Canada v. Greenwood

Canada v. Greenwood
Court (s) Database
Federal Court of Appeal Decisions
Date
2021-09-21
Neutral citation
2021 FCA 186
File numbers
A-42-20
Notes
Reported Decision
A correction was made on May 3, 2023
Decision Content
Date: 20210921
Docket: A-42-20
Citation: 2021 FCA 186
CORAM:
WEBB J.A.
NEAR J.A.
GLEASON J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
GEOFFREY GREENWOOD and TODD GRAY
Respondents
Heard by online video conference hosted by the Registry on January 21, 2021.
Judgment delivered at Ottawa, Ontario, on September 21, 2021.
REASONS FOR JUDGMENT BY:
GLEASON J.A.
CONCURRED IN BY:
WEBB J.A. NEAR J.A.
Date: 20210921
Docket: A-42-20
Citation: 2021 FCA 186
CORAM:
WEBB J.A.
NEAR J.A.
GLEASON J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
GEOFFREY GREENWOOD and TODD GRAY
Respondents
REASONS FOR JUDGMENT
GLEASON J.A.
[1] Class proceedings in the Federal Court provide a procedural vehicle to advance or defend similar claims by members of a group. For plaintiffs, pursuit of such claims via a class proceeding, commenced by one or a few representatives on behalf of members of a larger class, is meant to facilitate access to justice, advance judicial economy and encourage defendants and potential defendants to modify behaviours that give rise to liability. In the Federal Court, as elsewhere in Canada, a representative plaintiff who wishes to pursue a class proceeding must have a judge certify (i.e. authorize) the proceeding as a class proceeding before it can proceed.
[2] Certification is a procedural step that does not create substantive rights or give rise to new causes of action. Under the Federal Courts Rules, SOR/98-106 (the Rules), Part 5.1 of which governs class proceedings, certification is available only if the judge hearing the certification motion determines that five criteria are met.
[3] As set out in rule 334.16(1) of the Rules, these criteria are the following in the context of an action that a plaintiff wishes to have certified. First, the pleadings must disclose a reasonable cause of action. Second, there must be an identifiable class of two or more plaintiff members. Third, the claims of the class members must raise common questions of law or fact, whether or not such questions predominate over questions affecting only individual members. Fourth, the class proceeding must be the preferable procedure for the just and efficient resolution of such common questions of fact or law. Finally, the representative plaintiff must meet the criteria set out in paragraph 334.16(1)(e) of the Rules. Those applicable to the representative plaintiffs relevant in the case at bar are that they: (i) would fairly and adequately represent the interests of the class; (ii) have prepared a litigation plan that sets out a workable method of advancing the proceeding; and (iii) do not have, in respect of the common issues, an interest that is in conflict with the interests of other class members.
[4] In an Order issued January 23, 2020 and amended on consent on April 21, 2020, reasons for which are reported as Greenwood v. Canada, 2020 FC 119, the Federal Court (per McDonald, J.) certified a class proceeding on behalf of a class consisting of, at a minimum, over two hundred thousand potential members. The class includes, with certain exceptions, virtually everyone who has ever worked for or with the Royal Canadian Mounted Police (the RCMP) or at RCMP premises, regardless of whether they were Members or employees of the RCMP or employed in the public service and assigned to work with the RCMP.
[5] In their underlying action, the representative plaintiffs seek, on their own behalf and on behalf of class members, damages for non-sexual bullying, intimidation and harassment, which they allege is systemic in RCMP workplaces, and for related reprisals they say have been suffered by those who have raised complaints. They further request damages for the consequential loss of care, companionship and guidance suffered by the families of class members under the Ontario Family Law Act, R.S.O. 1990, c. F.3 or comparable legislation in other provinces.
