On June 23, 2021, the Federal Court released two certification decisions: Nasogaluak v. Canada (Attorney General) ["Nasogaluak"] [1] and BigEagle v. Canada ["BigEagle"].[2] Both cases involved claims against the Royal Canadian Mounted Police ("RCMP"). In Nasogaluak, the claims focused on the assaults of indigenous individuals in the Territories in the custody of the RCMP, while BigEagle concerned failures of the RCMP in respect of their investigation and prosecution of missing and murdered Indigenous women.
While both cases were heard separately, they share a number of common features – (1) both involved important Indigenous representative plaintiffs; (2) both sought to address allegations of systemic racism in policing activities; and (3) both advanced claims of alleged systemic negligence, breach of fiduciary duty and breach of sections 7 and 15 of the Charter. The same case management judge presided over both cases. Notwithstanding these similarities, the Federal Court certified Nasogaluak but denied certification in BigEagle.
At first blush, given the similarities between the two cases, the differing outcomes on the two motions appear puzzling. How and why did the Court reach different decisions on two similar cases? As with any certification motion, the devil is always in the details. On closer examination, it is clear that the similarities between the two cases described above end there, and the two cases are in fact meaningfully different in material ways. Ultimately, the Court's decision to certify one and not the other illustrates the importance of strategically framing claims and pleadings in proposed class actions narrowly.
Please log in to read the full article.