Docket: A-363-14
Citation:
2015 FCA 105
|
CORAM:
|
NADON J.A.
DAWSON
J.A.
BOIVIN J.A.
|
|
BETWEEN:
|
|
NAVIN JOSHI
|
|
Appellant
|
|
and
|
|
CANADIAN
IMPERIAL BANK OF COMMERCE
|
|
Respondent
|
REASONS
FOR JUDGMENT
BOIVIN J.A.
[1]
This is an appeal from a decision of Mr. Justice
Russell of the Federal Court (the judge) dated July 21, 2014 (2014 FC 722). The
judge dismissed Mr. Navin Joshi’s (the appellant) application for judicial
review of a decision of an adjudicator appointed under the Canada Labour
Code, R.S.C. 1985, c. L-2 (the Code) dismissing the appellant’s complaint
of unjust dismissal on the basis that the adjudicator had no jurisdiction to consider
the complaint.
[2]
More specifically, the adjudicator considered
that paragraph 242(3.1)(b) of the Code barred him from hearing the
complaint because the Canadian Human Rights Act, R.S.C. 1985, c. H-6
(the Act) provided another statutory procedure for redress. The adjudicator also
found that the stay of the appellant’s unjust dismissal complaint, to which the
appellant had agreed, remained in effect.
[3]
On May 31, 2006, the respondent hired the
appellant under a program for persons with disabilities. The appellant’s
employment was terminated on April 8, 2010. He filed the unjust dismissal
complaint at issue under the Code on May 14, 2010 as well as a complaint
alleging discrimination on the basis of disability under the Act on June 24,
2010.
[4]
An adjudicator was appointed under the Code to
hear the unjust dismissal complaint. The respondent took the position that
paragraph 242(3.1)(b) ousted the adjudicator’s jurisdiction. That
paragraph states the following:
|
242. (3.1) No complaint shall be
considered by an adjudicator under subsection (3) in respect of a person
where
…
(b) a
procedure for redress has been provided elsewhere in or under this or any
other Act of Parliament.
|
242. (3.1) L’arbitre ne peut procéder à
l’instruction de la plainte dans l’un ou l’autre des cas suivants :
[…]
b) la présente loi ou une autre loi fédérale prévoit un autre
recours.
|
[5]
A hearing on that preliminary issue was
scheduled for June 10, 2011. However, on the eve of the hearing, in emails
between the appellant and respondent on June 8 and 9, 2011, the parties reached
an agreement that stayed the unjust dismissal complaint. The appellant agreed
that the adjudicator did not have jurisdiction to hear the complaint unless the
Canadian Human Rights Commission (the Commission) referred it back to the
adjudicator pursuant to paragraph 41(1)(b) or 44(2)(b) of the Act
(Email correspondence, appeal book, tab 5 at pages 122, 125-127 and 128).
[6]
The hearing with respect to the unjust dismissal
complaint was accordingly stayed, and the discrimination complaint under the
Act proceeded before the Commission.
[7]
The Commission’s investigator recommended in the
Section 40/41 Report that the Commission apply paragraph 41(1)(b) of the
Act and decline to hear the complaint, as it was best dealt with under the Code.
However, the appellant disagreed, and both parties made submissions asking the
Commission to proceed with the complaint. The Commission acceded to these
requests and conducted an investigation. An investigator recommended to the
Commission in a report that the evidence did not support the appellant’s
allegations that he was discriminated against in the termination of his
employment (Investigation Report, Commission, appeal book, tab 5 at pages
189-203). The Commission accepted the recommendation and therefore dismissed
the discrimination complaint on October 31, 2011 (Decision of the Commission,
appeal book, Tab 5 at pages 230-231).
[8]
Unsatisfied with the Commission’s decision, the
appellant sought to re-activate his unjust dismissal complaint under the Code.
The former adjudicator having resigned his appointment, another adjudicator was
appointed. The respondent objected to the re-activation of the unjust dismissal
complaint on the grounds that the adjudicator had no jurisdiction to hear this
complaint as the stay between the parties remained in effect because the
Commission had not referred the matter back to adjudication under paragraph
41(1)(b) or 44(2)(b) of the Act. In addition, and in any event,
the respondent maintained its original position that paragraph 242(3.1)(b)
of the Code barred the adjudicator from hearing the complaint.
