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Confronting cultures of harassment: Class actions on the rise in the wake of #MeToo?

Class actionsThe last year has seen a swell of class actions alleging bullying, harassment and other systemic misconduct in the workplace. Mostly recently, on June 22, 2018, a $1.1 billion proposed class action was filed against the RCMP in the Federal Court alleging a “culture of bullying, intimidation, and general harassment”, “favouritism” and being “blacklisted for speaking out.”

The RCMP lawsuit was brought by two veteran officers, but the proposed class could include thousands of officers, civilian employees, students and volunteers. The RCMP are no strangers to class actions, having settled two sexual harassment class actions in 2016 with a $100 million compensation package for claims by female officers and civilian members alleging harassment and sexual abuse. While the recently filed lawsuit against the RCMP alleges harassment and bullying more generally, it emerges against a backdrop of several high profile sexual harassment class actions in Canada.

In Quebec, a class-action was recently authorized against Gilbert Rozon, the founder and former head of comedy festival Just for Laughs. This action was brought by a non-profit organization – Les Courageuses – that represents individuals who claim to have been sexually harassed or assaulted by Rozon. The case first emerged as allegations were posted on social media, following which reports were published by news outlets. This case is one of the first instances authorized in Quebec where an individual executive was named as the sole defendant in a class action. The class was authorized under the Quebec rules of civil procedure, which are generally considered to present a lower standard for class authorization than in other provinces.

In B.C., a class action was filed against WestJet Airlines in 2016 for allegedly failing to provide flight attendants with a workplace free of harassment. The action was brought by a former flight attendant on behalf of a class of “present and former female flight attendants employed by WestJet.” The story was first made public with a post on social media by the flight attendant’s sister about an alleged incident of sexual assault. WestJet applied to strike out the Notice of Civil Claim filed by Lewis, but this application was dismissed by the Supreme Court of British Columbia in December 2017. WestJet has since filed an appeal on this decision. Notably, WestJet had contractual provisions outlining their anti-harassment policy. If litigated, this case may shed further light on the depth of an employer’s obligations where these or similar contractual provisions exist.

From Just For Laughs, to WestJet, to the RCMP, these burgeoning cases underscore that, in the #MeToo world, employers, corporations and executives are facing increased risk where permissive cultures and weak governance structures may have enabled instances of harassment. Failure to respond promptly and appropriately can leave organizations exposed to class actions from employees or classes of shareholders who could demonstrate lost share value as a result of failures to investigate. Organisations should take proactive steps to ensure that they have effective policies and procedures to adequately address and mitigate these risks and to promptly identify and appropriately respond to matters that may devolve into crises in the workplace.

By Lawrence E. Ritchie, Sonja Pavic and David Matyas, Osler

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