Executive Summary: Key Legal and Evidentiary Issues

• The plaintiffs alleged systemic racism, discrimination, and harassment against racialized civilian employees within the Department of National Defence (DND) and the Staff of Non-Public Funds (SNPF).

• Claims were struck because they were deemed grievable under the Federal Public Sector Labour Relations Act (FPSLRA), invoking Section 236 as a bar to court jurisdiction.

• The court found that the statutory grievance mechanism under FPSLRA provided adequate remedies, eliminating the need for judicial intervention.

• Plaintiffs failed to demonstrate that the grievance system was incapable of delivering effective redress, even for pre-2005 claims not covered by Section 236.

• The proposed class action was dismissed as certification requirements were not met, including a lack of evidentiary basis for including SNPF employees and family members.

• Costs were awarded to the defendant, though the amount was left to be determined through further submissions if needed.

Facts and outcome of the case

Background and claims

This proposed class action was brought by Karen Lightbody and Rama Narsing, two racialized former civilian employees of the Department of National Defence (DND). They claimed that they and other racialized civilian employees were subjected to systemic racism, discrimination, and harassment while working within the DND and the Staff of Non-Public Funds, Canadian Armed Forces (SNPF). Both were unionized public servants and had access to internal grievance mechanisms under the Federal Public Sector Labour Relations Act (FPSLRA).

The plaintiffs alleged two legal causes of action: negligence and breaches of equality rights under Section 15 of the Canadian Charter of Rights and Freedoms and Section 10 of the Quebec Charter of Human Rights and Freedoms. They also alleged the federal government failed to provide an effective and safe internal system for reporting and resolving racism-related grievances.

They sought certification of the action as a class proceeding and applied to be appointed representative plaintiffs. The defendant, His Majesty the King (represented by the Attorney General of Canada), responded with a motion to strike the amended statement of claim in its entirety, arguing that the matter was governed by labour relations law and outside the court’s jurisdiction.

Jurisdictional challenge and legal framework

The court considered the application of Section 236 of the FPSLRA, which provides that grievance rights are “in lieu of any right of action.” The defendant argued this provision bars court proceedings for any claims that could be addressed through the statutory grievance process. The plaintiffs contended that the grievance process was flawed and incapable of delivering effective redress for systemic racism.

The court thoroughly analyzed whether it had residual jurisdiction to hear claims where administrative processes were ineffective. It ultimately concluded that Section 236 ousted its jurisdiction for claims arising after April 1, 2005, and that the grievance system was sufficiently robust even for pre-2005 claims. Evidence did not support that the grievance process was compromised or systematically failed to redress racial discrimination complaints.

Decision on the motion to strike

The court granted the motion to strike the amended statement of claim in full and without leave to amend. It ruled that all claims post-dating April 1, 2005, were barred under Section 236, and the plaintiffs had not met the burden of showing that pre-2005 claims should proceed through the courts rather than the grievance system. The court also found that the claims could not succeed even if amended, given the legal and procedural bars.

Motion for class action certification

The court denied the plaintiffs’ motion for certification. It held that the plaintiffs failed to meet several certification criteria under Rule 334.16 of the Federal Courts Rules. While some basis in fact was found for claims against the DND, there was insufficient evidence to include SNPF employees or family members in the proposed class. The class definition was also found to be overly broad and unmanageable, especially as it included all racialized employees regardless of whether they experienced discrimination.

The court concluded that the proposed class proceeding was not the preferable procedure for resolving the claims. Given that the plaintiffs' personal grievances were already advancing within the existing grievance system, and class members had similar administrative recourses available, a class action was not justified.

Costs and disposition

The defendant was awarded costs. However, the amount was not specified in the judgment. The court directed that if the parties could not agree on costs, written submissions could be filed.

The result was a complete dismissal of the plaintiffs' case, with the defendant prevailing on both the motion to strike and the motion to deny certification.