Date: 19980616
Docket: T-1328-97
IN THE MATTER OF an application for judicial review, pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, of the Decision rendered May 22, 1997 of P. Chodos, Deputy Chairperson of the Public Service Staff Relations Board, sitting as an adjudicator appointed under the Public Service Staff Relations Act (PSSRB File No. 166-2-26179);
BETWEEN:
JOAN MOHAMMED
Applicant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
AS REPRESENTED BY TREASURY BOARD
Respondent
REASONS FOR ORDER
CULLEN J.:
[1] The sole issue raised in the application for judicial review is whether the adjudicator appointed under the Public Service Staff Relations Act erred in refusing to exercise jurisdiction to hear the applicant's grievance.
[2] The applicant, Joan Mohammed, has been employed with the Immigration and Refugee Board as a refugee hearings clerk since October 1990. She is a Muslim woman who is also a visible minority. On the basis of two e-mails circulated in May 1993, the applicant filed a grievance in which she maintained that the e-mails violated the no discrimination clause of the PSAC / Treasury Board Collective Agreement which caused her to become ill. The applicant sought written apologies, restoration of her sick leave credits used as a result of the stress stemming from these e-mails, and a correction of her performance review. The applicant also sought $10 000 as compensation.
[3] This matter was precipitated by an e-mail dated May 4, 1993 which was written and circulated by Greg Cunningham, a refugee hearings officer, with the subject heading: "Rita Legghio Employment Contract". The text of the e-mail reads as follows:
I have recently been advised through the "rumour mill"that RHO Clerk, Rita Legghio's employment contract with the IRB will not be renewed. Proceeding on the assumption that this rumour is correct, I would urge, in the very strongest terms that this decision be reconsidered.
I have never had the pleasure of having Rita assigned as muy [sic] clerk, but I can attest to her excellent skills and professional work ethic, based on the following three observations:
1. With my previous clerk (I recently requested a change of clerks), the only occasions (and I emphasize ONLY occasions), when my disclosure packages were sent out within a day of submitting them, was when my previous clerk phoned in sick, and her work was given to the other clerks, namely Rita and Arlene. Rita demonstrated the productivity, professional responsibility, and competence to handle not only her own work load, but that of an additional clerk. Losing Rita will be the equivalent of losing TWO average clerks.
2. On one occasion last fall (1992), I attended on a very complex case, with an extremely difficult and belligerent counsel, that required several full day sittings. Oral submissions were not possible given the complexity of the issues and so I drafted written submissions. The submissions from counsel were over 50 pages. Mine were equally lengthy at over 35,0000 words. The day before the submissions were due, I made extremely extensive corrections, including extensive additions, grammar, spelling and format. Not a single page was free of inked corrections. I approached Rita just before noon the day the submissions were due and asked for her help to make the necessary correction on word-perfect (my previous clerk does not do typing, so asking her to make the corrections was out of the question).
My submissions were returned to me less than two hours later, and THERE WAS NOT A SINGLE ERROR. I spent a year working at a law firm, during which time I worked with several different secretaries. I can say with all candour, that even an experienced legal secretary would have had difficulty duplicating this professionalism.
3. Finally, I recently switched the location of my office away from a proximate location near the RHO clerks, to a new location very distant from the clerks. The sole reason for the move was because of the noise from the clerks talking, laughing, screeching etc. It was absolutely unbelievable at times. However, on not a single occasion did I ever hear Rita's voice or laughter. Once again this indictes [sic] professionalism, courtesy, and good work ethic.
Recently, when I spoke to my SHRO with respect to a request for a new clerk, I took the opportunity to positively comment on Rita's excellent work qualities. I even suggested that she be targetted for training upgrading so that she could be promoted to a more senior and responsible position, more in keeping with her talents. I would make the same recommendation again, without any reservation.
I understand that budgetary considerations, affirmative action hiring goals, and union seniority are factors that should be considered, but it is quite simply a business oxymoron that these factors should override considerations of professionalism, productivity, skills and competence. I cannot overemphasize the need for competent RHO clerks, and Rita more than adequately fills this role.