[6] Under the amended certification order, the class certified by the Federal Court more specifically includes:
2. […]
All persons who worked with or for the RCMP being all current or former:
(a) RCMP Members: including all Regular Members, Civilian Members, Special Constable, Special Constable Members, Supernumerary Special Constables, Reservists, and Recruits;
(b) Public Services Employees (“PSEs”) who are not able to grieve under s. 208 of the Federal Public Sector Labour Relations Act, S.C. 2003, c. 22, s. 2 (“FPSLRA”);
(c) Others who work within RCMP workplaces: including but not limited to: temporary civilian employees, community constables, auxiliary constables, cadets, pre-cadets, students, independent and subcontractor employees (including Commissionaires, custodial worker, guards/matrons, individuals employed through temporary agencies, and interns – e.g. Youth Internship Program), other government employees (including municipal, regional or similar levels of government employees and seconded officers and employees, including Interchange Canada participants) who are not entitled to grieve under s. 208 of FPSLRA, volunteers, and non-profit organization employees; individuals working or attending courses on RCMP premises; and other individuals who worked with or for the RCMP and who have a Human Resources Management Information Services (“HRMIS”) identification.
2.1 This Class Proceeding excludes claims that are covered under Merlo v Her Majesty the Queen, Federal Court File No. T-1685-16, Ross et al v Her Majesty the Queen, Federal Court File No. T-370-17, Gaétan Delisle et al c Sa Majesté La Reine Québec Superior Court No. 500-06-000820-163, and Tiller v Her Majesty the Queen, Federal Court File No. T-1673-17.
[7] The class proceedings mentioned in paragraph 2.1 of the amended certification order comprise, generally speaking, previously certified class proceedings in which damages were sought for some of those who would otherwise come within the class certified by the Federal Court in the case at bar. In those previously certified proceedings, damages were claimed in respect of: (i) sexual discrimination, bullying and harassment experienced by females; (ii) sexual orientation-based discrimination, bullying and harassment; and (iii) in the province of Quebec, discrimination, harassment or abuse of authority by reason of grounds other than sex or sexual orientation, including by reason of linguistic profile or desire to form a trade union.
[8] The common questions certified by the Federal Court were:
Negligence
1) Did the RCMP, through its agents, servants and employees owe a duty of care to the plaintiffs and other Primary Class Members to take reasonable steps in the operation or management of the Force to provide them with a work environment free from bullying, intimidation and harassment?
2) If yes, was there a breach of this duty by the RCMP through its agents, servants and employees?
3) If yes, was the Crown vicariously liable for the failure of its agents, servants and employees at the RCMP, to take reasonable steps in the operation and management of the Force to provide a work environment free from bullying, intimidation and harassment?
Damages
4) Can the Court make an aggregate assessment of any damages as part of the common issues trial? If so, to whom? In what amount?
5) Does the conduct justify an award of aggravated, exemplary and/or punitive damages?
[9] In this appeal, the appellant, Her Majesty the Queen (whom for ease of reference I call, simply, the Crown) alleges that the Federal Court erred in certifying this class and in its application of each of the criteria for certification. The Crown in addition submits that the Federal Court made several other reviewable errors. It seeks to have this Court overturn the Federal Court’s certification order, arguing that claims of the sort advanced by the representative plaintiffs cannot be pursued by way of class proceeding.
[10] For the reasons more fully detailed below, I disagree. It is my view that, with two exceptions, the Federal Court did not commit a reviewable error. The first exception concerns the scope of the class certified, which is overly-broad. The second concerns the fourth question certified by the Federal Court, which is not an appropriate common question in the circumstances of this case.
[11] I would accordingly grant this appeal in part to amend the class definition and common questions certified by the Federal Court.
[12] In terms of the class definition, I would narrow it to include only RCMP Members (i.e. Regular Members, Special Constable Members and Civilian Members) and Reservists. I would also temporally limit the class by establishing a class period that commences on January 1, 1995 and ends, for each category of class member, on the date a collective agreement comes or came into force for the bargaining unit to which such class members belong. I would further amend the certification order to delete the fourth question certified as a common question.
I. Background
[13] It is useful to commence with a review of the claims made in the statement of claim and of the pertinent evidence that was before the Federal Court on the motion for certification. I note, parenthetically that, as is often the case in class proceedings, the Crown elected to refrain from filing a defence prior to the disposition of the certification motion.
