Date: 20230606

Docket: T-778-20

Citation: 2023 FC 771

Ottawa, Ontario, June 6, 2023

PRESENT: The Honourable Madam Justice McVeigh

CLASS PROCEEDING

BETWEEN:

SHIRLEY MEGUINIS-MARTIN AND EDIE JOSEPH

Plaintiffs

and

HIS MAJESTY THE KING

Defendant

JUDGMENT AND REASONS

I. Overview

[1] This is a motion brought on consent pursuant to Rule 334.16(1) of the Federal Courts Rules, SOR/98-106 [Rules], seeking to certify this action as a Class Proceeding. The proposed class carves out class members in a parallel – and nearly identical – class action that has already been certified by this Court: Nasogaluak v Canada (Attorney General), 2021 FC 656 [Nasogaluak FC], rv’d in part Canada (Attorney General) v Nasogaluak, 2023 FCA 61 [Nasogaluak FCA].

[2] I am satisfied that all of the criteria for certification has been met, which is further strengthened by the Attorney General of Canada’s (the AGC) consent. This matter will be held in abeyance subject to the terms set out in the order.

II. Facts

A. Background

[3] This proposed class action is to include those Indigenous peoples who were not included in the scope of the Nasogaluak class action. The class in Nasogaluak is limited geographically to Indigenous persons who allege they were assaulted while being held in custody or detained by Royal Canadian Mounted Police (RCMP) Officers in the Northwest Territories, Nunavut, or the Yukon. This action seeks redress for the harms suffered by Indigenous peoples throughout the rest of Canada.

B. Procedural History

[4] The Plaintiffs filed this action on July 20, 2020 and filed an amended claim on August 9, 2021. On March 20, 2023, the Plaintiffs filed a further amended claim (the Claim).

[5] The class certification hearing was initially scheduled to proceed on September 19, 2022. However, given the substantial overlap between this matter and this Court’s decision in Nasogaluak FC, the parties requested an adjournment pending an appeal to the Federal Court of Appeal of Nasogaluak FC. The Court granted an adjournment.

[6] Following the adjournment, the Court scheduled the class certification proceeding to occur on April 3, 2023 for a duration of five days. However, on March 8, 2023 the parties requested another adjournment as the Federal Court of Appeal had yet to release its decision regarding Nasogaluak FC and a trial management call was set down for March 17, 2023.

[7] On March 17, 2023, the Federal Court of Appeal released its decision in Nasogaluak FCA. Given its proximity to the scheduled hearing date, the parties maintained their request for an adjournment.

[8] On March 17, 2023, during the trial management call, the AGC indicated that it may have instructions to consent to the certification of this matter in light of Nasogaluak FCA. However, the AGC maintained the need for an adjournment because of a possible appeal of Nasogaluak FCA.

[9] On March 20, 2023, I directed that I would not grant the adjournment given the matter had been adjourned before with a long delay and if Nasogaluak was appealed to the SCC then the delay would continue. I ruled that the motion would proceed on April 12, 2023 which accorded the parties time to seek instructions and prepare.

(1) Defendant’s Consent and the Parties’ Request for Abeyance

[10] By way of joint letter dated March 30, 2023, the AGC consented to the certification of the class without prejudice to its right in the future to seek an order pursuant to Rule 334.19 of the Rules that the class proceeding be either amended or decertified.

[11] In the same joint letter, both parties requested abeyance of subsequent steps until the final expiration of any and all periods of time for the Supreme Court of Canada to address any matters arising on leave or on appeal from the order of the Federal Court of Appeal in Nasogaluak.

[12] The parties set out the following factors as relevant to their determination to consent to the certification and request for abeyance following the certification of the proceeding:

1. Nasogaluak and this case are substantially similar proceedings; the primary distinction is geographical. Nasogaluak concerns the “North” of Canada while Meguinis-Martin concerns the rest, or “South” of Canada. The cases arise out of the same factual background and the evidentiary records in the proceedings are similar. Part of the counsel team in Meguinis-Martin, Cooper Regel LLP, is also part of the counsel team in Nasogaluak;

2. the substantive legal findings in Nasogaluak will be directly applicable to Meguinis-Martin. The common issues are virtually identical, as is the class definition – excepting the class period;

3. in fairness and to avoid confusion to the classes in Nasogaluak and Meguinis-Martin, it is anticipated that Notice in both actions will be issued concurrently or in a single Notice, and that class members in each action will have the same opt-out period;

4. this matter was adjourned once before, pending the decision of the Federal Court of Appeal in Nasogaluak; and

5. the Plaintiffs’ amended certification motion and memorandum of fact and law in support of certification was served on March 29, 2023.

[13] The hearing proceeded on April 12, 2023 largely on consent.

