In Thompson v. Canada, 2025 FC 476, released on March 13, Justice Jocelyne Gagné found that the plaintiffs’ allegations of racial discrimination had to be addressed by statutory recourse regimes enacted by Parliament.
“The remedies available through these recourse mechanisms are extensive and include both individual and systemic remedies, including monetary remedies and other forms of compensation,” the judge wrote, finding that it was plain and obvious that the court lacked jurisdiction over the claims.
The court struck the plaintiffs’ claim without leave to amend, noting that the plaintiffs had not presented a ground for the court to assert jurisdiction over the case.
Counsel for the plaintiffs, Courtney Betty of Toronto-based Betty’s Law, said that the plaintiffs were considering whether to continue pressing their case through an appeal or through other mechanisms.
“It places Black public service workers who have been fighting for decades in a situation where the battle continues. There is no remedy. They've turned to the courts to find justice they were not able to, so now they've got to look at how they continue to fight” he told Law360 Canada.
The plaintiffs, current and former employees of 11 different federal government departments, agencies or other organizations, sought to represent a proposed class comprising all Black individuals who were denied hiring or promotional opportunities by virtue of their race, from 1970 to the current date.
Canada brought a motion to strike the claim for want of jurisdiction and for disclosing no reasonable cause of action.
The Crown argued that the court did not have jurisdiction over the claim as the plaintiffs and similarly situated proposed class members have had grievance rights pursuant to the Federal Public Sector Labour Relations Act, and/or its predecessor.
Canada also argued that claims that arose after 2005 were barred by s. 236 of the Labour Relations Act, which provides that grievance rights afforded to federal public servants are in lieu of any right of action that an employee may have in relation to a grievable issue.
Justice Gagné noted that the Supreme Court has held that in cases where Parliament has created schemes for dealing with labour disputes, courts should generally defer to those processes.
She did note, however, that courts retain residual jurisdiction to deal with employment disputes where internal grievance mechanisms were incapable of providing effective redress, or in exceptional circumstances.
“For the Court to exercise its residual discretion, the Plaintiffs must present compelling evidence demonstrating that there are systemic deficiencies in the internal recourse mechanisms available. However, none of the Plaintiffs’ claims falls clearly under that category,” Justice Gagné wrote.
The judge noted that the allegations of the proposed class included systemic discrimination in the allocation of appointments, promotions and career advancement opportunities within hundreds of different federal government workplaces.
“Federal public service employees, members of the RCMP and members of the CAF (Canadian Armed Forces) all have access to comprehensive recourse regimes for dealing with employment-related disputes, including disputes regarding alleged workplace discrimination,” she wrote.
She noted that the remedies available through these recourse mechanisms are extensive and include both individual and systemic remedies, and held that it was plain and obvious that the court lacked jurisdiction over the claims of the proposed representative plaintiffs.
The judge went on to consider whether the claim disclosed a reasonable cause of action, in case she was mistaken on the issue of jurisdiction.
The plaintiffs had argued that the alleged practice of excluding Black employees from hiring and from promotions violated their Charter rights to equality and was a breach of contract and Canada’s fiduciary duty towards the plaintiffs.
The judge noted that the plaintiffs had not pleaded material facts regarding the specifics of the alleged common, widespread and pervasive practice of Black employee exclusion
“The Plaintiffs are silent on how the practice was implemented or which agents of the Government are alleged to be responsible for its implementation,” the judge wrote.
She added that the plaintiffs had referred to data indicating that Black employees are statistically underrepresented in the federal public service, particularly at the senior level but had not identified any specific and practice or policy to substantiate this claim.
The judge also noted that the plaintiffs had pointed to statistics concerning Black employees but did not present any statistics for comparator groups.
Justice Gagné held that the plaintiffs had failed to plead a cause of action based on s. 15 of the Canadian Charter.
With respect to the claim for a breach of fiduciary duty, the court did not find that Canada owed a fiduciary duty to the proposed class and found that the claim for a breach of fiduciary duty was not viable.
The judge also found that the proposed class was merit-based as it included all Black individuals who were denied hiring and promotional opportunities by virtue of their race.
“In this case, either the Court would need to assess any idiosyncratic hiring or promotion exercise in order to delimit the class, or the class definition would be left to the putative class members’ sole assessment of the reasons why they were denied hiring or promotion,” the judge wrote.
She noted that whether an individual is or is not a class member cannot be determined objectively before his or her individual claim is adjudicated.
The court held that the class definition proposed by the plaintiffs is not sufficiently objective and that members of the class are not readily ascertainable or identifiable, particularly when considered across the 99 organizations within the core public administration, separate agencies and other organizations and over the class period.
She further noted that the thousands of staffing processes at issue in the proposed class proceeding all had their specific factual background.
The judge found that no common issues would meaningfully advance class members’ claims and that the individual issues were overwhelmingly more significant than common issues.
Justice Gagné declined to certify the action as a class proceeding.
“The Court does acknowledge the profoundly sad ongoing history of discrimination suffered by Black Canadians, just as it recognizes the fact that each one of the representative Plaintiffs have faced challenges not faced by their non-visible minority colleagues in the federal public service,” she wrote.
However, she concluded that the scope of the plaintiffs’ claim simply made it “unfit for a class procedure,” dismissing the claim without leave to amend.
Hugh Scher of Scher Law, Glyn Hotz of Hotz Lawyers, Mahyar Makki of Betty’s Law Office and Akaash Luthra of Makki Law also acted as counsel for the plaintiffs.
Counsel for Canada were Paul Martin, Frederic Gilbert, David Ziegler, Christopher Casher, Vera Toppings and Anita Hojabr of Fasken. They were not immediately available for comment.
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