Federal Court Partially Grants Summary Judgment Against RCMP

OUTCOME: Allowed in Part

Date: 20260525 [NAME_1] : T-138-19 Citation: 2026 FC 665 Ottawa, Ontario , May 25, 2026 PRESENT: Madam Justice McDonald CLASS PROCEEDING BETWEEN: [NAME_2] Plaintiff and HIS [NAME_5] THE [NAME_6] Defendant

ORDER AND

REASONS Table of Contents TOC \o \h \z \u

ORDER AND

REASONS PAGEREF _Toc230337616 \h 1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600310036000000 I. Overview PAGEREF _Toc230337617 \h 3 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600310037000000 II. Background PAGEREF _Toc230337618 \h 6 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600310038000000 A. Procedural background PAGEREF _Toc230337619 \h 6 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600310039000000 B. Factual background PAGEREF _Toc230337620 \h 8 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600320030000000 (1) Designated Physicians PAGEREF _Toc230337621 \h 8 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600320031000000 (2) Medical Examination Forms PAGEREF _Toc230337622 \h 9 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600320032000000 III. Motion Evidence PAGEREF _Toc230337623 \h 9 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600320033000000 A. Plaintiff’s evidence PAGEREF _Toc230337624 \h 9 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600320034000000 B. Defendant’s evidence PAGEREF _Toc230337625 \h 14 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600320035000000 IV. Preliminary issues PAGEREF _Toc230337626 \h 16 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600320036000000 A. Objections to the [NAME_7] _Toc230337627 \h 16 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600320037000000 B. Objections to Plaintiff’s expert evidence PAGEREF _Toc230337628 \h 18 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600320038000000 (1) [NAME_9] _Toc230337629 \h 18 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600320039000000 (2) Defendant’s objections to the [NAME_9] _Toc230337630 \h 22 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600330030000000 (3) [NAME_11] _Toc230337631 \h 24 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600330031000000 (4) Defendant’s objections to the [NAME_11] _Toc230337632 \h 27 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600330032000000 C. Objections to Defendant’s expert reports PAGEREF _Toc230337633 \h 28 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600330033000000 D. Conclusion – objections to evidence PAGEREF _Toc230337634 \h 31 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600330034000000 V. Analysis PAGEREF _Toc230337635 \h 31 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600330035000000 A. Summary judgment principles PAGEREF _Toc230337636 \h 32 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600330036000000 B. Common issue 1 – duty of care PAGEREF _Toc230337637 \h 33 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600330037000000 C. Common issue 2 – standard of care PAGEREF _Toc230337638 \h 36 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600330038000000 (1) What is the applicable standard of care? PAGEREF _Toc230337639 \h 37 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600330039000000 (a) Use of the BFOR standard PAGEREF _Toc230337640 \h 40 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600340030000000 (b) Adopting internal recommendations PAGEREF _Toc230337641 \h 45 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600340031000000 (c) Lack of policies and procedures for internal complaints PAGEREF _Toc230337642 \h 47 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600340032000000 (2) Conclusion – Common issue 2 PAGEREF _Toc230337643 \h 52 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600340033000000 D. Common issue 3 – vicarious liability for [NAME_13] _Toc230337644 \h 53 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600340034000000 E. Common issue 4 – vicarious liability for Designated Physicians PAGEREF _Toc230337645 \h 55 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600340035000000 (1) Public employee Designated Physicians PAGEREF _Toc230337646 \h 56 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600340036000000 (2) “Contracted” Designated Physicians PAGEREF _Toc230337647 \h 57 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600340037000000 VI. Conclusion on Motion PAGEREF _Toc230337648 \h 64 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600340038000000

ORDER IN T-138-19 PAGEREF _Toc230337649 \h 66 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600340039000000 SOLICITORS OF RECORD PAGEREF _Toc230337650 \h 67 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200330030003300330037003600350030000000 I. Overview [ 1 ] This is a Motion for summary judgment on a certified class proceeding. The Representative Plaintiff, [NAME_2], seeks summary judgment on four of the seven certified common issues. These four common issues relate to liability for claims of systemic negligence against the Royal Canadian Mounted Police ([NAME_12]) in the administration of Applicant’s Examinations, mandatory pre-employment medical examinations for those applying for employment with the [NAME_12]. The Representative Plaintiff, on behalf of the class, claims that the [NAME_12] is liable for the tortious conduct of the medical doctors who administered medical examinations, because the [NAME_12] failed to establish and enforce policies to protect applicants from abuse by the medical doctors who were paid by, or under contract with, the [NAME_12] to conduct the medical examinations. The Plaintiff additionally claims that some of the medical examinations included sexually inappropriate and unnecessary procedures. [ 2 ] To grant summary judgment, the Court must be able to make the necessary findings of fact and law and be satisfied that there are no genuine issues for trial based upon the evidentiary record. I have concluded that it is not possible to grant summary judgment on a class-wide basis. In addition to factual disagreements, there are disagreements on the applicable negligence standards that would apply during the class period. The Plaintiff’s evidence does not address the applicable medical standards that would apply to examinations that took place over the decades of the class period. Based upon the evidence, I cannot determine the applicable duty of care, the standard which would apply, and if there has been a class-wide breach. [ 3 ] I do not question the credibility of [NAME_2]’s evidence, nor do I question the credibility of the evidence filed by other Class Members in support of this Motion. I understand the eagerness to resolve this longstanding matter, but it is simply not possible to make the necessary negligence findings on a summary judgment basis, given the complexity of the claims, the decades over which the class period extends, and the factual disputes in the evidence. [ 4 ] I acknowledge the evidence that the conduct of [NAME_14] and [NAME_17] fell below any applicable medical standards, and there is evidence that the [NAME_12] had knowledge of this conduct and may not have taken reasonable steps to prevent further harm from these doctors. However, the claims advanced in this class proceeding go beyond claims arising from the conduct of [NAME_19] and Dr. MacDougall. Additionally, the nature of the conduct for which claims are advanced goes beyond claims for assault and battery and include claims for any medical examinations that were inappropriate and unnecessary. This claim is not advanced against the doctors directly, but rather against the [NAME_12]’s leadership for their failure to exercise reasonable care and oversight of the medical examination process. This is a complex inquiry that requires the Court to consider the conduct or misconduct of the doctors engaged by the [NAME_12] against the prevailing acceptable medical norms and standards at the time of the examinations. Then, such conduct must be assessed against the prevailing standards for an employer requiring a medical examination as a condition of employment. [ 5 ] Suffice it to say that the systemic negligence claim against the [NAME_12] is multifaceted and extends to considerations well beyond the conduct of just [NAME_19] and Dr. MacDougall. While it might appear obvious that the [NAME_12] should bear responsibility for the misconduct of any doctor they retain for medical examinations, such responsibility cannot be assessed in a vacuum and requires consideration of if, and when, the [NAME_12], itself a complex organization, had knowledge of such misconduct and what if any steps were taken or should have been taken. [ 6 ] Overlaying this assessment is the reality that medical norms and practices have changed and evolved over the decades covering the class period – the allegations of unnecessary examinations need to be considered in the relevant context. [ 7 ] On this summary judgment Motion, the Plaintiff proceeded on the basis that the Defendant, in their Statement of Defence, admitted a duty of care and the standard of care, therefore it was unnecessary for the Plaintiff to address these legal tests. I do not read the Statement of Defence as making those admissions, and even if the Defendant did admit some elements of the negligence test, that alone is not sufficient to allow me to make findings, on a class-wide basis, that the constituent elements of negligence on these common issues have been established over the full class period. [ 8 ] The Plaintiff took a very simplistic approach to the systemic negligence claims advanced and did not present evidence to allow the Court to make findings on the various complexities this claim presents. Aside from the egregious misconduct of Dr. [NAME_19], the Plaintiff has simply not provided sufficient evidence to support their position, on a class-wide basis, over the entire class period, that the medical examinations sought to be covered by this class proceeding were inappropriate or unnecessary.

II. Background A. Procedural background [ 9 ] The Statement of Claim was filed on January 18, 2019. The Representative Plaintiff, [NAME_20], is a civilian member of the [NAME_12] and served as the Officer-in-Charge at the Operational Communications Centre, National [COMPANY_21]. [NAME_20] began her career with the [NAME_12] in 1989. Prior to being hired by the [NAME_12], she was required to undergo an Applicant’s Examination. In the Statement of Claim, she details her experience of assault and sexual abuse by the examining physician. Historically, [NAME_20] has attempted to address the issues raised here within the [NAME_12] and through the Metropolitan Toronto Police Service and the College of Physicians and Surgeons of Ontario ([NAME_22]) without any resolution ( [NAME_4] v Canada , 2021 FC 267 at paras 54-55, 57). [ 10 ] The Defendant consented to this matter being certified as a class proceeding, which the Court approved on March 26, 2021 ( [NAME_4] v Canada , 2021 FC 267 [ Class Certification ]). The certified class is defined as “all persons who reside in Canada who underwent an Applicant’s Examination by a Designated Physician” (Class Members). The Statement of Claim defines Designated Physicians as “[d]octors selected and approved by the [NAME_12]” . I note that the Defendant interprets “Designated Physicians” differently from the Plaintiff. For clarity, throughout theses Reasons when I use “Designated Physicians” , I use the phrase as it is defined in the Statement of Claim. [ 11 ] An Applicant’s Examination was mandatory for different [NAME_12] applicants at different times. As such, the class period varies based on the position Class Members applied for, and the underlying claims range from 1975 to 2018. Applicants required to undergo an Applicant’s Examination include ( Class Certification at para 35, citing the Affidavit of [NAME_23]): a) All Regular Members; b) From January 1979 to March 15, 1996 all civilian members (CMs); c) From May 16, 1996 to June 1, 2016, CMs who are or were classified as set out in the chart in the next paragraph; d) Special Constable members; e) From February 20, 2014 to the present, Public Service Employees (PSEs) who are or were classified as set out in the next paragraph; f) Reservists if they join the [NAME_12] from an external police force; and g) Cadets from 1994 onwards. [ 12 ] The Defendant filed a Statement of Defence in December 2022 and concedes vicarious liability for the tortious acts of two Designated Physicians, [NAME_26]; but otherwise denies all allegations, including the allegations of systemic negligence. An Amended Statement of Defence was filed on October 24, 2024. Any references below to the Statement of Defence or Defence are referring to the amended pleading. [ 13 ] On September 23, 2024, the Plaintiff filed this Motion for summary judgment on the four certified common issues relating to liability. B. Factual background [ 14 ] The requirement for a pre-employment medical examination is rooted in the Royal Canadian Mounted Police Act , RSC 1985, c R-10, s 9.1(1) [ [NAME_12] Act ], which requires [NAME_12] applicants to possess “the necessary physical qualities” . [ 15 ] These physical requirements were defined by the [NAME_12] and assessed by a Designated Physician through an Applicant’s Examination. [ 16 ] The Applicant’s Examination is mandatory and is often the final step in the [NAME_12] recruitment process. Designated Physicians would complete an Examination Form and provide their opinion on whether an applicant was fit for [NAME_12] admission. Designated Physicians thus exercised significant power, as they often had the final say on whether an applicant could join the [NAME_12]. (1) Designated Physicians [ 17 ] The [NAME_12] used three different methods of retaining the [COMPANY_21] of Designated Physicians during the relevant time period. These are: (1) direct employment of Designated Physicians with the [NAME_12] or public service; (2) contracting between the [NAME_12] and the Designated Physicians or subcontracting with a third-party who contracted the Designated Physicians; and (3) a fee-for-service compensation scheme with community physicians. [ 18 ] Historically, Applicants’ Examinations were administered by the [NAME_12]’s ten divisional health [COMPANY_21] offices. [NAME_12] offices relied on public employee, contracted, and fee-for-service Designated Physicians to varying degrees. Each office also had different mechanisms of oversight of Designated Physicians. Beginning in 2016, the [NAME_12]’s National [COMPANY_21] began centralizing the oversight of the health [COMPANY_21] offices. (2) Medical Examination Forms [ 19 ] The Examination Form lists the required medical tests and inspections for an Applicant’s Examination. The content of these forms varied during the time period relevant to this proceeding. For illustration, Form 1012, used from the mid 1970’s until 1985, included a section for the examination of the breasts, genito-urinary, and pelvic areas. It was replaced with Form 2261, which included sections for testing the breasts, the penis, scrotum, prostate, and testes for men, and the vagina, cervix, perineum, and ovaries for women. Form 2261 was replaced in the late 2000’s. The new form, Form 3380, included instructions that rectal and gynecological tests were not to be performed by Designated Physicians. A section for the genito-urinary system was included but listed as optional.

