Judgments

[2000] 3 F.C. 27

A-405-98

Joan Mohammed (Appellant)

v.

Her Majesty the Queen in Right of Canada as Represented by Treasury Board (Respondent)

A-724-98

Ross Robert Boutilier (Appellant)

v.

Attorney General of Canada (Respondent)

and

Public Service Staff Relations Board (Intervener)

A-56-99

Rose O’Hagan, Susan Field, Janice Nachtegaele and Edith Nelson (Appellants)

and

Attorney General of Canada (Solicitor General— Correctional Service of Canada) (Respondent)

Indexed as: Canada (Attorney General) v. Boutilier (C.A.)

Court of Appeal, Stone, Linden and Sexton JJ.A.— Ottawa, November 9, 10 and December 2, 1999.

Public Service — Jurisdiction — PSSRB — Appeals from F.C.T.D. judgments holding adjudicators lacking jurisdiction to decide human rights dispute arising under collective agreement — PSSRA, s. 91 conferring right to grieve interpretation, application of statute dealing with terms, conditions of employment in respect of which “no administrative procedure for redress” provided in Act of Parliament — F.C.A., F.C.T.D. consistently holding language used in s. 91 indicating Parliament intending to remove from normal grievance procedures under PSSRA certain specialized areas — Interpretation supported by French version — Also, statutory bar in s. 91 not unilaterally imposed as master collective agreement denying access to usual grievance procedure where another administrative procedure provided by Act of Parliament — In federal labour matters, if another administrative procedure available to grievor, must be used as long as “real” remedy — Need not be equivalent or better remedy provided dealing meaningfully, effectively with substance of grievance — Possible delay in securing redress not significant unless so pronounced as to amount to no real remedy — Differences in administrative remedy not changing it into non-remedy — Most jurisdictional matters resolved by adjudicator before commencement of grievance proceedings, but unavoidable effect of language of s. 91 that human rights issue may arise during hearing causing loss of jurisdiction — Parties should attempt to determine in advance whether human rights issues involved and act accordingly.

Human Rights — Appeals from F.C.T.D. judgments holding adjudicators lacking jurisdiction to decide human rights disputes arising under collective agreements — PSSRA, s. 91 conferring right to grieve interpretation, application of statute dealing with terms, conditions of employment in respect of which “no administrative procedure for redress” provided in Act of Parliament — Courts consistently holding Parliament, by language used in s. 91, intending to remove from certain specialized areas grievance procedures under PSSRA — In federal labour matters, if another administrative procedure available to grievor, process must be used, provided “real” remedy — Gives primacy in dispute resolution to human rights administration, other expert administrative schemes, where expertise, consistency favoured by Parliament, over decisions by ad hoc adjudicators — Up to Human Rights Commission to send matters to arbitration pursuant to CHRA, s. 41 if appropriate.

These were appeals from Trial Division judgments holding that the adjudicators in each case did not have jurisdiction to decide disputes relating to human rights that arose under the collective agreements. Public Service Staff Relations Act (PSSRA), section 91 confers the right to grieve on an employee who feels aggrieved by the interpretation or application of a statute dealing with terms and conditions of employment in respect of which “no administrative procedure for redress” is provided in or under an Act of Parliament.

In the Mohammed case, the Adjudicator decided that he lacked jurisdiction to consider a grievance involving harassment based upon religion, race and colour relying upon an article of the master agreement because the Canadian Human Rights Act set out an administrative procedure for redress. The Trial Division Judge agreed. In the Boutilier case the Adjudicator decided in favour of the appellant who grieved that he was denied the benefit of a five-day marriage leave provision in his collective agreement because his same-sex commitment ceremony was not a “marriage” as intended in the agreement. The Adjudicator’s decision was quashed by the Trial Division Judge, who held that the Adjudicator lacked jurisdiction because of subsection 91(1). In O’Hagan, the Adjudicator decided that he had no jurisdiction to decide the grievances of several nurses who alleged sexual harassment, relying upon an article of their collective agreement prohibiting sexual harassment. The Adjudicator decided that he lacked jurisdiction, and the Trial Division Judge agreed.

The issue was whether there is a statutory bar to the exercise of an adjudicator’s jurisdiction to decide a dispute relating to human rights by virtue of the words “administrative procedure for redress” contained in PSSRA, section 91.

