Date: 20050505
Docket: T-684-04
Citation: 2005 FC 608
Ottawa, Ontario, May 5, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
UNITED PARCEL SERVICE OF CANADA
Applicant
and
JOSÉE THIBODEAU
Respondent
and
CANADIAN HUMAN RIGHTS COMMISSION
Intervener
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, of a decision of the Canadian Human Rights Commission (the Commission) dated March 5, 2004, in which the Commission, pursuant to subsection 41(1) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act), decided to rule on the respondent's discrimination complaint against the applicant after adjudicator André Rousseau had dismissed the respondent's grievance.
ISSUES
[2] The issues in dispute are the following:
1. Did the Commission exceed its jurisdiction and make a jurisdictional error in deciding to rule on the discrimination complaint when an arbitration tribunal had already rendered a decision in the same dispute?
2. Did the Commission abuse its discretion in extending the one-year period provided for under paragraph 41(1)(e) of the Act?
[3] For the reasons that follow, I must answer both questions in the negative. The application for judicial review will be dismissed.
FACTUAL BACKGROUND
[4] The applicant is a company that provides parcel and mail pick-up and delivery services. Because it maintains many places of business across Canada, it is governed by the Canada Labour Code, R.S.C. 1985, c. L-2 (the Code).
[5] The respondent worked for the applicant as a delivery driver and belonged to a bargaining unit represented by the Cartage and Miscellaneous Employees' Union, Teamsters Quebec Local 931 (the union). The applicant and the union are bound by a collective agreement.
[6] In 1996, the respondent suffered injuries as the result of a traffic accident that occurred while she was making deliveries. The Quebec Workers' Compensation Board (Commission de la santé et de la Sécurité du travail, or CSST), its Review Board, and the Commission des lésions professionnelles ruled on the consolidation and declared that the respondent had sustained no permanent loss or functional limitations as a result of her occupational injuries (Review Board decision dated May 22, 1997; Commission des lésions professionnelles decision dated June 2, 1998).
[7] On November 3, 1997, the respondent gave her employer a medical certificate from her attending physician which stated that she should not lift objects weighing more than 10 pounds. She requested that her employment be changed to accommodate her medical limitations. When the applicant refused, the respondent signed a document entitled [translation] "Termination of Employment".
[8] On October 5, 1998, the respondent contacted the Commission to obtain a complaint form. After consulting with a lawyer, she filed a discrimination complaint with the Commission on February 3, 1999.
[9] On February 25, 2001, the applicant agreed to allow the union to file a grievance to contest the termination of the respondent's employment. This was essentially the same complaint as the one filed with the Commission, despite the fact that the deadlines for filing a grievance under the collective agreement had expired.
[10] Because of the parties' agreement, the Commission suspended its handling of the complaint pending the adjudicator's decision. However, the Commission said in its letter that the respondent could ask the Commission to handle her complaint if she was not satisfied with the outcome. It would then be up to the Commission to decide whether to proceed with dealing with the complaint or not.
[11] On October 10, 2001, the union filed the grievance. The hearing lasted two days. The respondent claimed that she had been unjustly dismissed in a discriminatory manner because of her medical limitations. The applicant argued that the respondent had quit. After considering the evidence, adjudicator Rousseau dismissed the grievance on the ground that the respondent had freely and voluntarily left her employment.
[12] Unhappy with the adjudicator's decision, the respondent asked the Commission to reactivate her case.
IMPUGNED DECISION
[13] On or about March 5, 2004, the Commission rendered its decision. It decided to rule on the respondent's complaint pursuant to subsection 41(1) and paragraph 41(1)(e) of the Act, since it felt the adjudicator had not addressed the allegations of discrimination.
[14] The relevant statutory provisions are reproduced in Appendix 1 of these reasons.
ANALYSIS
Standard of Review
[15] When the Federal Court considers an application for judicial review, it must begin by determining the applicable standard of review. The Supreme Court of Canada recently established that there are three standards of review: correctness, reasonableness simpliciter, and patent unreasonableness (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247). These three standards differ in the degree of deference afforded by the Court to the decisions it reviews. To determine the appropriate standard of review, the Court must conduct a pragmatic and functional analysis, as described in Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at paragraph 26:
In the pragmatic and functional approach, the standard of review is determined by considering four contextual factors - the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and, the nature of the question - law, fact, or mixed law and fact. The factors may overlap. The overall aim is to discern legislative intent, keeping in mind the constitutional role of the courts in maintaining the rule of law.
