro-Sys Consultants Ltd v Microsoft Corporation, 2013 SCC 57 [Pro-Sys], the Supreme Court of Canada [“SCC”] discussed how a motion judge should treat evidence in a certification motion, and that it should not be subjected to rigorous scrutiny (Pro-Sys, at para 103).
[54] The test at this stage is to only review to see if the methodology set forth by the Plaintiff’s expert is a “credible or plausible methodology” (Pro-Sys Consultants Ltd v Infineon Technologies AG, 2009 BCCA 503, at para 68, leave to appeal to SCC refused, 2010 CanLII 32435 (June 3, 2010)).
[55] To summarize, I do not make the determination of which expert to prefer—a certification court is ill equipped to do assessments of evidentiary weight. As well, I am not to determine how strong the Plaintiff’s expert is, but just to satisfy myself that the methodology has some basis in fact to satisfy the commonality requirement. “The methodology cannot be purely theoretical or hypothetical, but must be grounded in the facts of the particular case in question. There must be some evidence of the availability of the data to which the methodology is to be applied” (Pro-Sys, at para 118). Neither do I weigh the conflicting expert reports at this stage as doing so could only lead to a merit-based evaluation (Tluchak Estate v Bayer Inc, 2018 SKQB 311, at para 60, leave to appeal to SKCA refused, 2019 SKCA 64 (July 25, 2019); leave to appeal to SCC refused, 2020 CanLII 13139 (February 20, 2020)).
[56] The report proffered by the Plaintiff, when subjected to modest scrutiny, does set out a methodology that is not theoretical or hypothetical, and that meets the some basis of fact for the commonality requirement.
VI. The Law of Class Actions
[57] The requirements for an action to be certified as a class action are set out in the Rules at 334.16(1)(a)-(e) (attached in Annex “A”).
[58] Justice Stratas writing for the Federal Court of Appeal [“FCA”] in Wenham v Canada (Attorney General), 2018 FCA 199, at paragraph 17 [Wenham], echoes the Rules, indicating that to be certified as a class proceeding, the Court required these things:
(a) the pleadings disclose a reasonable cause of action;
(b) there is an identifiable class of two or more persons;
(c) the claims of the class members raise common questions of law or fact, whether or not those common questions predominate over questions affecting only individual members;
(d) a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact; and
(e) there is an adequate representative plaintiff or applicant.
[59] These requirements make up the sub-issues in this motion:
1. Is it plain and obvious that there is a cause of action
i. for systemic negligence?
ii. because of a negligent police investigation?
iii. for misfeasance in public office?
iv for a breach of the Charter
a) under s. 7?
b) under s. 15?
v. because of breaches and violations for residents of Quebec:
a) of the CCQ?
b) of the Quebec Charter?
vi. due to breaches of Crimes Against Humanity Act?
2. Is there an identifiable class of two or more persons?
3. Is there a common question of law or fact to be resolved?
4. Is the class proceeding the preferable procedure?
5. Is the representative plaintiff a suitable representative for the class?
[60] The language in the Rules is mandatory so that if the test is met, the Court has no discretion, and must certify (Murphy v Cie Amway Canada, 2015 FC 958, at para 30 and Samson Cree Nation v Samson Cree Nation (Chief and Council), 2008 FC 1308, at paras 34-35, aff’d 2010 FCA 165).
[61] In the Order sought, the Plaintiff reminded the Court that it has “liberal and flexible” remedial options if the criteria are not satisfied. Including that the Court may unconditionally certify, adjourn to permit further evidence or an opportunity to amend, or to certify on conditions that specified changes are made to the class definition, common issues, or litigation plan.
[62] The SCC in Pro-Sys has set tests and the burdens for certification of actions (Pro-Sys, at paras 63 and 99-104). There are two standards for the five certification criteria: one for the cause of action, and another for the four remaining criteria.
[63] To determine if there is a cause of action, I must review each alleged cause of action and determine if it is plain and obvious that it will fail (Hunt v Carey Canada Inc, [1990] 2 SCR 959, at p 980, 74 DLR (4th) 321; R v Imperial Tobacco Canada Ltd, 2011 SCC 42, at paras 23 and 25 [Imperial Tobacco]). The test is the same as whether to strike a pleading or not.
[64] When assessing whether it is plain and obvious that a cause of action will fail, the material facts must be taken to be true and I am not to weigh evidence (John Doe, at para 23; Wenham, at paras 24-25). But, it must not be forgotten that the facts pled are assumed to be true unless the facts are “manifestly incapable of being proven” (Atlantic Lottery Corp Inc v Babstock, 2020 SCC 19, at para 87 [Atlantic Lottery] citing Imperial Tobacco, at para 22).