Held, the appeals should be dismissed.

The Federal Court of Appeal and the Trial Division have consistently held that Parliament, by the language used in section 91, intended to remove from the normal grievance procedures under the PSSRA certain specialized areas which it was thought should be dealt with under the administrative process set out in the legislation governing those particular areas. This interpretation is supported by the French language version of section 91. Furthermore, the statutory bar contained in subsection 91(1) was not imposed unilaterally since it was agreed to by the representative of the public service employees in the master collective agreement which includes a provision denying access to the usual grievance procedure “where there is another administrative procedure provided by or under any Act of Parliament to deal with the employee’s specific complaint.”

In federal labour matters, if another administrative procedure is available to a grievor, that process must be used, as long as it is a “real” remedy. It need not be an equivalent or better remedy as long as it deals “meaningfully and effectively with the substance of the employee’s grievance”. Possible delay in securing redress administratively itself is not significant, unless it is so pronounced that it can be said that no real remedy is available to the grievor at all. Differences in the administrative remedy, even if it is a “lesser remedy”, do not change it into a non-remedy.

This principle does not prevent unions from bargaining for rights beyond the Human Rights Code area for a grievor can go to arbitration as long as no remedy is available at the Human Rights Commission to vindicate these new rights. This result gives primacy in dispute resolution to the human rights administration, as well as other expert administrative schemes, where expertise and consistency is plainly favoured by Parliament, rather than decisions of ad hoc adjudicators. The PSSRA is different than most labour codes under which arbitration is made the exclusive remedy. It is up to the Human Rights Commission to send matters to arbitration pursuant to section 41 if, in its discretion, it feels it appropriate. Any other interpretation would render the words in subsection 91(1) meaningless. Hopefully, most of these jurisdictional matters can be resolved by the adjudicator before the commencement of the grievance proceedings, but it is the unavoidable effect of the language of section 91 that a human rights issue may arise during a hearing causing a loss of jurisdiction. The parties must do their best to determine in advance whether human rights issues are involved and, if they are, act accordingly.

Although the method chosen by Parliament to resolve a human rights dispute in a collective agreement situation may seem complex, costly and time-consuming, the Court will honour that legislative choice until Parliament changes its legislation.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canada Labour Code, R.S.C., 1985, c. L-2, s. 242(3.1)(b) (as enacted by R.S.C., 1985 (1st Supp.), c. 9, s. 16).

Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 41(1) (as am. by S.C. 1995, c. 44, s. 49).

Public Service Employment Act, R.S.C., 1985, c. P-33.

Public Service Staff Relations Act, R.S.C., 1985, c. P-35, ss. 91, 99 (as am. by S.C. 1992, c. 54, s. 72).

CASES JUDICIALLY CONSIDERED

APPLIED:

Byers Transport Ltd. v. Kosanovich, [1995] 3 F.C. 354 (1995), 126 D.L.R. (4th) 679; 95 CLLC 210-045; 185 N.R. 107 (C.A.); Chopra v. Canada (Treasury Board), [1995] 3 F.C. 445 (1995), 100 F.T.R. 226 (T.D.).

CONSIDERED:

Cooper (In re), [1974] 2 F.C. 407 (1974), 50 D.L.R. (3d) 294; 5 N.R. 373 (C.A.).

REFERRED TO:

Sagkeeng Alcohol Rehab Centre Inc. v. Abraham, [1994] 3 F.C. 449 [1995] 1 C.N.L.R. 184; (1994), 79 F.T.R. 53 (T.D.); Vriend v. Alberta, [1998] 1 S.C.R. 493; (1998), 156 D.L.R. (4th) 385; Rosenberg v. Canada (Attorney General) (1998), 38 O.R. (3d) 577; 156 D.L.R. (4th) 664 (C.A.); Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre), [1996] 2 S.C.R. 3; (1996), 134 D.L.R. (4th) 1; 39 Admin. L.R. (2d) 1; 196 N.R. 212; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; (1995), 125 D.L.R. (4th) 583; 30 Admin. L.R. (2d) 1; 12 C.C.E.L. (2d) 1; 24 C.C.L.T. (2d) 217; 30 C.R.R. (2d) 1; 183 N.R. 241; 82 O.A.C. 321; Canada Post Crop. v. Canada (Canadian Human Rights Commission), [1999] F.C.J. No. 705 (C.A.) (QL).