[16] The decisions in Slattery v. Canada (Canadian Human Rights Commission), [1994] F.C.J. No. 1017 (T.D.) (QL) and Canada (Attorney General) v. Bouvier, [1996] F.C.J. No. 623 (T.D.) (QL) indicate that the Court must use the correctness standard when the Commission makes a decision regarding its jurisdiction. However, since the pragmatic and functional approach was not applied in those cases, the Federal Court of Appeal stated in Davies v. Canada (Attorney General), [2005] F.C.J. No. 188 at paragraph 9 that it is incumbent on the Court to use this approach to ensure that the appropriate review standard is used.
Rather than performing his own pragmatic and functional analysis, the applications judge relied solely on prior case law to determine the appropriate standard of review. Neither of the cases which form the basis of the applications judge's determination of the standard of review of the Appeal Board's decision apply the pragmatic and functional approach. Consequently, it is appropriate for this Court to apply the pragmatic and functional approach to determine the correct standard of review and, if necessary, to assess the Appeal Board's decision on that basis.
Pragmatic and Functional Analysis (Question No. 1)
[17] The two parties and the intervener all agree that the standard of review applicable to the Commission's decision on a jurisdictional issue is correctness.
[18] However, I must nevertheless conduct a pragmatic and functional analysis to determine if this standard applies in this case.
- (1) The Presence or Absence of a Privative Clause
[19] The Act does not include a privative clause or a right of appeal respecting Commission decisions. The absence of such a clause does not imply a high standard of scrutiny (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at paragraph 30).
- (2) The Purpose of the Act and the Provision
[20] In Price v. Concord Transportation Inc., [2003] F.C.J. 1202 (QL), 2003 FC 946, the Court stated the following concerning the purpose of the Act and subsection 41(1):
In this case, the purpose of the legislative scheme of the Act as a whole is to prevent discrimination and provide redress when it does occur. However, the Act recognizes, through several provisions which provide certain screening functions, that this purpose must be applied with certain limitations on which complaints will proceed to the Tribunal stage. Particular to the present situation, section 41(1)(e) reflects the concern that complaints are to be brought forward in a timely manner.
I believe that paragraph 32 of Dr. Q, supra, applies here: "[A] piece of legislation or a statutory provision that essentially seeks to resolve disputes or determine rights between two parties will demand less deference".
- (3) The Expertise of the Tribunal
[21] I share the view of the parties and the intervener that the Commission does not have a greater expertise than the Court with regard to jurisdictional questions. As mentioned in Dr.Q, supra at paragraph 28, "[g]reater deference will be called for only where the decision-making body is, in some way, more expert than the courts and the question under consideration is one that falls within the scope of this greater expertise: see Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, 2002 SCC 11, at para. 50", which is not the case in the present instance.
- (4) The Nature of the Question
[22] The Commission's jurisdiction is a question of law. It is trite law that the Courts must subject questions of law to more rigorous review.
[23] An analysis of these four factors points to a lesser degree of deference. Consequently, the correctness standard of review will be used. This is the standard that involves a minimal level of deference with regard to a tribunal decision and that gives rise to a more far-reaching review.
Pragmatic and Functional Analysis (Question No. 2)
[24] I am of the view that the review standard that should be applied to the second question is patent unreasonableness, contrary to the appropriate standard of review for the first question in dispute. In Cape Breton Development Corp. v. Hynes, (1999), 164 F.T.R. 32 (F.C.T.D.), the Court stated that decisions made under paragraph 41(1)(e) of the Act constitute a discretionary exercise of administrative jurisdiction. The Court explained this principle in the following terms, at paragraph 15:
It is well settled, as all parties agree, that decisions of the Commission under paragraph 41(e) are discretionary administrative decisions. Decisions of that nature are not readily set aside, and courts will not interfere, even if they might have exercised the discretion differently, where the discretion has been exercised in good faith, in accord with the principle of natural justice and procedural fairness, and where reliance has not been placed on considerations that are irrelevant or extraneous to the statutory purpose.
[25] I think it helpful to repeat the words of Heneghan J. in Price v. Concord, [2003] F.C.J. No. 1202 (F.C.T.D.) (QL) at paragraph 40:
Further, the discretionary statutory language of the Act, in section 41 and other sections which enable the Commission to perform its screening function, was the subject of comment by the Federal Court of Appeal in Bell Canada, supra at paragraph 38:
The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report. Subsections 40(2) and 40(4) and sections 41 and 44 are replete with expressions such as "is satisfied", "ought to", "reasonably available", "could more appropriately be dealt with", "all the circumstances", "considers appropriate in the circumstances" which leave no doubt as to the intent of Parliament. The grounds set out . . . [in subsections 44(2), 44(3)(a) and 44(3)(b)] involve in varying degrees questions of fact, law and opinion . . . , but it may safely be said as a general rule that Parliament did not want the courts atthis stage to intervene lightly in the decisions of the Commission.
