Civil Class Actions for Sexual Harassment
As has been discussed elsewhere, there is no civil claim for sexual harassment in its purest form. The plaintiff must make use of the traditional torts such as assault, battery, the intentional infliction of mental suffering, to name the most popular forms of relief, to frame the case.
The proposed claim must show a reasonable cause of action to pass the test for certification and hence must pay heed to the developing law on the use of tort claims to plead what is essentially sexual harassment by the use of these torts.
This includes a consideration of whether there is workers’ compensation available to the proposed class members. In the proper context, this could be a complete defence to the claim. This issue has yet to raised in the human rights process which may lead to the administrative remedy being the preferred avenue of relief.
In addition, employer liability for the wrongdoing may be more difficult to show in a civil claim. Negligence claims have yet to be allowed. Vicarious liability is difficult to establish. The human rights process allows for employer liability by proving what is essentially a negligence claim by showing a “poisoned work environment”.
The availability of an administrative remedy as a representative claim may present an obstacle to a civil class action. Such a means of relief is allowed in British Columbia, Manitoba, NWT, Saskatchewan, Nunavut and Canada.
Weighing the Strategic Pros and Cons
Based on the issues in dispute, it may, in fact, be preferable for the class members to consider the use of the human rights remedy when it is available. The evidentiary process is much less rigorous in the administrative process. In addition, the plaintiffs need not be concerned about the burden of costs, should the claim fail. The tribunals in the human rights process generally have considerable expertise with respect to such issues. Also the review process is much more difficult from a tribunal decision. as noted, the workers’ compensation defence may not apply to the human rights process.
No Limitation Period in Civil Claim
Civil actions, however, for sexual assault, have no limitation period in many jurisdictions. The Ontario amendment applies not only to direct claims of sexual assault but also to “a proceeding based on any other misconduct of a sexual nature if..the person who committed the misconduct….was in a position of trust or authority”.
The Ontario law has also been held to apply in favour of a plaintiff seeking a remedy against a third person who was not alleged to have committed the wrongdoing directly but rather against whom it was alleged that this person had failed to warm the victim.
Certification to Consider Alternate Means of Relief
In a proposed civil claim, the court on the certification motion must weigh the question of whether the class action will eliminate any apparent barriers to seeking justice. Although the human rights process will deal with the claim as human rights remedy in its proper form, the reality is that the proposed class action, based for example on the torts referenced above, is in substance the same form of relief differently pleaded.
The court may well consider whether the “same” proceeding in the administrative process may be the most effective means of recourse and hence deny the certification motion.
The Federal Court recently reviewed the test for certification of a class action under the Federal Court Rules. In this instance, two individual actions had been commenced against the RCMP in B.C. and Ontario. The respective motions for certification had been deferred pending settlement negotiations which resulted in an agreement between all parties to allow for a new action in Federal Court and respective consents to allow the action to be certified as a class proceeding. It is, hence, to be noted that the motion was not opposed in the normal course, although the Court was nonetheless required to affirm that the case met the standard for certification.
The B.C. action was based on claims of gender-based bullying, discrimination and harassment. The Ontario case had duplicated these allegations and added one further claim of adverse treatment due to gender orientation.
The Court noted these issues in considering the test for certification:
- Class action legislation is remedial in nature and must be given a broad liberal and purposive interpretation;
- The initial motion for certification is not a review of the merits but the “focus should be on the form of the action”;
- The evidentiary standard on the motion is low, particularly when the parties have reached a settlement agreement;
- The pleading must disclose a reasonable cause of action;
- There must be a clear definition of the membership of the class by objective criteria;
- The class members need not have identical claims;
- It is not necessary that each class member be shown to be successful in establishing a claim;
- The claim of the class must raise common questions of law or fact. This issue is considered a law bar to pass. There should be a purposive approach taken to assess common issues. Class members need not be identically situated in the context of the claim.
- Even if certain aspects of liability and damages may need to be assessed individually, this does not remove the advantage of resolving the common issue.
- The class proceeding must be shown to be the preferable procedure.
In this instance, the certification was allowed.
These claims are in their infancy. More case law is required to define the certification issue with some degree of certainty.
 A good example of which is seen in Lewis v WestJet. The motion in question was not one of certification but rather a defence motion to strike the proposed class action claim as showing no reasonable cause of action. The claim was struck, in part, due to workers’ compensation coverage and because the claim did not plead a common law tort. Even had such a tort be included, the worker’s compensation issue likely would have succeeded as a valid defence to strike the claim.
 Such is the case in Ontario, B.C., Saskatchewan, Manitoba and Nova Scotia.
 For example, as under the Federal Court Rules 334.16(2)
 The actually named defendant is the Attorney General of Canada.
 These are yet to be certified. They are Heyder, Graham v AG Canada and Ross, Roy v The Queen. The proposed class actions include claims for failure to prevent sexual assault and harassment by discouraging the reporting of claims, lack of training and failing to investigate the complaints when made. (Heyder) The Ross case alleges adverse treatment due to LGBT status. The pleadings need to be reviewed as there is generally no common law claim for adverse treatment due to a human rights violation. There is a direct claim for a Charter breach which may distinguish these cases.