Information regarding the Phoenix class action

CANADA PROVINCE OF QUEBEC DISTRICT OF QUEBEC	SUPERIOR COURT (Class action)
No.: 200-06-000214-174	EZMIE BOUCHARD
	Plaintiff   c.     ATTORNEY GENERAL OF CANADA
	Defendant

If you are a person:

1) who was an employee of the Government of Canada, in Canada, regardless of your province or territory of residence:

i) on a casual basis, as a student, on a term basis of less than three months, on a part-time basis (not ordinarily required to work more than one third of the normal period for persons doing similar work), or as a Governor in Council (GIC) appointee, appointed under an Act of Parliament to a statutory position described in that Act.

ii) for one or more of the following departments and organizations listed on Annex 2; And

iii) for at least one day during one, or more than one of the following fiscal years: 2016-2017 (from February 24, 2016 to March 31, 2017), 2017-2018 (from April 1, 2017 to March 31, 2018), 2018-2019 (from April 1, 2018  to March 31, 2019),2019-2020 (from April 1, 2018  to March 31, 2020); and

2) who had a pay problem.

This notice is addressed to you.

Read it carefully because the settlement of the class action could have an effect on your rights.

THE CLASS ACTION HAS BEEN AUTHORIZED AND AN OUT-OF-COURT SETTLEMENT HAS OCCURRED AND WILL BE SUBJECT TO COURT APPROVAL.

On April 3, 2018, the Superior Court authorized the Bouchard class action in connection with the implementation of the Phoenix pay system put in place by the federal government in 2016.

Another application for authorization to institute a class action regarding the Phoenix pay system was filed on August 2, 2018, in the Court of Queen’s Bench of Alberta in the cas number 1801 10956 (Renee Delorme v. Her majesty the Queen in the right of Canada and IBM Canada Limited (Delorme)) and has not yet been authorized with respect to the Attorney General of Canada by the Court of Alberta.

The status of representative of the class members was assigned to Ms. Ezmie Bouchard.

The Superior Court granted the plaintiff permission to act as representative of the following group:

“All person who have had an employment relationship with the Government of Canada at any time the Class Period, excluding those subject to the grievance procedure under Part 2 (sections 206, 208 and 209) of the Public Sector Labor Relations Act (now the Federal Public Sector Labour Relations Act, L.C. 2003, ch. 22, art.2) (the “Class”).

All persons  in the Class  defined in paragraph a. who, during the Class Period, were affected by one or more errors related to their compensation or their tax records, termination records, or any other type of record related to their compensation or employment, while they had an employment relationship with the Government of Canada and/or after f their employment relationship with the Government of Canada ended (the “ First Subclass ”);

All persons in the Class defined in paragraph a. who, during the Class Period, received 50% or less of their earnings, employment insurance benefits or leave of absence pay, retirement pay or any form of remuneration in connection with their current or former employment relationship with the Government of Canada for four weeks or more (the “Second Subclass”).

The Bouchard class action was the subject of an out-of-court settlement agreement for group members regardless of thier province or territory of residence (subject to the exclusion mentioned below).

This agreement does not apply to persons locally engaged outside Canada and to members of the Royal Canadian Mounted Police who have not been paid using the Phoenix pay system nor to employees subject to the grievance procedure provided for in Part 2 of the Federal Public Sector Labour Relations Act, SC 2003, c. 22, art. 2.

The settlement agreement will be subject to approval by the Superior Court of Quebec. It must be approved by the Superior Court to become applicable and final.

The class period begins on February 24, 2016 and will end on March 31, 2020 if the Court approves the settlement agreement.

WHAT ARE THE KEY TERMS AND CONDITIONS OF THE SETTLEMENT AGREEMENT, IF APPROVED?

To submit a claim for compensation, you will need to:

Have been employed by the Government of Canada, in Canada regardless of your province or territory of residence:

 

i)               on a casual basis, as a student, on a term basis of less than three months, on a part-time basis (not ordinarily required to work more than   one third of the normal period for persons doing similar work), 

 

• or as a Governor in Council (GIC) appointee, appointed under an Act of Parliament to a statutory position described in that Act.

