The July 31 decision in Corriveau v. Canada, 2024 FC 1219, released Sept. 4, was a post-certification motion in which the defendant, Canada, sought particulars, additional documents and discovery of class members. The underlying class proceeding alleged claims against the Royal Canadian Mounted Police (RCMP) for “systemic negligence of its servants in failing to provide the plaintiff, and other Class Members, with an Applicant’s Examination free of sexual assault and battery, and inappropriate and unnecessary procedures” during the medical examinations.
“Here, the court is confirming that there are issues with doctors, right across Canada,” said class counsel Megan McPhee of Kim Spencer McPhee PC, in the context of the case. “It was a broad and ongoing problem, so we have the court recognizing the scope of the issues in the action.”
Canada admitted it was vicariously liable for the actions of two doctors — referred to in the decision only as Drs. MacDougall and Campbell — “for assault and battery, including sexual assault and battery” during medical examinations. However, Canada denied direct liability to class members and also denied systemic negligence, failure to investigate or that it “covered up complaints about the conduct of doctors during medical examinations.”
The common issues trial was to be scheduled. Canada said that in order to properly defend itself at trial, it required additional information. The plaintiff opposed the motion, arguing that Canada mischaracterized the common issues and is focused on individual claims instead of the “systemic nature of the claim advanced against the RCMP.”
“This is a systemic negligence action and we’ve seen both in this decision, and in prior decision late last fall on a motion by the plaintiff, the court confirming that this is a systemic negligence action against the Crown,” McPhee told Law360 Canada. “It’s about what the policies and procedures the Crown did or didn’t have in place, and we see that this is an ideal way to prosecute it.”
In discovery, the RCMP denied it had any duty to monitor or oversee the physicians, stating that they were expected to conduct themselves according to standards set by their respective professional colleges. The RCMP was said to not have any policy in place to address complaints “made as a result of the conduct of a designated physician during a medical examination.”
Canada already had the names of 26 designated physicians who engaged in the alleged conduct, including dates and locations of where the examinations took place, and a list of 150 class members, identified only by their gender and RCMP rank.
Canada sought particulars on the non-sexual “inappropriate and unnecessary” or “improper and invasive” procedures, saying it was entitled to facts “to support the claims advanced for non-sexual tortious conduct.” Justice Ann Marie McDonald noted that certain common issues made direct reference to this and the court will have to determine if this conduct was tortious, considering different standards of duty and care. She agreed that particulars to support this allegation were appropriate.
The government also sought details of complaints made to the RCMP in relation to “inappropriate and unnecessary” or “improper and invasive” medical procedures. The statement of claim detailed complaints made to the Member Employee Assistance Program by three women in or around 1990, and names of the RCMP employees who were involved in complaints were provided in examinations for discovery. Justice McDonald did not find that further particulars were necessary.
“Our client first made a complaint to the RCMP decades ago, when she was very new and in a very vulnerable position,” said McPhee. “I think what has come to light and become significant is that she is learning, and we are learning, that she is by no means alone, and that there have been very vulnerable class members who may not have been able to come forward.”
“The use of this class action really is an ideal vehicle to address these issues that the RCMP had knowledge that there were issues with their designated physicians and their examination process, and we see that this class action being an effective vehicle to seek redress for that,” she added.
In addition, the government requested particulars regarding the alleged failure of the RCMP to follow “standards” with respect to the conduct of medical examinations. Since the evidence was that there was no policy, Justice McDonald ruled that she could not see how particulars on “education, training, policies, guidelines, procedures and standards the Plaintiff alleges Canada either failed to establish, update, assess, or enforce” could be provided. That information would be with the RCMP.
McPhee noted that the ruling is one of a number of decisions that address production and discovery obligations on parties in the class proceeding context. “But here, as with previous motions within this action, Canada has an obligation to search its own records and to consider its own productions,” she added.
Names of the individual class members were also found to be not relevant for the RCMP to conduct a “complete search.” Since, again, there was no policy and oversight of the physicians, Justice McDonald said she failed to see what additional information could be obtained from personal files.
She again noted that it was a systemic negligence claim and that any individual issues of injury and causation would only arise for determination if and after liability for systemic negligence is established.
She ordered particulars related to punitive damages as she found that such a claim must be pleaded with some particularity, and the statement of claim instead made conclusory statements.
Canada alleged that the plaintiff answered questions at discovery indicating that she possessed or could readily obtain additional information or documents. In actuality, the plaintiff had said she directed class members to contact class counsel and was not in possession of documents. This was found to be solicitor-client privilege and such disclosure was not allowed. The request for an updated affidavit of documents was denied.
Canada also failed to establish that it was reasonably necessary to examine additional class members. Justice McDonald noted that a relevant consideration in the case was the vulnerability of class members where the allegations of misconduct against the RCMP physicians involved intimate and personal details. She did not grant the request for examination fpr discovery involving additional class members.
“We are very confident in the case that we have significant productions,” said McPhee. “We’ve gone through discoveries, and the plaintiff is very confident in the strength of the action and the facts that have come to light during the course of looking at this. She’s preparing to move the action towards a summary judgment motion.”
The motion was allowed in part.
The plaintiff was also represented by Won Kim.
Counsel for the defendant were Deborah Babiuk-Gibson, Wendy Wright and David Shiroky, who were not immediately available for comment.
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