Excerpted From: Amanda Cutinha, Racial Discrimination Class Actions in Ontario: The Denial of Access to Justice against Private Defendants, 80 University of Toronto Faculty of Law Review171 (Spring, 2022) (101 Footnotes) (Full Document)


AmandaCutinhaRacial discrimination and systemic inequality are at the forefront of Canadians' minds. During the summer of 2020, the gruesome police killing of George Floyd in Minneapolis took social media by storm, making visual the ever-present racial discrimination in society. Though these conversations emerged across the border, their impact was felt in Canada, where public awareness was brought to the lives lost to police violence against Black and Indigenous people and People of Colour (BIPOC). The increasing awareness of systemic discrimination has empowered BIPOC communities to call out racism and demand accountability. This led to the Ontario Human Rights Commission's recognition of the racial profiling of and discrimination against Black persons by the Toronto Police, as well as Prime Minister Justin Trudeau's push to address systemic racism through more representative governance. Notably, this change has also been reflected in the class actions context through the emergence of various class actions complaints alleging racial discrimination. For example, in June 2021, the Federal Court heard a certification motion brought by the friends and family of Missing and Murdered Indigenous Women and Girls (“MMIWG”) against the Royal Canadian Mounted Police. Additionally, in September 2022, the Federal Court heard submissions concerning the certification of a class action brought by Black federal employees alleging systemic racial discrimination in the Public Service of Canada. These are among the first class actions alleging racial discrimination in the Canadian context.

While the emergence of class actions dealing with racial discrimination has been a positive step, these actions have been limited to recourse against public sector employers and government actors. Individuals also experience racial discrimination by private sector employers and service providers, but those seeking remedies for such discrimination face a substantial obstacle. The prohibition against discrimination is governed by statutory rather than common law or constitutional remedies. In particular, individuals who experience discrimination can allege a breach of the Ontario Human Rights Code (the “Code ”). Established in 1962, Part I of the Code prohibits discrimination in signs, services, facilities, public accommodation, and employee and trade union membership that arises from a set of prohibited grounds, including race and colour. Though the statutory right against discrimination is helpful, it has a limitation in the class actions context--while ss 46.1(1) of the Code permits courts to adjudicate breaches of the Code and to award monetary compensation or non-monetary restitution, ss 46.1(2) limits this right, stating:

“Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I [of the Code].”

Breaches of the Code alone, therefore, are not actionable. Victims of discrimination are prevented from accessing class proceedings in court unless they can allege a cause of action in addition to a breach of the Code. In actions against public defendants, the claimant can overcome this hurdle fairly easily by asserting a Charter breach alongside the breach of the Code. However, it is difficult for plaintiffs bringing actions against private defendants to assert an additional cause of action, particularly because there is no independently actionable tort of discrimination. This creates a procedural hurdle to bringing a class action for victims of discrimination because the Class Proceedings Act (the “CPA”) requires there be a reasonable cause of action.

This limitation exacerbates existing psychological and economic barriers to accessing justice. Though class actions were created as a solution to access to justice issues, in Ontario, class actions law and discrimination law have collectively failed to achieve these goals for victims of discrimination at the hands of non-government entities. By elaborating on the procedural hurdle created by ss 46.1(2) and the absence of an independent tort of discrimination, this article argues that the current framework for adjudicating discrimination claims brought against private defendants denies victims of racial discrimination access to much-needed justice. In order for class actions to create effective judicial solutions to racial injustice in Canada, they ought to protect against not only discrimination at the hands of government officials, but discrimination that occurs between private persons in everyday interactions.

