Veterans Affairs stiffs RCMP pensioners
Nearly seven years after Federal Court Justice Anne Marie McDonald approved a class-action lawsuit resulting from decades of harassment and discrimination against women in the Royal Canadian Mounted Police, the government is cutting back on the pensions of some victims.
“I am concerned about the well-being of these former members of the RCMP who have already suffered enough,” Veterans Ombud Nishika Jardine says in a letter to Veterans Affairs Minister Lawrence MacAuley, urging him to fix the “unfairness.”
While the RCMP has been at the centre of seemingly endless controversies about how many of its female uniformed and civilian personnel have been treated, the Federal Court case was rooted in a 2007 lawsuit filed by Janet Merlo over what she described as almost daily sexual harassment in her British Columbia detachment.
While Merlo took a medical discharge in 2010, she didn’t stop her whistle-blowing, including an explicit 2013 memoir, No One To Tell: Breaking My Silence on Life in the RCMP, in which she said the harassment led to post-traumatic stress syndrome.
In the interim, she continued to speak out, becoming the lead plaintiff in the proposed class action against the RCMP and the federal government. At that time, nearly 400 serving and retired officers had asked to join the lawsuit, which continued to grain traction.
In March 2015, former Inspector Linda Gillis Davidson launched her own class action on similar grounds in Ontario, seeking damages from the federal government on behalf of all current and former personnel. She also alleged that the RCMP had failed to investigate and resolve repeated complaints by its female personnel, effectively forcing many to take early retirement.
The federal government eventually agreed to a settlement and consolidated the two claims into “Merlo Davidson”, a move certified by Justice McDonald. Also a member of the Public Servants Disclosure Protection Tribunal, a quasi-judicial body set up in 2007 to protect whistle-blowers, McDonald had a private-practice track record in, among other things employment law, before becoming a judge in 2015.
The federal package she approved set out six levels of compensation contingent on the level of harassment or discrimination individuals were subject to. They ranged from $10,000 to $200,000 and compensation at the two highest levels also was available to spouses and children of the complainants.
She noted in her ruling (Docket No. T-1685-16) that the number of claimants was “conservatively” expected to top 1,000 and that the estimated government payout would be approximately $89 million.
“The settlement is on ‘claims made’ versus a ‘lump sum’ basis,” McDonald pointed out. “This means there is no ceiling or cap on the total compensation that may be paid,” she explained. “Therefore there is no risk of depletion of the settlement fund, nor is there any necessity to prorate claims. Simply put, every approved claim will be paid by the defendant.”
It would be up to retired Supreme Court of Canada Justice Marcel Bastarache to administer the fund and his decisions would not be open to review by the RCMP or to appeal by the parties to the class action.
However, it seems that Veterans Affairs wants to reduce the financial impact on the government by reducing some “Merlo Davidson” victims’ disability pensions but MacAuley has been asked by Jardine to “immediately” stop the pension cuts and issue “corrective payments.” She also wants the department to “publish the methodology” underlying its decisions affecting those who received the larger compensation packages.
Jardine is a retired Army Colonel who spent more than 36 years in the Canadian Armed Forces with the Corps of Royal Canadian Electrical and Mechanical Engineers, including deployment to Afghanistan, before retiring in 2019 and being appointed Veterans Ombud in November 2020.
Her call for action follows a complaint from Jane Hall, a 21-year veteran of the RCMP Veterans Women’s Council on behalf of some compensated victims.
“While I understand that VAC is obligated under section 25 of the Pension Act to reduce a disability pension by damages, or compensation, awarded for the same disability, it would appear that this requirement may have been unfairly applied to some of the Merlo Davidson claimants,” Jardine writes.
“There is at least one Level 1 or 2 claimant whose psychological/psychiatric disability pension is being reduced as a result of having received Merlo Davidson compensation. However, the compensation table for these two levels specifically notes that ‘ongoing psychological damage’ and ‘psychiatric condition’ or ‘psychiatric affliction’ are not effects related to the culpable conduct.”
Accordingly, the two lowest compensations “clearly” did not compensate for psychological or psychiatric disability so those claimants “should not see their disability pensions reduced.”
Jardine says her office has queried VAC “several times” over the past three years and to date had been given no “clear rationale” for its decisions. She acknowledges that the wording of the settlement agreement is unclear in some aspects, making it difficult to determine how related pension benefits should be reduced.
“I trust that you are equally concerned about the well-being of these former members of the RCMP and would agree that they have truly suffered enough,” she says in her letter, calling for “a liberal construction and interpretation of this matter” in favour of the retirees.