Ottawa, Ontario, August 18, 2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
and
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This is an application for judicial review of a decision of the Canadian Human Rights Commission (the Commission), dated January 6, 2005, which refused to deal with the applicant’s human rights complaint on the basis that the complaint was time-barred. The complaint maintained that the respondent’s failure to accommodate the applicant during her pregnancy was discriminatory on the grounds of sex, contrary to section 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA).
[2] The applicant requests that:
1. The application for judicial review be allowed with costs;
2. The decision of the Commission be quashed and the matter referred back to the Commission with the direction that the applicant’s complaint be dealt with on its merits; or
3. In the alternative, the decision of the Commission be quashed and the matter referred back to the Commission with the directions that the matter be considered in accordance with the proper and relevant factors under subsection 41(1) of CHRA, and that adequate reasons for its decision are provided in accordance with subsection 42(1).
Background
[3] The applicant, Rachel Dupéré, has been employed by the respondent, the House of Commons, since December 3, 2001 as a scanner operator. On September 6, 2002, the applicant told her supervisor that she was pregnant and provided a doctor’s certificate which stated that she should not work with x-ray machines for the duration of her pregnancy. The applicant’s supervisor informed her that the machines were safe and that no accommodations would be granted.
[4] On September 9, 2002, the applicant provided a second doctor’s note indicating that she should not be exposed to x-rays during her pregnancy. The applicant’s supervisor discussed the matter with the applicant’s doctor and the doctor advised that the applicant’s x-ray exposure should be limited to 20 minutes per day. The applicant met with her supervisor to discuss possible accommodation measures. The applicant suggested a posting in a different building with a lower volume of visitors. This suggestion was rejected by the respondent as a maximum of 20 minutes of exposure per day could not be guaranteed. The applicant also suggested a posting at the “Freight Post”, the only post without x-ray machines. This too was rejected by the respondent as it was not an official post. The respondent concluded that no accommodations were possible, and the applicant was sent home on sick leave at the end of the meeting. After her sick days were used up, she went on leave without pay until her maternity leave benefits could be claimed.
[5] While the applicant was on leave without pay, she learned in mid-December 2002, that her contract was cancelled. The applicant immediately contacted the respondent, which renewed her contract until the end of her maternity and parental leave. The applicant took eight weeks of maternity leave prior to the birth of her son, which occurred on March 29, 2003. The applicant returned to work on November 24, 2003.
[6] In February 2004, the applicant made inquiries into the respondent’s duty to accommodate. She was told by the staff relations department that she was accommodated because she was sent home and therefore did not have to work near x-ray machines. Not satisfied with this response, the applicant contacted the Commission on March 16, 2004 and signed a human rights complaint on March 22, 2004. This complaint was filed with the Commission on April 1, 2004. The complaint asserted that the respondent failed to accommodate the applicant during her pregnancy and consequently, she had lost wages and endured stress.
[7] The Commission asked the respondent to answer a series of questions on whether the Commission should refuse to deal with the applicant’s complaint because of her delay in bringing the complaint. The respondent provided the following information in response:
1. The respondent was not aware at the time of receipt of the medical information (September 2002) that discrimination was alleged by the employee.
2. It was not until February 2004 that the employee questioned why the employer did not offer her a temporary position in September 2002 which avoided the use of scanning machines.
3. Witnesses are still available. Some documentation is available and would be maintained until this matter is resolved.
4. No harm would be caused by the delay other than the usual harm that arises from delayed complaints.
[8] The respondent also stated that it reserved the right to fully respond to the merits of the complaint and to make any objections to the jurisdiction of the Commission.
[9] An investigator reviewed the matter at the request of the Commission and issued a report dated September 17, 2004. The investigator’s report recommended that the Commission should not deal with the complaint because it was filed more than one year after the alleged discriminatory act and because the “complainant did not contact this Commission until March 2004, some 15 months after the alleged discrimination”.
[10] On October 26, 2004, the applicant responded to the investigator’s report and indicated that there were a few errors in the report, as follows:
1. The report stated that the applicant was sent home eight weeks prior to the birth of the baby, but the applicant was, in fact, sent home in September 2002 when she was only nine weeks pregnant.
2. The report stated that the failure to accommodate occurred from September 2002 to December 2002. The applicant maintained that the failure to accommodate occurred from September 2002 until her son was born in March 2003.
3. The report suggested that the respondent was not aware that discrimination was alleged until February 2004, however, the applicant stated that she asked three times to be accommodated and she provided two doctor’s notes in September 2002.
[11] By letter dated January 6, 2005, the Commission informed the applicant that it had reviewed the investigator’s report and any submissions filed in response to the report. After reviewing this information, the Commission decided that pursuant to paragraph 41(1)(e) of CHRA, it would not deal with the complaint because the “complaint is based on acts which occurred more than one year before the filing of the complaint”. No other reasons were provided. This is the judicial review of the Commission’s decision.
Issues
[12] The applicant submitted the following issues for consideration:
1. What is the appropriate standard of review?
2. Did the Commission err in law by applying paragraph 41(1)(e) of CHRA in a manner inconsistent with subsection 41(1) as a whole?
3. Did the Commission breach subsection 42(1) of CHRA and violate the principles of natural justice by failing to provide adequate reasons for its decision?
[13] The respondent submitted the following issue for consideration:
Is the applicant precluded from using the processes under CHRA as a result of the decision of Canada (House of Commons) v. Vaid, 2005 SCC 30? This is a jurisdictional question.
[14] I would reword the issues as follows:
1. Did the Commission have jurisdiction to deal with the applicant’s complaint?
2. If the Commission had jurisdiction, did the Commission err in refusing to deal with the complaint on the basis that it was time-barred?
3. Did the Commission provide adequate reasons for its decision?
[15] The threshold question is whether the Commission had jurisdiction to deal with the complaint. If the Commission had no jurisdiction, then this application for judicial review will be dismissed. If the Commission did have jurisdiction, then the remaining issues will be dealt with.
[16] As it was the respondent who raised the threshold issue of jurisdiction, I propose to outline the respondent’s submissions, followed by the applicant’s submissions.