Finally, the expertise of the Commission in respect to fact finding is well-established in the jurisprudence: see Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554. The determination under section 41(1)(e) falls squarely within such expertise. Deference is also warranted on this ground.
[26] The patent unreasonableness standard involves a higher degree of deference (Voice Construction Ltd. v. Construction and General Workers' Union, Local 92, [2004] 1 S.C.R. 609).
Did the Commission exceed its jurisdiction and make a jurisdictional error in deciding to rule on the discrimination complaint when an arbitration tribunal had already rendered a decision in the same dispute?
Parties' Submissions
[27] On the one hand, the applicant submits that the arbitration tribunal had exclusive jurisdiction over the respondent's complaint. The applicant argues that the respondent made an informed decision to refer her discriminatory dismissal complaint for arbitration and that once this choice was made, no forum other than the arbitration tribunal had jurisdiction to hear the complaint. The applicant submits that the Commission cannot assume the jurisdiction of a review tribunal.
[28] The applicant adds that the decision rendered by the arbitrator was final and binding on the parties. Consequently, it submits that the doctrine of res judicata applies to the decision. The rationale for this doctrine is the avoidance of multiple trials and contradictory judgments.
[29] On the other hand, the respondent and the Commission submit that the arbitration tribunal and the Commission have concurrent jurisdiction. The respondent argues that res judicata does not apply to her complaint, since the three conditions required for applying this doctrine have not been met. The cases must concern (1) the same issue and (2) the same parties, and (3) there must be a final decision.
Analysis
[30] In Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185 at paragraphs 7-11 (Quebec v. CDLPJ ), it was noted that there was no easy answer to the question of whether it should be the Commission or the arbitration tribunal that should decide disputes involving labour relations where legislation appears to give jurisdiction to both. McLachlin C.J. adopted the words of the Supreme Court in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 and confirmed that there are three possible avenues:
The first possibility is to find jurisdiction over the dispute in both tribunals. This is called the "concurrent" jurisdiction model. On this model, any labour dispute could be brought before either the labour arbitrator or the courts or other tribunals.
The second possibility is the "overlapping" jurisdiction model. On this model, while labour tribunals consider traditional labour law issues, nothing ousts the jurisdiction of courts or other tribunals over matters that arise in the employment context, but fall outside traditional labour law issues.
The third possibility is the "exclusive" jurisdiction model. On this model, jurisdiction lies exclusively in either the labour arbitrator or in the alternate tribunal, but not in both.
[31] Tremblay-Lamer J., in Canadian Broadcasting Corp. v. Paul, [1999] 2 F.C. 3, concluded that there was concurrent jurisdiction:
¶ 38 In Weber, the Supreme Court of Canada ruled that an arbitrator has the exclusive jurisdiction, subject to judicial review, to determine all differences arising out of a collective agreement.
¶ 39 However, the Court was not addressing the situation where there is concurrent jurisdiction given by the legislator to another forum, as in the present case.
¶ 40 Subsection 41(1) of the CHRA clearly gives jurisdiction to the Human Rights Commission to deal with any complaint arising from a collective agreement, unless it decides that the grievance procedure should be exhausted.
¶ 41 Given the plain language of the Act, it is difficult to sustain the argument that the intention of the legislator was to limit the jurisdiction of the Commission. I note that the statute contains a number of provisions limiting the jurisdiction of the Commission and that each such limitation has been worded in express terms.
. . .
¶ 43 In the present case, the legislation is clear and plain: under section 41 of the CHRA the Commission is to decide if the complainant ought to exhaust the grievance or review procedures, or if the matter would more appropriately be dealt with under another Act of Parliament.
. . .
¶ 53 I therefore conclude that the Canadian Human Rights Commission has full jurisdiction, over the arbitrator, to deal with discriminatory practices, unless, as provided by paragraph 41(1)(a), it appears to the Commission that the alleged victim should exhaust the grievance procedures available.