A. The Statement of Claim
[14] In their statement of claim, the two representative plaintiffs, who are full-time Regular Members of the RCMP, claim on their own behalf and on behalf of class members:
• a declaration that the Crown was negligent in failing to provide them and other class members with a workplace that is free from bullying and harassment;
• a declaration that that the Crown failed to fulfil and/or breached its common law, contractual and statutory duties to provide them and other class members with a workplace free from bullying and harassment;
• general damages in the amount of $1,000,000,000.00 plus damages equal to the cost of administering the plan of distribution of the recovery in the action;
• damages for loss of income, including for loss of promotional opportunities, early retirements and losses to pension;
• special damages in an amount to be determined for medical expenses and other out-of-pocket expenses incurred by class members;
• exemplary and punitive damages in the amount of $100,000,000.00;
• damages under the Family Law Act, R.S.O. 1990, c. F-3 (FLA) and comparable legislation in other provinces in the amount of $30,000,000.00;
• an order directing a reference or providing other directions to determine issues not settled at the common issues trial; and
• interest and costs.
[15] They describe the nature of their claims in paragraphs 2 to 9 of the statement of claim. Because the scope of a claim is directly tied to the common questions and the scope of the class that may be certified in respect of them, it is useful to reproduce these paragraphs in full. They provide:
THE NATURE OF THIS ACTION
2. This action concerns the systemic bullying, intimidation and harassment of individuals who worked for the Royal Canadian Mounted Police ("RCMP") and/or with the RCMP.
3. For decades, the RCMP leadership fostered and condoned a culture of bullying and intimidation and general harassment within the Force, creating a toxic workplace. The harassment of the RCMP Members was bolstered by statutory and institutional barriers that prevented RMCP Members from engaging in collective bargaining and/or obtaining other meaningful redress for their grievances.
4. These barriers, codified in the Royal Canadian Mounted Police Regulations, amplified a stark power imbalance which was exacerbated by the paramilitary structure of the RCMP, and had the effect of silencing RCMP Members who fell victim to bullying and intimidation and harassment, as their sole recourse was through the chain of command who were often protective of the very individuals who had inflicted and perpetuated the bullying, intimidation, and harassment.
5. This cultivated the existence of a toxic work environment characterized by abuse of power and fear of reprisal. In this environment, the plaintiffs allege that they and the other Class Members […] experienced pervasive bullying, intimidation and harassment which was either inflicted, condoned, or tolerated by the RCMP, through its agents, servants and employees. Any efforts by the plaintiffs and other Class Members to report, speak out, complain or pursue internal grievances respecting harassment were diminished, ignored, dismissed, and/or mischaracterized, including as interpersonal conflict.
6. Complaints of any kind were treated as an affront to the chain of command in the paramilitary structure of the RCMP, leading to direct and indirect retaliatory conduct against the plaintiffs and other Class Members, including but not limited to unjustifiable and improper use of the following: loss of promotional opportunities, negative performance evaluations, involuntary transfers, denial of leave, social isolation, and assignment of menial tasks below the Class Member's capabilities in order to demean the Class Member.
7. In allowing this culture to manifest and permeate the organization from its highest levels, the RCMP, through its agents, servants and employees, failed to fulfill its statutory, contractual, and common law duties to provide the plaintiffs and the other Class Members with a work environment free of bullying, intimidation and harassment.
8. As a result of the bullying, intimidation and harassment in the RCMP, the plaintiffs and other Class Members have suffered significant career limitations, as well as serious physical and psychological damages, along with out-of-pocket expenses and loss of income.
9. While the RCMP has admitted a toxic "culture of harassment" and provided redress to members who experienced gender based harassment (Merlo and Davidson v. Her Majesty the Queen, Federal Court Action No. T-1685-16 ("Merlo Davidson") and LGBT members (Ross, Roy and Satalic v. Her Majesty the Queen, Federal Court Action No. T-370-17 [Ross, Roy and Satalic], it has not provided redress to the majority of the members of the Force who are not part of these actions. The scope of this claim excludes gender-based harassment and discrimination matters covered under Merlo Davidson and Ross, Roy and Satalic.