Respondent’s Submissions
Jurisdiction to Deal with the Complaint
[17] The respondent submitted that the Parliamentary Employment and Staff Relations Act, R.S.C. 1985 (2d Supp.), c. 33 (PESRA) has exclusive jurisdiction over labour relations of employees of the Senate and House of Commons (see section 2 of PESRA and Canada (House of Commons) v. Vaid, 2005 SCC 30). The respondent submitted that if the applicant believes that the provisions of CHRA have been violated in the context of her employment at the House of Commons, she must address her concerns through the processes provided for under PESRA (see Vaid at paragraph 95).
[18] The respondent submitted that PESRA applies to the applicant by virtue of section 2 and the broad definition of “employee” under section 3. It was submitted that the matter complained of is one which may be the subject of a grievance brought under subsection 62(1) of PESRA because the applicant feels aggrieved by “the interpretation or application, in respect of the employee, of a provision of a statute”, namely, CHRA (see Vaid at paragraph 86).
[19] The respondent submitted that while the applicant may be concerned with the efficacy of the grievance process under PESRA as opposed to the processes provided for under CHRA, the applicant must not be allowed to use this Court to circumvent the legislated process, even where access to third party adjudication is unavailable (see Vaughan v. Canada, 2005 SCC 11 at paragraphs 38 to 39). The ability of employees to bring grievances under PESRA, regardless of the end process that may apply, displaces the jurisdiction of the Commission over grievances of individual employees of the Senate and House of Commons.
[20] The respondent submitted that therefore, this application should be dismissed for lack of jurisdiction.
Statutory Time Limitation
[21] The respondent further submitted that this Court should not interfere with the discretionary decision of the Commission not to extend the time limit to file a complaint, unless the applicant can demonstrate that the exercise of the discretion was not in good faith or was without regard to procedural fairness, or the Commission relied on improper or irrelevant considerations (see Price v. Concord Transportation Inc., 2003 FC 946 at paragraph 35.)
[22] The respondent submitted that where there is sufficient evidence upon which the Commission based its calculation of time, the decision of the Commission ought not to be interfered with unless it is patently unreasonable (see Price at paragraph 42). The respondent submitted that there was sufficient evidence to allow the Commission to determine that the failure to accommodate occurred from September 2002 to December 2002. The one-year statutory time limitation had therefore expired by the time the complaint was filed on April 1, 2004.
[23] The respondent acknowledged that the investigator had made certain errors of fact with respect to the timing of events, however, it was submitted that these errors did not affect the Commission’s decision. It was submitted that by December 2002, the applicant knew all the facts she needed to file a complaint with the Commission, and hence, she should have filed her complaint at that time.
[24] The respondent submitted that, in addition to the lack of jurisdiction, this application should be dismissed on the basis that the Commission did not commit a patently unreasonable error.
Duty to Provide Adequate Reasons
[25] At the hearing, the respondent submitted that the Federal Court of Appeal set out in Sketchley v. Canada (Attorney General), 2005 FCA 404 at paragraph 37 that where the Commission adopts an investigator’s report, the investigator’s report forms the reasons for the Commission’s decision. Applying Sketchley to the present case, the respondent submitted that the Commission provided adequate reasons. The Commission adopted the investigator’s recommendations and thus the investigator’s report constituted the reasons.
Applicant’s Submissions
Jurisdiction to Deal with the Complaint
[26] In response to the respondent’s jurisdictional arguments, the applicant submitted that the Vaid decision recognized that not all potential claims to relief under CHRA are barred by section 2 of PESRA (see Vaid at paragraph 95). In some cases, the human rights process may be the only means of providing a complainant with substantive redress. It was submitted that Parliament enacted PESRA for the purpose of allowing employees of the Senate and House of Commons to participate in collective bargaining. It was submitted that a complaint should be dealt with under PESRA only if the procedure set out in PESRA provides a grievor with substantive redress.
[27] The applicant agreed that her complaint could have been the subject of a grievance under section 62 of PESRA. The applicant, however, submitted that she would have been denied substantive relief under PESRA as she would not have had access to independent third party adjudication under any of the categories of grievances listed in section 63 of PESRA. She submitted that consequently, jurisdiction under PESRA is not exclusive and she may choose to use the process under CHRA. By contrast, the complainant in Vaid alleged that he was constructively dismissed by his employer, the House of Commons, for reasons amounting to discrimination and harassment. Because his complaint related to the termination of his employment, access to independent third party adjudication was available to him through the grievance process pursuant to paragraph 63(1)(c) of PESRA. The complainant in Vaid was thus not limited in his right to obtain substantive redress.
[28] The applicant submitted that the decision of Vaughan, which is relied upon by the respondent, is also distinguishable in that it was a pure labour relations matter regarding access to early retirement benefits. The applicant submitted that her case involves quasi-constitutional human rights, not “garden variety” employment issues. Effective remedies to deal with violations of those rights can only be deprived or limited in the clearest of cases. Where there is an inconsistency between human rights legislation and other legislation, the human rights legislation must prevail (see Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150 at 155 to 156).
Statutory Time Limitation
[29] The applicant submitted that the standard of reasonableness simpliciter should apply to the decision of the Commission because the Commission’s refusal to deal with her complaint extinguished her right of redress (see Larsh v. Canada (Attorney General) (1999), 166 F.T.R. 101 at paragraph 36 (T.D.)).
[30] The applicant submitted that the Commission may not, as a matter of routine, simply dismiss all cases filed after the one year time limit (see Canada Post Corp. v. Barrette, [2000] 4 F.C. 145 at paragraph 23 (C.A.)). The Commission must consider two factors before refusing to deal with a complaint due to it being untimely. First, the Commission must consider the reasons for the delay and determine whether the delay was incurred in good faith. Second, the Commission must consider the effect of the delay, and in particular, weigh any unfairness or prejudice to the respondent caused by the delay (see Canada (Attorney General) v. Burnell (1997), 131 F.T.R. 146 at paragraph 27 (T.D.) and Cape Breton Development Corp. v. Hynes (1999), 164 F.T.R. 32 at paragraphs 20 to 21 (T.D.)).
