Date: 20060818
Docket: T-249-05
Citation: 2006 FC 997
Ottawa, Ontario, August 18, 2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
RACHEL
DUPÉRÉ
Applicant
and
HOUSE
OF COMMONS
Respondent
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:
|
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.
|
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.
|
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.
“John
A. O’Keefe”
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.
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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.
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:
|
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.
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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.
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