Hudson v. Canada

Hudson v. Canada
Court (s) Database
Federal Court Decisions
Date
2022-05-11
Neutral citation
2022 FC 694
File numbers
T-1523-19
Decision Content
Date: 20220511
Docket: T-1523-19
Citation: 2022 FC 694
Ottawa, Ontario, May 11, 2022
PRESENT: The Honourable Mr. Justice Fothergill
BETWEEN:
SHARLENE HUDSON AND
BRINDA WILSON-DEMUTH
Plaintiffs
and
HER MAJESTY THE QUEEN
Defendant
JUDGMENT AND REASONS
Table of Contents
I. Overview 3
II. Background 5
A. Facts Relied upon by the Plaintiffs 5
B. Facts Relied upon by the Defendant 11
C. Unionization of CSC Employees 15
III. Internal Grievance and Complaint Procedures 16
A. CSC Grievance Process 17
B. Treasury Board Policies 19
C. Canadian Human Rights Act 20
D. Canada Labour Code 21
E. Government Employees Compensation Act 22
F. Public Servants Disclosure Protection Act 22
G. Informal Recourse 23
IV. Issues 23
V. Motion for Certification 23
A. Reasonable Causes of Action 25
(1) Federal Public Sector Labour Relations Act, s 236 26
(2) Negligence 38
(3) Canadian Charter of Rights and Freedoms, ss 7 and 15 42
B. Identifiable Class 44
C. Common Questions 50
D. Preferable Procedure 57
E. Representative Plaintiffs 63
F. Precedential Effect of Prior Settlements 65
VI. Motion to Strike 67
VII. Conclusion 67
I. Overview
[1] The Plaintiff, Sharlene Hudson, was employed by the Correctional Service of Canada [CSC] as a correctional officer from 1986 until 2012, when she took medical leave. She retired from CSC in 2017. According to the Amended Statement of Claim, throughout her employment with CSC, Ms. Hudson was subjected to gender-based harassment, discrimination, and sexual assault by several of her male colleagues and superiors.
[2] The Plaintiff, Brinda Wilson-Demuth, was employed by CSC from 1992 until 2018. She initially worked as a psychologist in Prince Albert, Saskatchewan and Kitchener, Ontario. She was then appointed an Assistant Warden in Prince Albert, Saskatchewan and Bath, Ontario, and subsequently a Warden at the Grand Valley Institution in Kitchener. In 2007, Ms. Wilson-Demuth was posted to Ottawa as Director General, Women Offender Sector, and held this post until 2012. She became Director of Departmental Security in 2016 and Director General of Security the following year. She left CSC in March 2018.
[3] According to the Amended Statement of Claim, throughout her career with CSC, Ms. Wilson-Demuth was subjected to gender-based harassment and discrimination by male colleagues and superiors, and she experienced adverse differential treatment by her male colleagues.
[4] The Plaintiffs allege that CSC, through its operations and management, encouraged and condoned sexualized harassment, sexualized discrimination, sexual assault, and sexual violence against female employees in the workplace. The Plaintiffs also allege that CSC failed to provide a reasonable avenue of redress for women who experienced this misconduct.
[5] The Plaintiffs assert that CSC implemented a flawed complaints procedure in which female employees were required to report misconduct to the perpetrators themselves, or to friends or colleagues of the perpetrators. They say that CSC encouraged and condoned retaliation against female employees who reported misconduct, and the impugned acts and omissions of the Defendant are pervasive and institutional in nature.
[6] The Plaintiffs ask this Court to certify this proceeding as a class action on behalf of the following classes:
Class Members: All female current and former employees of the Correctional Service of Canada.
Secondary Class Members: All persons who have a derivative claim, in accordance with applicable family law legislation, arising from a family relationship with a Class Member.
[7] The Defendant opposes certification of the proposed class action. The Defendant says this Court is without jurisdiction to adjudicate the Plaintiffs’ claims; the Amended Statement of Claim fails to disclose reasonable causes of action; the proposed classes cannot be identified or are overly broad; there are no common issues of fact or law; and a class action is not the preferable procedure for resolving the Plaintiffs’ claims.
