In Greenwood v. Canada, 2024 FC 1327, released on Sept. 5, Justice Ann Marie McDonald held that the statement of claim and affidavit evidence from the plaintiffs regarding the impact on their families satisfied the “some basis in fact” test to establish a family class.
In 2018, the plaintiffs Geoffrey Greenwood and Todd Gray initiated a class action against the RCMP alleging that it fostered and condoned a culture of bullying, intimidation and general harassment for decades and created a toxic workplace characterized by abuse of power and fear of reprisal.
In Greenwood v Canada, 2020 FC 119, the Federal Court certified the action as a class action on behalf of regular members, special constables members, reservists and others who worked with the RCMP.
Canada appealed the decision and the Federal Court of Appeal curtailed the class definition to only include RCMP members and reservists in Canada v. Greenwood, 2021 FCA 186.
In a separate decision, the Federal Court of Appeal remitted the issue of the inclusion of a family class to the Federal Court to determine if there was “some basis in fact” in the evidentiary record to support its inclusion as part of the class definition.
Canada argued that the evidence submitted by the plaintiffs did not satisfy the “some basis in fact” test to establish the family class as “an identifiable class of two or more persons.”
Canada also argued that affidavit evidence from the representative plaintiffs was not admissible to support the “some basis in fact” criteria on the family class because the statements made by Greenwood and Gray about their spouses and/or children were hearsay.
Justice McDonald cited Jensen v. Samsung Electronics Co., 2023 FCA 89, in which the Federal Court of Appeal held that the “some basis in fact” test has two components. First, the putative class members must have a claim or at least minimal evidence supporting the existence of a claim. Second, there must be some evidence that the common issue is necessary for resolving each class member’s claim.
The court noted that the statement of claim pleaded that the Greenwoods had been forced to undergo counselling to save their marriage as a result of bullying, intimidation and harassment by the RCMP and that their children suffered the loss of his guidance, care and companionship.
The statement of claim alleged that the abuse Gray suffered also led to his spouse and children suffering the loss of his guidance, care and companionship. Gray further alleged that his wife, who was employed as a matron to guard cells at an RCMP detachment, was prevented from continuing work when she was visibly pregnant, even though others were permitted to continue working in similar circumstances.
“As such, I find that the pleadings provide ‘some basis in fact’ that there are common issues among the family class members and that deciding these common issues is necessary for the resolution of each family class member’s claim,” wrote Justice McDonald.
She noted that the content of the pleadings was sufficient to establish “some basis in fact” to include the family class as an identifiable class.
The court also rejected the Crown’s argument that the representative plaintiffs’ affidavit evidence about their spouses and/or children was hearsay because it was not being relied upon to prove the truth of its contents and as the Crown had the opportunity to cross-examine the declarants.
“In my view, the statements of Mr. Gray and Mr. Greenwood, as husbands and fathers, is evidence about their personal observations of their immediate family members … [T]hey are recounting their own firsthand experiences and observations of the circumstances of their family. I do not regard such evidence as hearsay evidence,” the judge wrote.
She further noted that even if the affidavits could be characterized as hearsay, she was satisfied that the statements were reliable and that there was no suggestion that there was an attempt to shield family members from providing evidence.
Canada also argued that uncertainty over “equivalent or comparable legislation in other provinces and territories” made the family class unworkable.
The plaintiffs sought certification of the family class as individuals who are entitled to assert a claim pursuant to the Family Law Act, and equivalent or comparable legislation in other provinces and territories.
Canada argued that the eligibility of family class membership would vary significantly across the provinces and territories based on the individual’s relation to the primary class member, and the nature of harm suffered by the primary class member.
The Crown noted that only Ontario and Alberta recognize a cause of action for injury to a family member, while family class members from other jurisdictions would be restricted to claims relating to the death of a family member under fatal accidents legislation.
The court noted that while there may be differences in entitlements among family class members, this was not a disqualifying criterion for certification.
“In my view, the family class is identifiable as it is dependent on the existence of a primary class member. This provides sufficient notice to a potential class member that they may have a right to advance a claim. At this stage, it is the existence of the class, rather than the viability of their claims, that must be determined,” the judge wrote.
The court granted the plaintiffs’ motion and certified the family class.
The motion judge applied established case law to conclude that the class is properly certifiable, that there are no workability issues and that the family law class should be properly certified, said Megan McPhee of Kim Spencer McPhee Barristers P.C., counsel for the plaintiffs.
“We’re happy to see this issue finally resolved. It’s an issue that has been considered several times now by both the motions judge and the Federal Court of Appeal in the course of this case, and we are happy to be moving forward and intend to proceed with a summary judgment motion,” she told Law360 Canada.
A spokesperson for the RCMP told Law360 Canada that the government did not intend to appeal the decision and that the RCMP’s legal response does not take away from its “strong commitment to prevent harms and cultivate a diverse and inclusive workforce free from violence, harassment and discrimination.”
Derek McKay of Kim Spencer McPhee Barristers P.C. also acted as counsel for the plaintiffs.
Counsel for Canada were Christine Mohr and Renuka Koilpillai of Justice Canada.
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