Month: December 2020

Categories
Home ownership Small Claims Court

Small claims, big results: the power of suing our oppressors

Of all the tools Black employees can use to battle the discrimination they face in their federal government jobs small claims court is, by far, the most powerful. There are several reasons for this but the simplest is: when people discriminate against Black people – because we’re Black – they break human rights laws and/or codes and that often means we can sue them. Small claims is also much cheaper and faster than a full trial and includes a mandatory, confidential settlement conference that brings the two parties together with a judge to find a solution and, hopefully, avoid a trial.

Filing a small claims suit in Ontario cost about $100 and can be done online. Once you file your suit, and serve the papers on the defendant (i.e. deliver the papers to them physically, which you can do yourself or hire a bailiff to do for around $100), the defendant has 20 calendar days to respond or they can be found guilty and be required to pay you the amount you’re suing them for. The maximum amount is $35,000.

If they don’t file a defence, you can have them found “in default” which can lead to you having the right to collect your money using a collection agency or even garnishing their wages from their employer. If they file a defence the next step is a mandatory settlement conference that, as mentioned above, brings the two parties together with a judge to find a solution and, hopefully, avoid a trial.

The settlement conference is key to the power of small claims court as it gives the defendant a clear choice: settle, pay you and keep it all confidential or go to trial which will be much more expensive and lengthy, where they’re likely to lose because they broke laws and where everything they did will be made public. Given that choice, most will pay and, if they don’t, you can always take them to trial or drop the suit.

An employee I worked with sued the investigator her department hired to back up some bogus claims against her with an equally bogus report. The investigator got a lawyer to send her a letter saying her suit was “without merit” and threatening to sue her for lots of money if she didn’t drop it. When she ignored the threat, the investigator filed a defence and was then required to attend the mandatory settlement conference which he did with two lawyers. The employee attended by herself. She had sued the investigator for around $7000. When the judge asked her what it would take to settle, she realized she hadn’t really thought about it because it wasn’t about money for her, it was about principle. She blurted out, “$2000”. After it was all over the investigator agreed to pay her $2000.

Since you must physically deliver, or have delivered, your claim documents to the defendant, you must know either their work or home address. With many people working from home during COVID, another likely small claims cost is paying someone to find the address of the person you want sue. I have used a private detective agency twice, for $687 each time. Always include costs like this and hiring a bailiff in the amount for which you’re suing.

Black people across Canada could start making the legal system work for us instead of against us, as it too often does, by suing our oppressors and investing our winnings towards home ownership. We could then teach other folks in our communities to do the same.

Call it the courthouse to our house pipeline.

Now, that would be power.

Categories
Accountability FBC Leadership

Don’t judge people on their character…judge them on their actions (all of them)

I spent most of the last two weeks glued to the Ontario Judicial Council (OJC) hearing into a second complaint about the conduct of Federation of Black Canadians founder and former chair, Justice Donald McLeod. McLeod is facing claims, still unproven, of perjury, political lobbying and giving legal advice – all stuff judges aren’t supposed to do. McLeod’s defence, by both his legal team and his supporters on social media, can be summed up as, “Justice McLeod is a great guy and didn’t do any of this bad stuff or, if he did, it was for good intentions because, like we said, he’s a great guy.”

The problem with this is that it focuses on what McLeod is instead of what he does (or allegedly did), and discussions about what someone is often offer only two choices: good or bad. People’s defenders spend time giving examples to prove their guy (or girl) is good while their opponents do the opposite. The argument is that, if the person is bad, they deserve whatever happened to them and if they’re good they don’t.

One of the most recent, and most horrible, examples of this was comments by Black conservative commentator Candace Owens in videos like I DO NOT support George Floyd! And here’s why. In this video Owens says she doesn’t “support George Floyd” because she doesn’t support “turning criminals into heroes”. Meaning she doesn’t support turning “bad guys” into “good guys” just because something bad happens to them. She doesn’t say Floyd deserved to be killed. In fact, she says, “What I’m saying is not any defence for Derek Chauvin [the cop who killed Floyd]. I hope that he gets the justice he deserves and that the family of George Floyd deserves justice.” However, she also says:

“The Black community is unique. Not every Black American is a criminal, not every Black American is committing crimes, but we are unique in that we are the only people that fight and scream and demand support and justice for the people in our community that are up to no good.”

The implication is clear: Floyd was a bad guy who had gotten “up to no good” too many times and, therefore, doesn’t deserve the global outpouring of rage that followed his death.

One of the main problems with this “good or bad” thinking is that it only requires tarring someone with one bad act, real or implied, to label them as all bad. That’s why the term “known to police” in media reports about Black men is a problem. The person could be “known” simply because they got carded once but it’s enough to label them as “bad”, and deserving of their fate, in too many readers’ minds.

This same thing is used in reverse.

When COVID first hit, our group supported a young Black man who had been confronted by Ottawa school board trustee Donna Blackburn. During the confrontation Blackburn made some racially charged remarks and was eventually sanctioned by her fellow trustees for acts of anti-Black racism. In her defence, several of Blackburn’s supporters brought up that she has a Black daughter, suggesting that she, therefore, “couldn’t be racist.” (We countered that idea by saying Blackburn could have committed the racist acts in the morning then read a bed time story to her Black daughter at night – but that wouldn’t make her earlier actions any less racist.)

Another example of this was the July 2020 coverage of the heavily armed white man who drove his truck through the gate of the Governor General’s residence where Prime Minister Trudeau and his family live.