 

ii)              for one or more of the following departments and organizations listed on Annex 2; And

 

iii)            were employed for at least one day during one, or more than one, fiscal year during which you had a pay problem:

 

2016-2017 (from February 24, 2016 to March 31, 2017)

2017-2018 (from April 1, 2017 to March 31, 2018)

2018-2019 (from April 1, 2018 to March 31, 2019)

2019-2020 (from April 1, 2019 to March 31, 2020)

 

iv)            have on hand the Personal Record Identifier (PRI) or, if you do not have your PRI, other proof including your first and last name, your date of birth and the name of the department or organization for which you have work.

 

If you are eligible for compensation or have received compensation under the agreements regarding damages caused by the Phoenix system, you will not be entitled to of receive compensation for the corresponding fiscal year:

• Agreement between central public administration bargaining agents (“the bargaining agents ” ) and the Treasury Board (“the employer ” ) regarding damages caused by the Phoenix system (approved June 12, 2019); https://www.canada.ca/en/treasury-board-secretariat/topics/pay/phoenix-pay-system/damages-caused-phoenix-pay-system.html

 

• Agreement between the Public Service Alliance of Canada (PSAC) (“the Bargaining Agent ”) and the Treasury Board of Canada (“the Employer”) (approved October 23, 2020); (https://www.canada.ca/en/treasury-board-secretariat/topics/pay/phoenix-pay-system/phoenix-pay-system-damages-agreement-2020.html

 

• Agreement between the agents negotiators of administration central public (the “Bargaining Agents”) and The Treasury Board of Canada (“the Employer”) regarding the catch-up clauses in the Memorandum of Understanding Concerning Damages Caused by the Phoenix Pay System of June 2019 (approved March 3, 2021); https://www.canada.ca/en/treasury-board-secretariat/topics/pay/phoenix-pay-system/compensation-federal-employees-impacted-phoenix-pay-system/memorandum-agreement-damages-caused-phoenix-pay-system.html

 

• Agreement between The National Police Federation (NPF) ("the Bargaining Agent”) and the Treasury Board of Canada (“The Employer”) (approved August 6, 2021). ( https://www.canada.ca/en/treasury-board-secretariat/topics/pay/phoenix-pay-system/phoenix/claim-damages-caused-phoenix-payment-equivalent-leave/agreement-between-national-police-federation-treasury-board-canada.html

 

Class members will be able to submit a claim form via the Internet or by mail and may be entitled to the following compensation:

• A maximum amount of $350.00 for the 2016/2017 fiscal year (February 24, 2016 to March 31, 2017)

 

• A maximum amount of $175.00 for the 2017/2018 fiscal year (April 1, 2017 to March 31, 2018)

 

• A maximum amount of $175.00 for the 2018/2019 fiscal year (April 1, 2018 to March 31, 2019)

 

• A maximum amount of $175.00 for the 2019/2020 financial year (April 1, 2019 to March 31, 2020)

 

Under section 42 of the Loi sur le Fonds d’aide aux actions collectives and section 1 of the Règlement sur le pourcentage prélevé par le Fonds d’aide aux actions collectives, a deduction of 2% will be taken from the gross to be paid to any member residing in Quebec.

Compensation will be granted without admission of liability on the part of the defendant (Attorney General of Canada) and does not constitute an acknowledgment of the facts or the law. The allegations made in the class action have not been proven in a court of law and are contested by the defendant (Attorney General of Canada).

The plaintiff and her lawyers entered into a fee agreement dated April 4, 2017, under which Saraïlis Avocats would be entitled to receive 20% of the amount received in this class action, plus applicable taxes.

However, to avoid reducing the amounts paid to members, Saraïlis Avocats and the defendant (Attorney General of Canada) agreed that the fees of the plaintiff's lawyers will be paid separately by the defendant, that they be set at $1,400,000.00 and that they will not be deducted from the sums paid to members.

The fees must be approved by the Superior Court. The revision of the amount of fees by the Superior Court, if applicable, will not have the effect of canceling the settlement agreement.