[14] On May 16, 2023 the Attorney General of Canada filed an application for leave to appeal the decision in Canada (Attorney General) v. Nasogaluak, 2023 FCA 61.

III. Issue

[15] The sole issue is whether this action should be certified as a class proceeding pursuant to Rule 334.16 of the Rules.

IV. Analysis

[16] The AGC’s consent is significant to the Court. (Varley v Canada (Attorney General), 2021 FC 589 at paragraph 4 [Varley].) Although consent does not relieve the Court of its duty to ensure the requirements of the Rules, it does reduce the necessity for a rigorous approach (Varley at para 4 citing Buote Estate v Canada, 2014 FC 773 at para 8).

[17] Given the overlap between this proposed class and Nasogaluak’s proposed class, the AGC’s consent is rational. As the Applicant points out, there is no principled basis on which to distinguish the harms experienced by Indigenous peoples in the Territories from the harms experienced by Indigenous peoples elsewhere in Canada (Applicants’ Memorandum of Fact and Law at para 5).

[18] To be clear, and as highlighted by the AGC at the hearing, its consent on this motion shall not be taken as a concession on the merits of this matter, nor does the AGC revoke its ability to seek an order under Rule 334.19 of the Rules on motion that the class proceeding be amended or decertified.

[19] Rule 334.16(1) of the Rules sets out the following criteria for class certification:

A. Disclosure of Causes of Action

[20] The first requirement under Rule 334.16(1) of the Rules is that the pleadings must disclose a cause of action. On a motion for certification, a cause of action will be struck, taking the material facts pled as true, if it is “plain and obvious” that no claim exists and it is doomed to fail: Hunt v Carey Inc, [1990] 2 SCR 959 at 980; Hollick v Toronto (City), 2001 SCC 68 at paragraph 25 [Hollick]; Pro-Sys Consultants Ltd v Microsoft Corporation, 2013 SCC 57 at paragraph 63; Alberta v Elder Advocates of Alberta Society, 2011 SCC 24 at paragraph 20.

[21] The claim discloses reasonable causes of action in systemic negligence and breaches of sections 15 and 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c 11 [Charter]. These are also the same causes of action raised and considered in Nasogaluak. It is not plain and obvious that these claims cannot succeed.

[22] In Nasogaluak FC the AGC argued that because the section 15 class period spanned a period prior to the enactment of the Charter, there was no common issue and therefore no cause of action. I acknowledged that it is true that potential class members’ claims may not have taken place while the Charter was in force (Nasogaluak FC at para 73). Nonetheless, it was still a proper common issues question and I commented that if this posed a problem, the class could readily be divided into two subclasses (at para 75). I note that the AGC did not challenge this determination in Nasogaluak FCA (at paras 77-81). The reasoning from Nasogaluak FC applies the same here.

B. Identifiable Class of Persons

[23] Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46 at paragraph 38 [Western Canadian] instructs that the class must be capable of clear definition because it identifies the individuals entitled to notice, entitled to relief (if relief is awarded), and bound by the judgment. Lin v Airbnb, Inc, 2019 FC 1563 at paragraph 91 provides three criteria that must be met to find an identifiable class: (i) the class must be defined by objective criteria; (ii) the class must be defined without reference to the merits of the actions; and (iii) there must be a rational connection between the common issues and the proposed class definition.

[24] The parties agree that, like in Nasogaluak, the Indigenous status of class members – i.e. their status as a First Nation, Inuit, or Métis person within the meaning of section 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 – is an objective criterion.

[25] As the Plaintiffs rightly point out, there is support for the definition of class membership based on allegations of physical or sexual assault (i.e. “claims-based” class definition). In Nasogaluak FCA, the Federal Court of Appeal held that the claim-based class definition was, in that case, sufficiently objective having regard to the purposes of defining the class (at para 93). For the same reasons, this proposed class is also sufficiently objective.

[26] The proposed class period runs from May 14, 1953 and applies to those who were alive as of July 20, 2018. Importantly, the class excludes those class members in the Federal Court action Nasogaluak with Court file number T-2158-18.

[27] A difference between the Nasogaluak class and this class is the terminology. The class in Nasogaluak refers to “[a]ll Aboriginal Persons”, whereas the class definition provided in the draft certification order refers to “[a]ll First Nations, Inuit and Métis persons”.

[28] As noted in Nasogaluak FCA at paragraph 98, if a dispute arises regarding who is a member of the identifiable class, judicial guidance is available as to the application of the definition (citing R v Desautel, 2021 SCC 17).

C. Common Questions of Law and Fact

[29] The common issues are largely the same as in Nasogaluak FCA, which removed the fiduciary duty common question from Nasogaluak FC. The common issues here are as follows:

1. By its operation or management of the Royal Canadian Mounted Police (“RCMP”), did the Defendant breach a duty of care it owed to the Class to protect them from actionable physical, sexual, or psychological harm?

