Over a thousand women are expected to file claims in the second $100-million sexual harassment class action leveled against the RCMP in recent years.
This new class action and settlement, which covers volunteers, municipal and contract employees who worked in conjunction with the Mounties, was announced earlier this week in Vancouver. The federal court is expected to approve the settlement this fall.
Only 1,500 women are expected to make claims even though the settlement itself incorporates around 41,000 women, whose work dates back to 1974.
The claim estimate is in keeping with the first $100-million sexual harassment class action settlement in 2016. At the time, all parties involved expected roughly 1,000 claims would be made. By the time the claim period closed last year, they had blown past those estimates with 3,131 submitted claims.
Angela Bespflug, lawyer for the current plaintiffs, says they are prepared for the possibility that this settlement also exceeds estimates.
On paper, though, it might seem a bit odd considering class action litigators have long been concerned about low take-up rates. An Ontario Law Reform Commission report in 1982 put the average take-up rate for U.S. claims at somewhere between 10 and 15 per cent. That means that of all the people eligible for compensation, less than a quarter are — on average — claiming it.
More recently, Ward Branch, a former class action litigator and now a justice of the B.C. Supreme Court, called take-up rates the “dirty little secret in class actions in Canada,” according to a 2011 paper from lawyers Paul Morrison and Michael Rosenberg.
Following a review of more than 100 of his firm’s own class action cases while he was still a practitioner, Branch found take-up rates ranged from two per cent to 40 per cent. There isn’t even 100 per cent take up in cases where compensatory cheques are mailed directly to people no questions asked, says Jeff Orenstein, a lawyer at Consumer Law Group, “people lose the cheque, forget to cash it — that is, unfortunately, human nature.”
Still, those take up rates are much higher than in other cases, Orenstein says. As a general rule? “The more you make people do, the lower your claim rate will be.”
So why do people not seem to be put off by the independent RCMP claims process, which can take months and involve an in-person interview?
Bespflug has an idea:
“I think there’s a desire for redress, for taking control of their story and their life and, in their own quiet way, saying I’m standing up to the RCMP and this behaviour won’t be tolerated.”
Beyond that desire for redress or vindication, experts say there are other reasons, too, why a Mountie class action settlement might generate more claims than a consumer one.
The estimates aren’t always accurate
Take-up rates vary depending on the type of lawsuit, says Paul Morrison, a partner at Miller Thomson. In some cases, he says, it’s really easy to know who’s been affected and, as a result, it’s easier to let them know they are eligible for compensation.
“But there are some class actions where the class is very large but it’s not terribly easy to specifically identify who is a member,” he says.
The latest RCMP sexual harassment class action incorporates around 41,000 women whose municipal, contract or volunteer work involved the RCMP, but there’s no one database with all their names and contact information on it.
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There’s also no precise way to know how many of those 41,000 women suffered sexual harassment and, of those who did, how many will come forward to make a claim.
The 1,500 estimate is an “educated guess,” Bespflug says. Part of the settlement includes $250,000 earmarked for notifying people across the country that the class action was settled and they may be eligible to make a claim.
The 2016 sexual harassment class action was highly publicized for years before a settlement was reached, giving women a chance to contact the litigators throughout the process, which enables them to estimate how many people will make claims, says Jasminka Kalajdzic, a law professor at the University of Windsor.
Still, she says, an estimate is all it is.
“Of course, we know now that triple that number ultimately made a claim and it’s not hard to understand why there would be that discrepancy,” she says.
“There would be women who either didn’t hear about the settlement or the case or who heard about it but didn’t think they had to contact the firm until there was a specific claims process to participate in, or people who just weren’t ready to think about or acknowledge what happened to them.”
Ultimately, it was good news that triple the number of expected claims were filed in the 2016 settlement, says Luciana Brasil, a class action lawyer with Branch MacMaster.
“It tells you, obviously, that there was really a wrong that is being addressed with a settlement,” she says. “The fact that there are people coming forward and going through that shows that they devised a process that works, that is not discouraging people from participating.”
People feel personally hurt
There are some class actions where people are eligible for $10 if they spent a few moments putting their name and address into an online form, says Jeff Orenstein. And yet, he says, some people just won’t do it.
“People don’t really want to do very much for 10 bucks.”
There is a lot of money on the table when it comes to the Mountie settlement. The 2019 settlement is tiered, just like the 2016 one, with payments ranging from $10,000 for less severe harassment to $220,000 for the most severe harassment.
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“For thousands of dollars people will do it, they will spend the time,” says Orenstein, and “If people feel physically, emotionally, psychologically injured they’re more likely to act on it.”
Compare widespread allegations of sexual harassment within the RCMP to a consumer class action, say, a recent one that offers between $15 and $55 in compensation to anyone who purchased certain gas-powered lawnmowers between Jan. 1, 1994, and Dec. 31, 2012.
There’s a unique sense of vindication, Bespflug says. “People don’t feel harmed to their core in those cases.”
“This is a special breed of case where there really is an innate desire to obtain justice. So if you need to do a little bit of work for that, I think most of these women are prepared to do that.”
Mountie class actions are ‘notorious’
There are some class actions that everybody seems to know about, says Paul Morrison. He worked on one: the class action resulting from E. coli contamination in Walkerton, Ont., that killed seven people and made 2,300 other people ill.
The case had more than 100 per cent take up, says Morrison, in part because it was “notorious.”
“Everybody knew about what had happened and everybody was following it,” he says. “It was very, very easy for the members of the class to be identified or to self identify.”
People living and working in the town identified, as did people who didn’t actually live in Walkerton but happened to be there during the 2000 outbreak.
That notoriety is why Morrison isn’t surprised that the 2016 RCMP sexual harassment settlement received unexpectedly high claims.
“Everybody is aware of the allegations … and it’s very easy for class members to self-identify,” he says. “For those two reasons, one would expect the take-up rate to be quite high.”
Indeed, Jasminka Kalajdzic, the Windsor law professor who has done extensive research in this area, says the controversy around low take-up rates isn’t really relevant to the Mountie settlements.
That controversy usually centres on fixed-amount settlements where people don’t claim compensation and “there’s a lot of money left over.” In one case publicized earlier this year, CBC reported more than $97 million is still waiting to be claimed in the Kitec pipes and fixtures class-action settlement after seven years.
In the RCMP settlements, both of which are estimated but not capped at $100 million, the worry is more about the compensation process, Kalajdzic says.
“There’s always a concern that the procedure for claiming compensation is customized to reflect the sensitive nature of what happened.”
What’s next for the Mounties?
The Federal Court of Canada certified the volunteer, municipal and contract worker class action for the purpose of an estimated $100-million settlement on July 5. The parties hope the court will sign off on the agreement in the fall. A hearing has been set for Oct. 17.
Bespflug says the claims process has been carefully crafted to balance compensation levels with an appropriately rigorous process, while being “trauma-informed.”
“We really try to emphasize that, ‘Yes, there’s some work involved in this but here are all the positives, here’s everything you get from it, and if you jump through these small hoops to get there hopefully your life will be just a little bit better,’” she says. “Hopefully the process will, on some level, allow them to move forward.”
Anyone who believes they may be eligible for the RCMP sexual harassment class action settlement is encouraged to reach out to Whitney Santos wsantos@calkleinlawyers.com
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