In Section I, this article makes the case for using class actions in the racial discrimination context by assessing the origins of class actions as a tool for “powerless” individuals to pursue judicial recourse against well-resourced defendants. It also shows that the systemic manner by which individuals experience racism makes them powerless against perpetrators of racial violence, indicating a need for class actions in this context. Section II briefly reviews American class actions jurisprudence to exemplify how class actions can allow for recourse for individuals who have experienced racial discrimination against private defendants. Section III then discusses the Canadian approach to discrimination law, outlining the bifurcated approach to discrimination cases: one branch dealing with public defendants and the other with private defendants. Section IV focuses on the process for private defendants, outlining the difficulties individuals face in meeting the ss 5(1)(a) cause of action requirement of the CPA due to the absence of an independent tort of discrimination and the Code's ss 46.1(2) prohibition on bringing an action solely for a breach of the Code in courts. Additionally, it will discuss how the preferability analysis, outlined in ss 5(1)(d) of the CPA and strengthened by the October 2020 amendments to the CPA in ss 5(1.1), may magnify the burden on victims of racial discrimination by requiring them to demonstrate that a class proceeding is the superior method of adjudicating the claim in light of reasonably available alternatives, namely an action under the Human Rights Tribunal of Ontario (the “HRTO”). Finally, Section V advocates for three potential solutions: (1) the recognition of an independently actionable tort of discrimination; (2) amendments to s 46.1 of the Code or s 6 of the CPA to enable discrimination class actions based solely on a breach of the Code; and, (3) improvements to the HRTO's group litigation model that borrow from either the class complaints procedure in Saskatchewan or the representative complaint procedure in British Columbia. Without implementing at least one of these changes, it will be difficult for individuals who have experienced racial discrimination at the hands of private defendants to access justice. This will ultimately undermine society's ability to hold individuals accountable for discriminatory acts and its attempt to remedy systemic discrimination more generally.

[. . .]

Racial discrimination class actions are emerging in the Canadian context against public defendants in response to the Black Lives Matter movement and the unacceptable series of violent acts against BIPOC communities. Class actions law needs to allow for racial discrimination cases against private defendants in order to eradicate systemic racism. As this article has shown, while government actors did not necessarily envision racial discrimination class actions when contriving the Class Proceedings Act, their general ambition for class actions to alleviate barriers to accessing justice for individuals against well-resourced institutions is equally applicable to racial discrimination cases. Psychological barriers to accessing justice for victims of racial discrimination include the physical and mental impact of racism on its victims, the institutional distrust of the legal system, and the fear of unintended consequences for plaintiffs. As well, economic barriers to accessing justice are further exacerbated for racialized individuals who are more likely to live below the poverty line and who are affected by the racial wage gap.

In the United States, class proceedings alleging racial discrimination against both public and private defendants are contemplated by the amendments to Rule 23 of the Federal Rules of Civil Procedure. Accordingly, the US has a much richer history of certifying racial discrimination class actions in a variety of different contexts. Canada should learn from the benefits to access to justice, behaviour modification and judicial economy that this framework for discrimination class actions brought to the US.

While these class actions are only just emerging in the Canadian context, procedural barriers to accessing justice for these claimants remain large. Due to the lack of an independent tort of discrimination and the ss 46.1(2) prohibition on bringing a claim solely on the basis of breach of the Code, plaintiffs must often either get creative about the cause of action or adjudicate their claim individually in the HRTO despite its inability to process class complaints. If individuals are unable to conjure an alternative cause of action, certifiability is unlikely in light of ss 5(1)(a) of the CPA that requires class counsel to allege a reasonable cause of action. Additionally, despite the HRTO already not providing a strong group litigation alternative, the new superiority standard outlined in ss 5(1.1) of the CPA may complicate the ss 5(1)(d) preferability analysis and, in turn, further prevent the certification of racial discrimination class actions. To better advance access to justice for complainants alleging racial discrimination, a few solutions can be implemented: (1) recognizing an independently actionable tort of discrimination in the common law; (2) making legislative changes to class actions and/or discrimination law to alleviate the cause of action barrier; or (3) better equipping the HRTO to handle class complaints such that litigants can pursue class actions at the tribunal. These solutions will enable marginalized BIPOC communities to attain recourse against not only government actors but private employers and service providers as well, enabling the justice system to make systemic changes that tackle racial discrimination in Canadian society.

JD (University of Toronto, Faculty of Law); BA (Hons) in History and Canadian Studies (Trinity College, University of Toronto).