[16] In the balance of the statement of claim, the representative plaintiffs set out their own experiences of suffering bullying, intimidation, harassment and reprisals. They further detail the negative impact they claim this had on their careers, health and family members. They also provide some generalized assertions regarding the alleged systemic nature of bullying, intimidation and harassment in the RCMP, which they claim was condoned by RCMP leadership and fostered by the paramilitary structure of the RCMP and by statutory and institutional barriers that, until 2017, prevented RCMP Members from unionizing and engaging in collective bargaining. They further allege that the remedies available to at least some class members to raise harassment complaints were ineffective. They plead on the latter point in paragraph 26 of the statement of claim that “although an independent agency was created for the adjudication of civilian complaints, no independent adjudicative body exists for RCMP Member grievances”. They also plead what they allege were admissions by RCMP leadership and findings of several official inquires as to the existence of systemic bullying, intimidation and harassment in the RCMP and the lack of effective remedy to redress these problems.
[17] Of particular relevance to this appeal are the particulars of systemic negligence. In paragraph 110 of their statement of claim, the representative plaintiffs allege the RCMP owed class members the following duties:
110. Specifically, the RCMP, through its agents, servants and employees, had a duty of care to:
a) use reasonable care to ensure the safety and well-being of the plaintiffs and the other Class Members;
b) provide safe workplace environments free from bullying, intimidation, and harassment;
c) provide equal employment training and advancement opportunities to the plaintiffs and the other Class Members;
d) establish and enforce appropriate policies, codes, guidelines, and procedures to ensure that the plaintiffs and the other Class Members would be free from bullying, intimidation, and harassment;
e) implement standards of conduct for the RCMP work environment and for RCMP Employees, to safeguard the plaintiffs and the other Class Members from bullying, intimidation, and harassment;
f) educate and train RCMP Employees to promote a universal understanding amongst all RCMP Employees that bullying, intimidation, and harassment are dangerous and harmful and will not be tolerated;
g) properly supervise the conduct of RCMP Employees so as to prevent the plaintiffs and the other Class Members from being and/or being exposed to bullying, intimidation, and harassment;
h) investigate and adjudicate complaints of bullying, intimidation, and harassment fairly and with due diligence and make efforts to prevent retaliation;
i) act in a timely fashion to resolve situations of bullying, intimidation, and harassment, and to work to prevent re-occurrence; and,
j) ensure that the plaintiffs and the other Class Members would not suffer from reprisals or retaliation by RCMP Employees for reporting or objecting to incidents of bullying, intimidation, harassment and other misconduct.
B. The Evidence before the Federal Court
[18] The representative plaintiffs each filed an affidavit and also filed an affidavit from an associate lawyer at the law firm acting for them that attached various reports and other documents. The Crown filed affidavits from Civilian Members of the RCMP with responsibility for human resources and labour relations matters, from a Regular Member of the RCMP with responsibility for overseeing programs related to harassment, and from a disability benefits specialist at Veterans Affairs. All affiants were cross-examined.
[19] No evidence was filed regarding the conduct of an aggregate damages assessment and no suggestion was made in the proposed litigation plan to provide any meaningful detail regarding how such assessment could be undertaken.
[20] Because of the nature and number of arguments raised by the Crown in this appeal, it is necessary to review the evidence that was before the Federal Court in some detail.
(1) The Class
[21] The RCMP is a “police force for Canada”, to quote section 3 of its constituent statute, the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 (the RCMP Act). It operates across the country and is divided into 15 separate Divisions, based on provincial and territorial boundaries. Many Divisions are further sub-divided into Districts. In each District (or Division, where there are no District subdivisions), there are a number of Detachments, where various categories of personnel work. According to one of the Crown’s affiants, the RCMP is the most decentralized department of the federal government, with over 700 service points located across the country.
[22] The RCMP is also unique among agencies and departments of the federal government in that it engages a wide variety of personnel, many of whom have different legal status vis-à-vis the Crown. Depending on the date and the provisions of the Act then in force, such personnel include or have included: Regular Members, Civilian Members, Special Constable Members, Auxiliary Constables, Reservists, Supernumerary Special Constables, public service employees, temporary civilian employees, recruits and cadets, volunteers, employees of municipalities or subcontractors and independent contractors. Individuals from all of these categories were included by the Federal Court in the class it certified.
