Date: 20070507
Docket: A-394-06
Citation: 2007 FCA 180
CORAM: LINDEN J.A.
SEXTON
J.A.
MALONE
J.A.
BETWEEN:
HOUSE OF COMMONS
Appellant
and
RACHEL DUPÉRÉ
Respondent
REASONS FOR JUDGMENT
LINDEN J.A.
Introduction
[1]
The main issue in this appeal is whether the
Canadian Human Rights Commission (the “Commission”) has jurisdiction to
consider a human rights complaint by Rachel Dupéré against her employer, the
House of Commons, or whether its jurisdiction has been ousted by the Parliamentary
Employment and Staff Relations Act, R.S.C. 1985, c. 33 (2nd
Supp.) (“PESRA”).
[2]
Ms. Dupéré has been employed with the House of
Commons since December of 2001 as a Scanner Operator. She became pregnant in
the fall of 2002 and was advised by her doctor that she should not work with
X-ray machines during the course her pregnancy. She provided her supervisor
with two doctor’s letters to that effect, and, at the same time, requested what
she believed to be reasonable accommodation. Her supervisor concluded that no
accommodation was possible, and sent Ms. Dupéré home on sick leave, then on
leave without pay until her maternity benefits could be claimed. While on
leave without pay, Ms. Dupéré learned that her contract with the House of
Commons had been cancelled upon its expiry in December of 2002. She contacted
her employer, and her contract was immediately renewed until the end of her
maternity and parental leave. Ms. Dupéré returned to work on November 24,
2003.
[3]
Although Ms. Dupéré had a legal right to file a
grievance under section 62 of PESRA, she chose not to do so. Instead, she
filed a complaint with the Commission, alleging that the House of Commons
failed to accommodate her during her pregnancy, and in doing so, discriminated
against her on the basis of sex contrary to section 7 of the Canadian Human
Rights Act, R.S.C. 1985, c. H-6 (“CHRA”). The Commission dismissed Ms.
Dupéré’s complaint because it was filed more than a year after the alleged
discriminatory acts occurred. On judicial review, the applications judge held
that the Commission had jurisdiction over the complaint, and that its decision
not to hear the complaint for lack of timeliness was patently unreasonable
(Judgment dated August 18, 2006 and reported as 2006 FC 997). This is an
appeal of that decision.
Analysis
[4]
In my view, the Commission’s jurisdiction to
decide the complaint is ousted by virtue of the fact that the subject matter of
Ms. Dupéré’s complaint should be dealt with under PESRA. The standard of
review on this legal issue was rightly agreed to be correctness and the
decision being appealed was incorrect.
[5]
PESRA applies to all persons employed in
Parliamentary service, including Ms. Dupéré (s. 2). Its purpose is to provide
“collective bargaining and other rights” in respect of employment (s. 5).
Section 2 of PESRA indicates that, where other federal legislation deals with
“matters similar to those provided for under [PESRA]”, PESRA applies. It reads
as follows:
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2. Subject to this Act, this Act applies to
and in respect of every person employed by, and applies to and in respect of,
(a)
the Senate, House of Commons, Library of Parliament, office of the Senate
Ethics Officer or office of the Ethics Commissioner, and
(b)
a Member of Parliament who, in that capacity, employs that person or has the
direction or control of staff employed to provide research or associated
services to the caucus members of a political party represented in
Parliament,
and, except as provided
in this Act, nothing in any other Act of Parliament that provides for matters
similar to those provided for under this Act and nothing done thereunder,
whether before or after the coming into force of this section, shall apply to
or in respect of or have any force or effect in relation to the institutions
and persons described in this section.
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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.
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[6]
In Canada (House of Commons) v. Vaid, [2005]
1 S.C.R. 667, the Supreme Court of Canada applied the “matters similar” test to
a comparable fact situation, and found that because the employee’s complaint
fell within PESRA’s system of redress, the Commission’s jurisdiction to
consider the complaint was ousted. Justice Binnie explained (at paragraph 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).
[Emphasis added]
[7]
As in Vaid, Ms Dupéré’s alleged human
rights violation is grievable under section 62 of PESRA. In that procedure,
the human rights jurisprudence must be taken into account. Thus, since it
would appear that Ms. Dupéré’s complaint under the CHRA is a “matter similar”
to a grievance presented under section 62 of PESRA, prima facie PESRA
prevails. To allow the Commission jurisdiction to deal with a complaint such as
this would permit parallel processes for the dispute, a result which Parliament
has purposely intended to avoid by virtue of section 2 of PESRA.
[8]
Having said that, there are at least three
exceptions so far recognized to the “matters similar” test, where it would be
virtually impossible for an employee’s complaint to be dealt with fairly under
the grievance process. In each of these situations, Parliament could not have
intended that an employee’s complaint be within the exclusive jurisdiction of
PESRA.
[9]
The first exception, identified in Vaid, is
where an employee makes an allegation of systemic discrimination (paragraph
98). This is obviously a matter so complex and hostile to the
government agency whose actions are being investigated as to require an
independent human rights review.
[10]
The second exception is where an employee
alleges that a provision of a collective agreement itself violates the CHRA. In
this case, the employee’s union would likely be opposed in interest to the
employee, having been involved in the negotiation of the alleged discriminatory
agreement and interested in defending it. If the union chose not to represent
the employee in the grievance process, then the employee would be left with no
recourse (see s. 62(2) of PESRA). This could not be allowed. This exception
was highlighted in Quebec (Commission des droits de la personne et des
droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R.