[8] In addition to opposing certification of this proposed class proceeding, the Defendant has brought a motion pursuant to Rule 221(1)(a) of the Federal Courts Rules, SOR/98-106 [Rules] to strike the Amended Statement of Claim in its entirety, without leave to amend, on the ground that it fails to disclose any reasonable causes of action.
[9] For the reasons that follow, the Plaintiffs have not established that this Court has jurisdiction to determine the claims advanced in the Amended Statement of Claim. For similar reasons, they have not satisfied the requirement in Rule 334.16(1)(d) that a class proceeding be the preferable procedure for resolving their complaints. The motion for certification must therefore be refused.
[10] Given the Court’s lack of jurisdiction, the Amended Statement of Claim must be struck in its entirety without leave to amend.
II. Background
A. Facts Relied upon by the Plaintiffs
[11] According to the Plaintiffs, CSC’s toxic workplace is aptly described in an organizational assessment of the maximum security Edmonton Institution commissioned in March 2017:
You may recall the 1988 movie version of “The Blob”. “The Blob” starts out as a small gelatinous substance of unknown origins. It first swallows a drifter walking down the road and gets bigger. Then it slithers on into the town and swallows increasingly more people and becomes more dangerous and toxic as it grows. As it grows, it becomes more impossible to fight. Many of the people who become part of it are good people but helpless against its power. Many feel they can’t fight it alone and have just given up. Some are still on the outside but the stress of trying to remain outside the Blob’s power is wearing them down. Some grow weary and are also eventually consumed by it. […]
As with most Hollywood movies, in the end the monster is defeated. In real life, the only way things can change is if resources are provided, people step up and new patterns emerge.
[12] The Plaintiffs allege that CSC’s toxic workplace culture has been known for years, yet CSC has failed to address the issues or take meaningful steps to eliminate them.
[13] The 2012-2013 Annual Report of the Correctional Investigator noted that 31.8% of CSC employees who participated in a 2012 survey said they had been harassed in the workplace during the previous year, most commonly by their immediate supervisors or colleagues in the same work unit. The Plaintiffs note that these are the same people to whom CSC employees would be expected to present their grievances and complaints. Survey results also indicated that female CSC employees were more likely than their male colleagues to experience harassment in the CSC workplace.
[14] The 2017-2018 Annual Report of the Correctional Investigator identified the need for organizational change within CSC, and stated: “staff practices that undermine or degrade human dignity – sexual harassment, bullying, discrimination – can lead to a toxic work culture. A workplace that runs on fear, reprisal and intimidation is highly dysfunctional; it is the antithesis of modeling appropriate offender behaviour.”
[15] A report published by the Auditor General of Canada in 2019 reached the following conclusion:
Overall, we found that the Canada Border Services Agency’s and Correctional Service Canada’s approaches to dealing with harassment, discrimination, and violence in the workplace did not do enough to promote and maintain respectful workplaces. The organizations knew that these problems were present in the workplace, yet neither organization had developed a comprehensive strategy to address them, including a way to measure and report on their progress toward reducing harassment, discrimination, and workplace violence. We surveyed employees in both organizations and found that they had serious or significant concerns about organizational culture, and that they feared reprisal if they made complaints of harassment, discrimination, or workplace violence against fellow employees or supervisors. They also had serious or significant concerns about a lack of civility and respect in their workplaces.
[16] The March 2017 organizational assessment of Edmonton Institution described its workplace as a “toxic environment that runs on fear, intimidation, and bullying [that] can only be described as a culture of fear, mistrust, intimidation, disorganization, and inconsistency. Rarely is anyone held accountable for their actions”.
[17] After Ms. Hudson reported to a supervisor that she was being subjected to persistent sexualized harassment, discrimination, and abuse in the CSC workplace, she found a dead mouse in her mailbox. She understood this to mean that that she was perceived as a “rat” for reporting misconduct. She did not report any further incidents of harassment or abuse to CSC management.
