O'Hagan v. Canada (Attorney General), docket T-2510-95

Date: 19990111

Docket: T-2510-95

IN THE MATTER OF an applicant to review and set aside, pursuant to s. 18 and 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended.

AND IN THE MATTER OF a decision of The Public Service Staff Relations Board, rendered by Albert S. Burke, Board Member on October 30, 1995, respecting an adjudication pursuant to section 92 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (PSSRB File Nos. 166-2-26490 to 93)

BETWEEN:

ROSE O'HAGAN, SUSAN FIELD,

JANICE NACHTEGAELE and EDITH NELSON

Applicants

- and -

ATTORNEY GENERAL OF CANADA

(Solicitor General - Correctional Service Canada)

Respondent

- and -

PUBLIC SERVICE ALLIANCE OF CANADA

Intervenor

     REASONS FOR ORDER

WETSTON J.:

[1]      This is an application for judicial review of a decision of the adjudicator, Mr. Albert S. Burke, dated October 30, 1995, with respect to an adjudication pursuant to section 92 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (PSSRA). The adjudicator dismissed the grievances for lack of jurisdiction. The applicants are all nurses employed in the Clearwater Unit of the Correctional Service Canada. The applicants are members of the Professional Institute of the Public Service of Canada (PIPSC). Their terms and conditions of employment are governed by the PIPSC Master Agreement. The applicants each filed identical grievances, alleging that they were sexually harassed over a two and one-half year period.

[2]      Article 43.01 of the collective agreement states:

The Institute and the Employer recognize the right of employees to work in an environment free from sexual harassment and agree that sexual harassment will not be tolerated in the workplace.

[3]      In the matter before the adjudicator, the representative contended that there is no dispute that the subject matter is covered by the collective agreement. Pursuant to Clause 43, the employer has an obligation to keep the workplace free of sexual harassment. It was argued before Mr. Burke that there is a difference between sexual harassment (Article 43) and discrimination (Article 44)and thus that he had jurisdiction. The adjudicator, Mr. Burke, concluded as follows:

Having considered all of the arguments and evidence before me, I have concluded that based on the recent Federal Court of Canada, Trial Division, decision in Chopra, supra, by Madame Justice Sandra J. Simpson, I do not have jurisdiction to hear the grievances before me.

Justice Simpson decided that Mr. Chopra could seek redress before the CHRC with regard to his complaint of unfair treatment of discrimination due to his ethnic origin. It is obvious that allegations of discrimination are matters the CHRC deal with on a daily basis. In view of the CHRC's broad remedial authority, she found that the provisions of the CHRA constituted the "administrative procedure for redress" contemplated by subsection 91(1).

It is true that with the Chopra, supra, matter the disposition at issue was article 44 (the "no discrimination clause") while I am faced with Article 43, which deals with sexual harassment. However, nothing turns on this distinction. Sexual harassment is a matter dealt with by the provisions of the CHRA set out earlier, thereby triggering the operation of subsection 91(1).

[4]      The decision in this matter was rendered October 30, 1995. Another decision of the Board which also considered the decision in Chopra v. Canada [1995] 3 F.C. 445 (T.D.) was the decision of Yarrow v. Treasury Board, [1996] CPSSRB #10. In this case, the Deputy Chairperson of the Board considered Chopra, supra, and decided that the subject of Dr. Yarrow's grievance was not discrimination but rather his request for bereavement leave. It was decided that the discrimination was simply incidental and related to his claim for bereavement leave. The subject matter was therefore determined to be within the jurisdiction of the Board because it deals with the interpretation and application of the provisions of the Master Agreement. The Board noted that the cause of action is not Article 44 of the Master Agreement in relation to stand alone discrimination as was the case in Chopra, supra, but rather with respect to the interpretation and application of Article 17 of the Master Agreement.

[5]      The Board's decision in Yarrow, supra, was later considered in the decision of Mohammed v. Canada (Treasury Board) (1998), 148 F.T.R. 260, wherein Cullen J. also considered the decision in Chopra v. Canada, supra, as well as the decision of Byers Transport Ltd. v. Kosanovich and Mellors, [1995] 3 F.C. 354 (F.C.A.). In Mohammed, the grievance alleged only a violation of the "no discrimination clause" of the collective agreement. There was no dispute that the grounds of the discrimination alleged were also covered by the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (CHRA).

[6]      In that case, Cullen J. found that sections 91(1) and 92(1) of the PSSRA provided that not all matters are grievable and not all grievable matters can be referred to adjudication. He decided that Parliament has limited the jurisdiction of the adjudicators appointed under the PSSRA rather than granting them exclusive jurisdiction to hear any and all grievances. Basically, Cullen J. noted that other legislation must be contrasted with the PSSRA which limits the jurisdiction of adjudicators where no administrative procedure for redress is provided in or under an act of parliament.

