JUDGMENT AND REASONS

I. Overview

[1] Ms Tina Shih alleges that she experienced discrimination on the basis of sex and race while employed at Global Affairs Canada. The Canadian Human Rights Commission decided not to deal with her complaint because she had not exhausted the remedies available to her through her union, citing ss 41(1)(a) and 42(2) of the Canadian Human Rights Act, RSC 1985, c H-6 (see Annex for provisions cited). The grievance process is no longer available to Ms Shih because the 25-day deadline to file a grievance under her collective bargaining agreement has passed.

[2] Ms Shih argues that the Commission’s decision was unreasonable because it stated that she should have filed a grievance with her union “immediately,” a statement for which there was no legal basis. Further, she submits that the Commission unreasonably attributed delays to her rather than to her union, and discounted the efforts she had made to pursue a grievance. Finally, Ms Shih claims that the Commission treated her unfairly. She asks me to quash the Commission's decision and order it to reconsider her complaint.

[3] I can find no basis for overturning the Commission's decision. Its decision not to deal with Ms Shih’s complaint was not unreasonable in the circumstances. She had an opportunity to file a grievance with her union and failed to do so. I must, therefore, dismiss this application for judicial review.

II. Background

[4] In 2019, Ms Shih occupied the position of Senior Advisor to the Director General for Innovation, Investment and Education at Global Affairs Canada. She alleges that she was given fewer resources than her predecessor, which limited her ability to succeed and advance in her position. She specified that the discrimination took place between September 1, 2019, and August 20, 2020.

[5] In June 2020, Ms Shih contacted the Commission for information about lodging a complaint, but she did not actually file one. A few months later, in September 2020, the Commission contacted her to ask if she had access to a grievance mechanism with her union. Ms Shih informed the Commission that she was a member of the Professional Institute of the Public Service of Canada [PIPSC], but she had not yet filed a grievance. The Commission then advised Ms Shih that it may refuse to deal with her complaint unless she exhausted her remedies under the grievance process. The Commission encouraged her to contact the union.

[6] On September 29, 2020, Ms Shih contacted PIPSC and a union representative suggested that she should also reach out to the Canadian Association of Professional Employees [CAPE] and the Professional Association of Foreign Service Officers [PAFSO] to confirm which group she belonged to. Her membership in either group depended on whether she was acting at an “FS” or “EC” classification level in her position. Six months later, on March 31, 2021, Ms Shih contacted a CAPE representative, who said they would get back to her. On April 28, 2021, Global Affairs Canada sent Ms Shih a letter informing her that her position was classified as an “EC-07.”

[7] On May 6, 2021, the CAPE representative told Ms Shih that she could not file a grievance because the 25-day deadline under the collective bargaining agreement had expired. The time began to run from August 17, 2020, the date of Ms Shih’s last assignment. The representative suggested that Ms Shih file a complaint with the Commission. She did so in June 2021. The Commission rendered its decision on January 26, 2024.

III. Was the Commission’s Decision Unreasonable?

[8] The Commission concluded that it would not deal with Ms Shih’s complaint because she should have exhausted the grievance procedure that was reasonably available to her (s 41(1)(a)). In addition, the failure to have recourse to that procedure was attributable to Ms Shih (s 42(2)). In particular, the Commission found that Ms Shih had failed to explain why she did not contact PAFSO and CAPE immediately after speaking with PIPSC in September 2020. The Commission rejected Ms Shih’s argument that she could not have filed a grievance until she received the April 2021 letter from Global Affairs Canada identifying her job classification.

[9] Ms Shih contends that the Commission’s decision was unreasonable on the basis of three errors. First, she argues that the Commission wrongly decided that she had a duty to contact her union “immediately” after her conversation with a PIPSC representative. Second, she submits that she was prevented from making a timely grievance because of the improper guidance she received from her union representatives; they were responsible for the delay, not her. Third, Ms Shih contends that the Commission failed to take account of her efforts to initiate a grievance with her union.

[10] I disagree with Ms Shih’s submissions. The grievance procedure was reasonably available to her and there was nothing preventing her from resorting to it before making a complaint to the Commission.

