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.