(a) RCMP Members [23] Turning first to RCMP Members, they are comprised of Regular Members, Civilian Members and Special Constable Members. They are all appointed pursuant to the RCMP Act.
[24] Regular Members are appointed to a rank and are responsible to carry out the RCMP’s policing functions. The ranks range from Governor-in-Council appointees at the top end, through various levels of commissioned and non-commissioned officers to Constable, at the lower end. According to the RCMP’s Human Resources Management System (HRMS), its computerized records containing data on some of those who worked for the RCMP or at RCMP premises, up to the date materials were sworn for filing with the Federal Court, there have been 42,528 Regular Members of the RCMP.
[25] RCMP Members and Reservists were excluded from collective bargaining until 2017. Non-managerial RCMP Members and Reservists were afforded the right to engage in collective bargaining in 2017 via amendments to what is now called the Federal Public Sector Labour Relations Act, S.C. 2003, c. 22, s. 2 (the FPSLRA). The amendments were enacted in response to the 2015 decision of the Supreme Court of Canada in Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3, which held that the exclusion of RCMP Members from collective bargaining violated the freedom of association guaranteed to them by the Canadian Charter of Rights and Freedoms.
[26] However, under these amendments, non-managerial RCMP Members and Reservists, unlike members of the public service, are only entitled to file and submit to independent third party adjudication grievances alleging a breach of their collective agreements (FPSLRA, ss. 238.24-238.25). RCMP Members and Reservists thus cannot access third party adjudication under the FPSLRA for the broader range of employer actions that are open to being grieved and adjudicated by public servants under the FPSLRA.
[27] Public servants to whom Part II of the FPSLRA applies can grieve a wide range of employer decisions and a narrower range of decisions may be referred to adjudication. For non-managerial public servants, adjudicable decisions are those resulting in certain types of discipline, certain types of demotions, deployments or terminations, decisions alleging breach of provisions in the Accessible Canada Act, S.C. 2019, c. 10 and claims of breach of the collective agreement by the employer (FPSLRA, ss. 209-209.1).
[28] That said, it is my view that non-managerial RCMP Members and Reservists would be able to access adjudication before the Federal Public Sector Labour Relations and Employment Board (the FPSLREB) for grievances related to bullying, harassment or intimidation if prohibitions against the same were included in a collective agreement applicable to them. While the FPSLRA limits the matters that may be included in a collective agreement applicable to RCMP Members and Reservists, in my view, such limitation would not prohibit inclusion of provisions in a collective agreement dealing with harassment, bullying and intimidation, although this issue falls within the exclusive jurisdiction of the FPSLREB to determine. It is, however, necessary for this Court to consider this issue in the context of the present appeal as the Crown has asserted that the availability of collective bargaining means that the Federal Court erred in certifying a class proceeding in the instant case.
[29] Section 238.19 of the FPSLRA, applicable to RCMP Members and Reservists, provides:
238.19 A collective agreement that applies to the bargaining unit determined under section 238.14 must not, directly or indirectly, alter or eliminate any existing term or condition of employment or establish any new term or condition of employment if
238.19 La convention collective qui régit l’unité de négociation définie à l’article 238.14 ne peut pas avoir pour effet direct ou indirect de modifier, de supprimer ou d’établir une condition d’emploi :
(a) doing so would require the enactment or amendment of any legislation by Parliament, except for the purpose of appropriating money required for the implementation of the term or condition; or
a) soit de manière à nécessiter l’adoption ou la modification d’une loi fédérale, exception faite des lois affectant les crédits nécessaires à son application;
(b) the term or condition is one that has been or may be established under the Royal Canadian Mounted Police Superannuation Act, the Royal Canadian Mounted Police Pension Continuation Act, the Public Service Employment Act, the Public Service Superannuation Act or the Government Employees Compensation Act.
b) soit qui a été ou pourrait être établie sous le régime de la Loi sur la pension de retraite de la Gendarmerie royale du Canada, de la Loi sur la continuation des pensions de la Gendarmerie royale du Canada, de la Loi sur l’emploi dans la fonction publique, de la Loi sur la pension de la fonction publique ou de la Loi sur l’indemnisation des agents de l’État.