[32] However, this position raises concerns that were brought up by Baudouin J.A. in Quebec v. CDLPJ (Que. C.A.) and noted by me in Canadian Broadcasting Corp. v. Syndicat des communications de Radio-Canada, [2002] F.C.J. No. 1060 (F.C.T.D.):
¶ 44
. . .
However, I would add that it seems somewhat strange to me that the legislator, having taken great pains to create an independent, specialized tribunal for human rights, did not see fit to clearly confer exclusive jurisdiction upon it. The division of this jurisdiction, since in other situations the Tribunal will still have jurisdiction, can only lead to the emergence of contradictory decisions which the higher courts, exercising their powers of review, will have to resolve, and be a source of future conflicts. Moreover, the exclusive power of the grievance arbitrator over discrimination, and so breaches of the Charter, seems to me perhaps the best way of preserving and guaranteeing protection and respect for human individual rights, since in labour law problems of this kind often arise in a situation where the collective rights defended and represented by the unions are directly in conflict with individual rights, and in certain readily conceivable situations this will unavoidably create conflicts of allegiance.
. . .
¶ 54 At the same time, I cannot help noting, as Baudouin J.A. did, that I find the present situation strange. It seems to me that in order to ensure lasting industrial peace in employer and union dealings it would be in Parliament's interest to give a single authority jurisdiction to decide disputes involving employment and human rights.
[33] The words of McGillis J. in Canada (Attorney General) v. Boutilier, [1999] 1 F.C. 459 (T.D.) at paragraph 32 are also relevant:
Paragraphs 41(1)(a) and 44(2)(a) also indicate that Parliament expressly considered that situations would arise in which a conflict or an overlap would occur between legislatively mandated grievance procedures, such as that provided for in the Public Service Staff Relations Act, and the legislative powers and procedures in the Canadian Human Rights Act for dealing with complaints of discriminatory practices. In the event of such a conflict or overlap, Parliament chose to permit the Commission, by virtue of paragraphs 41(1)(a) and 44(2)(a), to determine whether the matter should proceed as a grievance under other legislation such as the Public Service Staff Relations Act, or as a complaint under the Canadian Human Rights Act . . . .
[34] More recently, Gauthier J., in National Gallery of Canada v. Public Service Alliance of Canada, Local 70397, [2003] F.C. 1458 (T.D.), stated the following at paragraph 46:
Not only was the legislature aware of the possibility of an overlap, it chose to give the Commission the discretion to decide whether in a given case it was better for the grievance procedure to be exhausted first (see Canada (Attorney General) v. Boutillier, [1999], 1 F.C. 459, paragraph 32). Accordingly, this means that it intended the Commission to be able to deal with a complaint during or after exhausting the grievance procedure (41(1)(a)). It also indicated that the Commission has discretion to decide whether a complaint could be heard with advantage (initially or at any stage) pursuant to some other federal statute (41(1)(b)). This necessarily implies the possibility of concurrent jurisdiction. [Emphasis added.]
[35] I also agree with paragraph 49 of that same decision:
Although the Court recognizes the important function of arbitration in labour relations and the broad interpretation that must be given to the Labour Code, it cannot disregard the choice made by Parliament. It cannot conclude that the Commission lacks jurisdiction to deal with a complaint which clearly alleges a discriminatory act mentioned in the Act, even though the gist of such a complaint also has to do with a question covered by the collective agreement.
[36] In Boudreault v. Canada (Attorney General), [1995] F.C.J. No. 1055 (T.D.) (QL), Tremblay-Lamer J. decided as follows at paragraph 14:
If the applicant has taken advantage of the available internal remedies, the Commission may not refuse to exercise its jurisdiction on the ground that the matter has already been decided.
[37] In the case at bar, it is clear upon reading the arbitral award that the adjudicator did not rule on the issue of the discrimination alleged by the respondent. The adjudicator concluded that the complainant had not proven that her termination of employment was not free and voluntary. This leaves the question of the employer's refusal to accommodate the respondent's medical limitations, if there were any, at the time of the meeting which led to her termination. I have no trouble accepting that if proof of discrimination is made out, damages may be awarded without actually setting aside the adjudicator's decision regarding the issue of termination. As part of the complaint handling process, the Commission will have to consider such factors as the attending physician's certificate in relation to the decisions of the CSST, the Review Board and the Commission des lésions professionnelles.
[38] What the applicant is now asking the Court to do is to put a stop to the process that the Commission wants to initiate to handle the respondent's complaint. Given the provisions of the Act and the factual background in this case, I cannot agree with the applicant.