III. Motion Evidence A. Plaintiff’s evidence [ 20 ] In support of this Motion, the Representative Plaintiff swore an Affidavit, dated February 20, 2025. In her Affidavit, [NAME_20] explains that she applied to the [NAME_12] as a civilian member. She underwent an Applicant’s Examination at the [NAME_12] headquarters on September 1, 1989. Her Applicant’s Examination was conducted by Dr. MacDougall, an [NAME_12]. [ 21 ] During the examination, [NAME_20] states that Dr. MacDougall visually and physically examined her breast, genital, and rectal areas, without gloves. He repeatedly pinched her nipples as part of what he called the “tweaking method” of examining her breasts. He stroked her legs and commented on their smoothness. He removed and repositioned her gown, before asking her to bend over. He then ground his pelvis against her exposed buttocks, claiming to inspect the curvature of her spine. [ 22 ] After the examination, [NAME_20] spoke to Class Members [NAME_27] and [NAME_30], two other [NAME_33] who underwent Applicants’ Examinations with Dr. MacDougall. All three claimed to have had similar experiences with Dr. MacDougall. The three women made complaints to the [NAME_12] Member Employee Assistance Program ([NAME_34]). [ 23 ] The [NAME_35] referred the complaints to her supervisor, who referred them to the Metropolitan Toronto Police Service and the [NAME_22]. The Toronto Police investigated, but did not charge Dr. MacDougall. The [NAME_22] investigated Dr. MacDougall, but withdrew the complaint for “confidential reasons” . [ 24 ] The [NAME_12] also began an internal investigation into the complaints that ceased shortly thereafter. There are conflicting explanations for why the investigation ceased. [NAME_20], [NAME_36], and [NAME_37] claim they were not asked to provide statements in support of an investigation. Further, a 2018 [NAME_12] report claimed the investigation was stopped because the Toronto Police did not find Dr. MacDougall’s conduct criminal in nature, and the [NAME_22] found that Dr. MacDougall’s conduct was within the accepted standards of medical practice for doctors and did not violate any [NAME_12] policy. [ 25 ] Additional complaints arose in 2018 regarding another Designated Physician, [NAME_19]. [NAME_19] conducted Applicants’ Examinations in the Halifax area for [NAME_12]’s “H Division” . The [NAME_12] referred the matter to the Halifax Regional Police, who investigated but declined to press charges. [ 26 ] The Plaintiff alleges that four previous complaints had been made against [NAME_19] in the early 1990’s but were not taken seriously. The Defendant claims that there are no records of prior complaints or investigations. [ 27 ] In support of this Motion, the Plaintiff also filed Affidavits from: [NAME_36], [NAME_37], [NAME_38], [NAME_41], [NAME_44], [NAME_46], and [NAME_49]. I will briefly summarize the contents of these affidavits below. [ 28 ] [NAME_36] is a [NAME_52] [NAME_12] civilian member. Her Affidavit, sworn September 20, 2024, describes the Applicant’s Examination she underwent on September 25, 1989 by Dr. MacDougall, and her attempts with [NAME_20] and [NAME_37] to address the matter. [ 29 ] [NAME_36] states that, during her examination, Dr. MacDougall visually and physically inspected her breast, anal, pubic, and vaginal areas, without wearing gloves. She claims he repeatedly made inappropriate comments about her body and also asked her to bend over and then he pressed his pelvis against her buttocks to allegedly inspect her spine. [ 30 ] [NAME_36]’s Affidavit corroborates [NAME_20]’s account of the complaints against Dr. MacDougall through [NAME_34], the Toronto Police, and the [NAME_22]. She notes that she provided a written statement to the [NAME_12], dated October 25, 1989, and attached it as an exhibit. [ 31 ] [NAME_37] is a [NAME_52] [NAME_12] civilian employee. Her Affidavit, sworn September 23, 2024, details the Applicant’s Examination she underwent on February 10, 1987 by Dr. MacDougall, and her attempts with [NAME_20] and [NAME_36] to address the matter. [ 32 ] [NAME_37] attended her Applicant’s Examination under the impression it was a psychological assessment. During the Examination, she states that Dr. MacDougall visually and physically inspected her breasts, nipples, and clitoris, and then inserted his fingers into her vagina, all without the use of gloves. According to the [NAME_32], Dr. MacDougall also asked her to bend over, and he pressed his pelvis against her buttocks to allegedly inspect her spine. [ 33 ] Her Affidavit also corroborates [NAME_20] and [NAME_36]’s account of pursuing complaints against Dr. MacDougall through [NAME_34], the Toronto Police, and the [NAME_22]. [ 34 ] [NAME_53] is an [NAME_12] regular member and the husband of [NAME_42]. He applied to the [NAME_12] in 1999 and underwent an Applicant’s Examination from an unknown Designated Physician. His Affidavit, sworn September 24, 2024, explains that he received a rectal examination, which he considered unnecessary because he was a 25-year-old with no health concerns. His Affidavit also explains that he inquired about the examinations received by himself and [NAME_54], and the [NAME_12]’s response, which took months, failed to respond to some of his questions and concerns. [ 35 ] [NAME_54] is an [NAME_12] regular member and the wife of [NAME_53]. She applied to the [NAME_12] in 2002 and received an Applicant’s Examination from [NAME_19] in 2003. Her Affidavit, sworn September 20, 2024, explains that she received a rectal examination from [NAME_19] with the lights off. [NAME_53] filed a complaint on behalf of [NAME_54], the details of which are provided in [NAME_53]’s Affidavit. [ 36 ] [NAME_55] and [NAME_47] are professors at [COMPANY_56] and are the Plaintiff’s proposed experts. Each of their Affidavits attached their respective proposed Reports. The Defendant objects to these Reports. The contents of these Reports, and the Defendant’s objections, are assessed in the “Preliminary issues” section of these Reasons. [ 37 ] [NAME_49] is a lawyer at Class Counsel’s firm. Her Affidavit summarizes, and attached documents related to, Class Counsel’s contact with Class Members, procedural history, and document production and discovery. The Defendant also objects to the [NAME_7], which I address in the “Preliminary issues” section. B. Defendant’s evidence [ 38 ] The Defendant’s Motion materials include 31 affidavits, which attach numerous exhibits. Below I will briefly summarize the affidavits that I have found most relevant to the issues on this Motion, which are the Affidavits of: [NAME_57], [NAME_61], [NAME_64] [NAME_65] D. [NAME_66], [NAME_67], [NAME_71], [NAME_68], [NAME_74], [NAME_77], [NAME_82], and [NAME_85]. [ 39 ] [NAME_57] is an [NAME_12] member of “H Division” in Dartmouth, Nova Scotia. His Affidavit, affirmed July 11, 2025, details the [NAME_12]’s response in 2018 and 2019 to complaints made against [NAME_19]. [ 40 ] [NAME_61] is the [NAME_12]’s Chief Medical Officer, a position he has held since April 2021. His Affidavit, affirmed June 27, 2025, details the [NAME_12]’s [COMPANY_88] and National Health Policies. He details the categories of physicians who conduct Applicant’s Examinations, their training, and the [NAME_12]’s approach to oversight of, and complaints against, physicians. Finally, he provides a history of the [NAME_12]’s occupational health and applicant engagement standards. [ 41 ] [NAME_89] is an [NAME_12] member, who reviewed files and conducted searches related to the Designated Physicians identified by the Plaintiff. He is also the Defendant’s affiant for their Affidavit of Documents. His Affidavit, sworn July 11, 2025, details the [NAME_12]’s organizational structure and mandate, the [NAME_12]’s policy system, categories of [NAME_12] personnel, and which categories of [NAME_12] personnel were required to undergo an Applicant’s Examination. He also addresses the steps taken by the [NAME_12] to locate relevant documents, including those related to Designated Physicians identified by the Plaintiff. [ 42 ] [NAME_67] oversaw the “O Division” Criminal Investigations Branch in Toronto between 1986 and 1990. His Affidavit, sworn June 24, 2025, details his involvement in the [NAME_12]’s response to the complaints of [NAME_90], [NAME_29], and [NAME_32] in 1989 and 1990. [ 43 ] [NAME_71] is a Director of Strategy Acquisitions and Policy at the [NAME_12]. Her Affidavit, affirmed June 23, 2025, explains the Government of Canada’s procurement policies and the [NAME_12]’s procurement contracts for physician [COMPANY_21]. [ 44 ] [NAME_68], in 2018 and 2019, led an [NAME_12] “O Division” administrative investigation into Dr. MacDougall’s conduct, and the [NAME_12]’s response. Her Affidavit, affirmed June 27, 2025, details the investigation and its findings. [ 45 ] [NAME_74] is an Administrative Officer/Team Lead of the [NAME_12]’s National [COMPANY_21]. Her Affidavit, affirmed July 4, 2025, reviews the creation of the National [COMPANY_21] in 2016, its organizational structure, and the centralization of [NAME_12] medical examinations. Her Affidavit also discusses supervision of, and complaints against, contracted physicians, and the [NAME_12]’s direct recruitment of physicians. [ 46 ] [NAME_92] is the Manager of the [NAME_12]’s Health Benefits Program. Her Affidavit, affirmed June 3, 2025, reviews the current and historical health benefits provided to [NAME_12] members, and provides a brief history of [NAME_34]. [ 47 ] [NAME_93] are family physicians who have taught at the [COMPANY_94]. They are the Defendant’s proposed experts, and their Affidavits attach their proposed Reports. The Plaintiff objects to these Reports. These objections are assessed in the “Preliminary issues” section of these Reasons.