185, a decision concerning the Quebec Labour Code, R.S.Q., c. C-27. The
grievance process in that statute is sufficiently similar to that in PESRA for
me to conclude that it would be applied in PESRA situations as well.
[11]
The third exception, identified in Vaughan v.
Canada, [2005] 1 S.C.R. 146, also a case dealing with another statute, is the
case of the “whistle-blower”, which raises serious questions of conflict of
interest within the employer department. In these cases, it would be
inappropriate to require an employee to grieve internally and without access to
independent third party adjudication (paragraph 23).
[12]
Is this a case where one of those three
exceptions would apply? In my view, it is not. Ms. Dupéré’s complaint falls
squarely within the employment context. The alleged human rights violations
arose from the employment relationship between Ms. Dupéré and her supervisor at
the House of Commons. While the complaint raises a human rights issue, failure
to accommodate, it also involves a dispute over employment benefits, including
sick leave and unpaid/paid leave. There is also no indication that the
collective agreement is impugned, nor is there any evidence of systemic
discrimination or a serious conflict of interest which would render the
grievance process ineffective for Ms. Dupéré.
[13]
Counsel for Ms. Dupéré, Mr. Raven, argues that,
unlike the employee in Vaid, Ms. Dupéré’s complaint, though grievable,
is not adjudicable under PESRA. This is significant because the Supreme Court
in Vaid held that PESRA ousts the jurisdiction of the CHRA only if the
procedure set out in PESRA provides a grievor with “substantive relief”. While
Justice Binnie did not say what was meant by “substantive relief”, it is
contended by Mr. Raven, that this must include access to independent third party
adjudication under the grievance process. He also suggests that where, as
here, access to independent third party adjudication is unavailable, this would
be an exceptional circumstance where it would be impossible for Ms. Dupéré’s to
obtain substantive relief under PESRA, and where it can be said that the CHRA
does not engage “matters similar” to that under PESRA.
[14]
I am unable to accept that argument. Though
Justice Binnie did not discuss the availability of third party adjudication and
its impact on an employee’s ability to obtain substantive relief in the
grievance process, he did comment on the differences in the processes provided
for under PESRA and the CHRA. He stated, at paragraph 96:
…Parliament has provided in PESRA how it intends its
staff employment grievances to be dealt with. Under our jurisprudence,
Parliament is entitled to have that assignment of jurisdiction respected. …
Justice Binnie’s
comments imply that deference should be afforded to Parliament’s legislated
schemes for dealing with employee grievances, whether or not they provide a
grievor with full access to independent third party adjudication.
[15]
This same sentiment was echoed by Justice Binnie
in Vaughan, approximately two months before the decision in Vaid was
rendered. In Vaughan,
a federal public servant initiated an action
against the Crown in the Federal Court, instead of filing a grievance under the
Public Service Staff Relations Act (“PSSRA”). The public servant
argued that his grievance was not arbitrable under PSSRA, so that the court’s
jurisdiction in respect of the grievable matter should not be ousted. The
Supreme Court disagreed, finding that courts should generally decline to get
involved in grievable matters under PSSRA, except on the limited basis of
judicial review. Justice Binnie explained (at paragraphs 17 and 39):
17
…I do not agree that the absence of “recourse to independent
adjudication” is of itself a sufficient reason for the courts to get involved.
[…]
39 … where Parliament has clearly created a scheme for
dealing with labour disputes, as it has done in this case, courts should not
jeopardize the comprehensive dispute resolution process contained in the
legislation by permitting routine access to the courts. While the absence of
independent third-party adjudication may in certain circumstances impact on the
court’s exercise of its residual discretion (as in the whistle-blower cases)
the general rule of deference in matters arising out of labour relations should
prevail.
While Vaughan was
about access to the courts, and not a competing administrative process, I am
satisfied, despite a forceful argument by Mr. Raven to the contrary, that its
holding is not sufficiently distinguishable from this case. As here, Vaughan was,
broadly speaking, about two different institutions with potential adjudicative
capacity to consider an employee grievance.
[16]
What the decisions of Vaughan and Vaid
tell us is that the process Parliament has chosen for dealing with employee
grievances must be respected unless, as already discussed, the employee’s
complaint falls within one of those exceptional circumstances in which it would
be virtually impossible for the employee to obtain substantive relief through
that process. The fact that third party adjudication is unavailable to an
employee who engages the grievance process does not, in my view, mean that the
employee is without substantive redress. An employee’s complaint is still
fully dealt with under the grievance process, which must take into account all
the applicable human rights norms.
[17]
Moreover, although third party adjudication is
not available, the final decision under the PESRA process is judicially
reviewable with the relevant human rights issues likely being reviewed on a
correctness basis. Accordingly, lack of access to third party adjudication in
this situation is not one of those exceptional circumstances in which the
CHRA’s jurisdiction is not ousted by the PESRA.
[18]
For these reasons, it is my view that the
Commission lacks jurisdiction to entertain Ms. Dupéré’s human rights complaint.
[19]
As this finding disposes of the appeal, I need
not consider other issues raised by counsel dealing with timeliness and reasons
for the decision.
[20]
Counsel for the House of Commons, Mr. Chaplin, at
the end of his oral presentation, has graciously undertaken to permit the PESRA
grievance process to proceed in this matter without any objection to the matter
of the limitation period having expired.
[21]
I would
allow the appeal with costs, set aside the decision of the Motions Judge and restore
the decision of the Commission, but for these different reasons.
“A.
M. Linden”
“I
agree
J.
Edgar Sexton J.A.”
“I
agree
B.
Malone J.A.”
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