When the process that is supposed to hear the claim is the problem, who decides?

The starting principle

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, and Vaughan v. Canada, 2005 SCC 11, establish the general rule for employment disputes governed by a statutory labour-relations scheme. Where Parliament has created a comprehensive process, courts generally decline to run a parallel one. The Supreme Court in Vaughan held that residual discretion exists chiefly where the person has no recourse to independent third-party adjudication at all — not merely where the available process is unsatisfying or slow.

Section 236 of the Federal Public Sector Labour Relations Act codifies this for the federal public service: where an employee has the right to grieve a matter, that grievance right stands in place of any right of action in court.

Thompson v. Canada, 2025 FC 476

The Federal Court’s March 2025 decision on the proposed class action by Black federal public servants is the leading word on how section 236 applies to systemic hiring and promotion claims. The court denied certification. It accepted that the record showed a “profoundly sad ongoing history” of discrimination against Black Canadians and that the representative plaintiffs faced challenges not faced by their non-visible minority colleagues — and still held that the proposed class members’ grievance rights under the Act stood in the way of the claim proceeding in court, because the matters raised were grievable even though they concerned systemic rather than individual treatment.

The residual-jurisdiction argument based on systemic incapacity or process corruption does not create a post-2005 exception that the present authorities have closed.

Confirming decisions

Johal v. Canada (CRA), 2009 FCA, held that an agency’s own internal staffing recourse program can still be “the complete code” for that subject matter. A separate, non-union staffing process does not by itself open a door to court. Subsequent Federal Court decisions have applied the same section 236 reasoning outside the Thompson facts.

A January 2026 Federal Court decision striking a proposed class action by Indigenous employees of a federal agency is particularly clear. The plaintiffs pointed to a confusing patchwork of recourse mechanisms and a 2021 internal review finding that employees did not understand how to use the grievance process. The court held that showing the system was hard to navigate is not the same as showing it was incapable of providing effective redress, and struck the claim.

Bron and Lightbody close the broader “effective redress” residual. Only the narrower “real deprivation of the ultimate remedy” doctrine remains.

The Abella Report and the missing category

In 1984, Judge Rosalie Abella wrote the report that became the Employment Equity Act. She recommended four designated groups so the government could measure and fix under-representation: women, Aboriginal peoples, persons with disabilities, and visible minorities. Black Canadians were not given their own category. They were placed inside the broader “visible minority” group.

That choice has lasted. The Act still does not list Black people separately. Federal data and equity plans therefore do not track Black employees as a distinct group. Barriers that affect them specifically are mixed into the larger category and become harder to see or remedy. The Canadian Human Rights Commission has called for the data to be broken out so those differences are visible.

Goldirose Hotz has identified the decisive point: the legislative gap is the key to residual jurisdiction. The Multiculturalism Act declares a policy of equal opportunity in employment and advancement. The Employment Equity Act is the statute that was meant to give that policy measurement and remedy. It does not. Black Canadians have no designated category. They are submerged inside “visible minorities.” Without a category, the group cannot be counted as a group, barriers specific to the group cannot be identified, and they cannot be remedied. Voluntary self-identification compounds the failure by systematically undercounting. The statutory tools were never built to see this group as a group. That is not a gap the grievance process can fill. It is the foundation of the residual-jurisdiction argument.

Courtney Betty identified and argued that the Canadian Multiculturalism Act, s. 3(2)(a), declares that all federal institutions shall ensure equal opportunity in employment and advancement, and that this policy is reinforced by s. 27 of the Charter, which requires Charter rights to be interpreted consistently with multiculturalism. That argument was advanced; it is not addressed in the reasons in Thompson v. Canada, 2025 FC 476. The Act frames the obligation as government policy rather than a freestanding enforceable right. The Employment Equity Act supplies the measurement and remedy tools, yet it contains no designated category for Black Canadians. They are submerged inside “visible minorities.” Both the Act and the census rely on voluntary self-identification. Documented reasons for non-identification include fear of negative consequences and the ability of some to pass. The result is systematic undercounting. Where the statute creates no category and the data undercounts the group, the official statistics are structurally unreliable as proof that the existing process gives effective redress.

When a court asks whether the existing system gives effective redress for systemic discrimination against Black public servants, the missing category is relevant. The statutory tools were never built to identify or address this group as a group. The government has itself stated it is considering adding the category. That statement is an admission that the current framework is incomplete for this purpose.

Public Service Employee Survey

The 2024 Public Service Employee Survey (186,635 respondents across 93 departments and agencies) found that 45% of employees who experienced discrimination and did not file a formal complaint cited fear of reprisal as the reason. For harassment, 47% cited the same fear; 28% took no action of any kind. These are government-administered numbers.