IV. Preliminary issues [ 48 ] I will first address the objections to evidence raised by both parties. Specifically, the Defendant objects to the admissibility of the Affidavit of [NAME_50] and the reports of the Plaintiff’s expert witnesses, [NAME_46] and [NAME_44]. The Plaintiff filed objections to the Defendant’s expert reports of [NAME_85] and [NAME_82]. [ 49 ] The objections are raised, in part, because of the failure of both parties to serve the required notice under Rule 52.2(1)(b) of the Federal Courts Rules , SOR/98-106 [ Rules ] which provides for a Notice outlining the expert’s proposed area of expertise. A. Objections to the [NAME_7] [ 50 ] The Defendant argues that the entirety of the [NAME_7] is inadmissible. [ 51 ] In her Affidavit, [NAME_95] states that she is a lawyer with the law firm representing the Plaintiff. As such, the Defendant argues that the [NAME_7] contravenes Rule 82 of the Rules , which prohibits a solicitor from swearing an affidavit and then making argument based on that affidavit, without leave of the Court. This rule is generally subject to strict application by the Courts ( [NAME_96] v Canada ([NAME_97]) , 2015 FC 1351 at para 14). [ 52 ] Second, they argue that [NAME_95] lacks personal knowledge of some of the documents she attached to her Affidavit, contrary to Rule 81(1), which provides that affidavits on motions for summary judgment must be limited to facts within the deponent’s personal knowledge. For example, the [NAME_7] includes documents produced by the Defendant and third parties, such as the [COMPANY_21]. [NAME_95] conceded on cross-examination that she was not involved in the creation or receipt of most exhibits attached to her Affidavit. As such, she lacked personal knowledge of these documents. [ 53 ] The [NAME_7] is not in compliance with the Rules . And even if the information attached to her Affidavit has otherwise been disclosed, a solicitor’s affidavit should not be used as an evidentiary shortcut. Allowing evidence to be tendered in this manner effectively shields the evidence, as there is no way to conduct a proper cross-examination on the evidence, since [NAME_95] would be unable to answer questions on the documents which are clearly not within her personal knowledge ( [COMPANY_98] (Ottawa Athletic Club) v [COMPANY_99] , 2014 FC 672 at para 118). Additionally, I am not satisfied that affidavits could not be provided from others who could attest to the provenance of the documents attached. Such an affidavit would not be acceptable in a trial and likewise is not acceptable in this summary judgment Motion. I will accordingly disregard the [NAME_7] and the attached exhibits. B. Objections to Plaintiff’s expert evidence [ 54 ] The Defendant objects to both of the Plaintiff’s proposed expert witnesses, [NAME_46] and [NAME_44], on the grounds that their reports are not admissible as they do not meet the test from [NAME_84] [NAME_100] v [NAME_101] Co , 2015 SCC 23 at para 19, which provides that expert evidence is admissible if it is: (1) relevant; (2) necessary to assist the trier or fact; (3) not otherwise inadmissible under an exclusionary rule; and (4) provided by a properly qualified expert. [ 55 ] To properly assess the objections raised by the Defendant, I will first summarize the reports. (1) [NAME_9] [ 56 ] [NAME_102] is an Associate Professor at [COMPANY_56]. He is a [NAME_52] police officer, who served 30 years with the London Police Service, and has taught several courses related to policing. [ 57 ] At the Motion hearing, the Plaintiff sought to have him qualified as an expert witness in “policing and public safety, specifically with respect to recruiting; policies and procedures across Canadian policing, including policies with respect to recruiting and hiring processes, including how these policies and procedures impact the recruiting and hiring process; performance management for police officers; leadership and power dynamics in police forces; training and recruiting of cadets and police officers; and human resource management” , all of which relate to both regular and civilian members. His curriculum vitae indicates that he has conducted research relating to police hiring requirements, although it is unclear whether this relates to medical hiring requirements. [ 58 ] In his Report, [NAME_102] outlines what he says are reasonable steps that [NAME_13] should have taken to protect [NAME_12] applicants during the Applicant’s Examination including: (i) limiting the contents of the Applicant’s Examination to include only those with a bona fide occupational requirement (BFOR); and (ii) adopting internally recommended policies and procedures to reduce the risk to applicants. [ 59 ] The [NAME_9] first reviews [NAME_12] documentation relating to the BFOR standard. He claims the [NAME_12] was aware of the BFOR standard as early as 1979, as the underlying principle of BFOR standard was mentioned in a Report by [NAME_103], who recommended “[c]ivilian Members need only be fit to perform the particular job/position they are being engaged to perform” . He notes the principle was again referenced in a 1987 copy of the [NAME_12]’s [COMPANY_21] II.2 Engagement Examination , which stated “[t]he medical criteria used to assess candidates for engagement in the [NAME_12] shall be job-related” . The [NAME_9] also notes a 1991 document, which states that the [NAME_12] only had one established standard that complied with BFOR standard and that all other [NAME_12] medical standards may not withstand challenge. Finally, the [NAME_9] mentions a 2018 report by [NAME_12] National Medical Advisor, [NAME_105] (Pilon Report). The Pilon Report noted that breast, rectal, and genital examinations were no longer part of the [NAME_12]’s medical standards. According to [NAME_102], this was because these examinations were not BFOR-compliant, with the implication being that they were never BFOR-compliant. [ 60 ] The second reasonable action put forth by the [NAME_9] is adopting policies and procedures to mitigate the risk in the Applicant’s Examination. Specifically, [NAME_102] cites internal [NAME_12] recommendations surrounding the Applicant’s Examination from 1973 and 1990, none of which the [NAME_12] adopted, according to [NAME_102]. [ 61 ] The 1973 recommendations were made in anticipation of women joining the [NAME_12]. [NAME_12] [NAME_107] wrote to [NAME_110], the Director [NAME_97] of [NAME_112] [COMPANY_21] for the Department of Veterans Affairs (DVA), regarding the introduction of female [NAME_12] members. At that time, the DVA was responsible for [NAME_12] medical standards. [ 62 ] The first of [NAME_110]’s recommendations was the hiring of a female manager, who could “assist in the early identification of potential problem areas peculiar to the employment of women, thereby unabling [ sic ] us to avoid personnel management difficulties” . [NAME_102] suggests that a female manager with this responsibility would have curtailed many of the issues that arose from the Applicant’s Examination. [ 63 ] The 1973 recommendations also addressed procedures to be performed on female applicants. Pelvic, breast, and genital exams “would only be performed by a Consultant certified in Obstetrics and Gynaecology” . The [NAME_12] did not implement these recommendations. Instead, in its 1987 [COMPANY_21], the [NAME_12] made a gynecological exam conditional on: (i) a gynecological history that suggests the need for such an exam; and (ii) the patient’s consent. If the patient did not consent, then the exam would be conducted by an [NAME_12]-approved gynecologist. [ 64 ] The 1990 recommendations were made in a January 1990 memo by [NAME_113], titled “EXAMINATION/[NAME_112] OF FEMALE APPLICANTS AND MEMBERS” ([NAME_115]). The [NAME_115] was provided to [NAME_13] shortly after the first three complaints were made against Dr. MacDougall. However, in a 2018 interview with the Toronto Police Service, [NAME_116] stated that this memo was not in response to those complaints. The [NAME_115] begins by stating that the memo “is to be retained in front of the [[COMPANY_21]]” and that the recommendations would be implemented and complied with from the date of receipt. However, according to [NAME_102], the [NAME_115] was never published as an official directive. The [NAME_115] recommendations were: Ø A prohibition against Designated Physicians performing internal gynecological exams. Ø A requirement that a female attendant be present when a Designated Physician examines the breast, pelvic, or external genital areas. Ø A requirement that patients wear appropriate exercise clothing when undergoing exercise or fitness testing. Ø A requirement that Designated Physicians leave the examining room while a patient changes. Ø A required technique for breast examination, where only the four quadrants would be inspected and only the part being examined would be exposed. [ 65 ] According to [NAME_102], the 1990 recommendations were not implemented. Future changes in the [COMPANY_21] did not provide the same level of protection that the [NAME_115] provided. (2) Defendant’s objections to the [NAME_9] [ 66 ] The Defendant argues that the [NAME_9] does not meet the necessity requirement for admissibility because it offers no specialized knowledge beyond the Court’s knowledge. The necessity requirement is met if an expert’s opinion “provides information ‘which is likely to be outside the experience and knowledge of a judge or jury’” ( R v [NAME_117] , 1994 CanLII 80 (SCC), citing R v [NAME_118] , 1982 CanLII 25 (SCC)). [ 67 ] In his Report, [NAME_102] provides his “analysis on the adequacy of the [NAME_12]’s policies and procedures regarding the Applicant’s Examination, and the steps taken or not taken by the [NAME_12] to ensure their adequacy” . He does this by summarizing relevant [NAME_12] documents, which are already in evidence, and providing his opinions and inferences. [ 68 ] I read the [NAME_9] as a critique of what the [NAME_12] could or should have done considering the information he reviewed. To the extent [NAME_102] has experience in policing policies and procedures and how those policies and procedures impact the recruiting and hiring process and performance management for police officers, his opinion is outside the Court’s knowledge, and therefore sufficient to satisfy the necessity requirement, which “should not be judged by too strict a standard” ( R v [NAME_117] , 1994 CanLII 80 (SCC)). [ 69 ] The Defendant also argues that the [NAME_9] should be disregarded as it purports to provide legal opinion on the standard of care. Expert evidence that provides Canadian law, or applies that law to the facts of a case, is inadmissible ( [NAME_119] v Canada , 2017 FC 1021 at para 33), because such evidence falls within the scope, experience, and knowledge of the Court ( [NAME_120] v Canada (Citizenship and Immigration) , 2023 FC 1125 at para 48 [ [NAME_120] ]). [ 70 ] I do not read the [NAME_9] as providing legal opinion. [NAME_102] is not a lawyer, and where he uses the terms “standard of care” , “reasonable steps” , and “breach of the [NAME_12]’s standard of care” in his report, I do not understand him to be using those terms in their legal sense. Rather he explains what conduct or “standards” he would expect a police organization to make, given his experience with police organizations. As such, I consider his Report to fall into the category of reports where “expertise is required to enable the decision maker to appreciate a matter at issue and to help it form a judgment on a matter where ordinary persons are unlikely to do so without the help of those with special knowledge” ( [NAME_120] at para 47). [ 71 ] In summary, I am satisfied that the [NAME_9] is admissible. In my view, the issues raised by the Defendant go to the weight to be afforded to the Report and not to the issue of its admissibility. (3) [NAME_11] [ 72 ] [NAME_121] is an Assistant Professor at [COMPANY_56], where she teaches several courses related to policing. She is a qualified workplace investigator and has investigated complaints surrounding harassment, abuse, bullying, and sexual harassment. She also formerly served as a police officer with the [NAME_122] Service. Her curriculum vitae demonstrates experience with police organizations and workplace investigations. [ 73 ] At the Motion, the Plaintiff sought to qualify [NAME_121] as an expert in “workplace investigations, including recruitment; workplace safety, including recruitment; occupational health and safety, particularly in the policing workplace; policing and police studies, including conducting investigations and interviewing; assessing risk and threat management; leadership and ethics; leadership and organizational culture; performing cultural reviews and instructing; and gender diversity in policing” . [ 74 ] The [NAME_11] proposes that the [NAME_12] could have mitigated the risks inherent in the Applicant’s Examination by taking appropriate investigatory and corrective steps. [ 75 ] The [NAME_11] first provides a summary of how the [NAME_12] handled sexual assault complaints against Designated Physicians. She states that the [NAME_12] did not consider such complaints as an [NAME_12] matter, because applicants were not [NAME_12] members. Instead, the [NAME_12] referred complaints to local police [COMPANY_21] or physician regulatory bodies. She points out that the [NAME_12] had the power to suspend or un-designate a Designated Physician but never did so. According to [NAME_121], the [NAME_12]’s approach was effectively a refusal to take responsibility. [ 76 ] The [NAME_11] details three groups of complaints, and the [NAME_12]’s response. [ 77 ] The first group of complaints were made by [NAME_20], [NAME_36], and [NAME_37] to the [NAME_12]’s “O Division” in 1989, regarding Dr. MacDougall. At this time, there was no clear avenue for making complaints about Designated Physicians’ conduct during an Applicant’s Examination. An external body for [NAME_12] complaints would not have jurisdiction over Applicants’ Examinations, while the [NAME_12]’s internal mechanisms did not consider it an [NAME_12] matter. [ 78 ] Instead, the complainants used [NAME_34]. According to [NAME_121], [NAME_34] was not intended to handle complaints against Designated Physicians, nor was it an effective avenue for such complaints. The [NAME_35] reported the complaints to her supervisor, who referred them to the Toronto Police and the [NAME_22]. The Toronto Police declined to lay charges. [ 79 ] The [NAME_12] contacted the complainants between December 1989 and January 1990, claiming that an internal investigation, conducted by [NAME_116], was underway. The [NAME_12] requested at least one of the complainants provide a written statement, but closed the investigation three weeks later, after no such statement was provided. I note that two complainants, in their affidavits, claim not to have received a request for a written statement while [NAME_36] claims to have submitted a written statement to the [NAME_12] months earlier. [ 80 ] The [NAME_11] criticizes this response on two grounds. First, the [NAME_12] did not treat the complaints as a matter of [NAME_97] importance, but rather only of importance to the complainants. According to [NAME_121], three complaints made by three women against the same Designated Physician should have alerted the [NAME_12] to issues surrounding that Designated Physician, and the Applicant’s Examination more broadly. However, the [NAME_12] failed to conduct any such investigation. [ 81 ] Second, the [NAME_12] was already aware of the “issues of concern” of the complainants. The complaints had been made through the [NAME_35], which were forwarded to her supervisor. On January 9, 1990, [NAME_116] sent the [NAME_115] to [NAME_123]. The [NAME_115] included several recommendations addressing concerns surrounding the Applicant’s Examination. Apparently, [NAME_116] stated in 2018 that the Memo was not written in response to the complaints against Dr. MacDougall. However, considering the timing of the Memo, [NAME_116]’s statement seems questionable. Regardless, the timing of the memo shows that the [NAME_12] was clearly alive to the issues of the Applicant’s Examination. [ 82 ] Four complaints were made in 1990 and early 1991 against [NAME_19], who conducted Applicants’ Examinations in “H Division” in Halifax. Two of these complaints were made to the [NAME_126], and the other two to the [NAME_127]. The complainants apparently were laughed at and told that they had nothing to worry about and that [NAME_19] was nicknamed “Dr. [NAME_128]” by [NAME_12] members. This nickname suggests a level of notoriety among [NAME_12] members and a repeated pattern of behaviour that was accepted by [NAME_12] members. [ 83 ] Finally, two complaints were made in 2018 by [NAME_53] about inappropriate conduct by Designated Physicians during his and [NAME_54]’s Applicants’ Examinations in the early 2000’s. [NAME_53]’s Applicant’s Examination occurred in late 1999/early 2000 at “K Division” in Edmonton, while [NAME_54]’s Applicant’s Examination was conducted by [NAME_19] in 2003 in Halifax. The [NAME_11] claims that the [NAME_12] took no meaningful steps to respond to [NAME_53]’s complaint. Instead, he was merely told that he could take further investigative steps by requesting his medical file. [ 84 ] The [NAME_11] concludes by contrasting the [NAME_12]’s lack of response to sexual assault allegations against Designated Physicians as compared to other issues raised with Designated Physicians. She notes that in 1981, the [NAME_12] found that recruits who passed the Applicant’s Examination did not actually meet fitness requirements. In response, the [NAME_12] undertook an investigation and corrective review, which resulted in the implementation of several recommendations. Then in 1994, the [NAME_12] responded to reports that a Designated Physician smelled of alcohol at work. The commanding officer ordered that an investigation be conducted and directed that the physician be escorted for a medical examination. According to [NAME_121], this demonstrates that the [NAME_12] could be responsive to issues with the Applicant’s Examination. (4) Defendant’s objections to the [NAME_11] [ 85 ] The Defendant raises several issues with the [NAME_11]. First, they argue that [NAME_121] failed to consider contrary evidence. However, this evidence consists of affidavit evidence that was either filed after [NAME_121] prepared her report or was not provided to her by the Plaintiff’s legal counsel. It is unfair to criticize [NAME_121] for failing to consider evidence that was not before her. In my view, this goes to the weight of the Report, and does not affect her credibility. [ 86 ] When questioned under cross-examination about contrary evidence on the adequacy of the [NAME_12]’s internal response and corrective review, [NAME_121] responded that the act of sending out the [NAME_115], on its own, would be insufficient. An expert disagreeing with contrary propositions does not, on its own, qualify as grounds for not admitting the report. This is ultimately a matter that goes to the weight accorded to the opinion. [ 87 ] The Defendant also argues that the [NAME_11] purports to provide medical and legal opinions. I do not read the Report as veering into opinions in those areas. I accept that [NAME_121] offers opinions on workplace investigations in policing and this is an area that would be outside the expertise of the Court. As such, the [NAME_11], subject to the weight that might be assigned to the Report, is admissible. C. Objections to Defendant’s expert reports [ 88 ] Shortly before the Motion, on January 16, 2026, the Plaintiff filed a written objection to the Defendant’s expert witnesses, [NAME_130], arguing the reports are not relevant or necessary. The Plaintiff also challenges their qualifications. [ 89 ] The record indicates that the Plaintiff was served with the [NAME_84] on June 3, 2025, and the [NAME_87] on July 8, 2025. The Plaintiff’s Memorandum of Argument, filed on November 6, 2025, makes no reference to an objection to the Defendant’s medical experts. [ 90 ] Under the Rules , objections to expert evidence are to be raised “as early as possible in the proceeding” by “serving and filing a document containing the particulars of and basis for the objection” (Rules 52.5(1), (2)(a)). Failure to raise an objection “as early as possible” has resulted in the Court refusing to consider disqualifying the expert but still considering the substance of the objection when weighing the expert’s evidence ( [COMPANY_131] v [NAME_132] , 2022 FC 1443 at paras 32-33). [ 91 ] I am not satisfied that the Plaintiff’s objection to the Defendant’s expert evidence has been made in a timely manner, but in any event, the objections are without merit. The core of the Plaintiff’s objection to the Defendant’s medical expert evidence is that such evidence is irrelevant because the common issues are whether the Defendant is liable for the systemic negligence of the Crown’s servants at the [NAME_12] in administering the Applicant’s Examination, and their alleged failures to establish and enforce policies to protect applicants from abuse. [ 92 ] To the extent the Plaintiff argues that the [NAME_12] is negligent in allowing “inappropriate and unnecessary procedures” as part of the Applicant’s Examination, the appropriateness and necessity of medical procedures is a relevant issue that must be assessed within the accepted standards and practices in the medical profession at the relevant time.