AUTHORS CITED

Canada. Special Joint Committee of the Senate and of the House of Commons on Employer-Employee Relations in the Public Service, Minutes of Proceedings and Evidence, Ottawa: Queen’s Printer, 1966.

APPEAL from F.C.T.D. judgments holding that adjudicators did not have jurisdiction to decide disputes relating to human rights arising under a collective agreement (Canada (Attorney General) v. Boutilier, [1999] 1 F.C. 459 (1998), 154 F.T.R. 40 (T.D.); revg Boutilier and Treasury Board (Natural Resources), [1997] C.P.S.S.R.B. No. 54 (QL); Mohammed v. Canada (Treasury Board) (1998), 148 F.T.R. 260 (F.C.T.D.); affg Mohammed and Treasury Board (Immigration and Refugee Board), [1997] C.P.S.S.R.B. No. 49 (QL); O’Hagan v. Canada (Attorney General) (1999), 162 F.T.R. 15 (F.C.T.D.); affg O’Hagan and Treasury Board (Solicitor General — Correctional Service Canada), [1995] C.P.S.S.R.B. No. 104 (QL)). Appeals dismissed.

APPEARANCES:

Andrew J. Raven for appellant in A-405-98.

Dougald E. Brown and Pamela J. MacEachern for appellants in A-724-98 and A-56-99.

Harvey A. Newman and Micheline Langlois for respondent.

Steven R. Chaplin for intervener (Public Service Staff Relations Board) in A-724-98.

SOLICITORS OF RECORD:

Raven, Allen, Cameron & Ballantyne, Ottawa, for appellant in A-405-98.

Nelligan. Power, Ottawa, for appellants in A-724-98 and A-56-99.

Deputy Attorney General of Canada for respondent.

Chaplin Law Offices, Ottawa, for intervener (Public Service Staff Relations Board) in A-724-98.

The following are the reasons for judgment rendered in English by

[1]        Linden J.A.: The issue in these three appeals is substantially the same: whether an adjudicator appointed under the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 (PSSRA) has jurisdiction to decide a dispute relating to human rights that arises under a collective agreement protecting them, or is there a statutory bar to the exercise of that jurisdiction by virtue of the words “administrative procedure for redress” contained in section 91 of the PSSRA. That section reads as follows:

91. (1) Where any employee feels aggrieved

(a) by the interpretation or application, in respect of the employee, of

(i) a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing with terms and conditions of employment, or

(ii) a provision of a collective agreement or an arbitral award, or

(b) as a result of any occurrence or matter affecting the terms and conditions of employment of the employee, other than a provision described in subparagraph (a)(i) or (ii),

in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Act.

(2) An employee is not entitled to present any grievance relating to the interpretation or application, in respect of the employee, of a provision of a collective agreement or an arbitral award unless the employee has the approval of and is represented by the bargaining agent for the bargaining unit to which the collective agreement or arbitral award applies, or any grievance relating to any action taken pursuant to an instruction, direction or regulation given or made as described in section 113.

(3) An employee who is not included in a bargaining unit for which an employee organization has been certified as bargaining agent may seek the assistance of and, if the employee chooses, may be represented by any employee organization in the presentation or reference to adjudication of a grievance.

(4) No employee who is included in a bargaining unit for which an employee organization has been certified as bargaining agent may be represented by any employee organization, other than the employee organization certified as bargaining agent, in the presentation or reference to adjudication of a grievance.

