Ottawa appeals ruling extending military sexual misconduct class action deadline

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Canadian Armed Forces ‘not immune’ to crises facing Canadians: minister
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Ottawa has appealed a recent Federal Court ruling that would further extend the deadline for submitting claims in a military sexual misconduct class action settlement.

Earlier this month, a Federal Court judge ruled that late claims can be accepted in the Canadian Armed Forces-Department of National Defence (CAF-DND) Sexual Misconduct Class Action Settlement until Feb. 5.

However, that ruling “compromises the integrity” of the final settlement agreement (FSA) negotiated by the parties and approved by the court, Ottawa said Tuesday in a statement.

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“In its ruling, the Federal Court altered the terms of the FSA. This is concerning because it raises significant legal issues that could impact other class action settlements in the future, and it is critical that all parties have confidence in the integrity of agreements that are reached in good faith,” the government said in a statement on the Department of National Defence website.

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“The appeal does not affect the ongoing processing of claims duly filed by the January 2022 deadline. It is expected that the vast majority of those applications will be completed by the end of January 2023.”

The Federal Court ruled on Jan. 6, 2023, on an application originally brought by 12 individuals who were seeking to be able to join the class action after missing the deadline to do so last year. The law firm Koskie Minsky LLP argued in federal court filings that some 640 people may be eligible if the late applications would be approved.

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Ottawa releases ‘ambitious’ roadmap to reform military culture

The reasons given by late claimants for being unable to meet the deadline were due to the emotional and psychological difficulties they suffered as a result of the sexual misconduct experienced in the CAF-DND, the law firm suggested.

Global News reached out to the law firms representing claimants in the extension request, but did not receive a response by publication time.

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Ottawa said on Tuesday it will work with all parties toward an agreement that “could allow claims submitted late due to a third-party error in the claims administration process to proceed before the appeal is determined.”

“Class members who have filed a late claim, or were considering doing so in light of the recent Federal Court ruling or otherwise, should seek guidance from Class Counsel on next steps.”

According to the class action settlement website, roughly 20,000 people have come forward so far.

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In a notice of claim filed on Monday with the Federal Court of Appeal, the Department of Justice argues that the Federal Court judge misinterpreted the section of the final settlement agreement that allows for claims to be submitted beyond the deadline in certain circumstances.

The government also claims that the judge erred by “relying on irrelevant factors,” including the current number of claimants seeking leave to submit their application beyond the deadline.

“The fact that the Administrator has actually received hundreds of claims since the end of the extension period is not a relevant factor in assessing what the parties intended when they stipulated that ‘No Individual Application shall be accepted for substantive review by the Administrator more than 60 days after the Individual Application Deadline without leave of the Court,’” reads the government’s notice of appeal.

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The government also argues that the Federal Court judge made errors of law in his decision.

In 2019, the government reached a $900-million settlement over a class-action lawsuit from survivors and victims of military sexual misconduct. More than 18,000 survivors and victims had come forward to submit claims as of November 2021, shortly before the deadline.

In 2018, Prime Minister Justin Trudeau raised concerns over how the Justice Department was arguing in military sexual harassment cases, saying he would ask the attorney general to follow up with government lawyers to “make sure that we argue things that are consistent with this government’s philosophy.”

“Obviously, what the lawyers have been argument [sic] does not align with what my belief or what this government believes,” he said on Feb. 7, 2018.
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‘We apologize’: Trudeau says survivors of military sexual misconduct must be the centre of ‘everything’

Sexual misconduct has plagued the CAF for years, and the Trudeau government has promised reform within the military.

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Late last year, Defence Minister Anita Anand unveiled what she described as “an ambitious roadmap” to reform CAF culture. In her report tabled Dec. 12, Anand said she had directed DND and CAF to pursue “an all-hands-on-deck effort” to address the dozens of recommendations made by former Supreme Court of Canada justice Louise Arbour when she released her long-anticipated report into the culture of the Canadian military in May.

The review was formally launched a year before the report was released — in May 2021 — in response to exclusive reporting by Global News into allegations of sexual misconduct at the highest ranks of the CAF.

Arbour’s report found the CAF was an institution that is fundamentally out of sync with the values of Canadian society, and that poses a “liability” to the country.

With files from Global News’ Marc-Andre Cossette.

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