Accordingly, I am satisfied that [NAME_130], as family physicians who claim to have conducted thousands of physical examinations, can provide relevant evidence on the accepted standards and practices of a physical examination for employment purposes. In my view, their reports are relevant. [ 93 ] The Plaintiff’s necessity argument fails on similar grounds. Accepted medical procedures and practices in a full physical examination between 1975 and 2018 are clearly beyond the Court’s expertise. As such, the Defendant’s medical expert evidence meets the necessity requirement. [ 94 ] Additionally, the Plaintiff’s argument regarding expert qualification also fails. She argues that [NAME_130] are not qualified to opine on several matters, including occupational medicine, occupational requirements for police officers, design of pre-employment medical examinations for police force applicants, and policies and procedures to create a safe workplace in a police force. While that may indeed be the case, Designated Physicians were typically family physicians and thus opinions from similarly qualified physicians on the accepted medical standards and practices in physical examinations will be both relevant and necessary. [ 95 ] I also note that the Plaintiff did not cross-examine the Defendant’s expert witnesses. Any challenges the Plaintiff wished to make about the qualifications of [NAME_133] or [NAME_134] should have been made in cross-examination, and not at the hearing, when the proposed experts have no opportunity to defend themselves ( Canada ([NAME_97]) v [NAME_135] , 2023 FC 1663 at para 24). [ 96 ] In summary, the Plaintiff’s objections to the Defendant’s medical expert evidence were not brought in a timely manner and, in any event, are without merit. Subject to the weight to be assigned, the reports of [NAME_133] or [NAME_134] are accepted. D. Conclusion – objections to evidence [ 97 ] For the Reasons outlined above, I am not striking the expert evidence tendered by either party. I am satisfied that the reports tendered by both parties are admissible. In my view, the issues raised go more properly to the weight to be afforded to the reports rather than admissibility. [ 98 ] That said, the expert evidence tendered by the Plaintiff does not establish the various facets of the negligence test to support the Plaintiff’s summary judgment Motion on liability. I will therefore refrain from commenting further on the weight to be assigned to the reports and the opinions expressed, as that will, more properly, be addressed at the common issues trial.