[39] Since the adjudicator did not address the issue of discrimination, the Commission was correct in concluding that it had jurisdiction to rule on the respondent's complaint.
Did the Commission abuse its discretion in extending the one-year period provided for under paragraph 41(1)(e) of the Act?
[40] As was already mentioned in the preceding pragmatic and functional analysis, the Commission has a discretionary power under paragraph 41(1)(e) of the Act. In Hynes, supra, it was established that the Court will intervene only if the Commission has exercised its discretion in bad faith or in a manner contrary to the principles of natural justice and procedural fairness or if the decision was based on considerations that are irrelevant or extraneous to the purpose of the Act.
[41] In the case at bar, the applicant appeared before the Commission for the first time in October 1998, one month before the limitation period set out in subsection 41(1) expired. The complaint was filed three months after the one-year period provided for under the Act had expired. Having considered the five criteria set out in Canada (Canadian Human Rights Commission) v. Canadian Broadcasting Corp. (re Vermette) (1996), 120 F.T.R. 81 (F.C.T.D.), pages 99- 101, namely, (1) the elapsed time between the alleged discriminatory act and the date the complaint was filed; (2) the elapsed time between the alleged discriminatory act and the date the applicant was notified of the respondent's complaint; (3) the reasons for the delay; (4) the Commission's reasons for ruling on the complaint notwithstanding the expiration of the one-year limitation period; and (5) the prejudice caused to the applicant, I am of the view that the Commission did not abuse its discretion.
[42] I also find that the Commission was correct to consider the respondent's complaint even though the respondent only asked for the complaint to be reactivated in 2003, following the decision of the arbitration tribunal. The Commission did not refuse to handle the respondent's complaint in 2001; rather, it agreed to suspend the complaint process and rely instead on the arbitration system in the hope that the parties would arrive at a fair, equitable and timely solution. In so doing, the Commission preserved the respondent's rights in the event that the adjudicator failed to consider the issue of discrimination, as was demonstrated here.
[43] To sum up, I am of the view that the Commission did not make a patently unreasonable error in exercising its discretion under paragraph 41(1)(e) of the Act.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed without costs.
"Michel Beaudry"
Judge
Certified true translation
Michael Palles
APPENDIX 1
RELEVANT STATUTORY PROVISIONS
Canadian Human Rights Act
| Commission to deal with complaint
41. (1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that
(a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available;
(b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act;
(c) the complaint is beyond the jurisdiction of the Commission;
(d) the complaint is trivial, frivolous, vexatious or made in bad faith; or
(e) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint.
Commission may decline to deal with complaint
(2) The Commission may decline to deal with a complaint referred to in paragraph 10(a) in respect of an employer where it is of the opinion that the matter has been adequately dealt with in the employer's employment equity plan prepared pursuant to section 10 of the Employment Equity Act.
Meaning of "employer"
(3) In this section, "employer" means a person who or organization that discharges the obligations of an employer under the Employment Equity Act
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Irrecevabilité
41. (1) Sous réserve de l'article 40, la Commission statue sur toute plainte dont elle est saisie à moins qu'elle estime celle-ci irrecevable pour un des motifs suivants :
a) la victime présumée de l'acte discriminatoire devrait épuiser d'abord les recours internes ou les procédures d'appel ou de règlement des griefs qui lui sont normalement ouverts ;
b) la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale;
c) la plainte n'est pas de sa compétence;
d) la plainte est frivole, vexatoire ou entachée de mauvaise foi;
e) la plainte a été déposée après l'expiration d'un délai d'un an après le dernier des faits sur lesquels elle est fondée, ou de tout délai supérieur que la Commission estime indiqué dans les circonstances.
Refus d'examen
(2) La Commission peut refuser d'examiner une plainte de discrimination fondée sur l'alinéa 10a) et dirigée contre un employeur si elle estime que l'objet de la plainte est traité de façon adéquate dans le plan d'équité en matière d'emploi que l'employeur prépare en conformité avec l'article 10 de la Loi sur l'équité en matière d'emploi.
Définition de « employeur »
(3) Au présent article, « employeur » désigne toute personne ou organisation chargée de l'exécution des obligations de l'employeur prévues par la Loi sur l'équité en matière d'emploi.
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| Canada Labour Code
Provision for final settlement without stoppage of work
57. (1) Every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to or employees bound by the collective agreement, concerning its interpretation, application, administration or alleged contravention.
