Supreme Court of Canada decision is end of the road for sexual harassment class action Rozon c. Les Courageuses
La version française de cette communication est publiée ici.
Against the backdrop of an ongoing criminal trial, the Supreme Court of Canada has denied an application for leave to appeal from the Québec Court of Appeal’s refusal to authorize a sexual harassment class action against Québec businessman and Just for Laughs founder Gilbert Rozon1. The Québec Court of Appeal denied authorization on the basis that there was a lack of commonality in the victims’ complaints2. This decision will make it more difficult for victims of sexual assault and harassment to bring class actions against an alleged wrongdoer, in cases where the harassment took place outside an institutional setting or where the allegations relate to a pattern of conduct rather than a systemic policy or practice.
What you need to know
- Québec Superior Court authorization. In 2017, a group of women who alleged that they were the victims of sexual assault and harassment by Rozon applied to the Québec Superior Court for authorization of a class action against Rozon. They alleged that Rozon used his power and influence to assault and harass them. The action was brought under the name of Les Courageuses, a not-for-profit entity formed to represent Rozon’s victims.
- The proposed class action was authorized in 2018 by the Québec Superior Court3. The Court held that the class members’ claims raised identical, similar, or related issues, because the class members all alleged that Rozon had abused his influence to harass and assault them.
- Overturned by the Court of Appeal. The Court of Appeal overturned the authorization, holding that there was insufficient commonality in the class members’ claims. Unlike other sexual harassment class actions that have been certified in Canada, the claim against Rozon did not raise allegations of systemic wrongdoing through a common policy or practice. The only common element of the proposed class members’ claims was Rozon’s alleged pattern of abusing his power and influence to victimize the plaintiffs.
- A new bar for sexual harassment class actions. The Court of Appeal’s decision in Rozon raises the bar for victims of sexual assault and harassment to bring a class action to recover damages. Unless the harassment occurred in an institutional setting, or the claim raises allegations of systemic wrongdoing based on a common policy or practice, it may be difficult to establish sufficient commonality to satisfy the legal test for authorizing a class action.
The proposed class action against Gilbert Rozon
Les Courageuses alleged that Rozon had assaulted at least 20 women over a period of at least 34 years, and those incidents represented only the “tip of the iceberg”4. The representative plaintiff, Patricia Tulasne, worked with Rozon on a play in 1994. She alleged that following a dinner for cast members, Rozon drove Tulasne home, forced his way into her home, and sexually assaulted her5. For years, she was wary of leveling a sexual assault allegation against such an influential public figure. Spurred by the #MeToo movement, Tulasne commenced the action in 2017, seeking $200,000 in moral damages and $200,000 in compensatory damages for economic loss for herself, as well as punitive damages6. Damages for other class members were to be decided individually.
Court of Appeal’s decision dismissing the action
On January 8, 2020, the Court of Appeal refused to authorize the class proceeding against Rozon, concluding that there was insufficient commonality between the plaintiffs’ claims to satisfy the test for authorization under the Québec Code of Civil Procedure. The only common issue was Rozon’s alleged modus operandi of using power and influence to victimize the plaintiffs. However, this was not common to all class members, some of whom were not in a position of subordination to Rozon.
Moreover, the number of individual issues raised in the claim were numerous. The class members’ arguments on a limitation period issue required them to prove that they were incapable of bringing proceedings against Rozon due to his prestige and popularity. Although his social status was a common feature of the claims, its impact on each plaintiff was inherently subjective and could not be determined as a common issue. Nor was the issue of compensatory damages capable of common resolution, as the quantum of such damages would vary according to each class member’s pain and suffering. The determination of punitive damages would also require individual determinations.
What the Court of Appeal’s decision means for other sexual harassment class actions
Rozon c. Les Courageuses presented a novel issue for the Québec Court of Appeal. Prior to the proposed claim against Rozon, Canadian sexual harassment class actions involved claims against institutional defendants alleging that the defendants’ employees (or those under their control) had committed torts against the class members for which the defendants ought to be held liable. The claims focused on the defendants’ systemic wrongdoing arising from common policies or practices. For example, in Lewis v. WestJet Airlines Ltd., the representative plaintiff, a former/current flight attendant, claims that she was sexually assaulted by a WestJet pilot while on a layover in Hawaii. She alleges a systemic breach of contract by WestJet in failing to address sexual harassment and assault committed by pilots to the standards required by WestJet’s own policies; and that WestJet had a common practice to suppress reporting, protect pilots and silence victims. Similar sexual harassment class actions have been commenced against the RCMP, military, and police forces7.
By contrast, the proposed claim against Rozon was brought solely against the individual alleged to have assaulted the class members. There were no systemic allegations of wrongdoing and instead the claim focused on the pattern of an alleged abuse of power.
The most analogous class action to Rozon is Doucet v. The Royal Winnipeg Ballet, a sexual assault and harassment action brought on behalf of dancers at the Royal Winnipeg Ballet School. In Doucet, the plaintiffs alleged that Bruce Monk, an influential teacher and photographer at the school, pressured them to pose half-clothed or nude for photos between 1984 and 2015. While the allegations in Doucet are similar to Rozon in that both claims focus on the alleged sexual misconduct of a powerful and influential man, the defendant in Doucet is the class members’ school and Monk’s employer. Therefore, the class members in Doucet were able to point towards systemic failures in institutional policy and practice, which brought commonality to their claim and made it more appropriate for class action treatment. This distinction helps to explain why Doucet was certified as a class proceeding in the Ontario Superior Court in 20188, but Rozon was denied authorization to proceed.
Ultimately, the Court of Appeal’s decision in Rozon will likely make it more difficult for victims of sexual assault and harassment to bring a class action against their alleged abuser. It appears that, for now, sexual harassment class actions are reserved for situations where the misconduct occurred within an institutional framework—for example, at work (as in WestJet) or at school (as in Doucet). If the harassment occurred outside of an institutional setting, plaintiffs may face an uphill battle getting their class action authorized.
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1 Les Courageuses v. Rozon, [2020] S.C.C.A. No. 99.
2 Rozon c. Les Courageuses, 2020 QCCA 5.
3 Les Courageuses c. Rozon, 2018 QCCS 2089.
4 Ibid at para 62.
5 Ibid at para 55.
6 Ibid at para 37.
7 See Davidson v. Canada (Attorney General); Merlo v. Canada (Attorney General); Heyder, Graham, Schultz-Nielsen v. the Attorney General; Ross, Roy, Satalic v. Her Majesty the Queen; etc.
8 Doucet v. The Royal Winnipeg Ballet, 2018 ONSC 4008.
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