V. Analysis [ 99 ] On this Motion, the Plaintiff seeks summary judgment on the following four common issues: Did the [NAME_12], through its agents, servants and employees owe a duty or duties of care to the Plaintiff and other Class Members to take reasonable steps to provide an Applicant’s Examination free of inappropriate and/or unnecessary procedures, assault and battery, including sexual assault and sexual battery? If yes, what was the applicable standard or standards of care? Was there a breach of this duty or duties by the [NAME_12] through its agents, servants and employees? If yes, is the Crown vicariously liable for the failure of its agents, servants and employees at the [NAME_12] to take reasonable steps to provide an Applicant’s Examination free of inappropriate and/or unnecessary procedures, assault and battery, including sexual assault and sexual battery? Do the [NAME_12]’s servants, agents or employees include Designated Physicians? A. Summary judgment principles [ 100 ] Rule 215(1) allows the Court to grant summary judgment where “there is no genuine issue for trial with respect to a claim or defence” . There is “no genuine issue for trial” if the record allows the Court to make the necessary findings of fact, to apply the law to those facts, and to achieve a fair and just adjudication ( [NAME_136] v [NAME_137] , 2014 SCC 7 at para 4 [ [NAME_136] ]). The evidence must allow for a decision to be reached with confidence, rather than certainty ( Saskatchewan ([NAME_97]) v [NAME_138] , 2023 FCA 105 at para 51, citing [NAME_136] at para 50). [ 101 ] The Plaintiff argues that summary judgment should be granted on the four common issues as she asserts that the evidentiary record is sufficient to determine the common issues, and there are no credibility concerns requiring a trial. [ 102 ] Credibility issues arise when the Court must choose the evidence of one witness over another, or if the credibility of a witness is put into issue through cross-examination and the witness’s evidence must not be believed to reach a conclusion ( Canada v [NAME_140] , 2021 FC 39 7 at para 47). [ 103 ] As detailed below, even if I were satisfied that the evidentiary record before the Court was sufficient, there is contradictory evidence that may require credibility assessments that are more properly done in a trial. In saying this, I am not, for a moment, suggesting that the Representative Plaintiff’s evidence is not credible. But, I am saying that the evidentiary record on the reasonableness of the actions of the [NAME_13] in response to complaints is contradictory. B. Common issue 1 – duty of care [ 104 ] The first common issue for summary judgment is whether the [NAME_12] owed Class Members a duty of care to provide a medical examination free of inappropriate and unnecessary procedures, assault, and battery including sexual assault and battery. Class members are “all persons who underwent an Applicant’s Examination by a Designated Physician” , which includes claims dating back to 1975. [ 105 ] Duty of care is assessed under the Anns/Cooper framework ( Nelson (City) v Marchi , 2021 SCC 41 at paras 16-18) and asks: (1) is there sufficient “proximity” or closeness between a plaintiff and defendant; and (2) are there any factors negating the duty of care. [ 106 ] On this Motion, the Plaintiff takes the position that she does not need to lead evidence on the duty of care part of the negligence test, because the Defendant admitted in its Statement of Defence that it owed a duty of care. She points to paragraph 5 of the Statement of Defence which reads “Canada admits the allegations contained in paragraphs…60 of the statement of claim” . Paragraph 60 of the Statement of Claim states: At all material times, [NAME_33] and servants of the Crown owed a duty of care to the plaintiff and the other Class Members to provide an Applicant's Examination free of inappropriate and unnecessary procedures, assault, and battery, including sexual assault and battery. [ 107 ] The Plaintiff argues that the duty of care has been admitted therefore they need not address the duty of care factors in this summary judgment Motion. [ 108 ] For its part, the Defendant argues that the admission in their Defence is a qualified admission for vicarious liability for the actions of [NAME_142], who they admit were [NAME_33] and servants of the Crown. Otherwise, the Defendant denies the existence of any systemic or institutional duty of care, and they specifically deny any class-wide admission of a duty of care. The Defendant points to paragraph 29(b) of their Defence where they deny “all allegations in the statement of claim concerning systemic negligence” . [ 109 ] In assessing whether the Defendant has made an admission on the duty of care issue, I note that an admission or concession must be “unequivocal” or “clear and unambiguous” because it may result in a waiver or restriction of rights ( [NAME_143] v Canada ([NAME_97]) , 2025 FCA 173 at paras 29-39, particularly para 36 [ [NAME_143] ]). [NAME_143] cites Rosenberg et al v [COMPANY_144] , 2021 MBCA 100 [ Rosenberg ], which notes that concessions can be either formal or informal. Formal concessions can arise from pleadings and are an acknowledgement that a question of law, or mixed fact and law, is not in dispute ( Rosenberg at paras 57,59). However, concessions on questions of law are not binding on the Court and questions of mixed fact and law may not be binding ( Rosenberg at para 57; [NAME_146] v [NAME_146] , 2009 ONCA 105 at para 114). [ 110 ] These authorities make it clear that even where an admission is “clear and unambiguous” the Court is not bound by that admission if it is in the interests of justice to decide the issue by trial, rather than concession. [ 111 ] Based upon a full consideration of the Statement of Defence, I am not satisfied that the Defendant made a “clear and unambiguous” admission on the duty of care issue such that it need not be proven by the Plaintiff. I accept that the Statement of Defence makes a concession on the duty of care in relation to Dr. [NAME_19]. However, the claim advanced on behalf of the class goes well beyond the actions of these two doctors. The claim involves a broader timeframe, and addresses conduct beyond the actions of Dr. [NAME_19].

Accordingly, I do not agree that the Defendant has conceded, in “clear and unambiguous” language, the existence of a duty of care. [ 112 ] As well, even if the Defendant had made such an admission, the existence of a duty of care is a question of law, and the Court would not be bound by an admission in the Defence if it were in the interests of justice to decide the issue by trial. In this case, it is in the interests of justice to decide this issue by trial, given the significant stakes of the litigation, the novelty and breadth of the claim advanced, and the significance across the class of a finding of a duty of care under the Anns/Cooper framework. [ 113 ] Beyond the absence of an unqualified admission on the duty of care, the Plaintiff has not addressed the “proximity” analysis under part 1 of the Anns/Cooper framework, nor did they provide an analogous recognized duty of care. The Plaintiff bore the burden of establishing a duty of care but has not provided submissions to satisfy that burden. Considering the Plaintiff’s failure to address this issue, whether a duty of care exists, it remains a genuine issue for trial and cannot be decided on a summary judgment Motion. C. Common issue 2 – standard of care [ 114 ] Once a duty of care between a plaintiff and defendant has been established, the Court then considers the “standard of care” , which is the level of conduct expected “of an ordinary, reasonable and prudent person in the same circumstances” ( [NAME_147] v [NAME_148] (City) , 1999 CanLII 706 (SCC) at para 28 [ [NAME_147] ]). After identifying the standard of care, the Court then compares the hypothetical standard of care against the defendant’s actual conduct. If the defendant’s conduct is below the standard of care, then the defendant is found to have breached the standard of care. [ 115 ] As I could not make a finding on the duty of care under Common issue 1, it is questionable whether the Court can even find a standard of care without an established duty of care. Indeed, the framing of the certified common issues itself implies that Common issue 2 is dependant upon a finding on the duty of care under Common issue 1. Common issues 1 and 2 state as follows ( Class Certification at para 44):