[31] The applicant submitted that the Commission’s decision was patently unreasonable in that it failed to consider these two factors. Contrary to the statements in the investigator’s report, the applicant maintained that the respondent’s duty to accommodate occurred from September 2002 to March 2003 as her son was born on March 29, 2003. The applicant contacted the Commission on March 16, 2004, which is well within the one year time limit. The applicant’s complaint was signed on March 22, 2004 and filed with the Commission on April 1, 2004, only three days after the one-year time limit had passed. The applicant submitted that given these facts, it does not appear that the Commission turned its mind to the applicant’s submissions in response to the investigator’s report or to the fact that no specific prejudice was alleged by the respondent. In the applicant’s view, a reasonable assessment of the material before the Commission would have led to the conclusion that this was an appropriate case in which to waive the one year time limit.
Duty to Provide Adequate Reasons
[32] The applicant submitted that the duty to give reasons may be imposed by statute or by the operation of the principles of fairness. The extent of the reasons required to satisfy this duty will depend on the circumstances, but should reflect the purpose served by the duty in the particular case.
[33] The applicant submitted that the Commission failed to provide adequate reasons for its decision, contrary to the rules of natural justice and procedural fairness and its statutory obligation under subsection 42(1) of CHRA to provide reasons. It was submitted that the Commission breached its duty to give reasons because its written notice did not refer to the factors or considerations that led to its decision. It was submitted that merely reciting the words of the statutory provision relied upon, as the Commission has done here, does not comply with the Commission’s duty to provide reasons (see Kidd v. Greater Toronto Airports Authority, 2004 FC 703, aff’d 2005 FCA 81). The Commission should have explained whether it believed the applicant’s reasons for the delay to be unsatisfactory or the prejudice to the respondent too great. Given the lack of reasons, it is difficult to attack the Commission’s decision by way of judicial review, particularly since a deferential standard of review is usually applied to such a decision (see VIA Rail Canada Inc. v. National Transportation Agency (2000), [2001] 2 F.C. 25 at paragraphs 19 and 22 (C.A.)).
Analysis and Decision
[34] Issue 1
Did the Commission have jurisdiction to deal with the applicant’s complaint?
The applicant contended that she has recourse to CHRA for her complaint. The respondent, on the other hand, contended that PESRA has exclusive jurisdiction over her complaint and that the applicant should be required to grieve her complaint using the process under PESRA. The exclusive jurisdiction clause is set out in section 2 of PESRA. It provides as follows:
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2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.
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2. La présente loi a pour objet de compléter la législation canadienne en donnant effet, dans le champ de compétence du Parlement du Canada, au principe suivant : le droit de tous les individus, dans la mesure compatible avec leurs devoirs et obligations au sein de la société, à l'égalité des chances d'épanouissement et à la prise de mesures visant à la satisfaction de leurs besoins, indépendamment des considérations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, l'âge, le sexe, l'orientation sexuelle, l'état matrimonial, la situation de famille, la déficience ou l'état de personne graciée.
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The respondent relied on the decision in Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667. The applicant submitted that Vaid is distinguishable on the facts.
[35] In Vaid, the Supreme Court of Canada considered the same issue that is at play here, namely, the issue of the competing jurisdiction of CHRA and PESRA. Mr. Vaid was employed as a chauffeur to successive Speakers of the House of Commons. He was terminated in January 1995 and he grieved the termination under PESRA. The grievance was referred to an adjudication board, which ordered Mr. Vaid to be reinstated in July 1995. After Mr. Vaid returned to work, he was enrolled in French language training because his position had been designated bilingual imperative and he lacked the required language skills. In April 1997, Mr. Vaid asked the House of Commons if he could resume his former duties, but he was informed that his former position had become surplus as a result of reorganization. Mr. Vaid then filed two complaints with the Canadian Human Rights Commission alleging refusal of continued employment, workplace harassment, and discrimination on the basis of race, colour and national or ethnic origin.
[36] The Supreme Court of Canada found that both CHRA and PESRA applied to employees of the House of Commons and the Senate, including Mr. Vaid. The Court noted that there was a measure of duplication between CHRA and PESRA, as PESRA covered complaints about violations of statutory standards such as those found in CHRA. The Court found, however, that the purpose of section 2 of PESRA was to avoid such duplication by requiring workplace grievances of employees covered by PESRA to be dealt with exclusively under PESRA. Mr. Vaid’s complaints of discrimination and harassment arose in the context of a complaint of wrongful dismissal, and there was nothing on the facts of the case to lift these complaints out of their specific employment context. The Court therefore determined that Mr. Vaid was required to seek relief using the grievance process under PESRA.
[37] The most pertinent part of the decision in Vaid is set out below, as stated by Justice Binnie at paragraphs 91 to 98:
[91] The Court has in a number of cases been required to examine competing legislative schemes to determine which of the potential adjudicative bodies is intended by the legislature to resolve a dispute. Mr. Vaid’s claim of workplace discrimination and harassment could potentially fall under both PESRA and the Canadian Human Rights Act. The allegation of jurisdiction in such circumstances is a familiar administrative law problem, even in the context of human rights tribunals (see Quebec (Attorney General) v. Quebec (Human Rights Tribunal), [2004] 2 S.C.R. 223, 2004 SCC 40 (“Charette”), and Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185, 2004 SCC 39 (“Morin”)).
[92] In the Morin case, the Chief Justice said, at para. 14:
. . . the question in each case is whether the relevant legislation applied to the dispute at issue, taken in its full factual context, establishes that the labour arbitrator has exclusive jurisdiction over the dispute.
[93] The fact that the respondent Vaid claims violations of his human rights does not automatically steer the case to the Canadian Human Rights Commission because “one must look not to the legal characterization of the wrong, but to the facts giving rise to the dispute” (Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, at para. 49; St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704, at p. 721).
[94] In this case, the complaint against the House of Commons alleges dismissal and discrimination. The “facts giving rise to the dispute”, as set out in the complaint, make only one explicit reference to the respondent Vaid’s ethnic origin, namely that “[the Speaker] initiated a conversation about the caste system in India. He pressed me to tell him into which caste I had been born” (appellants’ record, at p. 247). Other than that, the respondent Vaid relates a number of events in the course of his employment which, on the face of it, allege demeaning or unreasonable treatment inconsistent with the alleged terms of employment. The respondent Vaid takes the view that this behaviour was motivated by racial prejudice. His allegations are specific to the former Speaker and his Executive Assistant, i.e.:
- [The appellant Speaker] suggested that I was overqualified for the position.