[18] Ms. Wilson-Demuth says that her complaints about sexualized harassment and discrimination in the CSC workplace were routinely dismissed by senior officials, some of whom were themselves perpetrators of the misconduct. Ms. Wilson-Demuth was once advised by a Commissioner of CSC that, as a woman at CSC, she was “expected to put up with a fair amount of abuse”.
[19] Both Ms. Hudson and Ms. Wilson-Demuth say they have suffered severe consequences as a result of the adverse treatment they experienced in the course of their employment at CSC, ranging from depression and anxiety to post-traumatic stress disorder. Counsel for the Plaintiffs report that they have been contacted by women from across Canada who say they were subjected to gender-based harassment, discrimination, sexual assault, and sexual violence in the CSC workplace.
[20] The Plaintiffs’ motion record contains affidavits from 10 current and former CSC employees whose testimony is intended to illustrate the systemic nature of CSC’s operational failures and its “paramilitaristic culture of misogyny”. The affidavits also describe the harm caused by CSC’s conduct, and the inability of class members to obtain effective redress for the alleged misconduct.
[21] The Plaintiffs have adduced two expert reports. The first is authored by Dr. Jennifer Berdahl, Professor of Sociology at the University of British Columbia and faculty affiliate of VMware Women’s Leadership Innovation Lab at Stanford University. The second is authored by Dr. Angela Workman-Stark, Associate Professor of Human Resource Management and Organizational Behaviour, and Associate Dean, Operations and Innovation, in the Faculty of Business at Athabasca University.
[22] According to Dr. Berdahl, women in traditionally male-dominated organizations:
[…] often suffer from harassment and discrimination at the hands of other members, who are in the majority and usually more powerful and better connected. […] Thus, male-dominated professional societies and unions may fail to investigate gender-based harassment and discrimination and not protect women that try to file a complaint from retaliation.
[23] Dr. Angela Workman-Stark has observed similar dynamics in other traditionally male-dominated workplaces, such as the Royal Canadian Mounted Police [RCMP], the Calgary Police Service, and the Canadian Armed Forces. In her opinion, hostility towards women appears to be more prevalent in military and paramilitary working environments, including corrections. A common theme is a “cult or masculinity” that dismisses “feminine” characteristics as indicative of weakness in these “hypermasculine” environments.
[24] The Plaintiffs say that the evidence they have adduced in support of the motion for certification establishes the following:
(a) the internal grievance and complaint process at CSC is “corrupt”, and complaints are routinely dismissed or rejected without due process or are withdrawn by the complainant or are still pending years later;
(b) in 2018, despite the fact that thousands of CSC employees reported being the victim of harassment and discrimination within the last 12 months in the Public Service Labour Relations Survey, the total number of grievances brought by female CSC employees in 2018 was only 56 – and of those, only 3 were upheld – and Canada’s director of labour relations for CSC had no explanation for why so few grievances had been upheld;
(c) in 2019, despite the fact that thousands of CSC employees reported being the victim of harassment and discrimination within the last 12 months in the Public Service Labour Relations Survey, the total number of grievances brought by female CSC employees in 2019 was only 36 – and of those 36, none were upheld;
(d) the fear of retaliatory abuse is “deeply engrained in the culture of CSC”, and many female CSC employees are afraid to file a grievance for fear of repercussions, including further gender-based harassment, discrimination, or sexual assault;
(e) in 2018 and 2019, about half of employees at CSC reported having been the victim of harassment in the prior 12 months but not filing a grievance or formal complaint because they were afraid of reprisal – and Canada’s director of labour relations for CSC admitted that this is a cause of concern and that there needs to be “safe spaces for people to come forward” so the allegations “can be properly looked into and addressed”;
(f) in 2018 and 2019, 64% and 63% (respectively) of CSC employees did not file a grievance for the harassment that they endured because they did not think it would make a difference;
(g) there are no practical forms of redress for female CSC employees – for example, looking at CSC’s internal procedure for investigation and resolution of harassment complaints – including sexual harassment – between 2013 to 2021, less than ten percent of female CSC employees who brought complaints under the Treasury Board’s harassment policy had their complaints upheld;
(h) the issues raised in this proceeding are national in scope and endemic of CSC as an organization;
(i) CSC employees and managers condone a workplace culture that encourages the degradation and sexualization of female CSC employees;
(j) the culture of CSC is dominated by an “oath of silence” that discourages the reporting of incidents of discrimination, harassment, and assault;
(k) there has been a lack of confidentiality in the chain of command that, combined with a failure to take allegations of sexual harassment and assault seriously, has led to the ostracization of those who complained;
(l) the President of the Union of Canadian Correctional Officers at the Nova Institution for Women has deposed that “a lack of faith in the grievance process is a reason why many female CSC workers do not file grievances after being subjected to gender-based harassment or discrimination in the workplace”, and many complaints are determined to be “unfounded”;
(m) a Class Member did not report her personal experiences of gender-based harassment or discrimination, or those she witnessed, because she felt that no one in CSC management would support her if she reported this conduct, and she feared that she would experience retaliation as a consequence of reporting it; and
(n) a CSC workplace report indicated that employees feel management uses investigations against them for “punitive” reasons and to create a “witch hunt” to blame employees.
