In his December 9, 2015 decision in Canada (Royal Mounted Police) v. Canada (Attorney General) (“Jones”), Justice Locke of the Federal Court refused to certify a class proceeding regarding employees’ entitlement to “Extra Duty Allowance” (“EDA”) where only one reasonable cause of action was raised. Given the size of the class and the nature of the issue, it was preferable to have the cause of action determined in a “representative proceeding” as opposed to a class proceeding. The decision is an interesting comparison of Federal Court procedure to other court procedures. The decision is also an interesting complement to overtime class actions that have been previously decided in Ontario, which we have discussed here, here, here, and here.
The putative class proceeding was commenced on behalf of civilian pilots in the RCMP, who were ineligible to receive an Extra Duty Allowance (“EDA”) that other pilots in the federal civil service received. The representative plaintiff, on behalf of a class consisting of approximately 70 individuals, sought damages and/or other remedies for the alleged violations of the class members’ freedom of association rights under the Canadian Charter of Rights and Freedoms (“Charter”).
Federal Court Decision
Justice Locke recognized that the threshold for disclosing a “reasonable cause of action” is low. He nonetheless held that the representative plaintiff had not met this threshold with respect to the issue of entitlement to EDA. In his view, the relevant statutes clearly demonstrated that the class members were not entitled to EDA.
Justice Locke did hold that the issue of whether the Charter had been breached disclosed a reasonable cause of action. However, he held that it was plain and obvious that the remedies sought by the representative plaintiff, beyond a declaration that the Charter had been violated, could not be granted. As such, the only common issue raised was whether a declaration should be granted that the class members’ Charter rights had been violated.
Justice Locke also found that there was an identifiable class, the existence of common issues, and an appropriate representative plaintiff. This left the sole question of whether a class proceeding was the “preferable procedure” for determining the portion of the claim seeking a declaration of a Charter violation. The defendant did not contest that a class proceeding would be a fair and proportionate vehicle to address the relevant claims. It nonetheless argued that a “representative proceeding”, available under the Federal Court Rules, was a preferable procedure.
Justice Locke agreed with the defendant as:
- the sole remaining common issue had largely been addressed by the Supreme Court of Canada;
- a representative proceeding, which is designed to address collective issues such as freedom of association rights, would be a more practical and efficient method of resolving the remaining common issue;
- while a representative proceeding does not contain the ability to “opt out”, there would be no practical effect of opting out of a class proceeding that merely sought a declaration that a collective right had been violated;
- the size of the class was manageable as a representative action; and
- there is additional administrative burden in a class action.
Given that a representative proceeding was a preferable procedure to a class proceeding, certification was denied.
Conclusion and Comparison to Ontario Cases
The Ontario cases we have previously discussed have emphasized that:
- where class members’ entitlement to a remedy is based on the inherently individual exercise that is the characterization of their employment, certification will be denied; but
- a representative plaintiff can attempt to frame a class proceeding in such a way to make it amenable to certification.
Jones adds a wrinkle to that where a proceeding is in the Federal Court – there are circumstances when a representative proceeding will be a preferable procedure to a class proceeding regarding the determination of common issues.
It is possible that Jones is very much confined to its own facts. Important circumstances included:
- the small size of the class;
- the only claim that disclosed a reasonable cause of action was for declaratory relief; and
- the lack of any purpose of an “opt-out” given the collective nature of the right addressed by the sole claim disclosing a reasonable cause of action.
The case is nevertheless an interesting example of where a representative proceeding will be preferable to a class proceeding in the Federal Court.