Feds deny delay as lawyer in multi-billion-dollar Black bureaucrats’ class-action suit calls Crown’s ‘overlap’ arguments ‘insulting’

Watching with interest. In terms of the data, clear that the lawyers have cherry-picked the worst departments, and not the overall picture which indicates that Blacks are not unduly under-represented compared to other visible minority groups (see Will the removal of the Canadian citizenship preference in the public service make a difference?):

The leading lawyer in a multi-billion-dollar class-action lawsuit representing current and former Black federal public servants, filed against the federal government and now involving nearly 1,300 individuals, says the government’s lawyers are attempting to delay proceedings by claiming the Black class action overlaps with other ongoing cases—an argument which he calls “insulting.”

“It’s not a secret, we’ve laid it out, we’ve argued it over and over in court. The government has one goal right now: do not let this matter go to court in September,” said Courtney Betty, a former Crown attorney at the federal Justice Department’s Toronto office in the early 1990s, who is leading the class action filed on Dec. 2, 2020.

In March 2021, The Hill Times reported that more than 520 class members had joined a proposed $900-milllion class-action lawsuit alleging decades-long government discrimination, lack of advancement opportunities, and harassment. As of Sept. 21, the number of class members had increased to 1,031, who are now seeking $2.5-billion in damages following an amendment to the claim made on May 13.

The number of class members has increased to 1,293, as of Feb. 28, according to Nicholas Marcus Thompson, who was among the first of the current and former federal employees who filed the class-action lawsuit as a representative plaintiff.

“The Crown’s argument really is that the government is facing a number of class-action lawsuits that raise the issue of systemic levels of discrimination against visible minority groups and racialized groups in government,” said Kofi Achampong, principal lawyer and government relations adviser with Achampong Law.

“Presumably, some of the pleadings in those class actions would cross over or would have some level of consistency with some of the pleadings in the Black class action lawsuit, and therefore it’s difficult for the government to determine who they are responding to in relation to the causes of action for racialized employees,” said Achampong, who is a lawyer and legal strategist for the class-action lawsuit.

“In essence, they are saying there is too much overlap,” he said.

Betty said the government “came up with a very creative argument,” calling it “insulting.”

“What the government says, is that any case in Canada … an Indigenous case, a woman’s case, could be any case—as long as there is racism and discrimination mentioned, then there’s an automatic overlap with the Black class action.”

“That argument carries no weight at all,” said Betty, who noted that this particular case deals with hiring and advancement within the public service.

“Our case is about the hiring and promotion of Black public service workers—there are no other cases that are out there that deals with the hiring and promotion of Black public service workers.”

“The reality is that the basis, the pith and substance of the Black class action, is really the unique experience that Black public servants have undergone across over 100 government departments,” said Achampong, adding that this is “the only legal action, the only class action in the history of Canada, that has ever explicitly sought to address that particular issue.”

Alain Belle-Isle, spokesperson for the Treasury Board Secretariat, said the Government of Canada “has no intention of delaying the certification hearing.”

“The parties in this case continue to discuss the best means of addressing the issue of overlapping claims with the Court, while also preparing for the certification hearing scheduled for September 2022,” wrote Belle-Isle in an emailed response to the The Hill Times. 

He reaffirmed the government’s commitment to creating a “diverse and inclusive public service free of discrimination, harassment and violence,” which was reflected in the most recent mandate letter to the president of the Treasury Board, Mona Fortier (Ottawa-Vanier, Ont).

The mandate letter for Treasury Board President Mona Fortier, pictured during a press conference on Jan. 25, 2021, cites the government’s commitment to a ‘diverse and inclusive public service free of discrimination, harassment and violence.’ 

Black employees ‘last to be hired, first to be fired’: law firm analysis

According to Betty’s legal firm, which has analyzed numbers regarding promotions and demographics within the federal public service, the number of “Black employees” within Natural Resources and the Department of National Defence (civilian staff), was less than two per cent.

In the Department of Justice, less than 20 individuals were appointed on an intermediate basis from 1970 to 2000 who were identified as “Black.”

In Fisheries and Oceans Canada, as of March 31, 2019,  the number of “Black employees” was less than one percent.

And for the 2005 to 2018 period, 35.4 per cent of “Black employees” within the federal public service received zero job promotions.

“What we’ve done is we’ve looked at 30 years of government data, and we’ve demonstrated that on a percentage basis, Black public service workers are the last to be hired, the first to be fired, last to be promoted,” said Betty, pointing to the above data analysis provided to The Hill Times.

“We’ve demonstrated that statistically, so with the harassment of the individual, none of that comes in,” said Betty. “It’s a data analysis case, there’s none of the other cases that are even similar to that.”

Thompson expressed his dismay that there’s “been no appointment in leadership positions” for Black employees in the public service in recent months.

“We’re still in the same position that we were in last year and the year before and the year before,” said Thompson, who added that the government is trying to create a mental health plan, are trying to create developmental opportunities under the mandate of the Treasury Board, “and have acknowledged all of things that we’ve raised as issues that exists for Black workers.”

“But in the courtroom, they are fighting to avoid having to pay for those damages,” said Thompson.

The leadership of the public service continues to remain “almost exclusively white,” said Thompson, as Black workers “continue to be at the bottom of the public service and racialized workers just above.”

“The work of eradicating bias, barriers, and discrimination demands an ongoing, relentless effort, said Belle-Isle. “We are committed to this effort and to using all available levers to improve the experiences of public servants, to ensure that they are able to realize their full potential, and for Canada’s public service to fully reflect the diversity of Canadians.”

Proceed on a ‘case-by-case basis,’ says Justice Gagné

Associate Chief Justice of the Federal Court Jocelyne Gagné said during a Feb. 16 hearing a motion to stay would need ‘substantial overlapping.’ 

The class action will be moving towards certification following a Federal Court justice’s direction for the government and the class action members to file additional documentation.

During the most recent court proceeding on Feb 16, Associate Chief Justice Jocelyne Gagné directed the plaintiffs to serve and file their additional submissions on the issue of overlapping with any other class action brought before the court no later than March 26.

Justice Gagné also directed the Crown to serve and file its record no later than June 29, with the plaintiff’s reply to be file no later than July 14. Certification hearing dates have been set for Sept. 21-23, 2022.

In the Feb. 16 hearing, Gagné said a meeting had taken place amongst the judges who were seized with other class actions, “however all of them, but the two last ones, which quite frankly have nothing to do with the issue before the court on this file—and I can tell you that at this point, it is the general view that these cases should be dealt with on a case-by-case basis.”

“In my view, and in the view of many, a carriage motion or a motion to stay, I think you need substantial overlapping, which is absent here in these cases,” said Gagné.

“That said, I understand that the case before me is broader, and although encompasses only one group of people, it encompasses many departments of the government,” she said.

Source: Feds deny delay as lawyer in multi-billion-dollar Black bureaucrats’ class-action suit calls Crown’s ‘overlap’ arguments ‘insulting’

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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