A group of Ontario female police officers has lost its bid to bring a class action in the courts for gender discrimination and harassment.
The Waterloo, Ont., officers claimed systemic gender-based discrimination and harassment by male members of the police force.
The court decided that it had no jurisdiction over the class action because the claims should have been brought at arbitration. Under the Ontario Police Services Act, arbitration was mandatory – and binding – even though the arbitrator did not have the power to award punitive damages. The officers therefore were barred from making the discrimination and harassment claim in the courts.
The fact that the police association (the police union that would have carriage of a harassment case at arbitration) was made up mostly of male members did not require the court to take jurisdiction.
The court also decided that a claim of workplace discrimination did not make out a viable “cause of action” at common law. This meant that even if the court (not an arbitrator) had jurisdiction over the case, the claim was not the type of case that courts will hear.
The judge concluded:
"The defendants should not regard this result as a vindication of current practices. Like Sharpe J.A. in A.(K.), I have considerable sympathy for the plaintiffs’ desire to have this litigated in court. Even on the limited and contradictory evidence before me, it is apparent that this case raises serious, triable issues relating to the workplace culture. The allegations are very troubling and will require close scrutiny should this matter proceed to another forum for adjudication."
The court action was therefore stayed, bringing it to an end.
The plaintiffs have appealed this decision to the Court of Appeal for Ontario.
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Adrian Miedema is a partner with Dentons Canada LLP in Toronto. He can be reached at (416) 863-4678 or firstname.lastname@example.org. Adrian's discussion of this case also appears in the Dentons blog www.occupationalhealthandsafetylaw.com.