A certification motion was recently argued before the Ontario Superior Court in a proposed class action levied against the Waterloo Regional Police Services Board (the “Board”) and the Waterloo Regional Police Association (the “Association”). The plaintiffs, current and former female officers with the Waterloo Regional Police Service (the “Service”), had launched the proposed class action against both their employer and their union alleging systemic gender-based discrimination, Charter breaches, and sexual harassment by male members of the Service, over a 30 year period. The proposed class action also sought to include claims under the Family Law Act, brought by the male spouses of the female officers.

Previously, the defendants had raised a preliminary issue as to whether the Superior Court had jurisdiction over such a claim. At the previous hearing, the presiding Judge had held that the jurisdiction issue ought to be heard concurrently with the certification motion, as there was a significant overlap in the facts that would be relevant to the jurisdiction and certification motions.

Court does not have Jurisdiction

The Court was satisfied that all putative class members were or are employees of the Board, and that therefore their employment was governed by the collective bargaining agreements (the “Agreements”) in place at the time of their employment. The Agreements contained procedures that were to be followed should an employee wish to file a grievance, which would include complaints relating to the core issues in the proposed class action. Such procedures provide for binding arbitration, which is codified under the Police Services Act (“PSA”). Further, any decision rendered by an arbitrator is open to judicial review by the Divisional Court.

The Court also considered the role of the Human Rights Tribunal of Ontario (“HRTO”), and noted that any class member alleging workplace discrimination or harassment were entitled to file a complaint with the HRTO. In fact, one of the representative plaintiffs had a complaint pending before the HRTO based upon allegations similar to those advanced in the proposed class action.

In arriving at the conclusion that the Court did not have jurisdiction to hear the proposed class action, the presiding Judge relied upon well-established case law to write a concise summary of the legal principles at issue. The Court held that where the “essential character of the dispute” arises within the employment context and falls within the four corners of any Agreements, then the Court must defer to the arbitration process established within the collective bargaining agreement and legislation.

The Court also stated that “conveniency is not a determining factor”, and the result of having multiple proceedings is not enough to confer jurisdiction on the Courts. Seemingly, this would suggest that an argument relying on judicial economy is not enough to combat the ample case law stating that the Courts do not have jurisdiction in this context.

The Court also recognized that a recent class action was initiated (and resolved) against the RCMP relating to similar allegations of systemic sexual discrimination by female officers (see Merlo & Davidson v. Her Majesty the Queen).  However, the Court differentiated that action from the case at the bar on the basis that the putative class in Merlo were employees who did not fall under the legislative framework and collective agreements that require labour disputes to be overseen by an arbitrator.

No Viable Cause of Action

Although the determination that the Court did not have jurisdiction of the matter effectively terminated the action, at the insistence of plaintiffs’ counsel (and over the objection of defence counsel), the Court decided to also rule on the certification motion.

Pursuant to the Class Proceedings Act, 1992 (the “CPA”), a plaintiff must satisfy each of the five requirements under section 5 in order for their claim to be certified as a class action. Although the defendants opposed certification on the basis that none of the five requirements had been met, the thrust of their arguments were in relation to section 5(1)(a) of the CPA, suggesting that the pleadings failed to disclose a cause of action.

The Court found that at its core, the allegations contained within the Statement of Claim “relate to gender-based discrimination and sexual harassment in the workplace”. The issue then became whether such a claim forms the basis for a cause of action. In coming to its determination on this issue, the Court reiterated that the threshold to prove the existence of a cause of action is low, and assuming the facts as plead to be true, a claim will only be defeated at the certification stage if it is plain and obvious that it cannot succeed.

As the Court had found that the action at its core was founded on allegations of discrimination, the Court relied on the prohibition contained within the Human Rights Code (the “Code”) against actions based solely on the infringement of an employee’s right to freedom from discrimination. In other words, a breach of the Code cannot constitute a viable cause of action. As such, the Court found that the action failed under section 5(1)(a) of the CPA, and therefore it did not need to address the remaining requirements under that section.

This decision is a cautionary tale to those wishing to commence a class action in which the allegations are confined to the dispute resolution procedures contained with collective bargaining agreements and supporting legislation. Furthermore, the guiding principles of judicial economy and access to justice will not sway a Court to confer jurisdiction upon itself when other mandatory mechanisms are available to the putative class and are a preferable procedure to the pursuit of a class action.

Author

Jonathan Thoburn 
JThoburn@blg.com
416.367.6435

Expertise

Class Actions
Litigation and Arbitration
Municipal Liability