[2]        In two of the cases, Mohammed and Treasury Board (Immigration and Refugee Board) [[1997] C.P.S.S.R.B. No. 49 (QL)] and O’Hagan and Treasury Board (Solicitor General—Correctional Service Canada) [[1995] C.P.S.S.R.B. No. 104 (QL)], the Adjudicator declined jurisdiction, while in the Boutilier and Treasury Board (Natural Resources) [[1997] C.P.S.S.R.B. No. 54 (QL)] case it was exercised. Upon judicial review of these three decisions, Trial Judges of this Court affirmed Mohammed [(1998), 148 F.T.R. 260] and O’Hagan [(1999), 162 F.T.R. 15] and reversed the decision in Boutilier [[1999] 1 F.C. 459. These three decisions are the subject of these combined appeals, in which Mr. Raven for Mohammed, and Mr. Brown and Ms. MacEachern for Boutilier and O’Hagan argued eloquently for the position that the procedure for the resolution of labour disputes set out in the collective agreements should not be ousted by section 91. To do so, it was argued, would deny employees rights which they had won and paid for in collective bargaining; for example, the non-discrimination clauses in collective agreements would be rendered valueless if employees were denied access to their grievance procedure and forced to complain to the Canadian Human Rights Commission (CHRC) in the same way as other Canadians. It was contended that the right to file a complaint with the CHRC was not included in the words an “administrative procedure for redress” because, in the human rights procedure, the union and the complainant were not parties, there was no right to a hearing before a tribunal, procedures were different, the public interest was involved, and the delays were inordinate. They also relied on section 99 [as am. by S.C. 1992, c. 54, s. 72] of the PSSRA which expressly allows a union to refer a dispute directly to the PSSRB, implying that an individual grievance should be treated similarly. Parliament, it was said, could not have intended to deny employees their right to grieve under their collective agreement in these cases. For the respondent, Mr. Newman relied simply on the language of the section and the authorities pointing in the opposite direction, to the effect that Parliament intended to oust the grievance procedure in these cases. He pointed out that in some ways the CHRC had wider remedial powers than the Adjudicator under the PSSRA.

1.         The Jurisprudence

[3]        In my view, the appellants’ arguments, though appealing, are not convincing. This Court and the Trial Division of this Court has consistently taken the view that Parliament, by the language used in the section, intended to remove from the normal grievance procedures under the PSSRA certain specialized areas which it was thought should be dealt with under the administrative process set out in the legislation governing those particular areas. As early as in 1974 in In re Cooper,[1] Justice Pratte stated:

Under section 90 a grievance may not be presented if it relates to a matter in respect of which an “administrative procedure for redress is provided in or under an Act of Parliament”. Where a procedure is so provided under which an employee’s grievance may be redressed, the aggrieved employee cannot resort to the grievance procedure under sections 90 and 91 of the Public Service Staff Relations Act but must submit his complaint to the authority which has, under the appropriate statute, the power to deal with it. An employee who is dissatisfied with the decision of that authority may not file a grievance under section 90 or 91 in respect of that decision.

[4]        Similarly, in Byers Transport Ltd. v. Kosanovich,[2] Mr. Justice Strayer interpreted similar words, “procedure for redress”, used in the Canada Labour Code [R.S.C., 1985, c. L-2], paragraph 242(3.1)(b) [as enacted by R.S.C., 1985 (1st Supp.), c. 9, s. 16] as follows [at page 378]:

I believe that the complaint (i.e. the factual situation complained of) must be essentially the same in the other “procedure for redress”. But I doubt that the remedies have to be as good or better under the other provision in order to oust the jurisdiction of the adjudicator under paragraph 242(3.1)(b). That paragraph does not require that the same redress be available under another provision of the Canada Labour Code or some other federal Act [Underlining in original]. What it requires is that in respect of the same complaint there be another procedure for redress [Underlining in original]. The point is even clearer in the French version which simply requires that there be “un autre recours”. I do not believe that for there to be a “procedure for redress … elsewhere” there must be a procedure which will yield exactly the same remedies, although no doubt that procedure must be capable of producing some real redress which could be of personal benefit to the same complainant [Underlining added].

Justice Strayer added [at pages 379-380]:

… 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.

[5]        This principle was followed, in the human rights context, by Madam Justice Simpson in Chopra v. Canada (Treasury Board),[3] explaining [at pages 452]:

Subsection 91(1) was introduced into the PSSRA as section 90 in 1966 [S.C. 1966-67, c. 72]. It was not disputed that its purpose at that time was the prevention of duplicate proceedings under the PSSRA and the Public Service Employment Act [now R.S.C. 1985, c. P-33]. However, subsection 91(1) did not state that it applied only to the PSSRA and the Public Service Employment Act. This meant that, if legislation, such as the Canadian Human Rights Act [R.S.C., 1985, c. H-6], was later enacted, it could be encompassed by subsection 91(1) if it provided other administrative procedures for redress. [Underlining added.]