- [The appellant Speaker] questioned my wife regarding her employment and made her feel as though he was trying to assess whether she could financially support me in the event that I lost my job.
- While I was driving the [appellant Speaker] in February 1994, he initiated a conversation about the caste system in India. He pressed me to tell him into which caste I had been born.
- [The Speaker’s Executive Assistant] indicated that because of budgetary cuts, he wanted to place me on a split shift and asked me to take on additional duties, including washing dishes. I responded that I would work a split shift, and I would wash dishes if he could demonstrate that other chauffeurs were also asked to take on this duty.
- In March 1994, I started wearing a soft cervical collar on the job, necessitated by a whiplash injury suffered earlier in the year. On March 25, 1994, the Executive Assistant advised me that I was not to drive the [appellant Speaker] while wearing the collar. My driving duties were taken away and assigned to a white, unilingual (English) employee.
- On October 14, 1994, the [appellant House of Commons] contacted me to offer me work as a photocopier operator, a messenger or a mini-van operator. Alternatively, I was offered a severance package. I advised the [appellant House of Commons] that I wished to be reinstated to my position as chauffeur to the Speaker immediately.
- Since my driving duties were taken away from me in March 1994, they have been carried out by two other employees, both of whom are white.
- I believe that my right to equal treatment in employment has been infringed upon by the respondent because of my race, colour and ethnic or national origin. [Appellants’ record, at pp. 247-50]
There is nothing here, in my respectful opinion, to lift these complaints out of their specific employment context.
[95] It is true, as the respondents submit, that PESRA is essentially a collective bargaining statute rather than a human rights statute. The substantive human rights norms set out in the Canadian Human Rights Act are not set out in PESRA. Nevertheless, PESRA permits employees who complain of discrimination to file a grievance and to obtain substantive relief. I do not suggest that all potential claims to relief under the Canadian Human Rights Act would be barred by s. 2 of PESRA, but in the present type of dispute, there is clearly a measure of duplication in the two statutory regimes and the purpose of s. 2 is to avoid such duplication. Parliament has determined that grievances of employees covered by PESRA are to be dealt with under PESRA. A grievance that raises a human rights issue is nevertheless a grievance for purposes of employment or labour relations (see Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42).
. . .
[97] The respondents contend that while PESRA may be able to respond to Mr. Vaid’s particular complaint of workplace discrimination and harassment, the Canadian Human Rights Tribunal is better placed than a PESRA adjudicator to address broader issues such as systemic discrimination, including compliance with the pay equity requirements of s. 11 of the Canadian Human Rights Act. . . .
[98] In this case, we are not dealing with an allegation of systemic discrimination. We are dealing with a single employee who says he was wrongfully dismissed against a background of alleged discrimination and harassment. A different dispute may involve different considerations that may lead to a complaint properly falling under the jurisdiction of the Canadian Human Rights Commission. But that is not this case.
[38] Although the Supreme Court of Canada decided that Mr. Vaid could not bring his complaint under CHRA, the Court did not entirely preclude parliamentary employees from seeking relief under CHRA for discrimination in the workplace. The Court emphasized that in determining whether a complaint could be brought under CHRA or whether it must only be brought under PESRA, one must look to the specific “facts giving rise to the dispute”.
[39] In the present case, the facts giving rise to the dispute are as follows. The applicant told her employer that it was not safe for her to work near x-ray machines during the term of her pregnancy, and she asked if she could do alternate work during her pregnancy that did not involve exposure to x-ray machines. The applicant provided medical notes from her doctor confirming that she should not work near x-ray machines while pregnant. The employer informed the applicant that she could not be accommodated, and as a result, the applicant went on leave without pay until she could claim maternity benefits. The applicant asserted that her employer’s failure to accommodate her during her pregnancy meant that she was discriminated against on the grounds of sex. She suffered lost wages and stress.
[40] The applicant’s complaint turns on the employer’s duty to accommodate. The duty to accommodate arises out of human rights law, which imposes an obligation on employers to take steps to avoid discrimination against an employee based on a group characteristic. This obligation is codified in CHRA. Section 2 sets out that a purpose of the Act is to ensure that all individuals have their needs accommodated, section 7 imposes the duty of accommodation on employers, and section 15 qualifies this duty of accommodation. No similar provisions are found in PESRA. However, as noted by the Supreme Court of Canada in Vaid, an employee of the Senate or House of Commons may present a grievance under PESRA where he or she feels aggrieved by the interpretation or application of a provision of a statute (subparagraph 62(1)(a)(i) of PESRA), such as CHRA. An employee of the Senate or House of Commons may therefore bring a grievance under PESRA for alleged discriminatory practices that are contrary to CHRA.
[41] The question is whether, on the facts of this case, the applicant is entitled to bring her complaint using the mechanisms under CHRA, or whether the grievance process of PESRA ousts the jurisdiction of CHRA because there is clearly a measure of duplication in the processes of CHRA and PESRA which are to be avoided pursuant to the exclusive jurisdiction clause contained in section 2 of PESRA. In considering this question, I note that there are factual differences between this case and that of Vaid.
[42] First, Mr. Vaid was complaining of a wrongful dismissal, which is a complaint that lies squarely within the labour law context. In fact, he had previously grieved his first employment termination under PESRA, and this had resulted in an order for his reinstatement. The complaint which he then brought under CHRA alleged a refusal of continued employment, workplace harassment, and discrimination. The Supreme Court of Canada decided that this was a workplace grievance that raised human rights issues, and there was nothing to lift the complaint out of its employment context. By contrast, in the present case, the entire basis for the applicant’s complaint is the duty to accommodate, namely, the requirement under human rights law that employers take active steps to ensure equality in the workplace. In my view, the applicant’s complaint is primarily alleging a human rights violation, rather than grieving a labour dispute that incidentally raises human rights concerns.
