The Federal Court has dismissed a proposed $2.5-billion class action lawsuit alleging systemic anti-Black racism against public service workers in the federal government.
After five years of legal arguments, the court agreed with a government request to reject the lawsuit without the merits of the complaint being argued or adjudicated at a trial.
When Federal Court Judge Jocelyne Gagné granted a government motion to strike the suit down she acknowledged the discomfort of her situation.
“The issue on this motion is not whether, or to what extent, racism and discriminatory conduct occurred in the federal public service. The issue is whether the Claim advanced by the Plaintiffs can continue as a class proceeding, and whether the Court has jurisdiction over the matter,” Gagné wrote in her judgment, published Friday.
“In other words, this is not an assessment of the merits of the Plaintiffs’ Claim but strictly a procedural issue: does this case fit into the class action box?”
Her answer, over 100 pages, was no.
Courtney Betty, a lawyer arguing the case of 14 current or former public servants with 11 federal agencies who were named as representative plaintiffs, said the outcome adds to his clients’ aggravation.
“At the end of the day, what is the frustrating part is that the government brought a procedural motion which prevents them from dealing with the substantive issues that still remain, that still continue, that are still problematic,” Betty said in an interview.
“What this is, is a procedural move by the government to deny Black public service workers access to justice. It’s just that simple,” he said.
Filed in 2020, the lawsuit sought to argue damages on behalf of a class of victims comprising all Black people since 1970 who worked or applied to work for the federal government and were denied hiring or promotional opportunities because of their race.
The claim alleged a “widespread practice of Black employee exclusion” in hiring and promotion within 99 federal government departments and agencies, including such departments as Agriculture, Border Services, Correctional Service, Fisheries, Foreign Affairs, Health, Immigration, Justice, Parks, Public Works, RCMP, Revenue, Transport, Statistics Canada, Transport and Veterans Affairs.
The lawsuit also included the Canadian Armed Forces, although soldiers’ status as civil servants is different in Canada’s laws.
The lawsuit alleged Black employees are not hired or promoted proportionally to their demographic weight, and as such, Black employees are adversely impacted by Canada’s pension plans because Black employees make less money over the course of their public service careers because they were kept in lower-paying jobs.
In December, Nicholas Marcus Thompson, the lead plaintiff in the proposed lawsuit, brought a petition supporting their case to the Prime Minister’s Office, signed by 35,000 people. The lawsuit was supported by the Public Service Alliance of Canada.
The case had been argued over the years through various pre-hearing motions, and both sides filed several affidavits. Amnesty International’s Canada section was accepted as an intervenor to provide insight on international human rights law.
The government argued several factors in its motion to dismiss.
Gagné agreed that the proposed plaintiff class definition is merit-based, which is not appropriate for class action claims. The proposed class — all Black individuals who were denied hiring and promotional opportunities by virtue of their race — requires an individual assessment of the reasons why each person was denied hiring or promotion.
That is not objective enough for a class action, Gagné ruled.
“I find that no common issue will meaningfully advance class members’ claims and that the individual issues are overwhelmingly more significant than common issues. Only an individual assessment of the relevant circumstances unique to each class member would allow the Court to determine if the cause of action had been established,” she wrote in her decision.
The government also argued that as federal public service employees, the plaintiffs have had other resolution mechanisms. Most of the plaintiffs have had access to a union grievance procedure, and others who were not covered by collective bargaining, such as soldiers, have had access to similar recourse mechanisms.
Lawyers for the plaintiffs argued the union and other complaint procedures are restricted to grievances brought by an employee to address a dispute relating to his or her terms and conditions of employment, rather than systemic issues with hiring and staffing.
Gagné ruled that damages for such discrimination did fall within the purview of collective bargaining agreements and those who were not part of a union had similar grievance rights that could be pursued.
Gagné said the lawsuit had other weaknesses in its arguments on Charter breaches, such as a lack of information on specific agents or mechanisms causing claimed damages.
The lawsuit presented statistics on underrepresentation but did not adequately present information on how the practice was implemented or which agents of government are responsible: “The pleadings do not identify a specific government conduct which creates a distinction based on race, whether in the hiring or promotion practices of public service employees,” she said in her ruling.
“Anti-Black discrimination and racism are unacceptable, and they should never find their way in any workplace environment or, for that matter, anywhere in Canadian society,” Gagné wrote in her ruling. “Courts have recognized the existence and pervasiveness, both historically and presently, of racism in this country.” This lawsuit was not an appropriate way to address it, she ruled.
Betty said what comes next, including any possible appeal, is uncertain.
“Our team is still reviewing the decision,” he said.
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