[65] Chief Justice McLachlin said “[t]his is not a decision on the merits of the action, but on whether the causes of action pleaded are supportable at law. The question is whether the pleadings, assuming the facts pleaded to be true, disclose a supportable cause of action. If it is plain and obvious that the claim cannot succeed, it should be struck out” (Alberta v Elder Advocates of Alberta Society, 2011 SCC 24, at para 4 [Alberta Elders]).
[66] A class action motion for certification has been described as a procedural motion with the court in the role of a gatekeeper. Although this is essentially a procedural screening exercise it must still be meaningful and be more than symbolic scrutiny of the evidence or else it would be a meaningless exercise where all class action motions are granted.
[67] Justice Rothstein emphasised this point:
Nevertheless, it has been well over a decade since Hollick was decided, and it is worth reaffirming the importance of certification as a meaningful screening device. The standard for assessing evidence at certification does not give rise to “a determination of the merits of the proceeding” (CPA, s. 5(7)); 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, at para 103, emphasis added)
[68] In addition, the allegations cannot be baseless: “Bald assertions of conclusions are not allegations of material fact and cannot support a cause of action…” (John Doe, at para 23). The FCA has stated that “[w]hile the facts alleged are assumed to be true, they must still be pleaded in support of each cause of action” (John Doe, at para 23, emphasis added). “As previously mentioned, material facts must be pleaded in support of each cause of action alleged” (John Doe, at para 33; see also Merchant Law Group v Canada (Revenue Agency), 2010 FCA 184, at para 34 [Merchant Law]).
[69] It is not my role to assess challenges the Plaintiff may face at trial or as Justice Stratas said “[w]agering on whether the cause of action will cross the finish line is not part of the court’s task” (Wenham, at para 29).
[70] For the remaining four criteria, the test to be met is whether there is “some basis of fact” to support the certification order (Hollick v Toronto (City), 2001 SCC 68, at para 25).
[71] With these warnings to not evaluate the evidence ringing in my ears, I will begin by examining: whether the Plaintiff has pled material facts—that are not manifestly incapable of being proven or bald assertions incapable of being proven—to support each element of each cause of action, or if is it plain and obvious that the cause of action will fail and should be struck.
VII. Analysis of Causes of Action
A. Systemic Negligence
[72] The first cause of action in the Statement of Claim is systemic negligence. The elements of negligence are: a) existence duty of care; b) breach of that duty; and c) damages flowing from the breach of the duty of care.
[73] To be systemic it must be a widespread harm to a number of individuals: “[the] negligence [is] not specific to any one victim but rather to the class of victims as a group” (Rumley v British Columbia, 2001 SCC 69, at para 34 [Rumley]). The Plaintiff indicates that the individual nature of the wrongs should not be focused on, as significant elements of the wrong can be decided on a class-wide basis and the individualization does not have to be so pervasive that it overwhelms what is plead as a systemic wrong.
[74] The central question is whether the material facts, assuming them true as plead, have the elements necessary for systemic negligence including whether the RCMP have a duty of care to the class members.
[75] The Pleadings for this section are at paragraphs 73b to 78 of the Statement of Claim, with paragraph 73 setting out “The RCMP’s Duties of Care” (attached in Annex “C”).
[76] The Plaintiff claims damages for the “systemic negligence of the RCMP for which the defendant is vicariously liable” and also included damages for the breach of the Charter and aggravated, punitive and exemplary damages.
[77] Further, the Plaintiff suggests that because of the injuries suffered, the Plaintiff and the class have sustained certain special damages, losses and expenses for medical treatment, rehabilitation, psychological counselling, and other care.
[78] She asserted it is systemic because of colonial thinking. The memorandum submits that:
The breaches of the duty for which compensation is sought are not breaches of the duty in individual, specific cases (although they provide the backdrop against which systemic conduct is evaluation), but failures on the part of Canada to implement policies, practices, procedures and protocols that ensure the protection of Victims and, by extension, Class Members. These failures were systemic, occurred over a long period of time, and were the result of a general failure to devise, develop, and implement appropriate policies that would have protected Victims and Class Members (as described above) from the harms which ultimately occurred.
(PMFL, at para 68, referring to the Statement of Claim, at paras 72j, 74b and 75c)
[79] The Plaintiff’s position is that because many other class actions have bee