[6]        Consequently, the fact that only one statute, the Public Service Employment Act [R.S.C., 1985, c. P-33], was mentioned, as an example, in the testimony of Dr. Davidson before the Special Joint Committee of the Senate and the House of Commons on Employer-Employee Relations in the Public Service of Canada,[4] does not mean that other legislation could not fall within those words then and at a later date.

[7]        That the Byers Transport case offers the correct interpretation of this language is even more apparent when one examines the placement of the words in the official French version of section 91. They appear near the beginning of the section, emphasizing that, “si aucun autre recours administratif de réparation ne lui est ouvert sous le régime d’une loi fédérale”, the regular grievance procedure is available, but not otherwise.

[8]        It should be further underlined that the governing Master Collective Agreement signed by the representatives of both parties to the collective agreements involved in these appeals—that is, the Public Service Alliance of Canada and the Treasury Board includes a provision, using similar language to subsection 91(1), denying access to the usual grievance procedure, “where there is another administrative procedure provided by or under any Act of Parliament to deal with the employee’s specific complaint.” Article M-38.02 reads in full as follows:

M-38.02 Subject to and as provided in Section 90 of the Public Service Staff Relations Act, an employee who feels that he or she has been treated unjustly or considers himself or herself aggrieved by any action or lack of action by the Employer in matters other than those arising from the classification process is entitled to present a grievance in the manner prescribed in clause M-38.05 except that,

(a)  where there is another administrative procedure provided by or under any Act of Parliament to deal with the employee’s specific complaint, such procedure must be followed.

[9]        Thus, this statutory bar contained in subsection 91(1) cannot be said to have been imposed unilaterally upon these public service employees, since it has been agreed to by their representative in their Master Collective Agreement.

[10]      We have not been persuaded to depart from the well-established authorities, which were followed by all three Trial Judges in these cases.

2.         These Individual Cases

[11]      In the Mohammed case, the Adjudicator decided on May 22, 1997 that he lacked jurisdiction to consider a grievance involving harassment because the Canadian Human Rights Act [R.S.C., 1985, c. H-6] set out an “administrative procedure for redress”. The grievor, now appellant, alleged in 1997 that her Islamic religion, her race and colour were factors in the harassment. The Master Agreement, Article M-16.01, was relied on and reads:

M-16.01 There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced with respect to an employee by reason of age, race, creed, colour, national origin, religious affiliation, sex, sexual orientation, family status, mental or physical disability or membership or activity in the union.

[12]      By letter dated April 11, 1997 the respondent raised an objection concerning the jurisdiction of the Adjudicator relying on section 91 and the CHRA.[5] The Adjudicator, following Chopra, found that the basis for the claim was Article M-16.01 and therefore, concluded that he lacked jurisdiction. The Trial Division agreed, dismissing the application for judicial review relying on the Byers Transport case, explaining [at page 270]:

From the words of [Justice Strayer in Byers, infra] it appears that the administrative procedure for redress referred to in subsection 91(1) does not have to be identical to the grievance procedure mandated by the PSSRA. In addition, the remedies given in the two procedures do not have to be identical; rather the party should be able to obtain “real redress” which could be of benefit to the complainant. All that is required under s. 91(1) is the existence of another procedure for redress, where the redress that is available under that procedure is of some personal benefit to the complainant.

[13]      In my view the Motions Judge was correct in his decision and in his reasoning. The appeal in Mohammed should be dismissed with costs.

[14]      In the Boutilier case, the Adjudicator decided on June 4, 1997 in favour of the appellant who grieved on August 18, 1994 that he was denied the benefit of a five-day marriage leave provision in his collective agreement because it was thought that his same-sex commitment ceremony was not a “marriage” as it was meant in the agreement. The employer did not object to the jurisdiction at the adjudication hearing but did later on the judicial review to the Trial Division. The Adjudicator’s decision was quashed by the Trial Division of this Court which held that the Adjudicator lacked jurisdiction because of subsection 91(1).

[15]      The appellant, who was a Physical Scientist at the Department of Natural Resources in Halifax, N.S., was covered by the Physical Sciences Group Collective Agreement (222/91) between the Professional Institute of the Public Service and the Treasury Board. Article 20.09 of that agreement stated that the employer

20.09 …

(b) shall grant leave with pay under the following circumstances:

…

(iv) five (5) days’ marriage leave for the purpose of getting married provided the employee gives the Employer at least five (5) days’ notice.