[30] While the RCMP Commissioner is provided authority under paragraph 20.2(1)(l) of the RCMP Act to establish procedures to resolve and investigate harassment of RCMP Members, subsection 31(1.1) of the RCMP Act excludes from the internal RCMP grievance procedures those grievances that allege a breach of a collective agreement. Section 31 of the RCMP Act provides in relevant part as follows:
31 (1) Subject to subsections (1.01) to (3), if a member is aggrieved by a decision, act or omission in the administration of the affairs of the Force in respect of which no other process for redress is provided by this Act, the regulations or the Commissioner’s standing orders, the member is entitled to present the grievance in writing at each of the levels, up to and including the final level, in the grievance process provided for by this Part.
31 (1) Sous réserve des paragraphes (1.01) à (3), le membre à qui une décision, un acte ou une omission liés à la gestion des affaires de la Gendarmerie causent un préjudice peut présenter son grief par écrit à chacun des niveaux que prévoit la procédure applicable aux griefs prévue par la présente partie dans le cas où la présente loi, ses règlements ou les consignes du commissaire ne prévoient aucune autre procédure pour réparer ce préjudice.
(1.01) A grievance that relates to the interpretation or application, in respect of a member, of a provision of a collective agreement or arbitral award must be presented under the Federal Public Sector Labour Relations Act.
(1.01) Tout grief qui porte sur l’interprétation ou l’application à l’égard d’un membre de toute disposition d’une convention collective ou d’une décision arbitrale doit être présenté sous le régime de la Loi sur les relations de travail dans le secteur public fédéral.
(1.1) A member is not entitled to present a grievance in respect of which an administrative procedure for redress is provided under any other Act of Parliament, other than one provided for in the Canadian Human Rights Act.
(1.1) Le membre ne peut présenter de grief si un recours administratif de réparation lui est ouvert sous le régime d’une autre loi fédérale, à l’exception d’un recours administratif prévu par la Loi canadienne sur les droits de la personne.
(1.2) Despite subsection (1.1), a member is not entitled to present a grievance in respect of the right to equal pay for work of equal value.
(1.2) Malgré le paragraphe (1.1), le membre ne peut présenter de grief relativement au droit à la parité salariale pour l’exécution de fonctions équivalentes.
(1.3) A member is not entitled to present a grievance relating to any action taken under any instruction, direction or regulation given or made by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.
(1.3) Le membre ne peut présenter de grief portant sur une mesure prise en vertu d’une instruction, d’une directive ou d’un règlement établis par le gouvernement du Canada, ou au nom de celui-ci, dans l’intérêt de la sécurité du pays ou de tout État allié ou associé au Canada.
(1.4) For the purposes of subsection (1.3), an order made by the Governor in Council is conclusive proof of the matters stated in the order in relation to the giving or making of an instruction, direction or regulation by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.
(1.4) Pour l’application du paragraphe (1.3), tout décret du gouverneur en conseil constitue une preuve concluante de ce qui y est énoncé au sujet des instructions, directives ou règlements établis par le gouvernement du Canada, ou au nom de celui-ci, dans l’intérêt de la sécurité du pays ou de tout État allié ou associé au Canada
[31] In my view, the combined effect of the foregoing provisions allows for the inclusion in a collective agreement applicable to RCMP Members provisions dealing with workplace harassment, bullying and intimidation. And, were such a provision included in a collective agreement applicable to RCMP Members, an alleged breach of the provision could be referred to the FPSLREB for adjudication.
[32] On July 12, 2019, the FPSLREB certified the National Police Federation as bargaining agent on behalf of a national bargaining unit comprised of all Reservists and RCMP Members, excluding Civilian Members and those of the rank of Inspector or above, who were deemed to be managerial (National Police Federation v. Treasury Board, 2019 FPSLREB 74). Encompassed in the bargaining unit therefore are the following categories of individuals: Regular and Special Constable Members, below the rank of Inspector, and Reservists.
