Common Ground? Class Action Updates
Federal Court Dismisses $2.5 Billion Class Action Alleging Systemic Anti-Black Racism in Federal Public Service Hiring Decisions and Promotional Opportunities
Date: March 24, 2025
The Federal Court of Canada has rejected an ambitious class action that sought to address alleged systemic anti-Black racism and discrimination in federal public service hiring and promotion practices across the entirety of the federal public service over a 55-year period. In Thompson v. Canada, Justice Gagné dismissed the proposed class proceeding, finding the claims’ expansive scope rendered it unsuitable for class proceedings alongside issues of jurisdictional barriers and certification challenges.
Background
The plaintiffs, representing employees from 11 different federal departments and agencies, sought to certify a class encompassing all Black individuals who had applied for or worked in any federal public service role since 1970 and were denied opportunities due to alleged racial discrimination amongst the federal public service. Their claim targeted 99 distinct federal entities including the core public administration, separate agencies and organizations and the Canadian Armed Forces.
The plaintiffs challenged what they characterized as a “widespread practice of Black employee exclusion,” with particular focus on the federal government’s decentralized staffing model implemented in 2005, which they argued enabled subjective decision-making that disadvantaged Black employees. Their claim drew partly on a 2019 Public Service Commission study indicating Black employees were promoted at rates 4.8% lower than non-visible minority colleagues.
The plaintiffs contended their claim focused specifically on discriminatory staffing practices—not general terms of employment—which would exempt them from the statutory bar under section 236 of the Federal Public Sector Labour Relations Act. They further argued that the Employment Equity Act inadequately addressed discrimination against Black employees by failing to disaggregate data within the broader “visible minority” category.
The federal government maintained that the Court lacked jurisdiction because Parliament had established comprehensive statutory regimes for addressing employment-related disputes. Canada emphasized that robust grievance processes and staffing complaint mechanisms existed, which employees were required to utilize. It further argued that the plaintiffs failed to identify specific discriminatory policies that operated uniformly across all federal departments and noted that the decentralized staffing model served legitimate administrative purposes.
The Federal Court’s Analysis
Central to the Court’s analysis was whether employment-related disputes of this nature should be addressed through existing statutory mechanisms rather than through the courts.
Jurisdictional Barriers
Justice Gagné’s comprehensive analysis determined the Court lacked jurisdiction, finding that the claim was subject to the specialized statutory schemes Parliament created for addressing employment disputes. The Court applied a three-tiered jurisdictional analysis:
- for post-2005 claims, section 236 of the Labour Relations Act created a statutory bar
- for pre-2005 unionized employee claims, the Supreme Court’s decision in Weber v Ontario Hydro precluded court actions for disputes covered by collective agreements
- for pre-2005 non-unionized employees, Vaughan v Canada required judicial deference to established statutory mechanisms
Justice Gagné rejected the plaintiffs’ attempt to characterize their claim as being primarily about staffing rather than employment conditions, noting that allegations of systemic discrimination fell squarely within the anti-discrimination provisions contained in most collective agreements.
Class Certification Challenges
Beyond the jurisdictional issue, Justice Gagné determined that the claim failed to satisfy any of the five criteria required for class certification. The pleadings did not establish a reasonable cause of action under section 15 of the Canadian Charter of Rights and Freedoms because they failed to identify specific government conduct creating a race-based distinction. The proposed class definition was deemed impermissibly merit-based, as it required pre-determining whether individuals were denied opportunities “by virtue of their race” before class membership could be established.
The Court found insufficient commonality among the claims, given the individualized nature of staffing decisions across numerous entities over decades, with no evidence of a uniformly applied discriminatory policy. Finally, the litigation plan was considered inadequate for managing a case of such exceptional scope and complexity.
The Court’s Decision
The Court did acknowledge the “profoundly sad ongoing history of discrimination suffered by Black Canadians” and that “each of the representative Plaintiffs have faced challenges not faced by their non-visible minority colleagues in the federal public service.”
However, Justice Gagné concluded that the claim simply did not meet the procedural criteria to certify this action as a class proceeding.
The Court accordingly granted the government’s motion to stay portions of the claim overlapping with other class actions, struck the claim without leave to amend and dismissed the certification motion.
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