I would appreciate any comments. Please feel free to consult any of the other RHOs with respect to their views on the clerks.
[4] This e-mail was circulated to a number of employees including senior refugee hearings officers, the regional director, the assistant regional director, the deputy chairperson as well as others, including union officials. In response, the assistant regional director, Paul Colpitts sent the following e-mail:
The clerk to be let go is a term and is covering for poor performing clerks. I would like to keep her and discharge the poorest performer indeterminate clerk for cause after June 1, 1993. This may well be Ron Cater although Joan Mohammed is also limited. RHO(s) who approach me as this one had are being invited to help document poor performance of the RHCs, as it is in their interest to do so. Your advice would be welcome. The term is up 30/6.
[5] This e-mail was sent only 10 days after Mr. Colpitts had signed off a performance review for the applicant in which she was given a fully satisfactory appraisal.
[6] Upon learning of these two e-mails, the applicant experienced a great deal of stress which caused her to take extensive sick leave and she developed a stress-related condition diagnosed as alopecia areata.
[7] On July 8, 1993, the applicant filed a grievance in which she maintained that the e-mails violated the M-16.01 "no discrimination" clause. This clause provides that:
| There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced with respect to an employee by reason of age, race, creed, colour, national origin, religious affiliation, sex, sexual orientation, family status, mental or physical disability, or membership or activity in the union. |
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Il n'y aura aucune discrimination, ingérence, restriction, coercition, harcèlement, intimidation, ni aucune mesure disciplinaire d'exercée ou d'appliquée à l'égard d'un employé-e du fait de son âge, sa race, ses croyances, sa couleur, son origine ethnique, sa confession religieuse, son sexe, son orientation sexuelle, sa situation familiale, son incapacité mentale et physique ou son adhésion au syndicat ou son activité dans celui-ci.
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[8] In December 1993, the applicant presented her complaints to an investigator. The investigator concluded that Mr. Cunningham had acted improperly and in a manner which was demeaning, unwarranted and offensive to the applicant. While it was the applicant's view that the conduct of Mr. Cunningham was motivated, in part, by factors relating to her race and religion, the investigator found no evidence to support her allegation. With respect to Mr. Colpitts, the investigator similarly found that he had passed negative judgment on the applicant's competence without just cause and that his comments were unwarranted, demeaning and embarrassing. The applicant did not allege that Mr. Colpitts'comments were motivated by factors relating to her race or religion.
[9] In August 1994, at the third level of the grievance procedure, the executive director of the IRB acknowledged the findings of harassment against the applicant and offered an apology to her on behalf of the IRB. In addition, her sick leave credits were reimbursed to her as compensation for the distress caused. The applicant was dissatisfied with the outcome and she proceeded with her grievance.