No definition of “marriage” was provided. The collective agreement contained a “no discrimination” clause as follows:

31.01 There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced with respect to an employee by reason of age, race, creed, colour, national origin, religious affiliation, sex, official language or membership or activity in the union.

[16]      The Adjudicator defined the word marriage to include the same-sex union entered into by the grievor, relying on the recent equality jurisprudence and the CHRA as interpreted by the newer cases to include sexual orientation,[6] but he carefully stated that the grievor has not entered into a “lawful marriage under the laws of Nova Scotia”.

[17]      Despite the lack of objection by the respondent at the hearing before the Adjudicator, Madam Justice McGillis held that the Adjudicator had no jurisdiction in this case, which, she concluded, clearly raised a “fundamental human rights issue”. She explained that primary jurisdiction in human rights matters was meant to reside under CHRA. Despite the forceful argument of Ms. MacEachern and counsel for the intervener (PSSRB), Mr. Chaplin, to the effect that Boutilier was different than Mohammed and O’Hagan in that the right being claimed—marriage leave—arose solely under the collective agreement and could not be obtained by any other “administrative procedure for redress”, I am of the view that Madam Justice McGillis was entirely correct in her decision and her reasons for that decision, which include the following language [at pages 471-472 and 476]:

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. Furthermore, under section 92, an employee may only refer a grievance to adjudication following the completion of the grievance process, up to and including the final level. In the event that an employee is not entitled to present the grievance at each of the levels in the process, by reason of the operation of a statutory limitation in either subsection 91(1) or (2), the grievance may not be referred to adjudication under section 92. In other words, where the operation of a limitation contained in either subsection 91(1) or (2) deprives an employee of his qualified right to present the grievance, the employee cannot subsequently purport to refer the grievance to adjudication under subsection 92(1). In the event that an employee purports to refer such a grievance to adjudication, the adjudicator has no jurisdiction to entertain it.

…

Parliament also chose, by virtue of subsection 91(1) of the Public Service Staff Relations Act, to deprive an aggrieved employee of the qualified right to present a grievance in circumstances where another statutory administrative procedure for redress exists. Accordingly, where the substance of a purported grievance involves a complaint of a discriminatory practice in the context of the interpretation of a collective agreement, the provisions of the Canadian Human Rights Act apply and govern the procedure to be followed. In such circumstances, the aggrieved employee must therefore file a complaint with the Commission. The matter may only proceed as a grievance under the provisions of the Public Service Staff Relations Act in the event that the Commission determines, in the exercise of its discretion under paragraphs 41(1)(a) or 44(2)(a) of the Canadian Human Rights Act, that the grievance procedure ought to be exhausted.

[18]      She went on to explain that the CHRC may, if it chooses, send the matter to grievance pursuant to subsection 41(1) [as am. by S.C. 1995, c. 44, s. 49] of the CHRA [at pages 475-476]:

Paragraphs 41(1)(a) and 44(2)(a) of the Canadian Human Rights Act constitute important discretionary powers in the arsenal of the Commission, as it performs its role in the handling of a complaint, and permit it, in an appropriate case, to require the complainant to exhaust grievance procedures. Paragraphs 41(1)(a) and 44(2)(a) also indicate that Parliament expressly considered that situations would arise in which a conflict or an overlap would occur between legislatively mandated grievance procedures, such as that provided for in the Public Service Staff Relations Act, and the legislative powers and procedures in the Canadian Human Rights Act for dealing with complaints of discriminatory practices. In the event of such a conflict or overlap, Parliament chose to permit the Commission, by virtue of paragraphs 41(1)(a) and 44(2)(a), to determine whether the matter should proceed as a grievance under other legislation such as the Public Service Staff Relations Act, or as a complaint under the Canadian Human Rights Act. Indeed, the ability of the Commission to make such a determination is consistent with its pivotal role in the management and processing of complaints of discriminatory practices.

[19]      The Boutilier appeal should, therefore, be dismissed with costs.