[7]      At the hearing before me it was extensively argued whether jurisdiction may exist in a case dealing with the application or interpretation of a specific clause in the Agreement versus stand alone discrimination. To a certain extent, Cullen J. considered such an issue at page 270, as follows:

It should be noted that the decisions cited by the applicant (Yarrow v. Treasury Board, [1996] C.P.S.S.R.B. No. 10, and Sarson v. Treasury Board, [1996] C.P.S.S.R.B. No. 18), are distinguishable from the case at bar. In both of those cases, the employees were seeking to challenge various provisions of the collective agreement which related to same-sex benefits. As support for their arguments, the employees relied, in part, on the no discrimination clauses contained in the collective agreement. The subject of both of those claims was not discrimination, per se, but whether the employees were entitled to the benefits requested. The discrimination claim was incidental to the claim for benefits and the cause of action was not clause M-16.01 in relation to stand alone discrimination as in the case at bar and as was the case in Chopra. Similarly, the adjudicators found that there were no administrative procedure for redress provided in or under the CHRA since neither the CHRC nor the Human Rights Tribunal has the jurisdiction to interpret and apply the provisions of the Master Agreement.

In the case at bar, the applicant is only requesting relief on the basis of the no discrimination clause; not using the clause as an aid to interpreting other provisions of the Master Agreement. What is to be determined is whether the facts, as alleged, demonstrate a case of discrimination on a prohibited ground.

[8]      Recently, another decision of the Trial Division of this Court concluded that the CHRA provided an "administrative procedure for redress" within the meaning of subsection 91(1) of the PSSRA for a grievance based on a discriminatory practice arising from an employer's interpretation of a provision in a collective agreement. In Attorney General of Canada v. Ross Boutilier, November 13, 1998, T-1450-97, McGillis J. agreed with the approach taken by Cullen J. in Mohammed, supra. At page 23 of Boutilier, McGillis J. concluded as follows:

In the circumstances, I am satisfied that the Canadian Human Rights Act provides Mr. Boutilier with an administrative procedure for redress in relation to the question of the interpretation of the marriage leave provision in the collective agreement, within the meaning of subsection 91(1) of the Public Service Staff Relations Act. Mr. Boutilier was therefore not entitled, by virtue of subsection 91(1) of the Public Service Staff Relations Act, to present his grievance at any of the levels of the grievance process. Consequently, Mr. Boutilier had no right to refer his grievance to adjudication under subsection 92(1) of the Public Service Staff Relations Act, and the adjudicator had no jurisdiction to entertain the adjudication.

[9]      In this decision, McGillis J. considered the previous decisions of this Court in Chopra, and, obviously, in Mohammed, supra, as well as the Federal Court of Appeal decision in Byers Transport, supra. In essence, McGillis J. considered that the question of interpretation of the provision in the collective agreement was not incidental to the question of discrimination since she found that "the entire substance of this grievance is an allegation of discrimination based on the denial of an employment benefit to him for reasons directly related to his sexual orientation. In other words, the allegation of discrimination underlies and forms the central and, indeed, the only issue in the grievance": Boutilier, supra, page 23.

[10]      In Boutilier, supra, McGillis also noted, at page 12:

a review of the statutory scheme reveals that an employee possesses only a qualified right to present a grievance at each of the levels specified in the statutory process in the Public Service Staff Relations Act. In particular, an employee's right to present a grievance is qualified or limited in two respects: by the requirement in subsection 91(1) that no administrative procedure for redress exists in another Act of Parliament; and, by the requirement in subsection 91(2) for the approval of and representation by the bargaining agent.

[Own emphasis]

[11]      In the matter before me, the question once again is, did the adjudicator, Mr. Burke, err in law in concluding that the CHRA provides an "administrative procedure for redress" within the meaning of subsection 91(1) of the PSSRA? Counsel who appeared before me in this matter are all very experienced in these matters and have participated in one way or another in most of these decisions before the Court. The Court was advised that both Mohammed, supra, and Boutilier, supra, have been appealed to the Federal Court of Appeal. It was indicated that counsel will attempt to try and have these cases heard together. If this case is appealed, it may also be useful to have this matter heard with the other two cases. Essentially the issue in this case is also whether the substance of these grievances is exclusively within the jurisdiction of the Canadian Human Rights Commission pursuant to the CHRA since section 14 of the CHRA recognizes that sexual harassment is a prohibited ground of discrimination and the Tribunal is afforded broad remedial powers pursuant to subsection 53(2) of the CHRA.

