Black Federal workers head to court in landmark $2.5 Billion Class Action Lawsuit against Government of Canada

BY PAUL JUNOR

It was an historic week at the Federal Court in Toronto at the Certification Hearing with respect to the Black Class Action Lawsuit. Since it was launched in 2021 there has been much anticipation and expectation of the day when the evidence would be presented by the plaintiffs against the Government of Canada.

A media advisory issued by the Black Class Action Secretariat on Friday, October 25^th, 2024, provides details about what to expect. It states, “It will occur in the country’s largest, broadest, most high-profile employment-related discrimination case against the Government of Canada.” The media advisory notes that it “Will determine whether the case alleging systemic anti-Black racism in the federal public service can move forward as a class action lawsuit.” The outcome of this federal court case is pivotal because, “If certified, the lawsuit could cover all Black federal public service workers amounting to approximately 45,000 impacted workers.”

The Black Class Action Secretariat has prepared a Fact Sheet which outlines pertinent aspects of the case against the federal government. It describes in detail the claim allegations of the lawsuit. It states, “The lawsuit alleges that Black public service employees in Canada have been systematically denied opportunities for hiring and promotion due to their race. The plaintiffs claim that the government of Canada, as the employer, has breached its duty of care and fiduciary responsibilities to protect these employees from harm, violating their rights under both the Canadian and Quebec Charter of Rights and Freedoms.”

It includes:

• Discrimination in hiring and promotion.

Black workers have been unfairly passed over for job opportunities and promotions, often being overlooked in favour of less qualified candidates on account of their race.

• Underrepresentation in senior roles.

Black employees are disproportionately absent from leadership and executive positions.

• Hostile work environment.

Black workers have reported toxic work environments where they face: macroaggressions’, racial stereotyping and unequal treatment.

• Barriers to career advancement.

Systemic barriers such as lack of mentorship and career development, opportunities for Black workers have prevented them from reaching their full potential.

There are five specific things that the Class Action is seeking, such as:

• Certification of the class action to represent all Black individuals employed by the Canadian federal public service from 1979 to the present, who were denied hiring or promotional opportunities based on race.
• Recognition of systemic racism in the public service.
• Financial compensation in the form of aggregate damages in the amount of $ 2.5 billion for loss of salary and pension for Black employers who have suffered systemic discrimination.
• Establishment of a Justice and Equity Promotion Plan for Black public service employees.
• Creation of a mental health fund to provide culturally sensitive physical and mental health services.

Nicholas Marcus Thompson, President of the BCAS notes, “At its core, this lawsuit is about seeking justice for thousands of Black workers who have been denied fair opportunities in hiring and promotions due to systemic racism. It is not only about financial compensation, but also about holding the government accountable and building a more equitable public service. The significance of this case goes beyond individual plaintiffs; it is about creating institutional reform so that future generations of Black Canadians do not face the same barriers in employment.”

Thompson outlines some of the things it has offered the government such as, “A Black Action Plan, a mental health program and sought alternative dispute in the court.” BCAS is concerned that the government is stalling and has spent over $10 million to fight the lawsuit, and in spite of a settlement offer to the government which includes a request for them to consent to certification of the class action, there has been no progress.

The BCAS notes that “The government continues to bring technical arguments, trying to individualize the experiences of thousands of workers rather than addressing the system that has failed them. This week, we offered a settlement to the government, which includes a request for them to consent to certification of the class action, in the hopes of ending these four long fights that has cost taxpayers millions.”

On Monday, October 28^th during Day One, the federal government argued that reports that reveal discriminatory practices, such as Dr. Zillars’ Privy Council Report, should be ruled inadmissible. The BCAS held a rally outside the courthouse as participants proceeded along Queen Street West. There were speeches delivered by several individuals including Nicholas Thompson and Federal NDP leader Jagmeet Singh.

On Tuesday, October 29^th, 2024, during Day Two, the government continued to argue that the Senate Report on discrimination at the Canadian Human Rights Commission with a submission by the Speaker of the House and expert testimony by the former Chair of the Ontario Human Rights Commission should be dismissed.

On Wednesday, October 30^th, 2024, during Day Three, the government argued that claims in the BCA lawsuit overlapped in four departments and their cases should be removed. In response the plaintiffs mentioned that the lawsuits in these four departments focus on broad discrimination while the BCA lawsuits deal with failure to specifically hire and promote Black federal public workers.

On Thursday, October 31^st, 2024, during Day Four, the federal government argued that Black workers were “unqualified” and that was why they were not hired or promoted. They conceptualized it as individual issues and not systemic ones and mentioned that they should be resolved through the labour relations process, and not through court.

On Friday, November 1^st, 2024, the BCAS argued that existing grievance procedures aren’t enough to address the systemic discrimination at play. They will emphasize that judicial intervention is essential to deal with these deeply rooted issues because the current systems are incapable of tackling the pervasive discrimination that Black workers face in the public service.

There is much to expect as the hearing continues into its second week during November 4^th – 8^th.