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Uniqueness of claims and different histories likely mean it will be an uphill battle for more than 200 potential plaintiffs to have their gender discrimination lawsuit against the RCMP certified as a class action, says Toronto litigation and class action lawyer Brian Radnoff.
It was recently reported that both the RCMP and the government are opposing class-action certification of a discrimination lawsuit by female officers, arguing that the class is hard to define and the officers’ complaints are too diverse. Read Globe and Mail story
To obtain certification, says Radnoff, a partner with Lerners LLP, the plaintiffs must convince the court that there are sufficient common issues that, if decided, will substantially advance the action.
However, he says, this may be a difficult class action to have certified.
“The plaintiffs likely have very different histories which will make it difficult to combine them all in one class in which enough common issues can be determined to make a class action the preferable procedure. For example, the damages suffered by individual plaintiffs will wildly differ and be based, in part, on unique personal circumstances,” he says.
“Class actions based on systemic problems, like systemic discrimination, are normally difficult to have certified. The issues are complicated and there is a high degree of uniqueness to individual claims. Discrimination, itself, is a complicated issue, and raises many questions that would be unique to individual plaintiffs. However, given the nature of the claims, it is also possible that these claims could only, practically, be brought as a class action because individual claims are not worth enough to pursue,” he adds.
Meanwhile, he says, the government and RCMP will argue that there are too many individual issues making a class action inefficient and unwieldy.
“The government and RCMP will also argue that some of the claims are not proper in law and should be struck,” he adds.
At this point, says Radnoff, it is impossible to determine whether the government and RCMP will successfully oppose certification.