[12]      Obviously, the Court must consider the matter before it, but I am also mindful of the fact that three important decisions of this Court have all addressed the question of whether the CHRA provides an "administrative procedure for redress" within the meaning of the PSSRA. In a nutshell, all three cases have agreed that it does. No doubt that, as the jurisprudence evolves, a judge of this Court may differ with another judge on the interpretation and approach with respect to the statutes at issue. This is evident in the Boutilier decision, supra, where the Court disagreed to some extent with the approach to the legislation taken by the Court in Chopra, supra. On the other hand, in Boutilier the Court agreed with the approach taken by the Court in Mohammed.

[13]      Obviously, counsel for the applicants and the intervenor pointed out what they contended were errors in all three decisions of the Trial Division. By way of example, it was strenuously argued that both Mohammed and Chopra were cases dealing with stand alone discrimination and dissimilar to the case herein which deals with the application and interpretation of Article 43 within the collective agreement. This argument leads the intervenor to suggest that since Article 43 is in the collective agreement, the procedure for redress must provide for a meaningful involvement of one of the parties to the contract, that is the union. This reflects the labour relations reality that administrative procedures for redress must include a signatory to the contract, that is, the bargaining agent.

[14]      This approach is consistent with the intervenor's submissions regarding section 99 of the PSSRA wherein he submits that Parliament did not intend that human rights matters would be dealt with differently under subsection 91(1) of the PSSRA and section 99 of the PSSRA. It is clear from all three decisions of this Court that the Federal Court, Trial Division, has considered the legislation at issue in para materia. All three cases have considered the two acts of parliament together as forming a system and as interpreting and affecting each other. While there may be differences of opinion as between the decisions, the result of all three decisions is identical.

[15]      Counsel for the applicant and the intervenor have made a number of very persuasive arguments to the Court. However, while I must determine whether the adjudicator's decision is correct, there is persuasive precedent in this Court that I should also seriously consider. Obviously, the decisions of the judges of the Trial Division are not binding on one another. However, there are no conflicting decisions on this question. While there may be, as I indicated, a difference of opinion on some matters, the decisions have been consistent. Is there a principle, precept or approach that has been overlooked that would cause me to find otherwise? In essence, these cases involve questions of statutory construction.

[16]      The applicant and intervenor argue that there is a universal system for enforcing collective agreements in Canada and subsection 91(1) as interpreted by the Court thus far is contrary to this universal system. That system is obviously grievance and adjudication procedure. It is contended that Parliament did not intend to take away the right of the union to enforce the provisions of a collective agreement which is a contract between the employer and the bargaining agent through the grievance and adjudicative process. In essence, it is contended that Parliament did not intend to take the power to enforce collective agreements away from an adjudicator and give it to the Canadian Human Rights Commission.

[17]      Stated somewhat differently, it is submitted that it is inappropriate to remove the involvement of one of the parties to the contract, that is, the union. Moreover, the union has no status under the process before the Human Rights Commission and, accordingly, that is not an "administrative procedure for redress" as contemplated in the PSSRA. As indicated previously, it is also noted that section 99 does not in any way suggest that the Human Rights Commission has any role therein and as such why would it be otherwise under subsection 91(1). I agree with counsel that, specifically, this subject does not appear to have been considered in any detail in the three previous judgements. However, in Mohammed Cullen J. did state, at page 270:

Thus, the applicant's arguments that the procedure must involve the union and that the procedure must provide identical redress must fail.

[18]      This finding follows Cullen J.'s consideration of Byers Transport, supra. While this argument would appear, at first blush, to be compelling, all three Trial Division cases dealt explicitly with questions involving the collective agreement, stand alone discrimination or otherwise, and the availability of another procedure for redress . At no time can it be said or suggested that the Court, despite more extensive argument herein, was unaware of the status of the union and the "labour relations reality."

[19]      It was also contended that the Canadian Human Rights Commission should not be the gatekeeper for grievance and adjudication procedure in the context of a collective agreement involving the union and the Treasury Board. It does appear that there is some difference of opinion as between the Court in Boutilier and the Court in Chopra with respect to whether the CHRA is intended to be the first forum for redress: Boutilier, page 21. Counsel for the applicant contends that the Court in Boutilier was in error when it noted that subsection 91(1) of the Public Service Staff Relations Act established the primacy of the CHRA with respect to the complaint of the discriminatory practice as discussed in that case. It is contended that, indeed, paragraph 41(1)(a) and subsection 42(1) of the CHRA establish the converse, that is, the primacy of the grievance procedure as contained in the PSSRA. Once again, there may be some merit to this contention, but, it is not so clear as to cause me to disagree with the findings of the Court in Boutilier, supra.

[20]      I have also considered the argument that the jurisdiction of the adjudicator may be dependent upon whether the discrimination claim was incidental to the interpretation of a clause in the collective agreement or whether the matter was directly related to stand alone discrimination as appears to have been the case in Mohammed and Chopra. This flows from the position that the CHRC does not have the authority to interpret and apply the provisions of the collective agreement.