[43] As well, in Vaid, third party adjudication was an option available to Mr. Vaid because his complaint related to the termination of employment, which is one of the types of grievances which are arbitrable under section 63 of PESRA. Section 63 provides that for certain types of grievances, the employee may refer the grievance to adjudication where the employee has presented the grievance up to and including the final level and the matter is still not resolved to the satisfaction of the employee. In the Federal Court of Appeal decision of Vaid, 2002 FCA 473, [2003] 1 F.C. 602 (which was overturned by the Supreme Court of Canada), Justice Rothstein, in a concurring judgment, wrote the following at paragraph 97 in regard to the right of adjudication under section 63 of PESRA:
Generally speaking, it would seem that the right to adjudication is to be available only for matters such as termination or disciplinary action resulting in suspension or financial penalty. Certainly, that would cover the case of Mr. Vaid because he was terminated. However, would it cover all human rights violations in respect of employment? There is no indication that an employee who complained about harassment by an employer could have that matter adjudicated under PESRA. Nor does the right to adjudication appear to apply in the case of an employee who, while not terminated or denied an appointment, complained of discrimination on account of physical disability. Other examples could be cited. But these are sufficient to make the point. There are human rights issues for which adjudication is not available under PESRA. For such issues, PESRA does not provide a procedure for redress in the form of an independent adjudication.
[44] The Supreme Court of Canada in Vaid did not specifically comment on whether its decision may have been different had Mr. Vaid not had access to adjudication procedures under PESRA. The availability of an effective remedy was not really of concern in Vaid, as Mr. Vaid did have the option of adjudicating the grievance under section 63 of PESRA, and he had previously resorted to adjudication when he grieved his initial termination.
[45] The applicant, in the present case, is not complaining of a termination of her employment, but is complaining that she had to go on leave without pay during her pregnancy as a result of her employer’s failure to accommodate. Due to the nature of her complaint, the matter would not be arbitrable under section 63 of PESRA. The applicant submitted that consequently, her right to obtain substantive and real redress is limited under PESRA, whereas, under CHRA she would have access to a wider range of processes to deal with her complaint. I accept that this is a relevant consideration in determining whether the dispute resolution mechanisms under PESRA and CHRA are duplicated to the extent that PESRA ousts the jurisdiction of CHRA procedures. The availability of a substantive remedy for human rights violations is a relevant consideration, because of the quasi-constitutional nature of human rights norms, which dictates that human rights legislation must prevail over other legislation in the event of conflict or inconsistency (see Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150 at 155 to 156).
[46] The respondent relied on the decision of Vaughan v. Canada, 2005 SCC 11, [2005] 1 S.C.R. 146 for the proposition that the applicant must not be allowed to use this Court to circumvent the legislated process for dealing with a grievance, even where access to third party adjudication is unavailable. That decision, however, involved completely different considerations from the present application. Mr. Vaughan was a federal public servant who was refused early retirement incentive (ERI) benefits and subsequently laid off. Under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (PSSRA), his layoff was arbitrable, while his claim for ERI benefits was grievable but not arbitrable. Instead of grieving the matter of ERI benefits under the PSSRA process, Mr. Vaughan brought a claim against the Crown in Federal Court. The Court in Vaughan held that, although the Court’s residual jurisdiction to deal with the dispute was not ousted by the wording of PSSRA, it would nevertheless defer to the PSSRA grievance procedure. The Court found that it was not open to Mr. Vaughan to “ignore the PSSRA scheme and litigate his claim to ERI benefits in the courts by dressing it up as a ‘negligence’ action” (Vaughan at paragraph 42).
[47] In the present case, we are not dealing with a dispute concerning employment benefits. Rather, the applicant has filed a complaint of gender-based discrimination in the workplace. Moreover, the applicant is not bringing an action against the Crown, but is asking to have her complaint be dealt with under CHRA and is seeking judicial review of the Commission’s decision. I am of the view that the principles in Vaughan are not applicable to the facts of this dispute.
[48] In conclusion, the applicant’s complaint is not a workplace grievance in a labour relations context. Her complaint alleged discrimination on the grounds of sex as the employer failed to accommodate her during her pregnancy. The whole basis of her complaint would be absent if it were not for human rights norms which are codified in CHRA. Further, due to the nature of her complaint, she would not have the option of adjudication under section 63 of PESRA if she were to grieve the matter under PESRA. This deprives the applicant of the ability to seek an effective remedy under the PESRA process. On the facts of this case, I am of the view that this is one such case where it is appropriate to find that CHRA does not engage “matters similar” to those provided under PESRA, within the meaning of section 2 of PESRA, and as such, PESRA does not oust the jurisdiction of CHRA. The Commission therefore had jurisdiction under CHRA to deal with the applicant’s complaint.
[49] Before moving on to the next issue, I wish to comment briefly on the respondent’s oral submission that if this matter is remitted to the Commission for redetermination, the issue of jurisdiction should be dealt with by the Commission. I do not accept this submission. The question of whether the Commission had jurisdiction to deal with this matter is a question of law and in the circumstances, it is appropriate for this Court to dispose of that question, as I have done, in this application for judicial review.
[50] Issue 2
Did the Commission err in refusing to deal with the complaint on the basis that it was time-barred?
In order to decide this issue, I must determine what standard of review is to be applied when reviewing this aspect of the decision. In Price v. Concord Transportation Inc., 2003 FC 946, 238 F.T.R. 113, Justice Heneghan engaged in a functional and pragmatic analysis to determine the standard of review to be applied to a decision of the Commission about whether or not to deal with a complaint notwithstanding that it was brought more than one year after the alleged discriminatory act. She concluded that the standard of review is that of patent unreasonableness. The relevant portion of her decision is reproduced below:
[34] The Commission decided not to further deal with the complaint, pursuant to section 41(1)(e) of the Act. It stated two reasons for its decision: first, the delay by the Applicant in filing her complaint and second, the prejudice resulting to the Respondent due to lack of documentation and possible impairment of witnesses’ memories.
[35] The issue arising in this case is whether the Commission committed a reviewable error in making its decision. This leads to consideration of the applicable standard of review. In Cape Breton Development Corp., supra, the Court characterized a decision made under section 41(1)(e) of the Act as a discretionary administrative decision and said as follows 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.
