In Thompson v. Canada, 2024 FC 215, released on Feb. 8, Associate Chief Justice Jocelyne Gagné held that Amnesty International Canada’s submissions may be useful to the court in interpreting the certification test in a way that complies with Canada’s international legal obligations.
In December 2020, the plaintiffs, Nicholas Thompson, Jennifer Phillips, Michelle Herbert, Kathy Samuel, Wagna Celidon, Duane Guerra, Stuart Philp, Shalane Rooney, Daniel Malcolm, Alain Babineau, Bernadeth Betchi, Carol Sip, Monica Agard, and Marcia Banfield Smith initiated a class proceeding against the Crown.
They alleged that there had been a been a de facto practice of Black employee exclusion from hiring and promotion throughout the public service because of systemic discrimination through Canada’s institutional structures.
The plaintiffs filed their notice of motion and affidavits in support of certification in September 2021.
In October 2022, the Crown filed a motion to strike the claim on jurisdictional and pleadings grounds.
The proposed intervener sought leave to intervene in the plaintiffs’ motion to certify the class proceeding and in the defendant’s motion to strike.
Amnesty Canada stated that it would make submissions regarding the right to non-discrimination and the defendant’s obligation to address intersectional discrimination under international law.
Associate Chief Justice Gagné cited Le-Vel Brands, LLC v. Canada (Attorney General), [2023] F.C.J. No. 1180, in which the Federal Court of Appeal held that the test for intervention requires consideration of the usefulness of the intervener’s participation, whether there is a genuine interest on the part of the intervener, the interests of justice.
The judge noted that to determine usefulness, the court must consider the issues raised by the parties, the intervener’s proposed submissions, whether the proposed submissions are doomed to fail and whether the proposed intervener’s submissions would assist the determination of the actual, real issues in the proceeding.
Amnesty Canada argued that its submissions do not duplicate the plaintiffs’ arguments and that it would offer interpretive tools not otherwise available to the court.
With respect to whether a class proceeding is a preferable procedure and the determination of the motion to strike, Amnesty Canada stated that it would provide submissions on the defendant’s obligation under international law to provide an effective remedy when rights are violated.
“Amnesty Canada is particularly interested in a potential violation of article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination,” the court noted.
The Crown opposed the motion, arguing that the proposed submissions were not relevant to the procedural issues raised in the certification motion and motion to strike, and that the relevant issues are not governed by international law.
The court found that while the Crown had identified several weaknesses in Amnesty Canada’s proposed submissions, it had not demonstrated that the proposed submissions were indisputably wrong in law or completely irrelevant to the live issues before the court.
The court held that the proposed submissions were not doomed to fail.
Amnesty also argued that if the action were struck on procedural grounds, there was a risk that the plaintiff class will be deprived of remedies.
The proposed intervener sought leave to submit international legal norms that affect class members who were never hired by the federal government because of their race and therefore did not have access to statutory grievance procedures.
The court held that while Amnesty Canada’s proposed submissions may not be determinative of the issues, there was enough relevance that international legal obligations may assist the court in its determination of the relevant issues.
The court also held that the proposed intervener had a genuine interest in the proceedings.
“Amnesty Canada’s expertise in international law and human rights is undisputed, and they have intervened in many cases before Canadian courts. Amnesty Canada is clearly capable of offering articulate, well-informed submissions and considering its very mission in protecting human rights and advocating against any form of discrimination, it has a genuine interest in this litigation,” the judge wrote.
The court also held that allowing the intervention would not further delay proceedings as Amnesty Canada only requested 30 minutes of time for oral arguments and had agreed to abide by any filing deadlines set out by the court.
Amnesty Canada proposed to rely on treaties, customary international law and international instruments as well as “findings,” “comments” and “reports” from various international institutions and committees.
The Crown argued that Amnesty Canada relied on materials that far exceed the bounds of authoritative international law.
The defendant submitted that the “findings,” “decisions,” “comments” and “reports” issued by various international committees, institutions and panels of experts that Amnesty relied on were factual findings which constituted matters of social science that generally do not fall within the categories of permissible judicial notice.
The court noted that Amnesty Canada had in its reply memorandum simply stated that findings, comments and reports that it intended to rely upon had received judicial notice and were sources of international law, without citing any authority or specifically identifying which secondary sources they intend to refer to.
The court held that Amnesty Canada ought to strictly limit secondary materials filed to authoritative sources of international law, rather than any factual findings or evidence.
Associate Chief Justice Gagné granted Amnesty Canada leave to intervene in the proceedings, permitting it to file a 20-page factum, but denying it permission to file additional evidence, or rely on any findings, decisions, comments and reports issued by various international committees, institutions, and panels of experts.
The case raises important claims about anti-Black racism and discrimination, said Julia Sande of Amnesty International Canada.
“We look forward to making submissions to the court on Canada's international human rights law obligations that are relevant in its adjudication of this case,” she told Law360 Canada.
She added that Amnesty Canada wanted to ensure that Canada's international legal obligations, including on the right to an effective remedy, are taken into account when the relevant issues are decided.
“We know anti-Black racism is a very real and important issue in Canada, and we want to ensure that Canada is upholding its obligations and when it fails to do so, if it's found to have discriminated against people, then it's important that that is addressed and that people who have experienced discrimination can access an effective remedy,” she added.
Counsel for the proposed intervener were H. Scott Fairley, R. Douglas Elliott, and Joan Kasozi of Cambridge LLP.
Counsel for the defendant were Paul Martin, Caroline Youdan and David Ziegler of Fasken Martineau DuMoulin LLP. They were not immediately available for comment.
Correction: The first name of Julia Sande, a lawyer at Amnesty International Canada, was misspelled in a previous version of this article. We apologize for this error.
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