The defendant (Attorney General of Canada) will receive a full and final release from all class members, except those who have chosen to opt out of the class action.

You can consult the final settlement agreement on the website of the plaintiff's lawyers [http://www.sarailis.ca/media/44843/settlement-agreement-bouchard.pdf] or Treasury Board of Canada Secretariat website [Treasury Board of Canada Secretariat - Canada.ca]

Class action legal costs cannot be demanded from class members.

If the settlement agreement is approved, another notice will be published to notify you of the approval and explain how to proceed with making a claim.

 

OPTING OUT OF THE CLASS

You can opt out of the class action, if you wish instead to pursue an individual action. If you make this election, you will lose the opportunity to be eligible for the benefits of the settlement agreement. In this case, the settlement agreement and its benefits will not apply to you, even if approved.

To do this, you must file with the Superior Court registry (district of Quebec) before February 11, 2025, the duly completed and signed exclusion form, available for printing on the Saraïlis Avocats website :

Superior Court Civil Registry of the Superior Court of Quebec (Quebec Courthouse) 300, boul. Jean-Lesage, room 1.24 Quebec (Quebec) G1K 8K6

 

NEXT STEPS: SUPERIOR COURT HEARING AND YOUR RIGHT TO PARTICIPATE

The settlement agreement will be presented to Judge Jean François Émond, judge of the Superior Court for approval on February 18, 2025, at 2pm, in room 3.14 at the Quebec Courthouse located at 300, boul. Jean-Lesage in Quebec, province of Quebec, G1K 8K6. 

You do not need to attend the approval hearing to be eligible for compensation, but you can attend if you wish, according to the following details:

-       In person in room 3.14 at the Quebec Courthouse located at 300, boul. Jean-Lesage in Quebec, province of Quebec, G1K 8K6;

 

-       By videoconference to attend this hearing remotely via the following TEAMS link: https: //msteams.link/5X3S.

 

-       By telephone at 581-319-2194, conference number 126251949#, Quebec, Canada, +1(833) 450-1741, 126251949# Canada, toll-free.

 

You can participate in the hearing in the official language of your choice.

If you wish, the law allows you to assert your objections or arguments if you are a class member. In this case, the Superior Court will hear your objections or arguments regarding the settlement, if applicable, on the condition that you write to the lawyers of the plaintiff (Saraïlis Avocats) and the defendant (Attorney General of Canada) at the addresses mentioned below, no later than February 11, 2025, indicating the following:

a)    Your full name, current mailing address, fax number (if applicable), telephone number and email address; the name of the department or organization for which you worked and the period you worked there, your employment status during the relevant period AND

 

b)    A statement explaining why you believe you are a class member, specifying the reasons for this belief; AND

 

c)    A brief statement of the nature and grounds of your objections or arguments; AND

 

d)    Stating whether you intend to appear at the approval hearing or whether you intend to be represented by a lawyer and, if you are represented by a lawyer, the name, address, phone number telephone number, fax number and email address of the lawyer.

The contact details of the parties’ lawyers are as follows:

 

Plaintiff's lawyers Sarailis Avocats Inc. 1255, boul. Lebourgneuf Office 550 Quebec (Quebec) G2K 0M6 phenix@sarailis.ca

Defendant's lawyers Attorney General of Canada Quebec Regional Office To the attention of Christine Mance  Complexe Guy-Favreau 200, boul. René-Lévesque West East tower, 5th floor  Montreal (Quebec) H2Z 1X4 Fax: 514 496-7876 NotificationPGC-AGC.Civil@justice.gc.ca

 

Saraïlis Avocats undertakes to produce to the Superior Court any written objections or arguments received. You can also appear in court to explain the reasons for your objections or arguments, during the hearing on the approval of the settlement agreement which will take place on February 18, 2025 at 2pm.

This notice was approved by the Honorable Jean-François Émond, judge of the Superior Court of Quebec.

 

Quebec city, November 27, 2024

 

Sarailis Avocats Inc.

