Plaintiffs need to show
systemic harassment in
lawsuit against RCMP
CHRISTOPHER GULY
A proposed class action lawsuit filed in British Columbia
accusing the RCMP of gender-based discrimination of its female
members faces significant challenges in obtaining certification,
suggest lawyers in the field.
The RCMP is alleged not to
have had adequate legislation or
policies to prevent “gender-based
discrimination and harassment,”
states the claim filed in B.C.
Supreme Court on March 27, with
Janet Merlo as the representative
plaintiff. The Attorney General of
Canada and the Minister of Justice of British Columbia are
named as defendants.
“It is likely that a court will
certify, if the plaintiffs show a
basis in fact that the RCMP had a
policy in place which resulted in
Lascaris
Kalajdzic
ADRIAN WYLD / THE CANADIAN PRESS
RCMP Commissioner Robert Paulson has vowed to review harassment claims.
or permitted this type of misconduct and/or that the misconduct
was systemic so that it permeated
the organization and resulted in
damage to members of the class,”
said Dimitri Lascaris, a partner in
the class actions department at
Siskinds LLP in London, Ont.
However, Lascaris added that
the onus will be on the plaintiffs
to adduce evidence that either
there was an absence of an effective policy or that the policy was
deficient in some material respect
in order to support the argument
that the class members’ claims
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give rise to common issues.
“The defendants undoubtedly
are going to take the position that
there are no common issues,” he
says. “Even if there was harass-
ment, they will argue that the
circumstances of each victim
were materially different and you
couldn’t begin to resolve their
claims without looking at the
individual circumstances of each
member of the class.”
The 18-page claim details
“persistent and ongoing gender-
based discrimination and harass-
ment,” including sexual innuendo
and pranks by male RCMP mem-
bers against Merlo during her 19
years serving as a constable in
Nanaimo, B.C.
Focusing on her story could
create a problem in counterbalancing the allegations of systemic negligence by the RCMP,
according to class action lawyer
Randy Sutton.
“On a certification motion,
B.C. courts tend to avoid reviewing
the merits of claims being
advanced. Therefore, the court
will not adjudicate the specific
allegations in this claim on the
certification application. But the
fact that the allegations are
specific to an individual may
undermine the commonality
requirements for certification,”
said Sutton, a partner with Norton Rose in Toronto.
In seeking unspecified general,
special, exemplary and punitive
damages, the claim alleges that
men and women were treated dif-
ferently within the Nanaimo
detachment, and that male
RCMP members “knew or ought
to have known that their conduct
would harm, offend, demean,
belittle, humiliate, embarrass,
petrify, terrify, intimidate and/or
threaten another person or per-
sons in the workplace.”
University of Windsor law pro-
fessor Jasminka Kalajdzic said
the federal and B.C. governments
could also argue there are other
avenues of redress, such as filing
complaints under the Human
Rights Act or through the RCMP’s
internal grievance process.
However, if the plaintiffs suc-
cessfully establish there was sys-
temic negligence in the way the
RCMP workplace was managed,
“they have a good chance” at cer-
tifying the case as a class action,
said Kalajdzic, a former civil liti-
gator whose current research
focuses, in part, on class actions.
