RACIAL DISCRIMINATION CLASS ACTIONS IN ONTARIO: THE DENIAL OF ACCESS TO JUSTICE AGAINST PRIVATE DEFENDANTS.

• Author: Cutinha, Amanda

INTRODUCTION 172 I CLASS ACTIONS: A STRONG AVENUE OF REDRESS 175 A. The Policy Goals of Class Actions 175 B. Remedying Racial Discrimination through Class Actions 176 II RACIAL DISCRIMINATION CLASS ACTIONS IN THE UNITED STATES: A PROMISING PICTURE 178 A. The American Class Actions Landscape 179 B. US Racial Discrimination Class Actions 180 III THE TWO FORMS OF DISCRIMINATION ACTIONS IN CANADA 182 A. Charter Actions against Public Defendants 182 B. Limited Avenues of Redress for Private Defendants 183 IV THE IMPACT ON CERTIFIABILITY 183 A. The Certification Analysis 184 B. The Assertion of a Reasonable Cause of Action 184 C. The Superiority Standard 187 V SOLUTIONS 189 A. Common Law: Recognizing an Independently Actionable Tort of Discrimination 190 B. Statutory: Crafting a Carve Out in ss 46.1(2) of the Code or s 6 of the CPA 192 C. Systemic: Improving the HRTO's Group Litigation Models 193 VI CONCLUSION 195 INTRODUCTION

Racial 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. (1) 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). (2) 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, (3) as well as Prime Minister Justin Trudeau's push to address systemic racism through more representative governance. (4) Notably, this change has also been reflected in the class actions context through the emergence of various class actions complaints alleging racial discrimination. (5) 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. (6) 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. (7) 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. (8) 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]." (9) 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. (10) 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. (11) 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. (12)

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.

I CLASS ACTIONS: A STRONG AVENUE OF REDRESS

Class actions were created in response to an unequal power dynamic between individual citizens and the institutions that harmed them. This power dynamic is also central to cases of racial discrimination. Class actions thus present a promising solution for victims of racial discrimination, particularly as a mechanism for alleviating barriers to accessing justice.

1. THE POLICY GOALS OF CLASS ACTIONS

   Class actions in Ontario emerged predominantly from the Ontario Law Reform Commission's Class Actions Report (the "Report") in 1982. (13) Commissioned by Attorney General Roy McMurtry, the nearly 900-page report and accompanying draft legislation provided a comprehensive overview of class actions in Canada. (14) The Report was the result of the growing private sector, which created a great power imbalance between private individuals and the institutions and businesses that harmed them. (15) As corporations increased in size, there was a concern that individuals who experienced harm were under-resourced and ill-equipped to bring claims against these large institutions, preventing access to justice for victims of harm and allowing large entities to escape recourse. In light of this, the Report raised three policy objectives for class actions that continue in class actions jurisprudence to this day: access to justice, behaviour modification, and judicial economy. (16) The perceived barrier to accessing justice took two forms: economically, the cost of litigation was (and continues to be) high; and, socially and psychologically, individuals were less likely to bring claims against large corporations that harmed them due to the power imbalance. (17) Class actions also enabled greater accountability for well-resourced defendants. Having to pay out large damage awards could inhibit "misconduct by those who might be tempted to ignore their obligations to the public because claims by the injured were too small or too...