[33] As of the date this appeal was argued, a collective agreement had not yet been finalized by the parties in respect of this bargaining unit, but a posting on the website of the Minister of Public Safety and Emergency Preparedness indicates that an agreement in principle has recently been reached, which is out for ratification (https://www.canada.ca/en/public-safety-canada/news/2021/06/government-of-canada-reaches-first-collective-agreement-for-rcmp-members-and-reservists.html).
[34] In 1988, amendments to the Royal Canadian Mounted Police Regulations, SOR/88-361, as repealed and replaced by SOR/2014-281, s. 58, introduced the rank of Special Constable Member. Special Constable Members are engaged to perform specific functions (such as escorting prisoners or guarding certain sites, like embassies or the Prime Minister’s residence) as opposed to performing the full range of police duties. HRMS indicates that, as of the date materials were sworn for filing with the Federal Court, there have been 1,646 Special Constable Members of the RCMP. They were previously excluded from collective bargaining, but, as noted, since July 2019 have been included within the national bargaining unit of RCMP Members certified by the FPSLREB.
[35] The RCMP engages Reservists to temporarily fill Regular Member vacancies for periods of up to three years. Only former RCMP Regular Members or police officers from provincial or municipal police forces are eligible to be Reservists. As noted, Reservists are included in the same national bargaining unit as Regular and Special Constable Members that was certified by the FPSLREB in July 2019. HRMS indicates that, as of the date materials were sworn for filing with the Federal Court, there have been 612 Reservists.
[36] Civilian Members of the RCMP are appointed to their positions under the RCMP Act, but are appointed to a position as opposed to a rank. They provide support for RCMP operations through operational, scientific and other technical expertise. HRMS indicates that, as of the date materials were sworn for filing with the Federal Court, there have been 7,902 Civilian Members of the RCMP. They were likewise previously excluded from collective bargaining, but were afforded the right to engage in collective bargaining under the same 2017 amendments to the FPSLRA that extended the right to unionize to RCMP Regular Members, Special Constable Members and Reservists.
[37] The Public Service Alliance of Canada (the Alliance) was certified by the FPSLREB on November 26, 2020 for 14 occupational groups of Civilian RCMP Members: Public Service Alliance of Canada v. Treasury Board, 2020 FPSLREB 105, Public Service Alliance of Canada v. Treasury Board, 2020 FPSLREB 106, Public Service Alliance of Canada v. Treasury Board, 2020 FPSLREB 107, Public Service Alliance of Canada v. Treasury Board, 2020 FPSLREB 108, Public Service Alliance of Canada v. Treasury Board, 2020 FPSLREB 109. Each group has been included within the larger bargaining units represented by the Alliance for such groups within the federal public service. RCMP Civilian Members are subject to the same collective agreements that apply to the federal public service in these bargaining units. It is impossible to ascertain from the materials that were before the Federal Court or that are in the reported case law of the FPSLREB whether the foregoing certification orders encompass all groups of non-managerial Civilian Members of the RCMP.
(b) Civilian employees [38] Turning now to the non-RCMP Members of the class certified by the Federal Court, the RCMP Act authorizes the Commissioner of the RCMP to employ civilian employees necessary for carrying out the functions and duties of the RCMP. Pursuant to section 10 of the RCMP Act, such employees are, and for some time have been, appointed under the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13. Since 1994, these employees have included indeterminate public service employees (i.e. those occupying permanent positions), term employees, casual employees, seasonal employees and students. The majority of these employees are included within federal public service bargaining units.
[39] Under the amendments made on consent to the Federal Court’s certification order in the instant case, public service employees who have the right to file grievances under section 208 of the FPSLRA are excluded from the class. Under the FPSLRA, those who cannot file such grievances (and who accordingly come within the scope of the class certified by the Federal Court in the case at bar) are those who do not meet the definition of “employee” in section 206 of that Act. These include those regularly working less than one-third the normal hours of work (typically, those working less than 12.5 hours per week), those employed on a casual basis, those employed for terms of less than three months and students (FPSLRA, paras. 206(1)(c), (e), (f) and (h).)