[11] On September 29, 2020, a PIPSC representative informed Ms Shih that she needed to contact CAPE and PAFSO as there was some confusion about which bargaining unit she belonged to. She did not do so until March 31, 2021. The Commission noted that Ms Shih had not explained why she did not contact her union “immediately” after that conversation. However, I do not interpret the Commission’s comment as imposing a duty on union members to file grievances “immediately.” The Commission was aware of the 25-day deadline for filing grievances; it could not substitute its own deadline. On a fair reading of the decision, the Commission essentially found that a reasonably diligent complainant would have contacted their union soon after being informed of the need to identify the appropriate bargaining unit, not six months later. Ms Shih had not offered an explanation for that delay.

[12] Ms Shih argues that she did not receive a definitive response from her union until May 2021 and, therefore, that the union was primarily responsible for her inability to access the grievance process. But that delay was a product of Ms Shih’s failure to contact her union between September 2020 and March 2021. Ms Shih’s failure to exhaust the grievance procedure was not attributable to the union. Ms Shih refers to the Commission’s guidelines on the factors relevant to a decision under ss 41(1)(a) and 42(2) and points out that the Commission is meant to consider whether the complainant was “solely” responsible for the failure to seek an alternative recourse, such as the grievance process. While that factor is cited in the guidelines, there are numerous other factors that are mentioned, including the nature of the other recourse, the remedies available, and the complainant’s knowledge of the other available options. In any case, the guidelines do not supplant the statutory test, which is simply whether “the failure to exhaust the procedure was attributable to the complainant and not to another” (s 42(2)).

[13] Ms Shih also argued that the Commission erred by assuming that she could have filed a grievance after her conversation with the PIPSC representative on September 29, 2020. She had identified August 20, 2020, as the date on which her employer’s alleged discriminatory treatment had ended. Therefore, the 25-day deadline for filing a grievance had already passed by September 29, 2020. Accordingly, even if Ms Shih had filed a grievance “immediately” after that date, as the Commission suggested she could have, she would have already been out of time.

[14] I am not persuaded by this argument. There was nothing preventing Ms Shih from filing a grievance within the 25 days after August 20, 2020. The Commission alluded to this possibility when it noted that Ms Shih could have contacted the unions sooner to clarify which one she belonged to. In fact, Ms Shih could have explored her remedies at any time during the period of alleged discrimination. She referred to numerous potentially discriminatory events between August 2019 and July 2020, any one of which could have been the subject of a grievance. Ms Shih has not explained why she waited until 2021 to seriously explore her remedies.

[15] The details of Ms Shih’s efforts to file a grievance were set out in the report on which the Commission based its decision. While Ms Shih alluded to other steps she had taken – some emails and phone calls, for example – she did not provide the Commission any details about them. I cannot see any relevant evidence the Commission overlooked.

[16] I cannot find that the Commission’s refusal to deal with Ms Shih’s complaint was unreasonable.

IV. Did the Commission Treat Ms Shih Unfairly?

[17] Ms Shih makes a general submission that the Commission treated her unfairly, but has not identified any specific procedural lapses on the Commission's part. Ms Shih received a copy of the Commission's investigative report, made submissions in response to the report, and the Commission considered her submissions.

[18] I see no unfairness in how the Commission treated Ms Shih.

V. Conclusion and Disposition

[19] The Commission’s decision not to deal with Ms Shih’s complaint was not unreasonable given that another remedy by way of a grievance with her union was reasonably available to her. I must, therefore, dismiss this application for judicial review, with costs to the respondent in the amount of $1,000.

[20] At the request of the respondent Attorney General of Canada, the style of cause will be amended to remove Global Affairs Canada as a party and leave only the Attorney General of Canada as a respondent.

JUDGMENT IN T-413-24

THIS COURT’S JUDGMENT is that:

1. The application for judicial review is dismissed, with costs to the respondent in the amount of $1,000.

2. The style of cause is amended to name the Attorney General of Canada as the sole respondent.

ANNEX

FEDERAL COURT

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