1) Did the [NAME_12], through its agents, servants and employees owe a duty or duties of care to the plaintiff and other Class Members to take reasonable steps to provide an Applicant’s Examination free of inappropriate and/or unnecessary procedures, assault and battery, including sexual assault and sexual battery? 2) If yes, what was the applicable standard or standards of care? Was there a breach of this duty or duties by the [NAME_12] through its agents, servants and employees? [ 116 ] To establish the applicable standard of care, the Plaintiff relies upon the admissions in the Statement of Defence and her expert reports. In my view, this is insufficient to establish the standard of care they seek to impose on the [NAME_12]. Additionally, even if the Plaintiff’s proposed standard of care were adopted, determining if there was a breach would require credibility findings that are more properly addressed by trial. [ 117 ] In assessing whether [NAME_12] servants or employees breached the standard of care, the Court considers what is the applicable standard of care, and then whether the [NAME_12] breached this standard. (1) What is the applicable standard of care? [ 118 ] The standard of care is based on what was reasonable in the circumstances. This first requires articulating who the “reasonable person” is and then assessing what conduct would be reasonably expected of them. What was reasonable “depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards” may also be considered ( [NAME_147] at para 28). In assessing these factors, the Court often considers expert evidence provided by the parties. [ 119 ] At a high level, determining the applicable standard of care in this case is challenging because of the timeframe over which the alleged events occurred. The evidence and experiences of Class Members cover a wide range of dates - from the early 1970’s to the late 2010’s. During this time, societal, employer and medical standards evolved. For illustration, the medical standards of 1975 are likely not the same as the medical standards of 2018. Further, the reasonableness and breadth of a pre-employment medical examinations requested by employers would have to be assessed against the standards throughout the applicable timeframes involved. [ 120 ] The difficulty in determining the standard of care here is compounded by the Plaintiff’s failure to articulate a standard and the failure to describe the “reasonable person” in this case. This failure is particularly concerning, as the Plaintiff is alleging that [NAME_149] were negligent in preventing both intentional torts (battery, sexual battery) and unintentional torts (unnecessary and inappropriate medical procedures). The standard of care would likely vary in preventing intentional versus unintentional torts ( [NAME_150] v [NAME_122] (City) , 2019 ABCA 21 at para 50), but the Plaintiff has not provided a clear articulation of either standard. [ 121 ] Generally, for the standard of care, the Plaintiff relies upon the alleged concessions in the Statement of Defence and her expert reports. This approach however does not address the possibility that the standard of care may have changed throughout the class period both with respect to the conduct of [NAME_13] and with respect to the conduct of the doctors performing the examinations. Nor does this approach address the differing standards that might apply to intentional torts, such as battery and sexual battery, as compared to unintentional torts such as unnecessary and inappropriate medical procedures. [ 122 ] First, the Plaintiff argues that the Defendant conceded the contents of the standard of care in their Statement of Defence. She claims that the list in paragraph 60 of the Statement of Claim is conceded as being part of the standard of care. However, as I noted in the duty of care analysis under Common issue 1, this is a disputed point. Again, the Plaintiff’s reliance on a disputed admission in a pleading is unhelpful in assisting the Court in making any finding on this issue given the complexity of the claims. [ 123 ] Relying upon her expert reports, the Plaintiff submits that there were three “reasonable steps” to mitigate risks in the Applicant’s Examination that should compose the standard of care. These steps are: (1) reviewing and revising the Applicant’s Examination based on the BFOR standard; (2) adopting internal recommendations that addressed identified risks in the Applicant’s Examination; and (3) having effective policies and procedures for internal complaints and investigations. [ 124 ] Several issues arise with these steps. First, the “reasonable steps” are presented without reference to contemporaneous medical standards or expected practices and procedures for organizations who pay physicians to provide medical [COMPANY_21]. As I noted in [NAME_4] v Canada , 2024 FC 1219 at para 17, medical standards of care and their evolution would need to be addressed through expert evidence. The Plaintiff’s expert evidence, which concerns expectations of [NAME_13], fails to address these critical points. The Plaintiff also fails to relate these steps to the reasonable person in the same circumstances, including the surrounding statutory, medical, and institutional realities. Furthermore, these “reasonable steps” fail to provide a coherent standard that can be applied across the entire class period. Finally, even if these “reasonable steps” were accepted, determining whether there was a breach would require findings of fact that might turn on credibility, which are issues best left to trial. [ 125 ] To demonstrate some of these shortcomings, I will review the proposed “reasonable steps” below. (a) Use of the BFOR standard [ 126 ] First, the Plaintiff claims that the [NAME_12] should have aligned the Applicant’s Examination with the BFOR standard, which would have required a rational connection between the medical tests in the Applicant’s Examination and the requirements of the job being sought. As such, and according to the [NAME_9], examinations of the breast, genital, and rectal areas would not have been required. [ 127 ] The [NAME_9] does not address whether the BFOR standard was used by similar organizations that required employee physicals. Rather, the [NAME_9] argues that BFOR was the [NAME_12]’s self-identified standard. The implication is that, because BFOR was the self-identified standard, a reasonable member of [NAME_13] would have applied this standard to the Applicant’s Examination. [ 128 ] There are two fundamental issues with this approach: (1) a self-identified standard is not necessarily part of the standard of care analysis; and (2) the evidence indicates the [NAME_12] was not aware of, and did not accept, the BFOR standard for the entire class period. [ 129 ] First, even if BFOR was the [NAME_12]’s self-identified standard for procedures in its Applicant’s Examination, it would not necessarily follow that failure to meet that standard is a breach of the standard of care. Standards of care are often defined based on external regulatory or industry standards, rather than internal standards. The problems with relying strictly on internal standards are clear. If an organization opted to adopt an excessively low standard, it should not be able to rely on such a standard to shield itself from liability. And on the other hand, it could be harsh to find an organization negligent if it decided to adopt an internal standard that was well above what would be imposed by law. In either event, the Plaintiff’s evidence here fails to consider external standards in concluding that the [NAME_12] should have been required to use the BFOR standard. [ 130 ] Second, even if I were to accept that BFOR was the [NAME_12]’s self-identified standard and that it should be required under the standard of care, the evidence indicates that the [NAME_12] was not aware of the BFOR standard for the entire class period and it is unclear when or if the [NAME_12] adopted it as an internal standard. I accept that some [NAME_12] documentation references the BFOR standard. However, this documentation reflects a gradual evolution of the [NAME_12] medical standards from a primary care focus towards an occupational health and safety focus. [ 131 ] The first [NAME_12] document that references the BFOR standard is the 1979 [NAME_104], titled “A REPORT ON THE STUDY OF R.C.M.P. MEDICAL ENGAGEMENT PROCEDURES AND STANDARDS” . This report recommended that “[c]ivilian Members need only be fit to perform the particular job/position they are being engaged to perform” . However, this was merely one recommendation, amongst several, and there was no evidence that the [NAME_12] accepted this recommendation. [ 132 ] The next reference to this principle was in the 1987 [NAME_12] [COMPANY_21] , which stated under the heading “Policy” that “[t]he medical criteria used to assess candidates for engagement in the [NAME_12] shall be job-related” . This is the earliest evidence suggesting the [NAME_12]’s acceptance of the BFOR standard. However, the [COMPANY_21] continued to include testing of the “gastro-intestinal” and “genito-urinary” systems, which contradicts the claim that the BFOR standard was adopted. [ 133 ] The BFOR standard was next discussed in a 1991 memo by a [NAME_151]. The memo briefly outlined the history of [NAME_12] medical standards, including the 1979 [NAME_104]. When discussing the status of [NAME_12] medical standards, the memo states: As of now, the Force is in a good position to defend PARE [Physical Abilities Requirement Evaluation], since it’s [sic] conception results from a thorough Job Analysis. Our Vision Standard was determined to be a Bona Fide Occupational Requirement (BFOR) by a CHRC [Canadian Human Rights Commission] Tribunal in 1989. This is the ONLY established medical BFOR. All other Medical Standards, as they exist, may not withstand challenges. Our own documentation clearly indicate [sic] they were established in order to meet Training Standards and not the Police job requirements. [ 134 ] While this memo references the BFOR standard and finds the [NAME_12] medical standards may not be BFOR compliant, it does not indicate that the [NAME_12] adopted BFOR as its medical standard. Rather, the discussion of BFOR compliance is in relation to human rights challenges. [ 135 ] The next evidence cited by the Plaintiff is the 1994 A Physician’s Guide for the Assessment of Police Officers , authored by [NAME_116] and [NAME_153]. This guide was often referred to as the “Blue Book” and was issued to Designated Physicians. The Blue Book acted as a guide to supplement physicians’ medical training by explaining the connection between medical standard and police work. [ 136 ] The Blue Book primarily focuses on the relationship between its medical standards and police work but does mention health criteria that are not occupationally relevant. The “Introduction” page states that “[t]he designated physicians perform a specific health assessment that is tailored to police work” , which suggests adoption of the BFOR principle, but immediately afterwards states: …Many postings within the Force are in isolated areas where health care may be minimal non existent [ sic ]. The Force must be able to determine the health of members before sending them to places where health care may be lacking. The [NAME_12]’s interest in determining the health of members, who may be posted in locations far from health care providers, suggests that the [NAME_12] adopted a broader medical standard for Applicants’ Examinations. [ 137 ] Furthermore, the Blue Book included a section called “Personal Health Questions” that included optional questions about a patient’s menstruation, breasts, genitals, sexual performance, and rectum. The Blue Book explicitly acknowledges that these questions are “not occupationally relevant but may have an important bearing on personal health” . This also indicates that the [NAME_12] did not limit its Applicant’s Examination to the BFOR standard. [ 138 ] In 2018, the [NAME_12] issued the Pilon Report, which traces the evolution of the [NAME_12]’s medical standards from the 1980’s to 2018. The Pilon Report indicates that the [NAME_12]’s medical standards in the 1980’s reflected a primary care focus. In the 1990’s the [NAME_12] began shifting towards an occupational health and safety focus, but this transition was not complete until the late 2000’s. The Pilon Report refers to reports highlighted above. [ 139 ] While the Plaintiff’s justification for applying the BFOR standard is on the basis it was the [NAME_12]’s self-identified standard, based upon the above reports, I cannot make such a finding. I cannot conclude that the [NAME_12], as an institution was aware of, and adopted, the BFOR standard for the entire class period, which includes claims ranging from 1975 to 2018. The earliest evidence of the [NAME_12] being aware of BFOR is from 1979 and the earliest evidence of the [NAME_12] adopting the standard is from 1987, although later evidence suggests that the [NAME_12] did not adopt the standard until the 1990s or 2000s. The evidence on this point is unclear. [ 140 ] Finally, the Plaintiff’s submission on the BFOR standard fails to grapple with the institutional, medical and historical context surrounding the Applicant’s Examination. The [NAME_81] explains that the [NAME_12] was the sole provider of health [COMPANY_21] and supplemental health insurance to certain [NAME_12] members during parts of the class period. The Defendant argues that the [NAME_12] thus would have been justified in reviewing applicants’ health beyond strict occupational requirements by requiring a full physical. The [NAME_87] and [NAME_84] also indicate that during much of the class period, full physicals for employment included inspection of the breasts, genitals, and rectal areas. Neither the [NAME_9], nor the Plaintiff’s submissions, address these institutional or medical contexts. [ 141 ] In summary, the Plaintiff’s submissions regarding the BFOR standard are not sufficient to allow for the finding, on a class-wide basis, of the applicable standard of care. The Plaintiff submits that the use of the BFOR standard should be part of the standard of care but has not provided evidence that would justify its use for the entire class period, or even for a specific subset of the class period. (b) Adopting internal recommendations [ 142 ] The Plaintiff’s second proposed component of the standard of care is that the [NAME_13] should have established and enforced policies to limit abuse and harm arising from the Applicant’s Examination process. More specifically, the Plaintiff relies on the 1973 and 1990 [NAME_12] internal recommendations that would have provided additional safeguards for female applicants undergoing an Applicant’s Examination. [ 143 ] The 1973 recommendations were solicited by [NAME_12] [NAME_107] in anticipation of female members joining the [NAME_12]. The recommendations were provided by [NAME_155], who oversaw Applicants’ Examinations at the time. [NAME_110]’s recommendations included appointing a female manager and requiring all female breast and genital examinations be outsourced to an [NAME_12]-approved gynecologist. There is no evidence explaining why these recommendations were not adopted. [ 144 ] The 1990 [NAME_115] was provided to [NAME_13] by [NAME_116], the [NAME_12]’s Director of [COMPANY_21]. [NAME_116] provided five recommendations, the most significant of which were a prohibition against Designated Physicians performing internal gynecological examinations, the requirement of a female chaperone during female breast, pelvis, or external genital examinations, and specific techniques for breast examinations. [ 145 ] Some of the [NAME_115] recommendations were more stringent than accepted medical practices at the time. Chaperones were not required but were recommended by several medical organizations. [NAME_133] noted that the presence of chaperones during sensitive exams was, and is, an important part of preventing sexual abuse. According to the [NAME_87], the requirement for physicians to leave the room while patients changed was consistent with medical practice standards. [ 146 ] Despite this evidence, the Plaintiff did not provide any evidence on how recommendations are normally treated in the [NAME_12] or how other similar large multi-jurisdictional organizations treat such internal recommendations. While common sense may appear to dictate that [NAME_13] should automatically accept medical examination recommendations from medical doctors, there is nothing in the evidence to suggest the recommendations were binding. Further, I note that some of the recommendations were beyond what was required by medical regulatory bodies and, as I noted earlier, it may be unfair to hold a Defendant negligent for failing to meet internal standards that are above a standard that would otherwise be legally imposed. [ 147 ] Nonetheless, even if I were to accept that this was part of the standard of care, the issue of breach of the standard of care would be unamenable through a summary judgment Motion. Whether the [NAME_12] failed to adopt these recommendations, and therefore breached the applicable standard of care, turns on disputed facts that may well come down to credibility. [ 148 ] The Plaintiff claims that the 1990 recommendations were not implemented, relying on the [NAME_9]. The Defendant argues that the [NAME_115] was published as a directive only, noting the Affidavit of [NAME_12] [NAME_64] [NAME_66]. [ 149 ] This dispute would need to be resolved to determine whether there was a breach in the standard of care. This is an issue that requires an assessment of credibility and is better left for trial. (c) Lack of policies and procedures for internal complaints [ 150 ] The third “reasonable step” proposed by the Plaintiff for the standard of care relates to the complaint and investigation processes. The Plaintiff, relying on the [NAME_11], claims that the standard of care required the [NAME_12] to maintain effective internal mechanisms for complaints and investigations relating to Designated Physicians. [ 151 ] The [NAME_12]’s approach to complaints against Designated Physicians was primarily to refer the complaints to the relevant provincial medical regulatory body and outside police [COMPANY_21]. The evidence indicates that both approaches were expected responses to most egregious misconduct being sexual abuse complaints against physicians. [ 152 ] The Defendant’s experts, [NAME_133] and [NAME_134], both emphasize in their reports the importance of medical regulatory bodies in preventing sexual abuse. Medical regulatory bodies set professional standards, grant licenses, discipline physicians, and are knowledgeable on what conduct is inappropriate during a medical examination. Reporting suspected sexual abuse by a physician to a medical regulatory body is a standard part of handling sexual abuse complaints. [ 153 ] The referral of complaints to other police [COMPANY_21] is also an appropriate practice. On cross-examination, [NAME_121] admitted that the [NAME_12] referring complaints regarding its own members to local police [COMPANY_21] was “what they’re supposed to do” because having another organization investigate the complaints “shows transparency” . [ 154 ] However, the Plaintiff argues that the [NAME_12] also needed effective internal mechanisms to investigate complaints against Designated Physicians. They rely on the [NAME_11], which states that the [NAME_12] conducted inadequate investigations into Dr. MacDougall in 1989 and 1990, [NAME_19] in the early 1990’s, and in response to the [NAME_40] complaints in 2018. [ 155 ] Based on the Defendant’s evidence, the standard of care may require additional mechanisms and considerations to handle complaints about physicians. [NAME_130] note that hospitals who employ physicians would have internal mechanisms for responding to sexual abuse complaints about physicians, in addition to referring complaints to medical regulatory bodies. [ 156 ] According to the Defendant, the [NAME_12] has had, and continues to have, additional mechanisms for applicants to pursue complaints, including divisional recruitment offices, the National Recruitment Program, the [NAME_12] Commissioner, the Independent Centre for Harassment Resolution, or the Part VII public complaint process. Once applicants became [NAME_12] members, additional means of pursuing complaints include managers, the Occupational Health and Safety Branch, [NAME_34], a union representative, Divisional or National Staff Relations Representatives, the [NAME_12] harassment complaint process, the Canadian Human Rights Commission, and disclosures under the Public Servants Disclosure Protection Act, SC 2005, c 46 . [ 157 ] However, it is unclear which of these mechanisms, and for what time periods, were available during the class period. The evidence of [NAME_90], [NAME_29], and [NAME_32] suggest that only [NAME_34] was available when they pursued their complaints in 1989 and 1990. However, this may only be reflective of a small subsection of the class period, and specifically in “O Division” . [ 158 ] The requirement for internal policies to handle complaints of any nature against Designated Physicians is further complicated by the diversity of relationships between the [NAME_12]. [NAME_142] were directly employed by the [NAME_12] or public service, therefore the [NAME_12], as their employer, would likely be required to engage in an internal investigation regarding complaints against its employees. [ 159 ] Other Designated Physicians were retained through contract, subcontract, or pay-per-service models. It is not immediately apparent that the [NAME_12] would have the same burden to internally investigate complaints against physicians who were not [NAME_33] and operated out of non-[NAME_12] facilities. In these cases, review by outside police forces and provincial physician regulatory bodies may be sufficient. On this summary judgment Motion, the Plaintiff’s standard of care submissions do not acknowledge or address these distinctions. [ 160 ] Even if I were to accept that the [NAME_12] required effective internal investigatory procedures, beyond reporting complaints to outside police forces and provincial physician regulatory bodies, whether the [NAME_12] breached this process by conducting inadequate internal investigations would require factual evidence of the steps taken. This may ultimately be a matter that requires determinations of credibility and therefore cannot be properly decided on a summary judgment Motion. [ 161 ] For instance, there are conflicting accounts of the [NAME_12]’s investigation into Dr. MacDougall in 1989 and 1990. The Plaintiff, relying on the [NAME_4], [NAME_29], and [NAME_32], claims the investigation was closed because they did not provide written statements to the [NAME_12], which the [NAME_12] never asked them to provide. [ 162 ] [NAME_36] further notes that she provided a written statement to the [NAME_12] in October 1989, before the initiation of the investigation. However, on cross-examination, [NAME_36] stated that she provided the written statement to the [NAME_35]. The Defendant’s evidence indicates that [NAME_34] was a confidential program and thus her written statement could not have been provided to the [NAME_13] without her consent. [ 163 ] The Defendant’s evidence suggests that the [NAME_12] closed the investigation because the Toronto Police did not find Dr. MacDougall’s conduct to be criminal, and the [NAME_22] withdrew its charges after reaching a settlement. [ 164 ] There is competing evidence regarding why the [NAME_12] ceased an internal investigation of Dr. MacDougall. An assessment of this conduct for the purpose of the standard of care analysis, requires weighing competing evidence and making findings of credibility, an issue best left for trial. [ 165 ] There are similar conflicts regarding the complaints against [NAME_19] in the early 1990’s. The Plaintiff claims that four complaints were made against [NAME_19]; the Defendant claims there are no records of any complaints against [NAME_19] until 2018. [ 166 ] Finally, the Plaintiff’s evidence only addresses three specific incidents of alleged inadequate investigations and is insufficient to make a finding on a class-wide basis that there was a failure on the part of the [NAME_12] to maintain effective policies. The [NAME_11] finds that the [NAME_12] inadequately investigated the 1989 and 1990 complaints in “O Division” against Dr. MacDougall, the early 1990’s complaints against [NAME_19] in “H Division” , and the 2018 complaints by [NAME_53] made to “K Division” . [ 167 ] Even accepting that this is true, it is insufficient to establish that the [NAME_12] breached the standard of care owed to all Class Members over the entire class period. At most, this establishes breaches by specific [NAME_12] divisions pertaining to a subset of class members. It would be insufficient to establish a class-wide breach, given that Class Members’ claims range from 1975 to 2018 and include incidents in other [NAME_12] divisions. (2) Conclusion – Common issue 2 [ 168 ] Overall, the evidence simply does not allow me to make the necessary finding on the stand of care part of the negligence test. The Plaintiff bore the burden of proving there is “no genuine issue for trial” but failed to properly articulate a standard of care, effectively pushing this burden onto the Court. This approach also limits the Defendant’s ability to fully and effectively respond to the breach of standard of care. [ 169 ] Furthermore, even if I were to accept the Plaintiff’s position that the suggested conduct should be evidence of the appropriate standard of care, determining whether the [NAME_12] breached these standards would require evidentiary findings that cannot be made in the summary judgment Motion. [ 170 ] The standard of care, and whether there was a breach, is an issue best left for determination within a trial. D. Common issue 3 – vicarious liability for [NAME_13] [ 171 ] Common issue 3 makes the broad claim that the Crown is liable for the systemic negligence of RMCP agents, servants and employees at the National and Divisional levels. [ 172 ] The Plaintiff argues that the provisions of the Crown Liability and Proceedings Act , RSC 1985, c C-50 [ CLPA ] and [NAME_12] Act render the Crown liable for “a tort committed by a servant of the Crown” , which includes [NAME_12] members ( CLPA ss 3(b)(ii), 36). Under the [NAME_12] Act , a member is defined as “any person who has been appointed under section 5 or subsection 6(3) or (4) or 7(1) and who is employed with the Force” . This would include Deputy Commissioners, Assistant Commissioners, Chief Superintendents, Superintendents, and Inspectors ( [NAME_12] Act , s 6(1), (3)). Subsection 7(1) allows the Commissioner to appoint members to the Force. Members appointed under this section include all [NAME_12] regular members, civilian members, and special constables. Finally, “servant of the Crown” has been interpreted to include “anyone who is employed by the Crown or acts as an agent for the Crown” ( [NAME_65] v Canada , 2022 FC 342 at para 35 [ [NAME_65] ], citing [NAME_156] v Canada , 1998 CanLII 8926 (FC) at paras 11-12). According to the Plaintiff, the operation of the CLPA and the [NAME_12] Act impose liability on the Crown for negligence by [NAME_13] in the administration of the Applicant’s Examination. [ 173 ] A claim against the Crown under the CLPA requires a plaintiff to show “that a Crown servant or servants, acting within the scope of employment, breached a duty that was owed to the plaintiff” ( [NAME_157] v Canada (Minister of Citizenship and Immigration) , 2005 FC 1659 at para 82 [ [NAME_157] ]). [ 174 ] On this Motion, I have determined that I cannot make findings on the duty of care and standard of care branches of the negligence test, therefore I cannot properly assess whether the Crown ought to be liable for a hypothetical breach that has not yet been found. [ 175 ] Further, the Plaintiff herself frames Common issue 3 as being dependent on the Court’s finding of a breach of the standard of care under Common issue 2. Common issues 2 and 3 state ( Class Certification at para 44): 2) …what was the applicable standard or standards of care? Was there a breach of this duty or duties by the [NAME_12] through its agents, servants and employees? 3) If yes, is the Crown vicariously liable for the failure of its agents, servants and employees at the [NAME_12] to take reasonable steps to provide an Applicant’s Examination free of inappropriate and/or unnecessary procedures, assault and battery, including sexual assault and sexual battery? [ 176 ] I view this as an implicit recognition by the Plaintiff that vicarious liability cannot be properly decided on this summary judgment Motion without a breach of the standard of care. [ 177 ] This remains a genuine issue for trial and thus cannot be decided on a summary judgment Motion. E. Common issue 4 – vicarious liability for Designated Physicians [ 178 ] The final common issue on which summary judgment is sought is whether the Crown is vicariously liable for the acts or omissions of Designated Physicians. [ 179 ] The Plaintiff argues there are two [NAME_97] classes of Designated Physicians. The first class consists of “public employee” Designated Physicians, which includes Designated Physicians who were [NAME_12] members or who otherwise were employed in the public service. [ 180 ] The second class of Designated Physicians are “contracted” physicians. These Designated Physicians either are contracted directly with the [NAME_12] or are contracted with third-party companies which are contracted by the [NAME_12]. The Plaintiff submits that the Crown is liable for both classes of Designated Physicians. [ 181 ] The Defendant refers to “independent” physicians, without defining the term. Based on my understanding, these are likely the “contracted” Designated Physicians described by the Plaintiff. The Defendant notes that this group would include physicians retained under different engagement models over the decades. These models would include physicians retained through third-party contractors, physicians selected and paid by applicants, and physicians with limited-scope administrative agreements. The Defendant objects to using a single legal analysis to assess such a diverse pool of physicians and argues that the fact-intensive inquiry necessary to decide this issue is inappropriate for a summary judgment Motion. (1) Public employee Designated Physicians [ 182 ] According to the Plaintiff, the Crown is liable for public employee Designated Physicians under section 36 of the CLPA, and liable for other public service employee Designated Physicians under section 3. The Plaintiff also notes that the Defendant has conceded that they were vicariously liable for two public service employee Designated Physicians, [NAME_142]. At paragraph 28 of the Statement of Defence, the Defendant states:

