Class Actions—Ongoing and to Come

Background

  • In recent years, the Government of Canada (GC) has been engaged in the settlement of class action lawsuits.
  • The Final Settlement Agreement (FSA) for the “LGBT Purge” class action is now in the final stages of implementation.
  • Library and Archives Canada (LAC) is involved in this project as it manages the personnel files of all former public servants and all former Canadian Armed Forces (CAF) members who are two years past their retirement and the personnel files of former public servants.
  • LAC’s efforts for the LGBT Purge class action were initially estimated to respond to 4,500 claimants and LAC had planned to staff 59 FTEs.
  • LAC’s role includes digitizing the required records from its holdings and performing an informal privacy review on the files of former CAF members.
  • The GC is also currently negotiating settlements in the class actions for Heyder & Beattie (sexual misconduct and harassment in the CAF and Department of National Defence [DND] employees), and for Frenette (racial discrimination and harassment in the CAF).

Considerations

LGBT Purge class action:

  • The volume of claims received during the LGBT Purge class action were lower than originally estimated; by the end of the claims period (April 25, 2019), 718 claims were received by Deloitte, the majority were for former and current CAF members.
  • 35 FTEs were hired by LAC (in Ottawa and Winnipeg).
  • The processing of these claims is ongoing and LAC’s portion of the work is expected to be completed in fall 2019.
  • By the end of July 2019, 260,929 pages of personnel files had been digitized (for both former CAF and former public servants) and LAC has been asked to review 500 claimant files for privacy.
  • LAC is conducting ATIP reviews to release to the claimants a selection of archival records showing the policies of the federal government collected by the GC in preparation for the class action.

Heyder & Beattie/ Frenette class actions:

  • In December 2018, LAC provided high-level estimates for its financial requirements to support settlement between the plaintiffs and the GC with Heyder & Beattie (HB) and Frenette. Funding will be allocated to DND. To access the funds, a Memorandum of Understanding (MOU) will be signed between LAC and DND. LAC will invoice DND for all expenditures.
  • The proposed FSA for HB was recently published online and will be ratified by the courts in September 2019. A supplemental agreement is being developed, which will be attached to the FSA and completed in time for the date when the FSA is to be ratified (approved) by the court. This supplemental agreement will clarify the extent of LAC’s contribution. More specifically, it will outline whether or not the plaintiffs will receive a copy of their personnel file as part of the settlement process, or whether it will be a simpler task, such as a verification of service by validating information from the file.
  • Overall, the anticipated take-up is 10-15% of 154,000 potential eligible claimants and of those, 50% of requests are estimated to come to LAC (approximately 11,550 potential files for LAC to process). LAC and DND are taking lessons learned from the LGBT Purge class action into account in planning for the response to future class actions.
  • The response efforts for HB will be multi-year, starting as early as February 2020.
  • For the Frenette class action, negotiations are underway, but progress is slower and an agreement is not anticipated until sometime after the election.

Key Public Messages

  • The GC must respond in accordance with prescribed timeframes of the Final Settlement Agreements for each class action (which are different from the ATI and privacy acts).
  • LAC is supporting the GC response to the class actions in a variety of ways as required, including providing digitized copies of files, seeking information from files, and performing informal privacy review on files.

SME:

David Clement, Deputy Director Privacy and Personnel Records
Email: david.clement@canada.ca
Tel: 613-277-7636

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