The Zellars study

Dr. Rachel Zellars’ 2024 Study of the Black Executive Community in the Federal Public Service (interviews with approximately 73 current and former Black executives) documents a different pattern. Sixty-two percent reported direct workplace harassment, intimidation, or threat of reputational harm from supervisors or senior leaders (78% for Black women). Fifty-one percent described being explicitly denied career-advancing opportunities. Nearly 30% (unprompted) described recent or ongoing formal or informal complaints and investigations. Completed investigations found the allegations against them unfounded in every reported case. Black women executives reported higher rates of investigations used against them. The complaint process itself was described as weaponized, lengthy, invasive, and damaging, with no consequences for those who filed unfounded complaints.

This is the first-person record of what the survey numbers measure. The process is experienced as ineffective or actively harmful. Fear of reprisal and career damage is rational on this evidence.

Scholarship on racial trauma and help-seeking

Slavery was abolished in the British colonies in 1834. The British government paid approximately £20 million to slave owners as compensation for the loss of their property. The formerly enslaved received nothing. In Canada, school segregation for Black children was permitted under the 1850 Common Schools Act and continued in parts of Ontario until 1965 and in Nova Scotia until 1983. Queen’s University’s medical school banned Black students from 1918 to 1965; the ban remained on the books until 2018. No. 2 Construction Battalion, the largest Black military unit in Canadian history, was formed in 1916 only after repeated rejection of Black volunteers; it was a segregated, non-combatant labour unit. In 2022 the Government of Canada formally apologized for the anti-Black hate and systemic racism that denied its members dignity in life and in death.

These are not remote facts. Peer-reviewed work on the afterlife of slavery and racial trauma finds that the pattern of racial trauma shapes not only mental health outcomes but help-seeking behaviour itself — whether someone comes forward to an institution at all. Department of Justice Canada research on the historical foundations of anti-Black victimization in Canada and trauma-impact studies (Williams, Roy, MacIntyre & Faber, Current Trauma Reports, 2022) are relevant here. Where the reason for non-use is itself a consequence of the harm being litigated, treating low complaint volume as proof of an adequate system reverses the inference.

The legal standard

Section 187 of the Federal Public Sector Labour Relations Act prohibits a bargaining agent from acting toward a member in a manner that is arbitrary, discriminatory, or in bad faith. The Board has allowed only a small number of complaints under this provision. A union’s discretion in how it pursues a grievance is broad. Negligence or poor judgment is not enough. The complainant must show arbitrary, discriminatory, or bad-faith conduct.

What the unions themselves have said

Several federal bargaining agents have, on the record, described their own representation structures as inadequate to this specific problem. The president of the Union of National Employees called the 2024 Zellars study “the tip of the iceberg,” noting it joined “a long list of federal reports” already confirming the pattern. None of this, by itself, meets the duty-of-fair-representation standard or the Weber/Vaughan “no effective redress” standard. A union saying its process has failed a group of members is evidence toward both arguments. It is not, on its own, proof of either.

Why the bar does not reach them

Section 236 is a trade: grievance rights in lieu of a right of action. An external applicant who was never hired has no grievance right to trade away. They are not an “employee” under the Act and were never a member of any bargaining unit, so there is no collective agreement and no Weber problem. Several federal agencies’ own staffing directives say explicitly that there is no internal recourse at all for a competition drawing from the general public. The practical result is no grievance, no union representation issue, no internal staffing recourse — and therefore no statutory trade for a court to enforce.

The route that remains is a human rights complaint. That is narrower than a class proceeding in several real ways, but it is not blocked by anything discussed in Part One.

The limitation period is real and short

A complaint to the Canadian Human Rights Commission must generally be filed within one year of the last act complained of. The Commission can extend that period where it considers it appropriate in the circumstances. The Part Three evidence on documented, trauma-linked reasons for delay is directly relevant to any extension request. The extension is not automatic; it must be argued for specifically.

Measures that followed, in sequence

Following the 2020 filing and the 2021 mental health fund motion, the government committed approximately $3.7 million in Budget 2022 and a further $45.9 million in Budget 2023 toward career development and mental health programming for Black public servants. An Action Plan for Black Public Servants followed in February 2024. The government has stated it is considering adding Black Canadians as a distinct designated group under the Employment Equity Act. The Clerk’s Call to Action on Anti-Racism, Equity and Inclusion (January 2021) preceded these commitments. In June 2020 the Prime Minister stated in the House of Commons: “Anti-Black racism is real. Unconscious bias is real. Systemic discrimination is real.” No. 2 Construction Battalion was honoured in 2022.

Why this matters even where certification fails

Fee-approval jurisprudence under class proceedings rules assesses legal fees partly by reference to results achieved and risk undertaken — not solely by reference to a final judgment on the merits. A record showing specific, dated government commitments that tracked specific, dated steps in the litigation is the evidentiary backbone of that kind of submission, independent of how any individual certification motion turns out. Parsons and related authorities look at results achieved.