28. Canada admits that it is vicariously liable for the actions of [NAME_142] to the extent of their liability to any class member for assault and battery, including sexual assault and battery that occurred during the Applicant’s Examinations conducted by [NAME_141] or [NAME_16]. [ 183 ] The Defendant does not argue that the Crown is not vicariously liable for public employee Designated Physicians. Rather, they concede vicarious liability for [NAME_142] based on their “employment status” . According to the Amended Statement of Defence, [NAME_142] were “[NAME_12] public service employee[s]” . Presumably, the Defendant would concede vicarious liability for other Designated Physicians with the same “employment status” for the same actions. [ 184 ] Based upon the wording of the Statement Defence, the admission of vicarious liability for these two doctors is restricted to liability for assault and battery, and sexual assault and battery. Accepting this admission, there would be no principled reason for the Defendant not to also be vicariously liable for the assault and battery, and sexual assault and battery, actions against other public employee Designated Physicians. [ 185 ] Under the CLPA , the Crown is only liable if the servant of the Crown commits a tort while “acting within the scope of employment” ( [NAME_157] at para 82). The evidence is that the torts of battery and sexual battery, even though intentional torts, did arise from Designated Physicians acting within the scope of their employment. Furthermore, if the Plaintiff establishes that any of the alleged “unnecessary and inappropriate procedures” were torts performed by Designated Physicians, then those procedures that arose during the employment of the doctor, would likewise attract vicarious liability. [ 186 ] Based on the submissions, evidence, and the Defendant’s concessions in the Statement of Defence, I accept that the Defendant Crown would be vicariously liable for assault and battery and sexual assault and battery torts committed by physicians directly employed in the public service, or by the [NAME_12], by virtue of the CLPA . (2) “Contracted” Designated Physicians [ 187 ] The Plaintiff claims that the Defendant is also vicariously liable for “contracted” Designated Physicians under common law. To establish this, the Plaintiff must prove: (1) that the relationship between the [NAME_12] and contracted Designated Physicians is “sufficiently close” ; and (2) the impugned conduct is sufficiently connected to the Designated Physicians’ assigned tasks, so that the conduct can be regarded as a materialization of the risks created by the enterprise ( [NAME_158] v [NAME_159] , 2003 SCC 51 at para 19 [ [NAME_158] ]). [ 188 ] Under the first step of the [NAME_158] test, the Court must decide whether the [NAME_12] and contracted Designated Physicians were “sufficiently close” . In the context of employment, this involves determining, for the purposes of vicarious liability, whether to treat Designated Physicians as [NAME_33]. The fact that a contract lists a worker as an “independent contractor” , rather than an employee, is not determinative of the issue ( 671122 [COMPANY_160] v [COMPANY_161] , 2001 SCC 59 at para 49 [ [NAME_162] ]). Rather, the fundamental question is “whether the person who has been engaged to perform the [COMPANY_21] is performing them as a person in business on his own account” ( [NAME_162] at para 47). [ADDRESS] answers this question by considering several factors, including ( [NAME_162] at para 47): Ø the employer’s level of control over the worker’s activities; Ø whether the worker provides their own equipment; Ø whether the worker hires their own helpers; Ø the degree of financial risk taken by the worker; and Ø the worker’s opportunity for profit in their task. No single factor is determinative. However, the degree of control is usually the most significant. [ 189 ] As noted by the Defendant, “contracted” physicians include physicians who directly contract with the [NAME_12], physicians compensated on a fee-for-service model, and physicians who are retained through subcontracting with a third-party. The spectrum of “contracted” Designated Physicians varies. At one extreme, there could be Designated Physicians who directly contract with the [NAME_12], used [NAME_12] facilities, and used [NAME_12] administrative staff. At the other extreme, there could be Designated Physicians who were subcontracted through a third-party, who operated their own office, and employed their own staff. [ 190 ] The factual diversity on the terms of engagement between the [NAME_12] and the medical doctors performing Applicants’ Examinations makes it difficult to make a single declarative finding on all Designated Physicians. This issue, as currently framed, cannot effectively be decided as a common issue on a summary judgment Motion. [ 191 ] As a starting point, I note that hospitals have repeatedly been found not liable for the conduct of independent physicians with hospital privileges ( [NAME_164] v St. Joseph’s Health Centre et al , 2012 ONSC 1208 at para 20; [NAME_165] (1980) , 1980 CanLII 1906 (ON CA)). The Crown also was found not vicariously liable for doctors who contracted with correctional facilities in [NAME_166] v Canada , 2018 FC 983 at para 6, and [NAME_65] at paras 46-48, 53. Finally, the Crown was found not vicariously liable for a Designated Medical Practitioner (DMP) who administered an immigration exam ( [NAME_167] v [NAME_168] , 2013 ONSC 2175 at paras 106-108). DMP was a designation given to qualified physicians by the Canadian Immigration Council. The DMPs conducting the medical examinations were selected and paid directly by the applicants, and the DMPs operated their own medical practice, offices, equipment, and support staff. [ 192 ] These cases demonstrate that an employer is not automatically vicariously liable for the actions of a contracted physician. This issue is ultimately fact-driven and requires an application of the [NAME_162] test to the facts. The degree of control exercised by the employer over the contracted employee is often the most significant factor. Here the Plaintiff submits that the [NAME_12] had control over contracted Designated Physicians through service contracts and the Examination Form. [ 193 ] Contracts between the [NAME_12] and physicians, from 1983, 2004, and 2015, were attached to the [NAME_73]. Significantly, the [NAME_73] describes each of these contracts as “an example of a contract with an individual physician” . It is unclear if these three contracts are reflective of most or all contracts signed with Designated Physicians during the class period. [ 194 ] The 1983 contract provides [NAME_97] duties for the Designated Physician, which are: (a) Attend sick parades as arranged and provide [NAME_97] medical [COMPANY_21] and physical examinations on persons referred by the Force; (b) Provide a record of [NAME_112] and examinations for members' records; (c) Provide advice to the Commissioner as appropriate and as required. [ 195 ] Subsection 3(1) of the 1983 contract also provides a compensation scheme for [COMPANY_21] rendered. Payment is provided for each sick parade attended, medical examination provided, or hour served on a medical board. Payment based on each service rendered is indicative of an independent contractor. [ 196 ] Other provisions of note include sections 11 and 12. Section 11 explicitly provides that the Designated Physician is an independent contractor. Section 12 requires the Designated Physician, as an independent contractor, to meet all reporting requirements for income tax, Canada Pension Plan, and unemployment insurance. While these provisions, on their own, do not establish that a Designated Physician is an independent contractor, they are consistent with the rest of the contract that indicates the Designated Physician would be an independent contractor. [ 197 ] The 2004 contract is a standard form contract. The first part of the contract is largely standard clauses. The compensation offered was based on 4 hours per week of work at $200 per hour and the Designated Physician would be compensated for travel and living expenses incurred in the performance of the work. Annex A of the 2004 contract provides more information. [COMPANY_21] were to be rendered on an “as and when required basis” . Under this specific contract, [COMPANY_21] were to be rendered at an [NAME_12] office, which had its own examination room, supplies, and administrative staff. The scope of duties includes: • Determination of suitability for medically isolated posting and foreign duties; • Performing medical evaluations on candidates being considered for recruitment into the [NAME_12]; • Performing periodic occupational health assessments of civilian employees and laboratory personnel working with chemicals, dangerous goods or designated substances required of police forensic work; • Performing duty related injury assessments and [NAME_97] medical [COMPANY_21] including performing medical assessments similar to those carried out in walk-in clinics, such as minor or sudden illness as well as the possibility of responding to an emergency occurring in the workplace. [ 198 ] The 2015 contract also begins with a standard form contract. Under this contract, the Designated Physician would be required to hold their own medical malpractice and [NAME_97] liability insurance. The duties include: Scope of Work The physician will be asked to determine fitness for duty by establishing medical profiles of members using the information gathered during the medical evaluation along with laboratory testing and audiogram results. The physician will be required to perform all duties in accordance with established [NAME_12] related policy, guidelines and procedures including the use of [NAME_12] forms (Form 3380 - Health Assessment, Form 2158- Medical Profile). The work is to be performed within a multi-disciplinary approach under the supervision of the Manager, [COMPANY_88]. Tasks The physician will be called upon to determine the ability and suitability of a regular member to use a firearm, operate an emergency vehicle and participate in training and competency testing. The physician will also determine suitability of members for isolated, northern and liaison officer postings. The physician will perform [periodic health assessments] PHAs for civilian members working with chemicals or dangerous goods used in forensic work, as well as telecom operators, armourers, pilots and aircraft engineers. [COMPANY_21] are provided to all Regular and Civilian Members of the [NAME_12] located in the National Capital Region and Nunavut. [ 199 ] The [NAME_12] also had some limited control over contracted Designated Physicians through the Examination Form. The [NAME_12] issued the Examination Form, which listed bodily areas or systems that were to be assessed. However, the Examination Form provided no further detail. The Defendant’s expert evidence indicates that the Designated Physician would use their experience and discretion to select how to fulfil the contents of the Applicant’s Examination. [ 200 ] In some cases, the Designated Physician would use [NAME_12] facilities and staff when conducting Applicants’ Examinations. This relates to two of the [NAME_162] factors, regarding the use of tools and hiring of helpers and would support Designated Physicians being considered employees for the purposes of vicarious liability. However, hospitals are not vicariously liable for physicians with privileges in those hospitals, despite those physicians using hospital facilities and staff. I would thus place reduced emphasis on these factors. [ 201 ] To grant summary judgment, the Court needs to be able to reach a decision with confidence. I cannot do so on this issue as it is unclear whether the contracts provided are indicative of most contracts with Designated Physicians during the class period. This makes it impossible to reach a conclusion, with confidence, regarding all contracting Designated Physicians who conducted Applicants’ Examinations on Class Members. [ADDRESS] thus cannot confidently make a class-wide finding that would be applicable to all Class Members. [ 202 ] Regardless, even if I accepted that the evidence before me was applicable to all contracting Designated Physicians during the class period, this evidence would be insufficient to establish an employer-employee relationship. The contracts, both in form and substance, are consistent with contracted Designated Physicians acting as independent contractors. [ 203 ] Overall, the evidence before the Court is insufficient to make a class-wide finding on whether the [NAME_12] was vicariously liable for contracted Designated Physicians. It is unclear whether the most significant pieces of evidence, the sample contracts, are sufficiently representative to make a finding applicable to all Class Members. Furthermore, I do not think that even the most favourable scenario for the Plaintiff, based on the evidence provided, would meet the “employee” threshold under the [NAME_162] test. In reaching this conclusion, I place significant emphasis on the caselaw’s high threshold to impose vicarious liability on employers who contract with physicians. [ 204 ] On the issue of vicarious liability in Common issue 4, while I am prepared to grant summary judgment in the Plaintiff’s favour and find that the Crown would be vicariously liable for assault and battery and sexual assault and battery torts committed by physicians directly employed in the public service, or by the [NAME_12], by virtue of the CLPA, I cannot make a broader finding of vicarious liability for Designated Physicians not directly employed by the [NAME_12] or public service. Those issues will need to be addressed in the fullness of a trial.