2. By its operation or management of the RCMP, did the Defendant breach the right to life, liberty, and security of the person of the Class under section 7 of the Charter?

3. If the answer to common question (b) is “yes”, did the Defendant’s actions breach the rights of the Class in a manner contrary to the interests of fundamental justice under section 7 of the Charter?

4. Did the actions of the Defendant breach the right of the Class to equal protection and equal benefits of the law without discrimination based on race, religion, or ethnicity under section 15 of the Charter?

5. If the answer to common questions (b) and (c) is “yes”, or if the answer to common question (d) is “yes”, were the Defendant’s actions saved by section 1 of the Charter, and if so, to what extent and for what time period?

6. If the answer to common questions (b) and (c) is “yes”, or if the answer to common question (d) is “yes”, and the answer to common question (e) is “no”, do those breaches make damages an appropriate and just remedy under section 24 of the Charter?

7. Does the Defendant’s conduct justify an award of punitive damages?

8. If the answer to common question (g) is “yes”, what amount of punitive damages ought to be awarded against the Defendant?

[30] I note that both Nasogaluak and the common questions advanced by the Plaintiffs here include a question of whether the RCMP owed a duty of care to protect the class members from actionable physical, sexual, or psychological harm (see Nasogaluak FC at para 136). However, the class definition does not include psychological harm. Although the class definition does not include psychological harm, it remains open to the trial judge to deal with the common question pertaining to psychological harm.

[31] These issues are common ingredients of the class members’ claims. Given the overlap between the certified Federal Court action Nasogaluak and this claim, the common question requirement is satisfied.

D. Preferred Procedure

[32] The Supreme Court of Canada set out the preferability requirement in Hollick at paragraphs 28-30. Hollick outlined that the preferability inquiry should be conducted through the lens of the three principal advantages of class actions – judicial economy, access to justice, and behaviour modifications (at para 27).

[33] This class proceeding is the preferable procedure for the just and efficient resolution of the common questions in this proceeding. As in Nasogaluak FC, a public inquiry or internal complaint process is not a preferable procedure (at para 118). Given the expansive and national scope of the proposed class, no other forum exists that could reasonably and justly address the issues raised in this proceeding.

E. Representative Plaintiffs – Adequate Representation

[34] The parties agree that the proposed representative Plaintiffs, Shirley Meguinis-Martin and Edie Joseph adequately represent the interests of the Class.

[35] Both Shirley Meguinis-Martin and Edie Joseph have provided evidence that they will fairly represent the interests of the class and have produced a litigation plan that outlines a practical method of advancing the proceeding. They have also provided evidence that represents their experience in relation to the RCMP.

V. Conclusion

[36] For the above reasons, it is appropriate to certify the proposed class. The class definition is as follows:

All First Nations, Inuit, and Métis persons who allege that, between May 14, 1953 and present, they were physically or sexually assaulted during arrest or while being held in custody or detained by members of the RCMP, and who were alive as of July 20, 2018, excluding class members in the Federal Court action styled as Diane Nasogaluak as Litigation Guardian of Joe David Nasogaluak v Attorney General of Canada with Court file number T-2158-18.

[37] This matter is placed into abeyance, pending the final expiration of any and all periods of time for the Supreme Court of Canada to address any matters arising on leave or on appeal from the order of the Federal Court of Appeal in Nasogaluak FCA. Abeyance may also be terminated by written communication from counsel for both parties to the Nasogaluak proceeding.

[38] The proposed litigation plan is accepted following termination of the abeyance and will be further developed through the case management process and subject to the statutory right pursuant to Rule 334.19 of the Rules to seek to have the certification order amended.

JUDGMENT in T-778-20

THIS COURT’S JUDGMENT is that:

1. This action is hereby certified as a class proceeding against His Majesty the King, pursuant to Rule 334.16(1) of the Federal Courts Rules, SOR/98-106 (the “Federal Courts Rules”).

2. The Class is defined as:

All First Nations, Inuit, and Métis persons who allege that, between May 14, 1953 and present, they were physically or sexually assaulted during arrest or while being held in custody or detained by members of the RCMP, and who were alive as of July 20, 2018, excluding class members in the Federal Court action styled as Diane Nasogaluak as Litigation Guardian of Joe David Nasogaluak v Attorney General of Canada with Court file number T-2158-18 (the “Class” or “Class Members”).

3. Shirley Meguinis-Martin and Edie Joseph areappointed as representative Plaintiffs for the Class, pursuant to Rule 334.17(1)(b) of the Federal Courts Rules.

4. The general nature of the claims made on behalf of the Class relates to systemic negligence andbreachesofsections 7and15oftheCanadianCharterofRightsandFreedoms,Part Iof the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (the “Charter”).

