The legislations of B.C., Manitoba, Saskatchewan, Canada, North West Territories and Nunavut allow for a group action to be commenced. This is a very valuable tool which dramatically adds to the impact of the claim and negotiating clout. It is odd that other jurisdictions have not allowed for this process, as quite often a systemic rule or practice implemented by an employer may have consequences for many people.

The potential power in the use of this process is reflected in a recent B.C. decision in which fifty-five complainants each recovered $10,000 for compensatory damages for injured dignity and self-respect. The case was based on unfair treatment due to race. In addition a lost income claim was awarded of up to 3 months at $1,000 a month to each person. ¹

A vivid example of the need for such reform on Ontario can be seen in a recent decision dealing with individuals suffering from a developmental disability. These persons had been a wage rate described as a “training honorarium” of $1 to $1.25 per hour. ²

Other workers received the statutory minimum. The applicant did continue to receive the Ontario disability support payment while employed without offset.

An award was made of lost income of $142,000 plus post termination loss of income of $19,600 in addition to a compensatory award of $25,000. An order to cease and desist this practice of compensation was also made. ³

The need for class action relief is more acute in human rights cases in which the principle of stare decisis is not applicable.

Ontario does have a provision which allows multiple persons to join in the same complaint contemporaneously. Section 34(4) of the Code states:

Two or more persons

(4) Two or more persons who are each entitled to make an application under subsection (1) may file the applications jointly, subject to any provision in the Tribunal rules that authorizes the Tribunal to direct that one or more of the applications be considered in a separate proceeding.  2006, c. 30, s. 5.

This is substantively very different from a representative claim.

B.C. Law

To succeed on the threshold test of a valid representative complaint, it must be shown that: ⁴

1. The complaint alleges a possible Code contravention;
2. The case is one which is appropriate for a class action; and
3. The named representative is able to fairly represent the class.

Apart from this test, the Tribunal has overall discretion to reject the class complaint where “the proceeding is not in the interests of the class”.

In the case cited below, the action was not allowed on first instance. The complaint was then brought by the former Director of Human Rights and Respectful Workplace of the unnamed university.

The complaint, made by KR on behalf of the proposed group, was based on the assertion that the respondents failed to respond to allegations of serious sexual harassment by a student and thus knowingly put women in danger.

The Tribunal reviewed the fundamentals of a class action as follows:

1. The members of the class have characteristics which are protected by the Code;
2. The members have suffered an adverse effect in relation to a Code protected right;
3. The protected characteristic was at least a factor in leading to the adverse effect.

The failing of the complaint was that it did not set out any specific allegations of fact with respect to adverse conduct committed to members of the class. The members were alleged to be women who were sexually harassed or assaulted by the student. No details of abusive conduct to such women were provided. The complaint should have provided details such as dates, names or details of harassment such as how it took place, whether it was reported and in this case, how the actions or lack of actions of the university and its employees contributed to the wrongdoing and suffering.

While the complaint as a class action was not allowed, it was permitted to be amended.

This being so, the Tribunal set out the remaining requirements for the class action to stand:

1. The class is one which is defined by clear parameters or characteristics;
2. The alleged offensive conduct is similar for all members and, in particular, there are issues in common for all persons in the class;
3. Proceeding with the complaint is in the interest of the group.

Applying these tests to the case before the Tribunal, the findings were as follows:

1. The proposed class was “women on any [university] campus, specifically female employees of [the university] and students at [the university] that were subjected and/or allege that they have been subject to the sexual harassment or sexual violence or sexual discrimination by [the named male student] at [the university].

To this first issue, the Tribunal found that the description was in need of refinement. “women on any campus” was to be defined as women who are in a service or employment relationship with the school. The date range also should be added. “sexual discrimination should be removed”.

The Tribunal in effect amended the complaint to be as follows, including the name of the student:

Female employees and students at U. who allege that they have been subject to sexual harassment by the named male at the U. from 2015 to 2107.

As to the second issue, on the need for common issues of fact and law, the Tribunal agreed that there were such common issues. This being said, the complaint lacked specifics of allegations of fact with respect to the class members identity. It was agreed that the KR may lack knowledge of the names of proposed members, but there should be sufficient details in the allegations to allow an understanding of how membership in the group is to be established.

In response to the third question, the Tribunal found that there is a fundamental need to be able to communicate with the class. As the complainant lacked knowledge of the details of the proposed members, there had been no such communications established and no proposed plan offered, this test also failed.

In response to this order, a new complaint was filed. ⁵ On this occasion, there were 8 women identified as victims. Further details of the abuse were provided.

In allowing the class action to proceed, a further safeguard to this process was noted:

1. Caution must be exercised to ensure that the tests imposed are not so onerous to nullify the advantages of the class action process.

Certain minor amendments to the class were effected. On the issue of the class representative, KR herself was not allowed as she had not been a victim. While this is not a requirement, KR herself was not able to provide critical direct evidence on an important issue of harm that the class suffered.

Interestingly, the Tribunal noted that one factor in favour of allowing the class action is the apparent reluctance of the proposed members to proceed with an individual complaint, particularly where the class would consist of “vulnerable and marginalized” persons.

With certain amendments, the complaint was allowed to proceed as a class action.