VI. Conclusion on Motion [ 205 ] The Plaintiff’s Motion for summary judgment on Common issues 1, 2, and 3 is dismissed. [ 206 ] The Plaintiff’s Motion for summary judgment on Common issue 4 is granted in part, namely, the Crown is vicariously liable for Designated Physicians, directly employed by the [NAME_12] or public service, for assault and battery and sexual assault and battery torts committed against Class Members. [ 207 ] The remainder of the Plaintiff’s Motion for summary judgment on Common issue 4 is dismissed.

ORDER IN T-138-19 THIS COURT ORDERS that : The summary judgment Motion on Common issues 1, 2 and 3 is dismissed. The summary judgment Motion on Common issue 4 is granted in part. The Defendant is vicariously liable for the assault and battery and sexual assault and battery actions of public employee such as Designated Physicians. The remainder of the summary judgment Motion on Common issue 4 is dismissed. blank "[NAME_79]" blank Judge FEDERAL COURT SOLICITORS OF [NAME_1] : T-138-19 STYLE OF CAUSE: [NAME_4] v HIS [NAME_5] THE [NAME_6] OF HEARING : Toronto, Ontario DATE OF HEARING: January 19 to 24, 2026

REASONS and

ORDER : McDonald J. DATED: May 25, 2026 APPEARANCES : Won J. Kim P.C. [NAME_170] FOR THE PLAINTIFF [NAME_173] [NAME_176] [NAME_180] FOR THE DEFENDANT SOLICITORS OF RECORD : [NAME_182] P.C. Toronto, Ontario FOR THE PLAINTIFF [NAME_97] of Canada Edmonton, Alberta FOR THE DEFENDANT