[20]      In the O’Hagan appeal, the Adjudicator decided that he had no jurisdiction to decide the grievances of several nurses at the Clearwater Unit of Correctional Services Canada, members of the Professional Institute of the Public Service of Canada, who alleged that they had been sexually harassed over a two and one-half year period. They relied on Article 43.01 of their collective agreement which states:

43.01 The Institute and 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.

[21]      Upon the objection of the employer to the jurisdiction of the Adjudicator, relying on subsection 91(1), the Adjudicator decided that he lacked jurisdiction. The Trial Division of this Court agreed, following Chopra, Mohammed and Boutilier, while recognizing that the facts were not identical in all the cases. He was correct in so doing.

[22]      The O’Hagan appeal should also be dismissed.

[23]      In summary, the principle set out in Byers Transport governs these cases. It is consistent with the wording and purpose of the statute, with Cooper, and with virtually all of the jurisprudence of this Court. The dispute resolution system in federal labour matters is, therefore, not as simple as one would like it to be. If another administrative procedure for redress is available to a grievor, that process must be used, as long as it is a “real” remedy. It need not be an equivalent or better remedy as long as it deals “meaningfully and effectively with the substance of the employee’s grievance.[7]” Possible delay in securing redress administratively itself is not significant, unless perhaps it is so pronounced that it can be said that no real remedy is available to the grievor at all. Differences in the administrative remedy, even if it is a “lesser remedy”, do not change it into a non-remedy.

[24]      This principle does not prevent unions from bargaining for rights beyond the Human Rights Code area,[8] for a grievor can go to arbitration as long as no remedy is available at the Human Rights Commission to vindicate these new rights. This result gives primacy in dispute resolution to the human rights administration, as well as other expert administrative schemes, where expertise and consistency is plainly favoured by Parliament, rather than decisions of ad hoc adjudicators. PSSRA is different than most labour codes where arbitration is made the exclusive remedy.[9] It is up to the Human Rights Commission to send matters to arbitration pursuant to section 41 if, in its discretion, it feels it appropriate.[10] Any other interpretation would render the words in subsection 91(1) meaningless or twisted beyond recognition.

[25]      An Adjudicator must, therefore, grapple with these jurisdictional matters before or during hearings but, hopefully, most of them can be resolved at the commencement of the grievance proceedings.

3.         Some Policy Concerns

[26]      Some concerns were raised by counsel for the appellants and the intervener about the uncertainty that will result from this interpretation of subsection 91(1); it is possible, it is said, that, during a hearing before an adjudicator on the meaning of a collective agreement, a human rights issue might arise, causing a loss of jurisdiction. This is true, but that is the unavoidable effect of the language in the section. One can only hope that, in future, the parties will do their best to determine in advance whether human rights issues are involved and, if they are, act accordingly.

[27]      Another concern is the possible abuse of this language by employers who may, instead of providing the real reason for a dismissal for example, base it upon some racial, gender or other listed ground of discrimination and thereby avoid the ordinary grievance procedure, tying up the dispute for years in the Canadian Human Rights Commission. To me, this is far-fetched; an employer does not gain anything by being branded by an employee as someone who discriminates and by being pursued by the investigators of the CHRC. The cost of a human rights complaint against it in monetary and public relations terms can be substantial to an employer. In all cases, it is not only right but in the employer’s interest to be honest and fair and give the true reason for its conduct and then, if challenged, to submit the dispute to the appropriate body to resolve.

[28]      An additional concern, not raised by the counsel, is the possibility that, if the appellants are correct in their view of subsection 91(1), that any dispute arising under a collective agreement must be grieved in the normal way, a collective agreement might seek to cover some matters already dealt with in alternative administrative procedures in order to oust the jurisdiction of those administrative bodies and transfer it to the grievance procedure. It is unlikely that Parliament would have wanted this to happen.

[29]      In my view, these concerns are not realistic. We are dealing here with responsible parties who maintain different views of the meaning of certain words in a statute and disagree about what is the preferred way to resolve a human rights dispute in the context of a collective agreement situation. In my view, Parliament has enacted a particular method of resolving these questions, a rather complex, costly and time-consuming method perhaps, but, until Parliament can be convinced to change its legislation, this Court will honour that legislative choice, as expressed consistently in our jurisprudence over the years.

[30]      In conclusion, these three appeals will be dismissed with costs.

Stone J.A.: I agree.

Sexton J.A.: I agree.

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