BETWEEN:
and
Heard at Ottawa, Ontario, on May 1, 2007.
Judgment delivered at Ottawa, Ontario, on May 7, 2007.
REASONS FOR JUDGMENT BY: LINDEN J.A.
CONCURRED IN BY: SEXTON J.A.
MALONE J.A.
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
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. |
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. |
[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.
“I agree
J. Edgar Sexton J.A.”
“I agree
B. Malone J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-394-06
APPEAL FROM A JUDGMENT OF THE FEDERAL COURT DATED AUGUST 18, 2006, DOCKET NO. T-249-05
STYLE OF CAUSE: HOUSE OF COMMONS v. RACHEL DUPÉRÉ
PLACE OF HEARING: Ottawa, Ontario
REASONS FOR JUDGMENT BY: LINDEN J.A.
MALONE J.A.
APPEARANCES:
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FOR THE APPELLANT
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Andrew Astritis |
FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Office of the Law Clerk and Parliamentary Counsel Ottawa, Ontario |
FOR THE APPELLANT
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Raven, Cameron, Ballantyne & Yazbeck LLP Ottawa, Ontario |
FOR THE RESPONDENT
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