B. Facts Relied upon by the Defendant
[25] The Defendant disputes Dr. Berdahl’s and Dr. Workman-Stark’s depiction of CSC as a male-dominated and homogenous workplace. Both historically and presently, women outnumber men at CSC. Workplace environments and cultures vary widely depending on the office, institution or facility, and none may be fairly described as “paramilitaristic”. According to the Defendant, CSC is a vast organization consisting of many different workplaces. CSC employs a total of 20,604 people who perform a wide range of functions across the country.
[26] CSC operates under three levels of management: National Headquarters [NHQ], Regional Headquarters [RHQ], and institutional/district parole offices. NHQ is located in Ottawa and is responsible for overall planning, policy development and administration for the organization. NHQ comprises twelve sectors, each with its own senior executive management and specific sphere of responsibility.
[27] An RHQ is located in a city in each of the five regions (Atlantic, Quebec, Ontario, Prairie and Pacific). The regions are further divided along provincial lines. RHQs are responsible for overseeing the operations of correctional institutions and the supervision of offenders in their respective regions. Each RHQ has a Regional Deputy Commissioner responsible for the management of CSC operations, implementation of correctional policy, and the provision of advice on criminal justice matters within their region.
[28] CSC manages 43 institutions, 14 community correctional centres and 92 parole offices across Canada. These include men’s institutions, women’s institutions, Indigenous healing lodges, community correctional centres, and regional treatment centres. Institutions are further categorized based on type (maximum, medium or minimum security, multi-level and clustered), and vary in size, infrastructure, control measures, offender population and culture.
[29] A broad spectrum of work is carried out through institutions and facilities by various employees, including, inter alia: correctional officers; primary workers; parole officers; health professionals; correctional program officers; Indigenous correctional program officers; Inuit correctional program officers; social program officers; education and training staff; tradespeople; and office support staff. Other institutional staff include those who work in management services, finance, sentence management, chaplaincy, electronics, infomatics and laundry services.
[30] A significant organizational change took place at CSC between 1995 and 2004, with the opening of six separate women’s institutions. Before 1995, there was only one women’s institution in Canada. Now there are women’s institutions in each region.
[31] CSC maintains a database of current and former employees that includes all indeterminate, term, casual and student employees who have worked at CSC at any time since 1998. As of May 12, 2021, this included 55,905 individuals, 29,222 (or approximately 52%) of whom were identified as female. In addition, female staff outnumber male staff in several employment groups, including the largest employment group, which is approximately 74% female.
[32] On average, approximately 76% of the staff at the six women’s institutions operated by CSC are identified in the database as female. Women are employed at all levels of the institutions.
[33] None of the RHQs are located in or connected to penitentiaries. With very limited exceptions, NHQ and RHQ staff do not attend institutions as part of their regular work, and inmates do not attend NHQ or RHQ. At NHQ and RHQ, staff work in office buildings in an environment that is similar to other federal government departments. They do not wear uniforms and they are not directly responsible for the security of the premises. Many NHQ and RHQ staff have worked from home during the COVID-19 pandemic.