[10] This grievance was commenced pursuant to section 91 of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35. Subsection (1) provides that:
| 91.(1) Where any employee feels aggrieved (a) by the interpretation or application, in respect of the employee, of (i) a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing with terms and conditions of employment, or (ii) a provision of a collective agreement or an arbitral award, or (b) as a result of any occurrence or matter affecting the terms and conditions of employment of the employee, other than a provision described in subparagraph (a) (i) or (ii), in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Act. [Emphasis not in original] |
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91.(1) Sous réserve du paragraphe (2) et si aucun autre recours administratif de réparation ne lui est ouvert sous le régime d'une loi fédérale, le fonctionnaire a le droit de présenter un grief à tous les paliers de la procédure prévue à cette fin par la présente loi, lorsqu'il s'estime lésé: a) par l'interprétation ou l'application à son égard : (i) soit d'une disposition législative, d'un règlement -administratif ou autre -, d'une instruction ou d'un autre acte pris par l'employeur concernant les conditions d'emploi, (ii) soit d'une disposition d'une convention collective ou d'une décision arbitrale; b) par suite de tout fait autre que ceux mentionnés aux sous-alinéas a) (i) ou (ii) et portant atteinte à ses conditions d'emploi. [non soulignédans l'original] |
[11] Subsection 92(1) also provides that:
| 92.(1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to (a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award, (b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4), (i) disciplinary action resulting in suspension or a financial penalty, or (ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or (c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty, and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2) refer the grievance to adjudication. |
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92.(1) Après l'avoir portéjusqu'au dernier palier de la procédure applicable sans avoir obtenu satisfaction, un fonctionnaire peut renvoyer à l'arbitrage tout grief portant sur : a) l'interprétation ou l'application, à son endroit, d'une disposition d'une convention collective ou d'une décision arbitrale; b) dans le cas d'un fonctionnaire d'un ministère ou secteur de l'administration publique fédérale spécifiéà la partie I de l'annexe I ou désignépar décret pris au titre du paragraphe (4), soit une mesure disciplinaire entraînant la suspension ou une sanction pécuniaire, soit un licenciement ou une rétrogradation viséaux alinéas 11(2)f) ou g) de la Loi sur la gestion des finances publiques; c) dans les autres cas, une mesure disciplinaire entraînant le licenciement, la suspension ou une sanction pécuniaire.
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[12] The grievance alleges only a violation of the no discrimination clause of the collective agreement. There is no dispute that the grounds of discrimination alleged are also covered by the CHRA.
[13] At the adjudication, counsel for the employer raised a preliminary objection regarding the adjudicability of the grievance on the basis of a decision of this Court. In Chopra v. Treasury Board (Canada),[1995] 3 F.C. 445 (T.D.) Madam Justice Simpson determined that an adjudicator lacks jurisdiction to hear complaints of discrimination which fall squarely within the purview of the Canadian Human Rights Act as it is an Act which provides "redress"as stated in subsection 91(1) of the PSSRA. At page 460, she stated:
The Adjudicator was correct when he concluded that he was without jurisdiction to hear the applicant's grievance by reason of subsection 91(1). I am satisfied that the CHRA provides "redress"on the facts of this case because the CHRC has jurisdiction over the substance of the grievance and because the CHRC can offer a broader range of remedies than an adjudicator under the Master Agreement. The differences in the procedures under the CHRA and the Master Agreement in terms of parties, public interest input and control of the process do not, in my view, detract from the fact that the applicant will receive redress under the CHRA.
[14] Citing Chopra the adjudicator determined that he lacked jurisdiction to hear this grievance. At page 24 of the application record, he states:
It is apparent from the material before me that the basis for Ms. Mohammed's grievance under Article M-16 is her contention that she was a victim of racial or religious discrimination. There is no doubt that such allegations also constitute grounds for a complaint under the CHRA, which provides both a right of redress and a remedy in respect of these matters. Therefore, in accordance with subsection 91(1) of the PSSRA I must conclude that I have no jurisdiction to deal with this reference to adjudication.
[15] It should be noted that PSAC was an intervenor in the Chopra case. An appeal was filed in that case, but was discontinued by notice dated January 16, 1997.
[16] The applicant argues that the adjudicator does, in fact, have jurisdiction to deal with the grievance. It should be noted that the standard of review applicable to this case is that of correctness as it is a matter which deals with the jurisdiction of the tribunal to embark on the inquiry at issue: see Canada Post Corporation v. Pollard, [1994] 1 F.C. 652 (C.A.) and Canada (Attorney General) v. PSAC, [1993] 1 S.C.R. 941.
[17] The essence of the applicant's argument is that the procedures provided in Canadian Human Rights Act (CHRA) to deal with human rights complaints are not "redress"as envisioned by the PSSRA. The applicant argues that the differences between grievance adjudication under the PSSRA and complaint determination under the CHRA are so significant that the applicant's grievance could not be dealt with effectively under the CHRA so as to constitute "redress"under subsection 91(1) of the PSSRA.
