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
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
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
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
where class members' entitlement
to a remedy is based on the inherently individual exercise that is
the characterization of their employment, certification will be
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
The case is nevertheless an interesting example of where a
representative proceeding will be preferable to a class proceeding
in the Federal Court.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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