[21]      There is little doubt that in the case at bar the subject matter of the grievance is sexual harassment as contained in Article 43. In Boutilier, there is little doubt that the entire substance of the grievance dealt with discrimination based on the denial of an employment benefit directly related to Mr. Boutilier's sexual orientation. It was held that the allegation of discrimination "underlies and forms the central and indeed the only issue in the grievance." In the case before me it is clear that the subject matter is sexual harassment which likewise forms the central and, indeed, the only issue in the grievance. Section 14 of the CHRA recognizes sexual harassment to be a prohibited ground of discrimination. As indicated previously, the Tribunal is also afforded broad remedial powers pursuant to subsection 53(2)of the CHRA.

[22]      The intervenor spent considerable time contrasting the procedures under the PSSRA regarding grievance adjudication with those under the CHRA to demonstrate that the CHRA does not offer redress in a labour relations context. In Chopra, supra, at page 460, Simpson J. held that "the differences in the procedures under the CHRA and the Master Agreement in terms of parties, public interest input and control of the process do not, in my view, detract from the fact that the applicant will receive redress under the CHRA." While it is likely that more extensive argument was provided in this case to demonstrate that the procedures were so dramatically different that they could not offer redress in a labour relations context, this was also considered in the decision in Boutilier. McGillis J. stated that the question of the length of time taken by the Commission and the Human Rights Tribunal respectively to deal with the complaint, or to conduct a hearing into a complaint, is an irrelevant consideration in determining whether the procedure in the CHRA constitutes "an administrative procedure for redress."

[23]      The intervenor does make a rather compelling argument that the "other" administrative procedure for redress should deal explicitly with violations of the collective agreement. It is contended that the process under the CHRA with respect to filing, processing and hearing of human rights complaints cannot represent an administrative procedure for redress respecting any grievance regarding the interpretation or application of a collective agreement. Once again, the intervenor makes a persuasive argument that the investigation of complaints under the CHRA, the consideration of the complaint by the CHRC, and the referral to a human rights tribunal stand in stark contrast to the referral of a grievance to adjudication under the PSSRA. In my opinion, the differences are striking and as agreed to by the respondent in argument, it is likely that the remedy under the CHRA may not be as effective as the remedy of an adjudicator under the PSSRA. However, the respondent contends that that is not the test.

[24]      It is clear that in both Mohammed and Boutilier the Court relied extensively on the decision of Byers Transport, supra. As indicated previously, this decision does not appear to have been brought to the attention of the Court in Chopra, supra. Byers Transport is significant to the outcome of both Mohammed and Boutilier.

[25]      Byers Transport concerned a case of unjust dismissal under the Canada Labour Code, section 240 (in Part III of the Code). The respondent was not a member of a union. The respondent filed a complaint under section 97 (in Part I) that the employer had committed an unfair labour practice in dismissing her for perceived union activities. Given the nature of the complaint and its filing, a question arose as to whether the adjudicator had jurisdiction to deal with the complaint in view of subsection 242(3.1) which prohibits an adjudicator from considering a complaint if the layoff was due to a lack of work or discontinuance of a function. Paragraph 242(3.1)(b) prohibits consideration of a complaint if a procedure for redress has been provided elsewhere under an Act of Parliament.

[26]      The adjudicator in Byers Transport did not consider this provision in his decision. On judicial review, the trial judge disagreed with the employer's argument that paragraph 242(3.1)(b) ousted the adjudicator's jurisdiction. In holding that subsection 94(3) offers the respondent another procedure for redress, the Court of Appeal stated, at page 379:

This analysis supports the view that where Parliament has established specialist tribunals, whether under the Canada Labour Code or elsewhere, to deal with certain aspects of employer-employee relationships, it should not be taken to have conferred concurrent jurisdiction on ad hoc adjudicators to deal with the same matter. In my view, the procedure in part III for the filing of complaints by non unionized employees for unjust dismissal, for hearing by an adjudicator, should be seen as a residual procedure intended to provide some redress where such redress was not otherwise available. It seems to me that that is the clear meaning of paragraph 242(3.1)(b).

[27]      It is contended by the applicants that in the decision at bar there is no other tribunal which can deal with a grievance alleging a breach of the collective agreement and as such the Canadian Human Rights Act does not provide an administrative procedure for redress within the meaning of the PSSRA. While the above paragraph from Byers Transport suggests that the findings in that case may not be as determinative of the central issue in these cases, there are obviously other passages in that decision which suggest otherwise.

[28]      As such, and on balance, I cannot find any principle, approach or precept that would cause me to find differently than the previous judges of this Court. It is my opinion that, where possible, like cases should be treated alike. This obviously should be a fundamental goal of the law.

[29]      Accordingly, the application for judicial review is dismissed.

                                 Howard I. Wetston

                            

                                     Judge

Ottawa, Ontario

January 11, 1999