[18] The applicant points to several aspects of the complaint based process under the CHRA which differ from grievance adjudication: the presentation of the complaints to the Canadian Human Rights Commission, investigation of the complaint by the CHRC, consideration of the complaint by the CHRC and the actual hearing of the complaint by the tribunal. From this, the applicant argues that the decision of Chopra is in error to the extent that the Court concluded that discrimination based grievances can be dealt with meaningfully and effectively through the complaint process established by the CHRA.
[19] At the judicial review hearing, counsel for the respondent contested the applicant's attempts to adduce evidence relating to the complaints process under the CHRA arguing that this was not evidence put before the adjudicator and constitute allegations which the respondent had no opportunity to challenge. In addition, the respondent argued that this Court cannot rely on findings of fact made by other tribunals or by the Court. However, as will be outlined below, the focus of the inquiry is whether, in the words of subsection 91(1) another "procedure for redress" is available. Accordingly, the evidence adduced by the applicant does not constitute new evidence as it refers to the procedures available under the CHRA and does not deal with the efficacy of these procedures. The procedures available ares a matter of common knowledge found in the statutory provisions of the CHRA. Thus, the evidence presented by the applicant is admissible in this hearing insofar as it goes to establish the complaint procedure available under the CHRA.
[20] Looking to the PSSRA and the PSAC Master Agreement, it is clear that certain matters are not grievable if there are other administrative procedures available. Clause M-38.02(a) of the Master Agreement provides that:
| Subject to and as provided in Section 90 of the Public Service Staff Relations Act, an employee who feels that he or she has been treated unjustly or considers himself or herself aggrieved by any action or lack of action by the Employer in matters other than those arising from the classification process is entitled to present a grievance in the manner prescribed in clause M-38.05 except that,
(a) where there is another administrative procedure provided by or under any Act of Parliament to deal with the employee's specific complaint, such procedure must be followed. |
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Sous réserve de l'article 90 de la Loi sur les relations de travail dans la fonction publique et conformément aux dispositions dudit article, l'employé-e qui estime avoir ététraitéde façon injuste ou qui se considère lésépar une action ou l'inaction de l'employeur au sujet de questions autres que celles qui découlent du processus de classification, a le droit de présenter un grief de la façon prescrite à la clause M-38.05, compte tenu des réserves suivantes :
a) s'il existe une autre procédure administrative prévue par une loi du Parlement ou établie aux termes d'une telle loi pour traiter sa plainte particulière, cette procédure doit être suivie. |
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[21] Similarly, subsections 91(1) and 92(1) provide that not all matters are grievable and not all grievable matters can be referred to adjudication. Specifically, only matters relating to the interpretation or application of a provision of the collective agreement or of an arbitral award may be adjudicated. By enacting these two provisions, Parliament has limited the jurisdiction of the adjudicators appointed under the PSSRA rather than granting them exclusive jurisdiction to hear any and all grievances.
[22] Counsel for the applicant cites a number of cases in which the Courts have held that disputes which arise out of the collective agreement must be handled through the dispute resolution process contained in the collective agreement and the governing legislation: Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 and St. Anne Nackawic Pulp and Paper Co. Ltd. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704. However, in both of those cases, the Court was faced with mandatory arbitration clauses which granted exclusive jurisdiction to the labour tribunal. At page 953 Madam Justice McLachlin in Weber stated the following:
Underlying both the Court of Appeal and Supreme Court of Canada decisions in St. Anne Nackawic is the insistence that the analysis of whether a matter falls within the exclusive arbitration clause must proceed on the basis of the facts surrounding the dispute between the parties, not on the basis of the legal issues which may be framed. The issue is not whether the action, defined legally, is independent of the collective agreement, but rather whether the dispute is one "arising under [the] collective agreement". Where the dispute, regardless of how it may be characterized legally, arises under the collective agreement, then the jurisdiction to resolve it lies exclusively with the labour tribunal and the courts cannot try it.