[34] The Defendant says that the nature of the institution, facility or office plays an important role in determining the work environment and culture. The environment in maximum security institutions is centered on security, as inmate behaviour is most heavily restricted in these locations. In minimum security institutions, the environment is less structured, and inmates have more freedom of movement and responsibilities for daily living activities. There are no armed correctional officers inside minimum security institutions.
[35] There is also wide variability among multi-level institutions, for example:
(a) Women’s institutions accommodate pregnant women and children under five years of age. They have playgrounds and child-friendly quarters, and minimum and medium security inmates live in housing units with communal living areas, where they are responsible for fulfilling their daily needs.
(b) Indigenous healing lodges are managed in collaboration with Indigenous communities, and aim to address inmates’ needs through ceremonies, contact with elders and interaction with nature.
(c) Regional treatment centres are a hybrid between penitentiaries and psychiatric treatment centres, as they admit individuals who are not able to receive care in mainstream institutions due to mental or physically disabilities.
[36] Community Correctional Centres [CCCs] and parole offices are community-based facilities. CCCs are apartment-style “halfway houses” that are home to offenders on various forms of release. There are no correctional officers at CCCs. If safety concerns arise, CCC staff rely on commissionaires on site or local police. Offenders attend parole offices to meet with their parole officers.
C. Unionization of CSC Employees
[37] With limited exceptions, CSC employees are appointed to their positions pursuant to s 29 of the Public Service Employment Act, SC 2003, c 22. Appointments may be made on an indeterminate, term, casual, seasonal, or part-time basis. Ms. Hudson and Ms. Wilson-Demuth were both appointed to their positions on an indeterminate basis.
[38] Free collective bargaining has been available to members of the federal public service since the enactment of the Public Service Staff Relations Act, RSC, 1985, c P-35 in 1967. The vast majority of CSC employees are unionized.
[39] Depending on their job classification, CSC employees are represented by one of six bargaining agents: the Union of Canadian Correctional Officers; the Public Service Alliance of Canada; the Professional Institute of the Public Service of Canada; the Canadian Association of Professional Employees; the Association of Canadian Financial Officers; or the International Brotherhood of Electrical Workers. Each bargaining unit is subject to its own collective agreement that is renegotiated periodically by the bargaining agent and the Treasury Board Secretariat on behalf of the Treasury Board [TB].
[40] Some employees are excluded or otherwise unrepresented by a bargaining agent. Three occupational groups are unrepresented in the core public administration: the Executive [EX] and Law Management [LC] groups, which represent the executive cadre, and the Personnel and Administration Group [PE], which comprises positions that provide advice on human resources management. A number of positions are also excluded from unionization if they are considered managerial or confidential. Positions can only be excluded from a bargaining unit on this ground by order of the Federal Public Sector Labour Relations and Employment Board [Board] based on criteria defined by the Federal Public Sector Labour Relations Act, SC 2003, c 22, s 2 [FPSLRA].
[41] There are currently approximately 10,430 women employed by CSC, representing 51.1% of its workforce. Approximately 9,504 (or 91.1%) of female employees at CSC are represented by a bargaining agent. The 926 employees (or 8.9%) who are not represented comprise excluded employees, casual employees, students, and term employees who have been employed for less than three months.
III. Internal Grievance and Complaint Procedures
[42] The Defendant has identified the following internal grievance and complaint procedures available to women employed by CSC:
A. CSC Grievance Process
[43] Grievance and harassment complaints are usually initiated at the local level, by an employee bringing a grievance or complaint to their immediate supervisor or manager. The right to file a grievance is extended to both unionized and non-unionized employees. Former employees may grieve any issue that arose during the course of their employment.
[44] There are three types of grievances under the FPSLRA: individual, policy and group. An individual grievance may be brought by any employee who is aggrieved by: (a) the interpretation or application to them of a provision of a statute, regulation, or direction that deals with terms and conditions of employment, a provision of a collective agreement, or an arbitral award; or (b) any occurrence or matter affecting the employee’s terms and conditions of employment. A group grievance may be brought by a bargaining agent on behalf of a group of employees who feel commonly aggrieved by the interpretation or application of a provision of a collective agreement or arbitral award. A policy grievance may be brought by a bargaining agent in respect of the interpretation or application of a collective agreement or arbitral award as it relates to the bargaining unit.
