Weeks after a Federal Court decision to deny certification of a class-action lawsuit initiated by Black public servants, the country’s largest public sector union has filed a human rights complaint alleging decades of anti-Black racism in the federal civil service.

The Public Service Alliance of Canada (PSAC) announced on March 27 that it had filed a human rights complaint with the Canadian Human Rights Commission on behalf of all of its Black members employed in the federal public service.

The complaint alleges that the government has failed over decades to address anti-Black racism in its workplaces, including racist comments, discriminatory behaviour, greater scrutiny and disproportionate discipline, the dismissal or downplaying of discrimination and harassment complaints, barriers to hiring and promotion, unequal career development and training access, and a failure to address racism and bias in staffing processes.

“For decades, Black federal public service workers have endured racism at work, been shut out of job opportunities, and denied the safe workplace they deserve,” said PSAC national president Sharon DeSousa in a March 27 statement. “Instead of fixing the problem, the government fought Black workers in court hoping it would all just go away. We won’t back down until the government is held accountable and our members get the justice they deserve.” 

PSAC is the bargaining agent for the majority of claimants in a Black class action lawsuit launched in 2020 against 99 federal government departments and agencies. That lawsuit was denied certification earlier this month by the Federal Court, prompting disappointment from the lead plaintiffs and a commitment to consider their next options.

“This ruling is a major disappointment, but it is not the end of our fight for justice,” said the Black Class Action Secretariat (BCAS) in a statement responding to the dismissal. “For five years, this has been a David vs. Goliath battle, and while today’s outcome is frustrating, it only strengthens our resolve.”

Justice Jocelyne Gagné dismissed the motion to certify the class-action lawsuit on March 13, agreeing with a federal government motion to strike the claim before it proceeded to trial. The Crown argued that the courts lacked jurisdiction over the claim, and that the claimants could seek recourse via unions or the Federal Public Service Labour Relations Act.

In her “order and reasons” decision, Gagné said the plaintiffs had “failed to present a ground for this court to assert jurisdiction over this case,” as there were not common-enough issues across the claim.

BCAS has sought $2.5-billion in damages from the federal government over its alleged systemic failure to hire and promote Black staff. 

Gagné said the scope of the claim “simply makes it unfit for a class procedure,” using a French proverb that translates into “he who grasps at too much holds little.” That did not, however, constitute a judgment on whether or not there had been discrimination against Black public servants, she wrote.

“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,” Gagné wrote in her decision. “But unfortunately, that was not the issue that the court was tasked to assess.”

“Several times during the hearing of these motions, counsel for the plaintiffs stated that the court was their last hope to obtain a fair outcome for the prejudice suffered. Although I truly sympathize with the plaintiffs, and for all the reasons stated above, I respectfully disagree.”

Those reasons, Gagné wrote, included that the plaintiffs did not meet the procedural threshold to certify it as a class action as—among other criteria—there was no class of persons that “can be identified objectively” without relying on the merits of their individual claims; the claim did not raise common questions of law or fact across 99 federal entities; the plaintiffs could have used other “intended statutory, regulatory and procedural processes and remedies” rather than the courts; and there was not an “adequate litigation plan.”

In a statement following the decision, BCAS blamed the federal government’s use of “procedural loopholes” to delay action against systemic racism and discrimination.

“We put our faith in the courts to recognize the profound harm caused to Black workers over decades,” representative plaintiff Nicholas Marcus Thompson said in the statement. “Instead, the government used procedural loopholes to avoid accountability, leaving thousands of Black public service workers betrayed and still fighting for justice.”

The Hill Times requested an interview with BCAS representatives, but did not receive a response by deadline. In the secretariat’s statement immediately following the Federal Court decision, it noted that “the representative plaintiffs will be meeting with the legal team to determine the next steps and will have more to say soon.”

The secretariat is also seeking a series of non-monetary measures to address discrimination in the public service. That includes a formal apology from the prime minister to all present and past Black public servants for injustices suffered in the past; the appointment of a “Black Equity Commission” to investigate challenges facing Black employees; an external mechanism for Black public servants to report harassment or misconduct, with the power to make binding recommendations; and the adoption of a federal policy requiring a Black employees of the public service to, at minimum, reflect the approximately 3.7 per cent Black Canadians in the general national population.

Gagné’s decision followed approximately three weeks of a certification hearing in October and November 2024. During that period, BCAS sought to include new evidence in the form of a study of Black executives in the public service.

The report, prepared by Rachel Zellars and commissioned by the federal Black Executives Network, found that 62 per cent of the 73 current and former executives interviewed reported direct workplace harassment or intimidation, or the threat of reputational harm from supervisors or senior leaders. Black women reported a higher rate of harassment, at 78 per cent. 

In her decision, Gagné said the court could not rule on the motion as filed during the hearing. She said the court had agreed on the last day of the hearings to give the plaintiffs time “over the next few weeks” to discuss the motion with the defendant, but did not hear back before a supplementary motion record was filed on Feb. 20. By then, Gagné said, her reasons had already been sent for translation.

Following the ruling, the Professional Institute of the Public Service of Canada (PIPSC) said in a March 19 statement that it was also “deeply disappointed.”

“We stand in unwavering solidarity with the Black Class Action Secretariat and our Black members,” said PIPSC president Sean O’Reilly in the statement. “This decision is not the end of the fight but rather a moment that strengthens our resolve to pursue justice through all available channels.”

Din I. Kamaldin, part of the PIPSC Black Caucus, said that “systemic racism requires systemic solutions.”

“By dismissing this class action, the court has placed additional barriers in the path of those seeking redress for decades of discrimination,” Kamaldin said.

The Canadian chapter of the Coalition of Black Trade Unionists (CBTU) said in a March 18 statement that the court “acknowledged the discrimination that these Black workers were experiencing while simultaneously choosing to deny these workers the justice that the federal court should provide.”

The CBTU called for a mental health plan for employees who experienced racial trauma, as well as for the federal government to implement the recommendations of the 2024 review of the Employment Equity Act. The review’s recommendations included an all-of-government approach to employment equity, confirmation that the legislation is quasi-constitutional human rights law, and the harmonization of employment equity frameworks across Canada.

The Ontario Federation of Labour criticized the decision, describing it in a March 19 statement as part of a system that “has failed to deliver accountability to Black Canadians.”

sjeffery@hilltimes.com

The Hill Times