[40] There is no indication from the materials that were before the Federal Court whether the RCMP employed anyone who regularly worked less than one-third the normal hours per week.
[41] Temporary civilian employees were utilized by the RCMP to perform specific functions for a specific period of time. Effective November 28, 2014, the RCMP was no longer entitled to employ temporary civilian employees. Instead, since then, it has engaged casual or term employees to fill its short-term needs.
[42] The HRMS data is less complete for civilian employees than it is for RCMP Members. It indicates that, as of the date materials were sworn for filing with the Federal Court, there have been the following individuals who were engaged by the RCMP, some of whom would come within the scope of the amended class: 4,130 casual employees; 179 term employees employed for less than three months; prior to 1994, 2,533 temporary civilian employees working on an as and when required basis; prior to 2014, 1,867 other temporary civilian employees; 60 seasonal employees; and 1,374 students.
(c) Non-employees [43] Coming within the scope of the class certified by the Federal Court are also the following categories of individuals, none of whom were, or are, employed by the RCMP or in the federal public service: independent contractors; employees of subcontractors, such as employees of the Corps of Commissionaires, who perform security functions in some detachments; employees of municipalities, who are seconded to work in some RCMP detachments; volunteers and employees of non-profit organizations, who might provide services like victim counselling, crime watch or neighbourhood watch services; Auxiliary Constables; Supernumerary Special Constables; and cadets. The class also included recruits, a category that was abolished in 1994.
[44] The final four categories require some explanation. Auxiliary Constables, utilized only in some provinces, are volunteers, who may participate in activities such as safety education, crime prevention or assisting RCMP members at major events, with activities like traffic control or general duty patrol.
[45] Supernumerary Special Constables are typically members of municipal police forces outside their home jurisdictions or of foreign security services and are designated as Supernumerary Special Constables to acquire the ability to exercise the authority of a peace officer on a temporary basis while working on policing matters with RCMP Members. The RCMP Commissioner has authority to designate individuals as Supernumerary Special Constables for a period not exceeding twelve months. Supernumerary Special Constables remain employed by their home organizations during the period of the designation.
[46] Before 1994, recruits were RCMP Members and were trained at an RCMP training facility and then gradually assumed the duties expected of RCMP Regular Members. In 1994, the Cadet Training Program, a new form of induction into the RCMP, was established. Cadets are trained at a centralized training facility in Regina, Saskatchewan and are students as opposed to employees. Upon successful completion of their courses and passing applicable security and reliability screening criteria, they may be offered a position as a Regular Member, in which case they will undergo further training and be subject to probation for two years.
[47] Some of the foregoing categories of personnel employed by other organizations include individuals who are unionized and subject to collective agreements between their own bargaining agents and employers, as would be the case, for example, with many municipal employees and many members of municipal police forces.
[48] HRMS indicates that, between 1998 and the date materials were sworn for filing with the Federal Court, there have been in excess of 167,000 individuals who would fall within the class certified by the Federal Court who had no employment relationship with the RCMP. Given the unlimited class period established by the Federal Court, it is to be anticipated that there would likely be several hundreds of thousands more who would come within the scope of the certified class as part of these non-employee groups.
(2) Evidence Before the Federal Court Regarding Instances of Harassment, Intimidation and Bullying in RCMP Workplaces
[49] I turn next to detail the relevant evidence before the Federal Court regarding the alleged systemic non-sexual harassment, bullying and intimidation in RCMP workplaces.
[50] The two representative plaintiffs detail in their affidavits their own experiences with bullying, harassment and intimidation and provide their impressions of the general work climate prevalent within the RCMP. As noted, both are Regular Members of the RCMP.
[51] Mr. Greenwood relayed that he experienced harassment and incidents of retaliation when he raised concerns over potential corruption within the RCMP, while working in Yellowknife between 2005 and 2010. As a result of what he alleges were retaliatory and unfounded Code of Conduct complaints launched against him in response to his reports of corruption, he says he was ineligible for promotion and blocked from obtaining other positions. He file