[23] While Madam Justice McLachlin clearly states that the sole issue is whether the dispute arises under the collective agreement and not whether the action is independent of the collective agreement which governs the forum to hear the dispute, it must be emphasized that the wording of PSSRA mandates a different focus. The wording of subsection 91(1) of the PSSRA changes the focus from that specified in Weber: under the PSSRA the test is not simply whether the dispute arises under the collective agreement, but the way in which the legal action is framed in order to determine whether there is another procedure for redress available.
[24] More recently, the Saskatchewan Court of Queen's Bench in Cadillac Fairview Corporation Ltd. v. Regier, Wolff and the Saskatchewan Human Rights Commission (1998) 98 C.L.L.C. ¶ 230-006 held that the Saskatchewan Human Rights Commission lacked jurisdiction to hear a discrimination complaint, as the jurisdiction rests with the labour arbitrator appointed pursuant to the collective agreement at issue. Again, unlike the case at bar, Mr. Justice Grotsky was faced with a section in the Trade Union Act which provides the labour tribunal has exclusive jurisdiction to hear that all differences between the parties to the collective agreement. These Acts must be contrasted with the PSSRA which confines the jurisdiction of adjudicators to only those matters to which no redress has been provided for in any Act of Parliament.
[25] Thus, the question to be answered is whether the procedures under the CHRA constitute "redress". In Sagkeeng Alcohol Rehab Centre Inc. v. Abraham (1994), 79 F.T.R. 53 (T.D.) Mr. Justice Rothstein considered the effect of a provision similar to subsection 91(1) of the PSSRA found in the Canada Labour Code. At page 465 he wrote:
Having arrived at this conclusion, it is necessary to consider the second argument of the applicant - that the adjudicator is prohibited from considering this matter because of paragraph 242(3.1)(b) of the Canada Labour Code. Paragraph 242(3.1)(b) provides:
242. (3.1) No complaint shall be considered by an adjudicator under subsection (3) in respect of a person where...
(b) a procedure for redress has been provided elsewhere on or under this or any Act of Parliament.
"Redress" is defined in the Shorter Oxford English Dictionary, 3rd ed. as meaning, inter alia,
6. To set (a person) right, by obtaining or (occas.) giving, satisfaction or compensation for the wrong or loss sustained.
In legal terminology, satisfaction or compensation would be the remedy sought. The wrong sustained would relate to a cause of action. In the context of paragraph 242(3.1)(b), I think both cause of action and remedy are contemplated by reference to "another procedure for redress". The other "procedure for redress" cannot be based on a different cause of action or provide a lesser remedy than the procedure under Division XIV of the Canada Labour Code.
[26] In Byers Transport v. Kosanovich, [1995] 3 F.C. 354 (C.A.) Mr. Justice Linden addressed the interpretation of paragraph 242(3.1)(b) of the Canada Labour Code as follows at page 378:
I have also considered carefully the decision of the Trial Division in Sagkeeng Alcohol Rehab Centre Inc. In that case it was argued that because one of the grounds alleged for the complaint of unjust dismissal was discrimination as prohibited by the Canadian Human Rights Act [R.S.C., 1985, c. H-6], there was another form of redress under that Act of Parliament which precluded the Adjudicator from dealing with the complaint by virtue of paragraph 242(3.1)(b). The Trial Judge emphasized that he did not have evidence before him as to the nature of these allegations but he rejected the argument based on paragraph 242(3.1)(b) in part on the basis of his interpretation of the meaning of that paragraph. He held [at page 463] that the other "procedure for redress" referred to therein "cannot be based on a different cause of action or provide a lesser remedy" than the procedure under Part III of the Canada Labour Code. He later stated [at page 465]:
In my view, it must be demonstrated, by the party seeking to rely on paragraph 242(3.1)(b), that under another statutory provision, there exists a procedure for aggrieved parties to pursue a claim for unjust dismissal and obtain a remedy the same as an adjudicator could grant under subsection 242(4) of the Canada Labour Code. The applicant has not demonstrated this to be so. While duplication of proceedings should be avoided, and paragraph 242(3.1)(b) appears to have been enacted for that purpose (perhaps among others), I am certain that Parliament did not intend that aggrieved parties should be forced to run the risk of their unjust dismissal claim being prejudiced by application of this provision. For paragraph 242(3.1)(b) to apply, the alternative procedure for redress must be clearly duplicative.