Plaintiff's lawyers

Dedicated phone line: 1 (877) 358-7338

Email address: phoenix@sarailis.ca

 

 

 

ANNEX 1:

 

Principal questions of law and fact to be treated collectively, and main conclusions sought, as defined in the judgment authorizing the class action:

 

• Did the Government of Canada fail in its obligation to properly manage the remuneration of its employees?

 

• Did the Government of Canada negligently manage the crisis generated by the failures of the Phoenix pay system?

 

• Did Class Members suffer moral  prejudice as a result of the failures of the Phoenix pay system, and if so, how much should this prejudice be assessed for?

 

• Did the First Subclass members suffer moral prejudice as a result of the failures of the Phoenix pay system that affected theirfile , and if so, how much should that prejudice be assessed for?

 

• Did theSecond Subclass members suffer moral prejudice as a result of the failures of the Phoenix pay system that resulted in a reduction of at least 50% of their  pay for a period of four weeks or more, and if so, to how much should that prejudice be assessed for?

 

• Is the Federal Government liable, for the harm caused to members of the Class and the two subclasses, respectively, by the failures of the Phoenix pay system?

 

• Does the Federal Government have an obligation to pay the salaries of its employees in full and on time?

 

• If so, should the Court order the payment of arrears of wages and other payments owed to Government of Canada employees, with interest and additional compensation from the time of the default?

 

• If so, what is the earliest established date of the default?

 

The main conclusions sought:

 

GRANT the Plaintiff’s request for class action on behalf of the following Group and the following subgroups:

All persons who had an employment relationship with the Government of Canada at any time (…) during the Class Period (the “ Class ”);

All individuals who are members of the Class who, (…) during the Class Period, were affected by one or more errors related to their remuneration or their tax records , termination records or any other type of record related to their remuneration or employment, while they had an employment relationship with the Government of Canada and/or after their employment relationship with the Government of Canada ended (the “ First Subclass”);

All individuals who are members of the Class who, during the Class Period, received 50% or less of their earnings, employment insurance benefits or leave of absence pay, retirement pay or any form of remuneration in connection with their current or former employment relationship with the Government of Canada for four weeks or more (…) (the “ Second  Subclass”);

Grant the Plaintiff's action on behalf of all Class members, the First subclass and the Second subclass;

ORDER the Defendant to pay the Plaintiff and each member of the Class the sum of $500, bearing interest at the legal rate and the additional compensation provided for by law from the filing of the request for authorization to bring a class action and to be representative;

ORDER the Defendant to pay the Plaintiff and each member of the First subclass the sum of $1,000, bearing interest at the legal rate and the additional compensation provided for by law from the filing of the request for authorization of exercise collective action and to be representative;

ORDER the Defendant to pay the Plaintiff and each member of the Second subclass the sum of:

-      $500 for the first four weeks where the member received 50% of their pay or less ;

-      for each additional week where the member received 50% of his pay or less, between the fifth and tenth weeks inclusive, an additional $175;

-      for each additional week where the member received 50% of his pay or less, following the tenth week, an additional $250 each;

-      all bearing interest at the legal rate and the additional compensation provided for by law from the filing of the request for authorization to take collective action and to be a representative;

ORDER the Defendant to pay to the Plaintiff and to each member of the Second subclass and, more generally, to all members of the First subclass who did not receive all the sums to which they were entitled as remuneration employment or social benefits, the amount to be determined during the recovery process and representing the salary arrears or other amount owed to each of these members, bearing interest at the legal rate and the additional compensation provided for by law from the date of residence;

ORDER the collective recovery of claims of the sums to be collected under this judgment, according to the procedure to be established by the court;

ORDER, where applicable, the liquidation of members' claims or the distribution of compensation to each of them from the sums recovered collectively;

ALLOW members of the Second subgroup to present an individual claim for their damage suffered in excess of the damage assessed jointly for the members of the Second subgroup, all, according to the terms and conditions to be set by the court;

ALL with legal costs, including expert appraisal costs, opinion costs and costs related to the administration of claims and the distribution of compensation;

 

 

ANNEX 2: 

 