Where arbitrator to be appointed
(2) Where any difference arises between parties to a collective agreement that does not contain a provision for final settlement of the difference as required by subsection (1), the difference shall, notwithstanding any provision of the collective agreement, be submitted by the parties for final settlement
(a) to an arbitrator selected by the parties; or
(b) where the parties are unable to agree on the selection of an arbitrator and either party makes a written request to the Minister to appoint an arbitrator, to an arbitrator appointed by the Minister after such inquiry, if any, as the Minister considers necessary.
Idem
(3) Where any difference arises between parties to a collective agreement that contains a provision for final settlement of the difference by an arbitration board and either party fails to name its nominee to the board in accordance with the collective agreement, the difference shall, notwithstanding any provision in the collective agreement, be submitted by the parties for final settlement to an arbitrator in accordance with paragraphs (2)(a) and (b). Request to Minister for appointment of arbitrator or arbitration board chairperson
(4) Where a collective agreement provides for final settlement, without stoppage of work, of differences described in subsection (1) by an arbitrator or arbitration board and the parties or their nominees are unable to agree on the selection of an arbitrator or arbitration board chairperson, as the case may be, either party or its nominee may, notwithstanding anything in the collective agreement, make a written request to the Minister to appoint an arbitrator or arbitration board chairperson, as the case may be.
Appointment by Minister
(5) On receipt of a written request under subsection (4), the Minister shall, after such inquiry, if any, as the Minister considers necessary, appoint an arbitrator or arbitration board chairperson, as the case may be.
Effect of appointment by Minister
(6) Any person appointed or selected pursuant to subsection (2), (3) or (5) as an arbitrator or arbitration board chairperson shall be deemed, for all purposes of this Part, to have been appointed pursuant to the collective agreement between the parties.
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Clause de règlement définitif sans arrêt de travail
57. (1) Est obligatoire dans la convention collective la présence d'une clause prévoyant le mode -- par arbitrage ou toute autre voie -- de règlement définitif, sans arrêt de travail, des désaccords qui pourraient survenir entre les parties ou les employés qu'elle régit, quant à son interprétation, son application ou sa prétendue violation.
Nomination d'un arbitre
(2) En l'absence de cette clause, tout désaccord entre les parties à la convention collective est, malgré toute disposition de la convention collective, obligatoirement soumis par elles, pour règlement définitif :
a) soit à un arbitre de leur choix;
b) soit, en cas d'impossibilité d'entente sur ce choix et sur demande écrite de nomination présentée par l'une ou l'autre partie au ministre, à l'arbitre que désigne celui-ci, après enquête, s'il le juge nécessaire.
Idem
(3) Lorsque la convention prévoit, comme mécanisme de règlement, le renvoi à un conseil d'arbitrage, tout désaccord est, malgré toute disposition de la convention collective, obligatoirement soumis à un arbitre conformément aux alinéas (2)a) et b) dans les cas où l'une ou l'autre des parties omet de désigner son représentant au conseil.
Demande au ministre
(4) Lorsque la convention collective prévoit le règlement définitif des désaccords par le renvoi à un arbitre ou un conseil d'arbitrage et que les parties ne peuvent s'entendre sur le choix d'un arbitre -- ou dans le cas de leurs représentants au conseil d'arbitrage, sur le choix d'un président --, l'une ou l'autre des parties -- ou un représentant -- peut, malgré toute disposition de la convention collective, demander par écrit au ministre de nommer un arbitre ou un président, selon le cas.
Nomination par le ministre
(5) Le ministre procède à la nomination demandée aux termes du paragraphe (4), après enquête, s'il le juge nécessaire.
Présomption
(6) L'arbitre ou le président nommé ou choisi en vertu des paragraphes (2), (3) ou (5) est réputé, pour l'application de la présente partie, avoir été nommé aux termes de la convention collective.
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-684-04
STYLE OF CAUSE: UNITED PARCEL SERVICE OF CANADA v. JOSÉE THIBODEAU and CANADIAN HUMAN RIGHTS COMMISSION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 13, 2005
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Beaudry
APPEARANCES:
Denis Manzo FOR THE APPLICANT
Gérard Dugré
Robert Péloquin FOR THE RESPONDENT
Ikram Warsame FOR THE INTERVENER
SOLICITORS OF RECORD:
FRASER MILNER CASGRAIN L.L.P. FOR THE APPLICANT
Montréal, Quebec
Stéphane Poulin FOR THE RESPONDENT
Montréal, Quebec
Ikram Warsame FOR THE INTERVENER
Canadian Human Rights Commission