[Footnotes omitted]
[36] As held in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 and more recently in Law Society of New Brunswick v. Ryan (2003), 223 D.L.R.(4th) 577 (S.C.C.) and Dr. Q v. College of Physicians and Surgeons of British Columbia (2003), 223 D.L.R. (4th) 599 (S.C.C.), the Court must engage in the well-established pragmatic and functional analysis to determine the appropriate standard of review when judicially reviewing the decision of an administrative tribunal.
[37] 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.
[38] The general function of a time limitation period in any piece of legislation relates to gathering credible evidence, the concept of certainty for defendants and due diligence on the part of plaintiffs. Parliament recognized that including such a time limitation was an important aspect of furthering expediency in the complaint process and fairness to the party responding to a charge of discrimination. Further, section 41(1)(e) recognizes that a black-and-white time bar would not be appropriate. The Commission’s fact finding expertise is fairly and appropriately put to work by the added discretion to extend such time limitation if the Commission considers it “appropriate in the circumstances”.
[39] There is no privative clause in the Act. The purpose that a section 41(1) decision plays in the entire legislative scheme must be kept in mind, that is to act as a screening function, to prevent claims that, for various, enumerated reasons, should not be permitted to go forward. The nature of the decision under review points to a more deferential standard of review.
[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 at this stage to intervene lightly in the decisions of the Commission.
[41] 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.
[42] Therefore, after applying the pragmatic and functional analysis, the standard of review applicable to the Commission’s section 41(1)(e) decision not to deal with a complaint that was over one year in the past, is a deferential one, that is, a standard of patent unreasonableness.
[51] Justice Heneghan’s determination of the standard of review in Price has been applied in subsequent decisions of this Court (see Johnston v. Canada Mortgage and Housing Corp., 2004 FC 918 at paragraph 8; Davey v. Canada, 2004 FC 1496 at paragraph 12; Good v. Canada (Attorney General), 2005 FC 1276 at paragraph 23). It is therefore established by the jurisprudence that the standard of review of patent unreasonableness is to be applied to a decision of the Commission about whether to deal with a complaint that is brought more than one year after the alleged discriminatory act.
[52] I would adopt the reasoning in Price and apply the standard of patent unreasonableness to the decision of the Commission refusing to deal with the complaint on the ground that it was brought too late.
[53] There is some dispute on the facts of this case as to when the alleged discriminatory act occurred. The applicant maintained that the respondent’s failure to accommodate extended throughout her pregnancy which concluded with the birth of her son on March 29, 2003. Based on that time line, the applicant had until March 29, 2004 to bring her complaint, and the applicant’s complaint was filed just three days after that date, on April 1, 2004. The investigator’s report, however, stated that the applicant “did not contact this Commission until March 2004, some fifteen (15) months after the alleged discrimination”. This would mean that, in the investigator’s view, the alleged discriminatory act occurred sometime in December 2002.
[54] It is not clear from the record why the investigator chose the date of December 2002 as the material date for the act of discrimination. In mid-December 2002, the applicant’s contract was cancelled, then immediately renewed when the applicant contacted the respondent. However, the applicant remained on leave without pay throughout December 2002. She took eight weeks of maternity leave prior to her son’s birth on March 29, 2003. In my opinion, the investigator’s determination of the relevant date is not supported on the evidence.
[55] In addition, the investigator’s report was incorrect in its summary of facts. The report stated that the applicant was sent home eight weeks prior to the birth of her child who was born on March 29, 2003. The applicant was actually sent home in September 2002. The applicant informed the Commission of this error in her letter dated October 26, 2004. In its decision letter of January 6, 2005, the Commission merely stated that it had reviewed the investigator’s report and any submissions filed in response to the report. The question that has not been answered is which date did the Commission use in coming to its decision. Since there is no acknowledgement of the incorrect facts in the investigator’s report, the Commission must have relied on the investigator’s time line which was not correct.
[56] The Commission may have arrived at a different decision if these factual errors had been addressed and corrected. I cannot speculate on what that decision would have been as that is a decision for the Commission to make once it establishes a date for the alleged discrimination that is reasonably supported by the evidence.
[57] In sum, it is my view that the Commission’s determination of the date of the alleged discriminatory act (December 2002) is not supported on the evidence and is based on an erroneous finding of fact. Therefore, its decision refusing to deal with the complaint is patently unreasonable and should be set aside.
[58] As this finding disposes of the application, I need not deal with the remaining issue, which is the duty to provide adequate reasons.
[59] The application for judicial review is therefore allowed and the matter is referred back to the Commission for redetermination.
[60] The applicant shall have her costs of the application.
JUDGMENT
[61] IT IS ORDERED that:
1. The application for judicial review is allowed and the matter is referred back to the Commission for redetermination.
2. The applicant shall have her costs of the application.
ANNEX
The relevant provisions of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 provide as follows:
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2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.
3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.
(2) Where the ground of discrimination is pregnancy or child-birth, the discrimination shall be deemed to be on the ground of sex.
3.1 For greater certainty, a discriminatory practice includes a practice based on one or more prohibited grounds of discrimination or on the effect of a combination of prohibited grounds.
4. A discriminatory practice, as described in sections 5 to 14.1, may be the subject of a complaint under Part III and anyone found to be engaging or to have engaged in a discriminatory practice may be made subject to an order as provided in sections 53 and 54.
. . .
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
. . .
15. (1) It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement;
(b) employment of an individual is refused or terminated because that individual has not reached the minimum age, or has reached the maximum age, that applies to that employment by law or under regulations, which may be made by the Governor in Council for the purposes of this paragraph;
(c) an individual’s employment is terminated because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual;
(d) the terms and conditions of any pension fund or plan established by an employer, employee organization or employer organization provide for the compulsory vesting or locking-in of pension contributions at a fixed or determinable age in accordance with sections 17 and 18 of the Pension Benefits Standards Act, 1985;
(e) an individual is discriminated against on a prohibited ground of discrimination in a manner that is prescribed by guidelines, issued by the Canadian Human Rights Commission pursuant to subsection 27(2), to be reasonable;
(f) an employer, employee organization or employer organization grants a female employee special leave or benefits in connection with pregnancy or child-birth or grants employees special leave or benefits to assist them in the care of their children; or
(g) in the circumstances described in section 5 or 6, an individual is denied any goods, services, facilities or accommodation or access thereto or occupancy of any commercial premises or residential accommodation or is a victim of any adverse differentiation and there is bona fide justification for that denial or differentiation.