5. The Class claims the following relief:

1. adeclarationthattheDefendantbreacheditscommonlawdutyof careand breached the Plaintiffs’ and other Class Members’ section 7 and 15 rights under the Charter;

2. general damages;

3. specialdamages,includingbutnotlimitedtopastandfuturelossof income, medical expenses, and out-of-pocket expenses;

4. damages pursuant to section 24(1) of the Charter;

5. exemplary, aggravated, and punitive damages;

6. damages equal to the costs of administering notice, administration, and the plan of distribution;

7. recoveryofhealthcarecostsincurredbyprovincialandterritorialhealth insurers on behalf of the Plaintiffs and other Class Members pursuant to the Health Care CostsRecoveryAct,SBC2008,c27andcomparablelegislationintheother provinces and territories;

8. pre-judgment and post-judgment interest;

9. costs; and

10. such further and other relief as this Honourable Court may deem just.

6. The following common questions of fact or law are certified:

1. ByitsoperationormanagementoftheRoyalCanadian MountedPolice (“RCMP”),didtheDefendantbreachadutyofcareitowedtotheClasstoprotect them from actionable physical, sexual, or psychological harm?

2. ByitsoperationormanagementoftheRCMP,didtheDefendant breachtheright tolife,liberty,andsecurityoftheperson oftheClassundersection7ofthe Charter?

3. If the answer to common question (b) is “yes”, did the Defendant’s actions breach therightsoftheClassinamannercontrarytotheinterestsoffundamentaljustice under section 7 of the Charter?

4. Did the actions of the Defendant breach the right of the Class to equal protection and equal benefits of the law without discrimination based on race, religion, or ethnicity under section 15 of the Charter?

5. Iftheanswertocommonquestions(b)and(c)is“yes”,oriftheanswerto common question (d) is “yes”, were the Defendant’s actions saved by section 1 of the Charter, and if so, to what extent and for what time period?

6. Iftheanswertocommonquestions(b)and(c)is“yes”,oriftheanswerto common question (d) is “yes”, and the answer to common question (e) is “no”, do those breaches make damages an appropriate and just remedy under section 24 of the Charter?

7. Does the Defendant’s conduct justify an award of punitive damages?

8. Iftheanswertocommonquestion(g)is“yes”,whatamountofpunitivedamages ought to be awarded against the Defendant?

7. Murphy Battista LLP and Cooper Regel LLP are appointed as counsel for the Class.

8. The Plaintiffs’ Litigation Plan in the form attached as Schedule A is approved.

9. The time and manner for Class Members to opt out of the proceeding is reserved and will be addressed through the case management process.

10. Theformandmannerofdistributionofnoticeofcertificationisreservedandwillbe addressed through the case management process.

11. Given that the defendant has sought leave to appeal to the Supreme Court of Canada in the Nasogaluak v Attorney General of Canada, 2023 FCA 61 (“Nasogaluak”) matter, the certified action will henceforth be held in abeyance, and the parties will take no steps further to the certification order, until the final expiration of any and all periods of time for the Supreme Court of Canada (“SCC”) to address any matters arising on leave or on appeal from the order of the Federal Court of Appeal in Nasogaluak.

12. For greater clarity, the reference to “final expiration of any and all periods of time” should be taken as a reference to timeframes accounted for in the Supreme Court Act, RSC, 1985, c S-26, the Rules of the Supreme Court of Canada, SOR/2002-156 or the SCC’s internal processes and the final disposition of the Supreme Court of Canada following the hearing of an appeal, if leave is granted.

13. Notwithstanding the foregoing, “final expiration of any and all periods of time” will also be deemed to expire upon the written communication by counsel for both parties to the Nasogaluak proceeding that they undertake not to take further steps before the SCC in relation thereto.

14. This Order is made on a without costs basis pursuant to Rule 334.39 of the Federal Courts Rules.

"Glennys L. McVeigh"

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	T-778-20
STYLE OF CAUSE:	SHIRLEY MEGUINIS-MARTIN AND EDIE JOSEPH v HIS MAJESTY THE KING
PLACE OF HEARING:	Vancouver, British Columbia
DATE OF HEARING:	April 12, 2023
JUDGMENT AND REASONS:	MCVEIGH J.
DATED:	June 6, 2023

APPEARANCES:

Angela Bespflug Janelle O’Connor Caitlin Ohama-Darcus Steven Cooper, KC Maria Grzybowska	For The Plaintiffs
Bruce F. Hughson Deborah Babiuk-Gibson Jennifer Lee Robert Drummond	For The Defendant

SOLICITORS OF RECORD:

Murphy Battista LLP Barristers and Solicitors Vancouver, British Columbia Cooper Regel LLP Barristers and Solicitors Sherwood Park, Alberta	For The Plaintiffs
Attorney General of Canada Edmonton, Alberta	For The Defendant

SCHEDULE A