[45] The scope of matters that may be grieved is very broad, and includes grievances related to gender-based workplace harassment and discrimination. While collective agreements that cover CSC employees contain provisions prohibiting gender-based discrimination and harassment, these are grievable issues whether or not there is an applicable provision of a collective agreement or arbitral award.
[46] Individual grievances brought by CSC employees and/or their bargaining agents are addressed internally through a process set out in collective agreements. There are three levels of review and decision, culminating with the Assistant Commissioner, Human Resources Management. If at any point the person designated to hear a grievance is the subject of the complaint, that level of the process is bypassed.
[47] If a grievance is not resolved to an employee’s satisfaction, the final decision can be judicially reviewed or referred to the Board for independent adjudication, assuming the Board has jurisdiction over the matter. Pursuant to s 209(1) of the FPSLRA, the Board’s jurisdiction over an individual grievance includes matters involving the interpretation or application of a collective agreement or an arbitral award. Unionized employees within CSC may, with the approval of their bargaining agent, refer to the Board grievances citing their collective agreement’s prohibitions on discrimination or sexual harassment. Non-unionized employees may challenge final level decisions of non-adjudicable grievances by judicial review in this Court.
[48] The scope of remedies available through the grievance process is broad. At the first three levels, decision-makers have wide discretion to provide redress for discrimination or harassment. Among other things, they may interpret and apply the Canadian Charter of Rights and Freedoms, award damages, and/or refer a matter for disciplinary investigation.
[49] If the Board determines that a grievance is founded, it has the power to make any order it considers appropriate in the circumstances. This includes awarding compensation for losses suffered (including damages for lost career opportunities), rescindment of a disciplinary action, and/or other monetary compensation (including interest in cases involving termination, demotion, suspension or financial penalty). The Board also has the power to apply and grant relief in accordance with the Canadian Human Rights Act, RSC, 1985, c H-6, and any other Act of Parliament relating to employment matters.
[50] Pursuant to s 186(2)(a)(iii) of the FPSLRA, it an unfair labour practice for the employer and managers to retaliate against any employee for exercising the right to file a grievance.
B. Treasury Board Policies
[51] Between October 1, 2012 and December 31, 2020, the relevant TB policy was the Policy on Harassment Prevention and Resolution. This policy and the associated Directive set out a general framework for the investigation and resolution of workplace harassment complaints. They apply across the entire core public administration.
[52] In accordance with the TB Guide on Applying the Harassment and Resolution Process, CSC has implemented internal procedures for the investigation and resolution of workplace harassment complaints by CSC employees. Between 2013 and 2021, 1,382 harassment complaints were brought by CSC employees, including approximately 703 complaints by women.
[53] As of January 1, 2021, the investigation and resolution of harassment complaints is guided by regulation under the Canada Labour Code, RSC, 1985, c L-2.
C. Canadian Human Rights Act
[54] The Canadian Human Rights Act [CHRA] prohibits discrimination and harassment in employment on the basis of sex, gender identity or expression. Any individual or group at CSC who alleges that CSC has engaged in a discriminatory practice may file a complaint to the Canadian Human Rights Commission [Commission] pursuant to the CHRA.
[55] The Commission is the screening body for the Canadian Human Rights Tribunal [Tribunal]. The Commission may assign an independent investigator to conduct an investigation into the complaint and prepare a report on whether the complaint should be referred to the Tribunal. The Commission also provides mediation services with the consent of both parties, and may appoint a conciliator with a view to settling the complaint. If separate complaints raise substantially similar issues of fact and law, the Commission may deal with those complaints together.
[56] If settlement of a human rights complaint is not possible, the Commission may refer the matter to the Tribunal. The Commission may decide to participate in the proceedings before the Tribunal, and may adduce evidence and make submissions in the public interest. If the Tribunal determines that a complaint is founded, it may grant individual remedies, including reinstatement, monetary relief and/or systemic remedies. A complainant who is not satisfied with the Commission’s handling of a complaint, or with the Tribunal’s disposition, may bring an application for judicial review in this Court.
