Copyright Caledonia Courier
The City of Surrey and its police board are caught up in a proposed class action lawsuit by former female police officers despite none of the six plaintiffs listed having been employed by the Surrey defendants. A proposed class action lawsuit by current or former female police officers against the City of Surrey, Surrey Police Board, 12 other B.C. cities and 12 other B.C. police boards alleges the plaintiffs were subjected to gender or sexual orientation-based discrimination, harassment, and bullying by officers and management of B.C.’s municipal police forces. Counsel for the City of Surrey and Surrey Police Board sought an order that would, prior to a certification hearing under Supreme Court Civil Rules, strike out the claims against them on grounds of jurisdiction. The case is brought under the Class Proceedings Act, with Justice Bruce Elwood presiding in B.C. Supreme Court in Vancouver. None of the plaintiffs are or were employed by the Surrey defendants, Elwood noted in his October 28 reasons for judgment. “There are no factual allegations in the amended notice of civil claim of any acts or omissions by any officers or supervisors of the Surrey police force,” he pointed out. “Instead, the Surrey Defendants are captured by the plaintiffs’ general allegations of wrongdoing against all the “Municipal Police Defendants” and all “the Defendants.” The plaintiffs allege a “wide-spread institutional failure by those responsible to investigate complaints and protect complainants; and a workplace culture that enabled and protected perpetrators.” The plaintiffs are Cheryl Weeks, Anja Bergler, Helen Irvine, Cary Ryan, Lauren Phillips, and Ann-Sue Piper. “The plaintiffs seek to represent a class comprised of all persons who have been employed by the municipal police forces and who are female or were living or presenting as women at the time of their employment,” Elwood noted in his reasons. The defendants are listed as the City of Abbotsford, District of Central Saanich, City of Delta, Township of Esquimalt, City of Nelson, City of New Westminster, District of Oak Bay, City of Port Moody, Corporation of The District of Saanich, City of Surrey, City of Vancouver, City of Victoria, District of West Vancouver, Abbotsford Police Board, Central Saanich Police Board, Delta Police Board, Victoria and Esquimalt Police Board, Nelson Police Board, New Westminster Police Board, Port Moody Police Board, Saanich Police Board, Surrey Police Board, Vancouver Police Board, West Vancouver Police Board, Police Complaint Commissioner of British Columbia, His Majesty The King In Right of The Province of British Columbia, Attorney General of British Columbia, and the Minister of Public Safety and Solicitor General. “The plaintiffs allege negligence, breach of fiduciary duty, intentional infliction of mental suffering, harassment, civil conspiracy, breach of privacy, and violation of their rights under Section 15 of the Canadian Charter of Rights and Freedoms,” Elwood noted. “The plaintiffs seek to represent a class comprised of all persons who have been employed by the municipal police forces and who are female or were living or presenting as women at the time of their employment.” The women on behalf of the proposed class action lawsuit seek a declaration that the defendants breached their Section 15 Charter rights, and are seeking compensation in the form of general damages, damages for lost income, aggravated and punitive damages, and damages pursuant to the Charter. “In effect, the claim against the Surrey Defendants is the same claim that the plaintiffs propose to advance on behalf of the class members against all the defendants. It is, as Justice Saunders once described a proposed class action prior to the certification hearing, ‘an action with ambition,’” Elwood noted. By way of background, Surrey council on Nov. 5, 2018 voted to transition from the Surrey RCMP to a city police force. On June 29, 2020, the provincial government appointed the Surrey Police Board and on Aug. 6, 2020, the board established the Surrey Police Service, which became the city’s police of jurisdiction on Nov. 29, 2024. Elwood noted the SPS in March 2021 began recruiting officers and civilian staff in March 2021 and they became employees of the Surrey Police Board. “Initially, SPS officers were integrated into the Surrey RCMP, under the operational command of the RCMP,” the judge noted. “Although no date range is alleged in the notice of civil claim, plaintiffs’ counsel says the discrimination, harassment, and bullying of female SPS officers began in March 2021 and continues to present day. In other words, the proposed class action covers the entire period from initial hiring, including pre-unionization, collective bargaining, working under RCMP command, and ultimately serving as officers of the police of jurisdiction.” The plaintiffs’ legal counsel confirmed the proposed class includes police officers of all ranks, but not civilian staff. “As a result, it is necessary to consider the effect of two collective agreements between the Surrey Police Board and the unions representing the police officers, but not the separate collective agreement with Canadian Union of Public Employees (“CUPE”) representing the civilian staff,” Elwood noted. The Labour Relations Board certified the Surrey Police Union on July 30, 2021 as the collective bargaining unit for SPS officers below the rank of inspector and on March 10, 2022, the SPB and SPU entered into a collective agreement covering those officers, and then the LRB on Nov. 30, 2022 certified the Surrey Police Inspectors Union to conduct collective bargaining for SPS inspectors. While the SPU collective agreement covers working conditions, seniority and probationary periods, promotions, lateral transfers, remuneration, special allowances, court time compensation, overtime, employee benefits, maternity and parental leave, vacation and statutory leave and survivors’ benefits, Elwood noted, it has no specific provision against harassment or sexual harassment. The Surrey Defendants argue that the exclusive jurisdiction of an arbitrator to resolve disputes begins from the date on which the unions were certified as the exclusive collective bargaining agents for the SPS officers. They argued that as the SPS did not become the police of jurisdiction until after the unions were certified and the collective agreements took effect, that SPS officers’s working conditions “prior to that date were the responsibility of the RCMP,” the judge noted. “In other words, as I understand it, the Surrey Defendants say there is no gap in this case during which SPS officers may have had a claim against Surrey but no right to grieve their complaint under a collective agreement.” Elwood identified the “essential character” 0f the dispute, as argued by the Surrey Defendants’ legal counsel, “is the allegation that the defendants failed to ensure that the plaintiffs could work in an environment free from harassment, discrimination and bullying.” “The plaintiffs argue that the claims are not merely about working conditions. They say the essential character of the dispute is an institutional failure throughout British Columbia—spanning across all police boards, municipal employers, and levels of government—to keep the municipal police forces free from gender-based discrimination. The plaintiffs submit that the issues they seek to address are so pervasively embedded in police culture that this case is about something completely different than a dispute over working conditions.” Elwood said it isn’t “plain and obvious” the collective agreements provide access “to an effective remedy for all former employees of the Surrey Police Board who allege that they were subject to gender-based discrimination, harassment or bullying on the job. “The difficulty is that the plaintiffs have not pleaded any claims by any former members of the SPS. They have not pleaded the material facts on which a court could find that a former employee suffered gender-based discrimination, harassment or bullying that she cannot grieve under the applicable Collective Agreement. At this stage of the proceedings, there is no evidence of any claims by any former employees,” he explained. “In the circumstances,” he decided, a decision “must await the certification hearing and submissions on the criteria” concerning Section 4 of the Class Proceedings Act. “This Court does not have jurisdiction over claims against the Surrey Defendants that arose after the date on which a collective agreement became applicable to the bargaining unit to which the class members belonged,” Elwood concluded. “The question of whether, notwithstanding this conclusion, the Court should retain jurisdiction over claims by former employees of the Surrey Police Board is adjourned to the certification hearing.