(2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.
. . .
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.
(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.
(3) In this section, "employer" means a person who or organization that discharges the obligations of an employer under the Employment Equity Act.
42. (1) Subject to subsection (2), when the Commission decides not to deal with a complaint, it shall send a written notice of its decision to the complainant setting out the reason for its decision.
(2) Before deciding that a complaint will not be dealt with because a procedure referred to in paragraph 41(a) has not been exhausted, the Commission shall satisfy itself that the failure to exhaust the procedure was attributable to the complainant and not to another. |
2. La présente loi a pour objet de compléter la législation canadienne en donnant effet, dans le champ de compétence du Parlement du Canada, au principe suivant : le droit de tous les individus, dans la mesure compatible avec leurs devoirs et obligations au sein de la société, à l'égalité des chances d'épanouissement et à la prise de mesures visant à la satisfaction de leurs besoins, indépendamment des considérations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, l'âge, le sexe, l'orientation sexuelle, l'état matrimonial, la situation de famille, la déficience ou l'état de personne graciée.
3. (1) Pour l'application de la présente loi, les motifs de distinction illicite sont ceux qui sont fondés sur la race, l'origine nationale ou ethnique, la couleur, la religion, l'âge, le sexe, l'orientation sexuelle, l'état matrimonial, la situation de famille, l'état de personne graciée ou la déficience.
(2) Une distinction fondée sur la grossesse ou l'accouchement est réputée être fondée sur le sexe.
3.1 Il est entendu que les actes discriminatoires comprennent les actes fondés sur un ou plusieurs motifs de distinction illicite ou l'effet combiné de plusieurs motifs.
4. Les actes discriminatoires prévus aux articles 5 à 14.1 peuvent faire l'objet d'une plainte en vertu de la partie III et toute personne reconnue coupable de ces actes peut faire l'objet des ordonnances prévues aux articles 53 et 54.
. . .
7. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects:
a) de refuser d'employer ou de continuer d'employer un individu;
b) de le défavoriser en cours d'emploi.
. . .
15. (1) Ne constituent pas des actes discriminatoires:
a) les refus, exclusions, expulsions, suspensions, restrictions, conditions ou préférences de l’employeur qui démontre qu’ils découlent d’exigences professionnelles justifiées;
b) le fait de refuser ou de cesser d’employer un individu qui n’a pas atteint l’âge minimal ou qui a atteint l’âge maximal prévu, dans l’un ou l’autre cas, pour l’emploi en question par la loi ou les règlements que peut prendre le gouverneur en conseil pour l’application du présent alinéa;
c) le fait de mettre fin à l’emploi d’une personne en appliquant la règle de l’âge de la retraite en vigueur pour ce genre d’emploi;
d) le fait que les conditions et modalités d’une caisse ou d’un régime de retraite constitués par l’employeur, l’organisation patronale ou l’organisation syndicale prévoient la dévolution ou le blocage obligatoires des cotisations à des âges déterminés ou déterminables conformément aux articles 17 et 18 de la Loi de 1985 sur les normes de prestation de pension; e) le fait qu’un individu soit l’objet d’une distinction fondée sur un motif illicite, si celle-ci est reconnue comme raisonnable par une ordonnance de la Commission canadienne des droits de la personne rendue en vertu du paragraphe 27(2);
f) le fait pour un employeur, une organisation patronale ou une organisation syndicale d’accorder à une employée un congé ou des avantages spéciaux liés à sa grossesse ou à son accouchement, ou d’accorder à ses employés un congé ou des avantages spéciaux leur permettant de prendre soin de leurs enfants;
g) le fait qu’un fournisseur de biens, de services, d’installations ou de moyens d’hébergement destinés au public, ou de locaux commerciaux ou de logements en prive un individu ou le défavorise lors de leur fourniture pour un motif de distinction illicite, s’il a un motif justifiable de le faire.
(2) Les faits prévus à l’alinéa (1)a) sont des exigences professionnelles justifiées ou un motif justifiable, au sens de l’alinéa (1)g), s’il est démontré que les mesures destinées à répondre aux besoins d’une personne ou d’une catégorie de personnes visées constituent, pour la personne qui doit les prendre, une contrainte excessive en matière de coûts, de santé et de sécurité.
. . .
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.
(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.
(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.
42. (1) Sous réserve du paragraphe (2), la Commission motive par écrit sa décision auprès du plaignant dans les cas où elle décide que la plainte est irrecevable.
(2) Avant de décider qu'une plainte est irrecevable pour le motif que les recours ou procédures mentionnés à l'alinéa 41a) n'ont pas été épuisés, la Commission s'assure que le défaut est exclusivement imputable au plaignant. |
The relevant provisions of the Parliamentary Employment and Staff Relations Act, R.S.C. 1985 (2d Supp.), c. 33 provide as follows:
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2. Subject to this Act, this Act applies to and in respect of every person employed by, and applies to and in respect of,
(a) the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Ethics Commissioner, and
(b) a Member of Parliament who, in that capacity, employs that person or has the direction or control of staff employed to provide research or associated services to the caucus members of a political party represented in Parliament,
and, except as provided in this Act, nothing in any other Act of Parliament that provides for matters similar to those provided for under this Act and nothing done thereunder, whether before or after the coming into force of this section, shall apply to or in respect of or have any force or effect in relation to the institutions and persons described in this section.
3. In this Part,
. . .
"employee" means a person employed by an employer, other than
(a) a person appointed by the Governor in Council,
(b) a person not ordinarily required to work more than seven hundred hours in a calendar year or one-third of the normal period for persons doing similar work, whichever is greater,
(c) a person employed on a casual or temporary basis, unless the person has been so employed for a period of six months or more,
(d) a person employed in a managerial or confidential capacity, or
(e) a person excluded from the application of this Part by section 4,
and for the purposes of this definition a person does not cease to be employed by an employer by reason only of the person's discharge contrary to this Part or any other Act of Parliament;
. . .