List of Eligible Departments 

Departments and organizations listed in Schedules I and IV of the Financial Administration Act that use the Phoenix pay system: 

 

 

Accessibility Standards Canada 

Administrative Tribunals Support Service of Canada 

Agriculture and Agri-Food Canada 

Atlantic Canada Opportunities Agency 

Canada Border Services Agency 

Canada Economic Development for Quebec Regions 

Canada School of Public Service 

Canadian Dairy Commission 

Canadian Grain Commission 

Canadian Heritage 

Canadian Human Rights Commission 

Canadian Intergovernmental Conference Secretariat 

Canadian Northern Economic Development Agency 

Canadian Radio-television and Telecommunications Commission 

Canadian Space Agency 

Canadian Transportation Agency 

Civilian Review and Complaints Commission for the Royal Canadian Mounted Police 

Copyright Board of Canada 

Correctional Service of Canada 

Courts Administration Service 

Crown–Indigenous Relations and Northern Affairs Canada 

Department of Finance Canada 

Department of Justice Canada 

Department of National Defence 

Employment and Social Development Canada 

Environment and Climate Change Canada 

Farm Products Council of Canada

Federal Economic Development Agency for Southern Ontario 

Fisheries and Oceans Canada 

Global Affairs Canada 

Health Canada 

Immigration and Refugee Board of Canada 

Immigration, Refugees and Citizenship Canada 

Impact Assessment Agency of Canada 

Indigenous Services Canada 

Infrastructure Canada 

Innovation, Science and Economic Development Canada 

International Joint Commission 

Library and Archives Canada 

Military Grievances External Review Committee 

Military Police Complaints Commission of Canada 

National Farm Products Council

Natural Resources Canada 

Office of the Chief Electoral Officer (Elections Canada) 

Office of the Commissioner for Federal Judicial Affairs Canada 

Office of the Commissioner of Lobbying of Canada 

Office of the Commissioner of Official Languages 

Office of the Information Commissioner of Canada 

Office of the Privacy Commissioner of Canada 

Office of the Public Sector Integrity Commissioner of Canada  

Office of the Registrar of the Supreme Court of Canada 

Office of the Secretary to the Governor General 

Office of the Superintendent of Bankruptcy 

Parole Board of Canada 

Patented Medicine Prices Review Board Canada 

Privy Council Office 

Public Health Agency of Canada 

Public Prosecution Service of Canada 

Public Safety Canada 

Public Service Commission of Canada 

Public Services and Procurement Canada 

Royal Canadian Mounted Police 

Royal Canadian Mounted Police External Review Committee 

Secretariat of the National Security and Intelligence Committee of Parliamentarians 

Shared Services Canada 

Statistics Canada 

Transport Canada 

Transportation Safety Board of Canada 

Treasury Board of Canada Secretariat 

Veterans Affairs Canada 

Veterans Review and Appeal Board 

Western Economic Diversification Canada (split into two new agencies: Pacific Economic Development Canada [PacifiCan] and Prairies Economic Development Canada [PrairiesCan]) 

Women and Gender Equality Canada

 

Separate agencies listed in Schedule V of the Financial Administration Act that use the Phoenix pay system: 

 

Canada Revenue Agency 

Canadian Energy Regulator (formerly the National Energy Board) 

Canadian Food Inspection Agency 

Canadian High Arctic Research Station (Polar Knowledge Canada) 

Canadian Institutes of Health Research 

Canadian Nuclear Safety Commission  

Canadian Security Intelligence Service 

Communications Security Establishment 

Financial Consumer Agency of Canada 

Financial Transactions and Reports Analysis Centre of Canada

Indian Oil and Gas Canada 

National Film Board of Canada 

National Research Council Canada 

Natural Sciences and Engineering Research Council of Canada 

Northern Pipeline Agency 

Office of the Auditor General of Canada 

Office of the Correctional Investigator of Canada 

Office of the Superintendent of Financial Institutions of Canada 

Parks Canada 

Secretariat of the National Security and Intelligence Review Agency (formerly the Security 

Intelligence Review Committee) 

Social Sciences and Humanities Research Council 

Statistical Survey Operations