[57] Between 2015, when CSC began collecting national data on human rights complaints, and May 25, 2021, there have been a total of 260 complaints to the Commission brought by CSC employees, 54% of which were brought by female employees. There have been 78 complaints alleging discrimination on the basis of sex, 90% of which were brought by women.
D. Canada Labour Code
[58] Prior to the coming into force of the Work Place Harassment and Violence Prevention Regulations, SOR/2020-130 [WPHVPR] on January 1, 2021, the Canada Occupational Health and Safety Regulations, SOR/86-304 required all employers to develop a policy for preventing and addressing workplace violence. As of January 1, 2021, the Canada Labour Code provides CSC employees with recourse for gender-based workplace harassment and violence under the WPHVPR.
[59] To give effect to the requirements of the WPHVPR, CSC has issued a Policy on Harassment and Violence Prevention in the Work Place. Between January 1, 2021 and April 30, 2021, there were 78 notices of occurrences submitted by CSC employees.
[60] Under s 128 of the Canada Labour Code, employees can refuse work if there is reasonable cause to believe they face danger in the workplace. The Code also prohibits an employer from retaliating against employees who have provided information and/or testified in respect of conditions of work affecting them or other employees.
E. Government Employees Compensation Act
[61] Subject to review and approval by a provincial worker’s compensation board, any person paid a direct wage or salary on behalf of Her Majesty the Queen in right of Canada may be entitled to compensation for workplace injuries, including injuries arising from workplace harassment and discrimination under the Government Employees Compensation Act, RSC, 1985, c G-5 [GECA]. All CSC employees, including students and casual employees, are eligible for benefits under the GECA for workplace injuries, including injuries to mental health.
F. Public Servants Disclosure Protection Act
[62] Complaints of harassment that constitute a serious breach of a TB policy or CSC code of conduct may be made to an employee’s supervisor, a designated senior officer and/or the Public Service Integrity Commissioner [PSIC] pursuant to the Public Servants Disclosure Protection Act, SC 2005, c 46 [PSDPA]. Where the disclosure is made to a supervisor or a designated senior officer, and if wrongdoing is found, the PSIC must publish any recommendations and corrective action, or explain why no corrective action was taken.
[63] The PSIC may investigate any disclosure to determine if wrongdoing has occurred, and report findings and make recommendations for corrective action to the department’s chief executive. If wrongdoing is found, the PSIC provides a report to Parliament, including the PSIC’s opinion as to whether the chief executive’s response to the recommendations is satisfactory. The PSDPA also permits complaints for alleged reprisals.
[64] The PSIC has conducted two investigations in respect of harassing behaviour by CSC employees. In response to the PSIC’s recommendations, CSC adopted further measures, including additional training and awareness sessions, developing a workplace wellness action plan in collaboration with bargaining agents, and convening disciplinary hearings against the managers involved.
G. Informal Recourse
[65] In addition to the formal recourse mechanisms described above, CSC employees may informally report issues of workplace harassment and/or discrimination through CSC’s tip line and informal conflict management via the Office of Conflict Management.
IV. Issues
[66] The issues raised by these motions are whether this proceeding should be certified as a class action, and whether the Amended Statement of Claim should be struck without leave to amend.
V. Motion for Certification
[67] The test for certification of a proposed class action is found in Rule 334.16(1):
334.16(1) Subject to subsection (3), a judge shall, by order, certify a proceeding as a class proceeding if
(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 a representative plaintiff or applicant who
i. would fairly and adequately represent the interests of the class,
ii. has prepared a plan for the proceeding that sets out a workable method of advancing the proceedings on behalf of the class and of notifying class members as to how the proceeding is progressing,
iii. does not have, on the common questions of law or fact, an interest that is in conflict with the interests of other class members, and
iv. provides a summary of any agreements respecting fees and disbursements between the representative plaintiff of application and the solicitor of record.
