Ottawa’s appeal of CAF sexual misconduct class action extension ‘troubling’: law firms

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WATCH - Canadian Armed Forces ‘not immune’ to crises facing Canadians: minister – Dec 18, 2022

Ottawa’s decision to appeal a recent Federal Court ruling that would extend the deadline for submitting claims in a military sexual misconduct class action settlement is “troubling,” according to law firms representing people who had sought to join.

The federal government on Tuesday said it would be launching an appeal after a Federal Court judge ruled on Jan. 6 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.

Ottawa said that ruling “compromises the integrity” of the final settlement agreement negotiated by the parties and approved by the court, but a statement from law firms representing claimants disputes that.

“It is baseless and deeply troubling for the government to publicly state that the Federal Court’s ruling on late claims ‘compromises the integrity’ of the settlement agreement,” law firms Koskie Minsky LLP and RavenLaw told Global News in a statement Wednesday.

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“On the contrary, the court’s decision is consistent with the settlement agreement as well as the principles underlying it, including the importance of having a process that is restorative and trauma-informed.”

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The Federal Court made its decision 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. Koskie Minsky LLP argued in federal court filings that some 640 people may be eligible if the late applications would be approved.

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.

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.

The government also argues that the Federal Court judge made errors of law in his decision. Justice Minister David Lametti would not elaborate further on the appeal when asked by Global News on Thursday, referring questions on the case to the national defence minister.

“As a government, we have taken the question of sexual assault and sexual harassment in the military to be a top priority,” he said, adding he’s working with Anita Anand on implementing recommendations involving his department that were made in a recent review into military sexual misconduct.

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“But for the decision itself and going in front of the court, I’m going to sadly turn you to Minister Anand to speak to that.”

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.

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

Late last year, 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.

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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.


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