urvivors of sexual harassment and assault in the Canadian Armed Forces in two proposed class action lawsuits against the Government of Canada served their evidence this week responding to Canada’s attempt to strike their claims. These class actions seek compensation for the Government’s failure to protect them from sexual assault, sexual harassment, and gender-based discrimination during their service.
The Government of Canada has been the subject of a number of similar class action lawsuits in recent years. In 2016, it reached a settlement with RCMP members who had been sexually assaulted and harassed. In 2017, the Government also reached a settlement in a lawsuit brought by LGBTQ former employees who had been investigated, discharged, terminated, sanctioned or faced threat of sanction because of their sexual orientation, gender identity or gender expression.
In contrast to its decision to settle these class actions, the Government has taken an aggressive litigation strategy in response to the claims made by members of the Canadian military. In addition to seeking to personally cross-examine the representative plaintiffs in these actions, the Government filed a motion in the proposed class action lawsuit that takes a novel position that it does not owe members of the Canadian Armed Forces any duty to protect them from sexual harassment and assault:
“It is plain and obvious that neither HMQ nor any individual within the CAF owe a private law duty of care to individual members within the CAF to provide a safe and harassment-free environment, or to create policies to prevent any potential sexual assault or sexual harassment…”
The Government’s approach to this lawsuit runs counter to Prime Minister Justin Trudeau’s recent statements regarding the obligations of Government. Speaking in Davos, Switzerland, the Prime Minister stated: “As leaders we need to recognize and to act to show that truly time is up.” “Sexual harassment, for example — in business and in government — is a systemic problem and it is unacceptable.”
The Prime Minister’s public statements on sexual assault and harassment echo the critical conclusions of former Supreme Court of Canada Justice Marie Deschamps, who in an external review completed in March 2015 concluded that “there is an undeniable problem of sexual harassment and sexual assault in the CAF, which requires direct and sustained action.” The external review also found an “underlying sexualized culture” in the CAF that is “conducive to more serious incidents of sexual harassment and assault”, and called for broad reforms to address sexual assault and harassment in the CAF.
“It’s frustrating to read Prime Minister Trudeau’s comments given that the Government is taking the opposite approach to our litigation”, said Amy Graham, a plaintiff in the proposed class action. “By trying to stop us from proceeding through a class action, the Government wants to force each of us to go forward alone, preventing us from resolving this issue and putting it behind us.”
Evidence unearthed in this class action lawsuit shows that despite its promise to do so, the Government is refusing to implement Justice Marie Deschamps’s recommendations to improve the conditions in the Canadian Armed Forces.
The motions for certification, which will decide if the cases can proceed as class actions, will be heard in the Federal Court the week of July 9, 2018.