While not questioning the result in that case, given the evidence before the Trial Judge, I have some reservations as to his analysis of the meaning of "a procedure for redress" of a "complaint" as referred to in the statute. I believe that the complaint (i.e. the factual situation complained of) must be essentially the same in the other "procedure for redress". But I doubt that the remedies have to be as good or better under the other provision in order to oust the jurisdiction of the adjudicator under paragraph 242(3.1)(b). That paragraph does not require that the same redress be available under another provision of the Canada Labour Code or some other federal Act. What it requires is that in respect of the same complaint there be another procedure for redress. The point is even clearer in the French version which simply requires that there be "un autre recours". I do not believe that for there to be a "procedure for redress . .. elsewhere" there must be a procedure which will yield exactly the same remedies, although no doubt that procedure must be capable of producing some real redress which could be of personal benefit to the same complainant.
[27] From the words of Mr. Justice Linden it appears that the administrative procedure for redress referred to in subsection 91(1) does not have to be identical to the grievance procedure mandated by the PSSRA. In addition, the remedies given in the two procedures do not have to be identical; rather the party should be able to obtain "real redress" which could be of benefit to the complainant. All that is required under subsection 91(1) is the existence of another procedure for redress, where the redress that is available under that procedure is of some personal benefit to the complainant.
[28] Thus, the applicant's arguments that the procedure must involve the union and that the procedure must provide identical redress must fail.
[29] It should be noted that the decisions cited by the applicant (Yarrow v. Treasury Board, [1996] C.P.S.S.R.B. No. 10 and Sarson v. Treasury Board [1996] C.P.S.S.R.B. No. 18) are distinguishable from the case at bar. In both of those cases, the employees were seeking to challenge various provisions of the collective agreement which related to same-sex benefits. As support for their arguments, the employees relied, in part, on the no discrimination clauses contained in the collective agreement. The subject of both of those claims was not discrimination, per se, but whether the employees were entitled to the benefits requested. The discrimination claim was incidental to the claim for benefits and the cause of action was not clause M-16.01 in relation to stand alone discrimination as in the case at bar and as was the case in Chopra. Similarly, the adjudicators found that there were no administrative procedure for redress provided in or under the CHRA since neither the CHRC nor the Human Rights Tribunal has the jurisdiction to interpret and apply the provisions of the Master Agreement.
[30] In the case at bar, the applicant is only requesting relief on the basis of the no discrimination clause; not using the clause as an aid to interpreting other provisions of the Master Agreement. What is to be determined is whether the facts, as alleged, demonstrate a case of discrimination on a prohibited ground.
[31] Section 3 of the CHRA prohibits discrimination on the basis of race, national or ethnic origin, colour and religion and section 53 sets out the remedial powers available in the event that a complaint is substantiated. Thus, while not identical, the CHRA does provide "redress"to the applicant's complaint, albeit in a different form. Accordingly, there is no interpretation of the collective agreement required beyond that which the CHRA encompasses. Thus, the applicant's argument that the CHRA does not provide redress must fail.
Ottawa, Ontario B. Cullen
June 16, 1998. J.F.C.C.
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1328-97
STYLE OF CAUSE: JOAN MOHAMMED -and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY TREASURY BOARD
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: MAY 26, 1998
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE CULLEN
DATED: JUNE 16, 1998
APPEARANCES
MR. ANDREW RAVEN FOR APPLICANT
MS. JUDITH BEGLEY FOR RESPONDENT
SOLICITORS OF RECORD:
RAVEN, JEWITT & ALLEN
OTTAWA, ONTARIO FOR APPLICANT
GEORGE THOMSON
DEPUTY ATTORNEY GENERAL
OF CANADA FOR RESPONDENT