62. (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 employee's terms and conditions of employment, other than a provision described in subparagraph (a)(i) or (ii),
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 Part.
(2) An employee is not entitled to present any grievance relating to the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award unless the employee has the approval of and is represented by the bargaining agent for the bargaining unit to which the collective agreement or arbitral award applies.
(3) An employee who is not included in a bargaining unit for which an employee organization has been certified as bargaining agent may seek the assistance of and, if the employee chooses, may be represented by any employee organization in the presentation or reference to adjudication of a grievance.
(4) No employee who is included in a bargaining unit for which an employee organization has been certified as bargaining agent may be represented by any employee organization, other than the employee organization certified as bargaining agent, in the presentation or reference to adjudication of a grievance.
63. (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) disciplinary action against the employee resulting in suspension or a financial penalty,
(c) the termination of employment of the employee, other than rejection on probation in respect of an initial appointment,
(d) demotion of the employee,
(e) where the employee has been denied an appointment, the employer's evaluation of the skill, fitness and ability of the employee with respect to the employee's qualification for the appointment, or
(f) subject to subsection 5(3), the employer's classification of the employee,
and the grievance has not been dealt with to the satisfaction of the employee, the employee may refer the grievance to adjudication.
(2) Where a grievance that may be presented by an employee to adjudication is a grievance described in paragraph (1)(a), the employee is not entitled to refer the grievance to adjudication unless the bargaining agent for the bargaining unit to which the collective agreement or arbitral award applies signifies in prescribed manner its approval of the reference of the grievance to adjudication and its willingness to represent the employee in the adjudication proceedings.
(3) A grievance with respect to a matter referred to in paragraph (1)(f) shall not be adjudicated under this Part unless the circumstances that cause the grievance are in existence after the day that is one year after this Part comes into force. |
2. La présente loi, sous réserve de ses autres dispositions, s'applique, d'une part, aux personnes attachées dans leur travail, comme employés, au Sénat, à la Chambre des communes, à la Bibliothèque du Parlement, au bureau du conseiller sénatorial en éthique, au commissariat à l'éthique ou à des parlementaires, d'autre part à ces institutions et aux parlementaires qui, ès qualités, les emploient ou qui ont sous leur direction ou leur responsabilité des documentalistes ou des personnes chargées de fonctions similaires affectés au service des membres de groupes parlementaires, ainsi qu'à ces documentalistes ou personnes; de plus, sauf disposition expresse de la présente loi, les autres lois fédérales qui réglementent des questions semblables à celles que réglementent la présente loi et les mesures prises en vertu de celles-ci, avant ou après l'entrée en vigueur du présent article, n'ont aucun effet à l'égard des institutions et des personnes visées au présent article.
3. Les définitions qui suivent s'appliquent à la présente partie.
. . .
«employé» Personne attachée à l'employeur, même si elle a perdu cette qualité par suite d'un congédiement contraire à la présente partie ou à une autre loi fédérale, mais à l'exclusion des personnes:
a) nommées par le gouverneur en conseil;
b) qui ne sont pas habituellement astreintes à travailler plus de sept cents heures par année civile ou, si cette période est supérieure, plus du tiers du temps normalement exigé de personnes exécutant des tâches semblables;
c) employées à titre occasionnel ou temporaire et ayant travaillé à ce titre pendant moins de six mois;
d) occupant un poste de direction ou de confiance;
e) échappant, aux termes de l'article 4, à l'application de la présente partie.
. . .
62. (1) Sous réserve du paragraphe (2), l'employé a le droit de présenter un grief à tous les paliers de la procédure prévue à cette fin par la présente partie, 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.
(2) L'employé n'est admis à présenter de grief touchant à l'interprétation ou à l'application à son égard d'une disposition d'une convention collective ou d'une décision arbitrale qu'à condition d'avoir obtenu l'approbation de l'agent négociateur de l'unité de négociation à laquelle s'applique la convention collective ou la décision arbitrale et d'être représenté par cet agent.
(3) L'employé ne faisant pas partie d'une unité de négociation pour laquelle une organisation syndicale a été accréditée peut demander l'aide de n'importe quelle organisation syndicale et, s'il le désire, être représenté par celle-ci à l'occasion du dépôt d'un grief ou de son renvoi à l'arbitrage.
(4) L'employé faisant partie d'une unité de négociation pour laquelle une organisation syndicale a été accréditée ne peut être représenté par une autre organisation syndicale à l'occasion du dépôt d'un grief ou de son renvoi à l'arbitrage.
63. (1) Après l'avoir porté jusqu'au dernier palier de la procédure applicable sans avoir obtenu satisfaction, un employé 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) une mesure disciplinaire prise contre lui entraînant la suspension ou une sanction pécuniaire;
c) son congédiement, à l'exception du renvoi à la suite d'une période de stage consécutive à une première nomination;
d) sa rétrogradation;
e) en cas de refus de nomination, l'évaluation de l'employeur sur son aptitude vis-à-vis des exigences du poste;
f) sous réserve du paragraphe 5(3), sa classification par l'employeur.
(2) Pour pouvoir renvoyer à l'arbitrage un grief du type visé à l'alinéa (1)a), l'employé doit obtenir, dans les formes réglementaires, l'approbation de son agent négociateur et son acceptation de le représenter dans la procédure d'arbitrage.
(3) Le grief fondé sur l'alinéa (1)f) ne peut être tranché sous le régime de la présente partie que si les faits à l'origine du grief surviennent ou persistent plus d'un an après son entrée en vigueur. |
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-249-05
STYLE OF CAUSE: RACHEL DUPÉRÉ
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HOUSE OF COMMONS
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 20, 2006
APPEARANCES:
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Andrew Raven Kim Patenaude-Lepage
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Steven R. Chaplin
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SOLICITORS OF RECORD:
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Raven, Cameron, Ballantyne & Yazbeck Ottawa, Ontario
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Office of the Law Clerk and Parliamentary Counsel Ottawa, Ontario
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