334.16(1) Sous réserve du paragraphe (3), le juge autorise une instance comme recours collectif si les conditions suivantes sont réunies:
(a) les actes de procédure révèlent une cause d’action valable;
(b) il existe un groupe identifiable formé d’au moins deux personnes;
(c) les réclamations des membres du groupe soulèvent des points de droit ou de fait communs, que ceux-ci prédominent ou non sur ceux qui ne concernent qu’un membre;
(d) le recours collectif est le meilleur moyen de régler, de façon juste et efficace, les points de droit ou de fait communs;
(e) il existe un représentant demandeur qui:
i. représenterait de façon équitable et adéquate les intérêts du groupe,
ii. a élaboré un plan qui propose une méthode efficace pour poursuivre l’instance au nom du groupe et tenir les membres du groupe informés de son déroulement,
iii. n’a pas de conflit d’intérêts avec d’autres membres du groupe en ce qui concerne les points de droit ou de fait communs,
iv. communique un sommaire des conventions relatives aux honoraires et débours qui sont intervenues entre lui et l’avocat inscrit au dossier.
A. Reasonable Causes of Action
[68] It is fundamental to the trial process that a plaintiff plead material facts in sufficient detail to support the claim and the relief sought (Mancuso v Canada (National Health and Welfare), 2015 FCA 227 [Mancuso] at para 16. Pleadings play an important role in providing notice and defining the issues to be tried. The Court and opposing parties cannot be left to speculate as to how the facts might be variously arranged to support various causes of action. If the Court were to allow parties to plead bald allegations of fact, or mere conclusory statements of law, the pleadings would fail to perform their role in identifying the issues (Mancuso at paras 16-17).
[69] A plaintiff must plead, in summary form but with sufficient detail, the constituent elements of each cause of action or legal ground raised. The pleading must tell the defendant who, when, where, how and what gave rise to its liability. Plaintiffs cannot file inadequate pleadings and rely on a defendant to request particulars, nor can they supplement insufficient pleadings to make them sufficient through particulars (Mancuso at paras 19-20).
[70] The normal rules of pleading apply with equal force to a proposed class action. The Court must view the pleading as it has been drafted, not as it might be drafted. The launching of a proposed class action is a matter of great seriousness, potentially affecting many class members’ rights and the liabilities and interests of defendants. Complying with the Rules is not trifling or optional; it is mandatory and essential (Merchant Law Group v Canada Revenue Agency, 2010 FCA 184 at para 40).
(1) Federal Public Sector Labour Relations Act, s 236
[71] The Plaintiffs acknowledge that CSC is part of the “core public administration” within the meaning of the FPSLRA, and its employees are subject to s 236. This provision reads as follows:
No Right of Action
Disputes relating to employment
236 (1) The right of an employee to seek redress by way of grievance for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute.
Application
(2) Subsection (1) applies whether or not the employee avails himself or herself of the right to present a grievance in any particular case and whether or not the grievance could be referred to adjudication.
[…]
Absence de droit d’action
Différend lié à l’emploi
236 (1) Le droit de recours du fonctionnaire par voie de grief relativement à tout différend lié à ses conditions d’emploi remplace ses droits d’action en justice relativement aux faits — actions ou omissions — à l’origine du différend.
Application
(2) Le paragraphe (1) s’applique que le fonctionnaire se prévale ou non de son droit de présenter un grief et qu’il soit possible ou non de soumettre le grief à l’arbitrage.
[…]
[72] The right to grieve is available to employees as defined in s 206(1) of the FPSLRA. Both unionized and non-unionized employees may file a grievance. The Defendant says that the Plaintiffs’ right to grieve encompasses the allegations contained in the Amended Statement of Claim, because they concern their “terms and conditions of employment”, as that expression is used in s 208 of the FPSLRA:
Right of employee
208 (1) Subject to subsections (2) to (7), an employee is entitled to present an individual grievance if he or she feels aggrieved (a) by the interpretation or application, in respect of the employee, of
(i) a provision of a statute or regulation, or of a direction or other instrument made or issued by the employer, that deals with terms and conditions of employment, or
(ii) a provision of a collective agreement or an arbitral award; or
(b) as a result of any occurrence or matter affecting his or her terms and conditions of employment.
Droit du fonctionnaire
208 (1) Sous