[9]
On August 1, 2013, the adjudicator held that he
indeed did not have jurisdiction to consider the unjust dismissal complaint,
under both lines of argument advanced by the respondent (adjudicator’s reasons,
appeal book, Tab 5, p. 271 at para. 50). He found (i) that there was a stay
agreement between the parties and (ii) that paragraph 242(3.1)(b) of the
Code ousted his jurisdiction. This legal holding was based on his factual
conclusion that the complaint before the Commission was substantially similar
to that before him, as per MacFarlane v. Day & Ross Inc., 2010 FC
556, [2011] 4 F.C.R. 117 [MacFarlane] (adjudicator’s reasons
at paras. 44-48).
[10]
The judge upheld the adjudicator’s conclusions
regarding his lack of jurisdiction.
[11]
In this appeal, the appellant raises a number of
questions. In my opinion, they can be distilled into two issues:
1)
In light of paragraph 242(3.1)(b) of the
Code and the circumstances, did the adjudicator have jurisdiction to consider
the appellant’s unjust dismissal complaint?
2)
Does the record disclose any breach of
procedural fairness?
[12]
On appeal from an application for judicial
review, our Court must determine whether the judge appropriately identified and
properly applied the standard of review to each of the issues before him (Agraira
v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2
S.C.R. 559 at paras. 45-47).
[13]
I am of the view that the judge identified the
proper standard for each issue.
[14]
The judge determined that correctness was the
standard to be applied to the adjudicator’s jurisdictional determinations under
paragraph 242(3.1)(b) of the Code, as a matter of true jurisdiction,
following the decision of the Federal Court in MacFarlane (judge’s
reasons at para. 27). He noted that correctness equally applies to any
questions arising as to procedural fairness, as per Mission Institution v.
Khela, [2014] 1 S.C.R. 502, [2014] S.C.J. No. 24 at para. 79 (judge’s
reasons at para. 31). The judge also followed MacFarlane to find that an
adjudicator’s determination of the substantially similar nature of complaints
is essentially factual, and hence should be reviewed upon a reasonableness
standard (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
para. 47).
[15]
Before our Court, the appellant contends that
the adjudicator and the judge committed a number of factual and legal errors.
In particular, the appellant argues that the adjudicator could not consider the
agreement as it defeats the purpose of the Code and that a question of
jurisdiction could not prevent the adjudicator from hearing the case. With
respect, I do not agree.
[16]
In the circumstance of this case, the
adjudicator did not err in applying the agreement to decline jurisdiction. The
terms of the agreement are clear and moreover tailored to the legal framework
established in MacFarlane. The appellant agreed that he did not wish to
proceed with his claim for unjust dismissal unless the Commission, after its
investigation, referred the matter to the adjudicator. By agreeing that there
should be no duplicity in seeking redress, the appellant acknowledged that his
complaint under the Code and to the Commission were substantially similar
(Email correspondence, appeal book, Tab 5 at pages 131-133). I therefore reject
the appellant’s argument that he was “contracted out of
the Code”.
[17]
The adjudicator was also correct to find that a
question of jurisdiction under paragraph 242(3.1)(b) of the Code
prevented him from hearing the case and determining the procedure to be
followed pursuant to paragraph 242(2)(b). In the case at bar, and
contrary to the facts in MacFarlane, the Commission dealt with the merits
of the complaint and exercised its jurisdiction. Hence, the Commission’s
decision to dismiss the discrimination complaint can in no way be considered a
referral under sections 41(1)(b) or 41(2)(b) of the Act. In
light of the law as established in MacFarlane – by which the adjudicator
was bound – he had no legal option but to decline jurisdiction.
[18]
I am of the view that the judge rendered a
thorough and well-reasoned decision. He did not err in finding that the
adjudicator correctly applied MacFarlane nor in concluding that the
adjudicator reasonably found that the discrimination complaint before the
Commission and the unjust dismissal complaint before him were substantially
similar (judge’s reasons at paras. 57-58).
[19]
I also agree with the judge that the record
before him did not disclose any breaches of natural justice or procedural
fairness. Similarly, these repeated allegations from the appellant before this
Court are unsubstantiated, as are the appellant’s bald assertions of bias. It
is recalled that claims of bias are extremely serious and should not be made in
the absence of evidence. The appellant’s arguments in that regard are without
merit.
[20]
In conclusion, the judge did not err in his
application of the standards of review and I see no basis that would have
justified setting aside the adjudicator’s decision.
[21]
For the above reasons, the appeal should be
dismissed with costs.
“Richard Boivin”
“I agree
M. Nadon J.A.”
“I agree
Eleanor R. Dawson J.A.”
Email this Content