Docket: T-938-16
Citation:
2017 FC 583
Ottawa, Ontario, June 13, 2017
PRESENT: The Honourable Mr. Justice O'Reilly
|
BETWEEN:
|
|
CITY OF OTTAWA
|
|
Applicant
|
|
and
|
|
JAMAL HASSAN
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
The City of Ottawa challenges the Canadian Human
Rights Commission’s decision to refer Mr Jamal Hassan’s complaint of
discrimination in the workplace to a tribunal for further inquiry. The City
alleges that the Commission lacked jurisdiction to deal with the matter as an arbitrator
that heard a related labour dispute between the parties had sole jurisdiction.
The City also raised a number of other concerns, arguing that the Commission’s decision
lacked procedural fairness, particulars, and an ascertainable author, and that the
Commission misapplied s 41(1) of the Canadian Human Rights Act (RSC
1985, c H-6 (CHRA); see Annex).
[2]
I agree that the Commission lacked jurisdiction
to hear Mr Hassan’s complaint as the arbitrator had sole jurisdiction in the
circumstances. I must, therefore, grant this application for judicial review. I
need not address the other concerns raised by the City.
II.
Background
[3]
Mr Hassan drove a bus for the City’s Transit
Services Department (OC Transpo) until he took extended medical leave for
approximately five years, working only sporadically during that time. Following
his leave, the City terminated his employment in July 2010.
[4]
Mr Hassan grieved his termination through his
union and his complaint went to arbitration (pursuant to the Canada Labour
Code, RSC 1985, c L-2). In 2011, the parties signed Minutes of Settlement
outlining the steps the City would take, including putting Mr Hassan in the “Priority Placement Program” for a year, after which his
employment would be automatically terminated if he was not placed in a position.
After a year of unsuccessful attempts to place Mr Hassan in another position,
the City terminated Mr Hassan’s employment a second and final time. Months
later, Mr Hassan complained to the Commission on the basis that the City had failed
to “properly accommodate [him] or comply with the
Minutes of Settlement that were agreed upon in good faith”.
[5]
In 2014, a preliminary report recommended that the
Commission deal with the complaint. The City and Mr Hassan provided additional
submissions, and the Commission ultimately decided to proceed with the complaint.
The City’s application for a stay and for leave to quash that decision was
dismissed on the basis of prematurity (T-2478-14).
[6]
The Commission then commenced an investigation.
Throughout, the City’s complete defence amounted to reliance on the Minutes of
Settlement. The investigator recommended that the Canadian Human Rights
Tribunal commence an inquiry into Mr Hassan’s complaint. Conciliation was
attempted, but failed. After considering the reports and the parties’
submissions, the Commission decided in May 2016 to refer Mr Hassan’s complaint
to the Tribunal.
III.
Did the Commission Lack Jurisdiction to Hear Mr
Hassan’s Complaint?
[7]
The issue before the Commission was whether it had
concurrent jurisdiction with the labour arbitrator to address Mr Hassan’s
complaint, or whether the arbitrator had exclusive jurisdiction. The standard
of review for questions regarding the jurisdictional lines between two specialized
tribunals is correctness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at para 61; Edmonton (City) v Edmonton East (Capilano) Shopping Centres
Ltd, 2016 SCC 47, [2016] 2 S.C.R. 293 at para 24).
[8]
Mr Hassan argues that he faced discrimination
during his time in the “Priority Placement Program”,
which occurred after his initial termination. He asserts that he was reinstated
as an employee on the date the Minutes of Settlement were signed, and that the Minutes
did not contemplate the possibility of future acts of discrimination. Therefore,
since his complaint did not relate to the Minutes themselves or to his previous
work issues, the Commission had jurisdiction to deal with it.
[9]
I disagree. Mr Hassan’s argument cannot be
reconciled with the Minutes of Settlement. The Minutes make clear that Mr
Hassan was to be reinstated as an employee with the City, that he was to be
placed in the Priority Placement Program for a maximum of twelve months, and
that the arbitrator was seized of “all issues relating
to the interpretation or enforcement” of the Minutes. Yet, Mr Hassan’s
complaint to the Commission specifically relied on the City’s alleged breach of
the Minutes through its failure to find suitable employment for him. In
addition, the Commission’s own preliminary and investigatory reports both stated
that the relevant time frame for the complaint was from June 2011 to June 2012,
the time-period covered by the Minutes. Clearly, any problems relating to the
City’s obligations under the Minutes should have been brought before the
arbitrator.
[10]
Mr Hassan submits, in the alternative, that even
if the arbitrator had jurisdiction to hear his complaint, the Commission had
concurrent jurisdiction to deal with it. He contends that the Canada Labour
Code does not grant the arbitrator exclusive jurisdiction or oust the
Commission’s jurisdiction.
[11]
However, the arbitrator’s jurisdiction here does
not derive from the Canada Labour Code, but instead from the Minutes of
Settlement that state that the arbitrator shall remain seized of all disputes
arising out of the terms of the Minutes of Settlement. Again, any failure by
the City to accommodate Mr Hassan during the currency of the Minutes of
Settlement would be a dispute arising from the Minutes, and the arbitrator had
exclusive jurisdiction to deal with it.
[12]
Mr Hassan also argues that awarding exclusive
jurisdiction to the arbitrator would effectively allow parties to contract out
of the CHRA, and that his only real remedy to address discrimination
arising from his termination was to file a complaint with the Commission. Again,
I disagree. The parties were entitled to agree on an alternate means of
redressing any issues between them, including arbitration. The Minutes of
Settlement state that Mr Hassan had read and understood the agreement, and that
he was represented by both his union and counsel. He freely committed to have
the arbitrator deal with any issues arising from the Minutes.
[13]
Mr Hassan also argues that he had sought
assistance from his union, but that it refused to assist him due to his non-payment
of fees, and that this removed jurisdiction from the arbitrator. However, this
factor is irrelevant to the arbitrator’s jurisdiction: the Minutes of
Settlement determine the arbitrator’s jurisdiction, not the willingness of a
union to represent a member.
IV.
Conclusion
[14]
Mr Hassan agreed to Minutes of Settlement from
the arbitration related to his termination from the City of Ottawa. The Minutes
stipulated that the arbitrator maintained exclusive jurisdiction to deal with
complaints related to the execution of the Minutes. Accordingly, it was beyond
the Commission’s jurisdiction to address a complaint arising from the Minutes,
including an allegation that the City failed to abide by the Minutes. Therefore,
I am granting this application for judicial review and quashing the decision of
the Commission, with costs.
Email this Content