In the initial CBC story, Corey Hurren was described as an active member of the military who serves as a Canadian Ranger. It said he ran a meat products business called GrindHouse Fine Foods. It mentioned he was past president of his local Lion’s Club, an active volunteer in his community of Bowsman, north-west of Winnipeg, and that his group of Rangers were on call to be part of the military’s assistance with the COVID-19 response. In other words, Curren was a nice guy just having a really bad day – and was treated accordingly by the RCMP officers who apprehended him that day “without incident” and took him into custody for questioning.

Donald McLeod’s defenders, like Justice for Justice McLeod, want the OJC review panel, and us, to believe that McLeod is a good guy who did everything for the community and that his critics are bad people who misconstrued his actions and landed him, unfairly, in front of the OJC once again. They cite all the great work he’s done with programs he helped start, like the 100 Strong Foundation which aims to produce strong, ambitious leaders by changing the narrative of African-Canadian boys. They gloss over the facts that are the basis of the charges and, instead, stick to one narrative: he’s doing great stuff so he obviously couldn’t have done the bad stuff.

But this reasoning ignores the simple truth: people do good and bad things and deserve praise for the good stuff and to be held accountable for the bad stuff. McLeod’s supporters only want to praise his good deeds and vilify those who try to hold him accountable for his bad ones.

But, as McLeod’s second hearing shows: if we don’t hold our leaders accountable for the bad things they may have done, eventually someone else will, and the result won’t be good for anyone in our community.

Categories
GoC Legal

A class act: Black federal employees sue the government for decades of discrimination

On Thursday, December 3, 2020, 12 Black former and current federal government employees launched a class action suit against the Government of Canada. The Black Class Action home page lays out the claim’s details:

“A class action lawsuit has been filed in the Federal Court of Canada on behalf of all Black employees. This action concerns systemic racism in the Public Service of Canada, directed at self-identifying Black individuals who work for or with the Public Service of Canada – this includes current employees and those who have been employed within the past 50 years. This systemic racism includes the wrongful failure to promote, intentional infliction of mental suffering, constructive dismissal, wrongful termination, negligence, and in particular, violations of employment law, human rights law, and Charter breaches. ​This action alleges that as a result of systemic discrimination, Canada has failed to achieve equality in the workplace, such that no person shall be denied employment opportunities or benefits for reasons unrelated to ability. In the fulfillment of the goal of workplace equality, this action alleges that Canada has failed to correct the conditions of disadvantage in employment experienced by Black Canadians.”

There’s no question that the suit is politically and socially well timed but how strong is it legally? One way to assess this is to examine past precedent setting cases.

LGBT purge

The LGBT Purge was one of the longest and most harmful campaigns of discrimination conducted by the federal government against the LGBT community. The campaign, to identify and purge LGBT federal public servants on the basis of their sexual orientation, gender identity, or gender expression in the federal public service and military, began in the 1950’s and continued for decades. Many of the injured persons suffered in silence for many years. That class action suit ended the silence.

Three plaintiffs, Todd Edward Ross,  Martine Roy and Alida Satalic, launched the suit on March 13, 2017. On June 22, 2018, the Federal Court approved the Final Settlement Agreement with up to $110M in compensation. Most eligible class members were expected to receive between $5,000 and $50,000. Between October 25, 2018 and April 25, 2019 individuals submitted claims for compensation and/or Individual Reconciliation Measures. There were 719 claimants: 629 military, 78 public servants and 12 RCMP.

Royal Canadian Mounted Police Harassment, Abuse, & Discrimination

The Royal Canadian Mounted Police (RCMP) began officially accepting female recruits in 1974. Unfortunately, since that time female officers – as well as non-policing staff and volunteers – suffered sexual harassment, abuse, and discrimination at the hands of their male colleagues. In 2016, the RCMP settled a suit brought by over 3,000 female officers for $100 million. Another class action for civilian employees and volunteers had 41,000 claimants. However, after three times as many women submitted claims for compensation than expected, the amount available was increased to $150 million. Another class action lawsuit seeking compensation for women in non-policing roles was settled in 2019 for $100 million.

Indian Residential Schools Lawsuit

In the 19th century, the Canadian government created a system of residential or boarding schools to educate the children of Indigenous peoples. However, instead of education, assimilation was the goal of this program. Attendance at residential schools was mandatory. Children systematically suffered physical, emotional, and sexual abuse; isolation from peers, family members, and tribal customs; exposure to  disease; and overwork. Teachers and staff at the schools were often underpaid and unqualified, amplifying the mistreatment and neglect Indigenous students experienced.

Nora Bernard, a survivor of the Shubenacadie Indian Residential School in Nova Scotia and an activist for Indigenous peoples rights, led a group that sought justice for the pain and hardships Indigenous children suffered in the schools. Survivors of other residential schools joined this lawsuit against the government of Canada.

The Indian Residential School Settlement Agreement was the largest class action settlement in Canadian history. Reached in 2006, the agreement created a fund of $1.9 billion for survivors of institutional abuse and neglect in the residential schools system. The settlement also included provisions for assessment of compensation for individuals.

So, given that history shows the government tends to settle large class action suits about historical mistreatment of marginalized groups, the Black class action seems to have a good chance of ending up with the government agreeing to pay up. The question is, how much?

The claim is for $800 million in total, but is that enough? How do you put a price on the destruction of someone’s mental health, or someone being denied promotions for years? It will be challenging to put an exact number on it but one thing is certain: it should be a really big one.

Note: much of the information on the RCMP and residential schools cases comes from the article Top Class Action Cases in Canada by Klein Lawyers LLP.