[1994] 3 .F.C. 449
T-2311-93
Sagkeeng Alcohol Rehab Centre Inc. (Applicant)
v.
Maureen Abraham, Darlene Ahmo, Mary Arkinson and Gary T. Brazzell, Q.C. (Respondents)
Indexed as: Sagkeeng Alcohol Rehab Centre Inc. v. Abraham (T.D.)
Trial Division, Rothstein J.—Winnipeg, April 5; Ottawa, May 6, 1994.
Constitutional law — Distribution of powers — Application for judicial review of Adjudicator’s decision respondents’ unjust dismissal complaints within jurisdiction — Applicant operating alcohol rehabilitation centre on Indian reserve — Labour relations under provincial jurisdiction unless forming integral part of primary federal jurisdiction over some other federal object — Nature of operations and normal activities determining whether characterized as federal or provincial service — Program, curriculum, materials designed for Indians — Indians given priority for admission — Applicant’s function under Constitution Act, 1867, s. 91(24) — Power to regulate labour relations between applicant and employees within federal jurisdiction over Indians.
Labour relations — Application to review Adjudicator’s decision respondents’ unjust dismissal complaints within his jurisdiction — Privative clause not applicable where jurisdictional issue — Application of functionality test to determine applicant’s operation of alcohol rehabilitation centre on Indian reserve subject to federal regulation — Canada Labour Code, s. 242(3.1)(b) providing adjudicator shall not consider complaint where “procedure for redress” provided either in Code or any other Act of Parliament — Respondents alleging unjust dismissal under Canada Labour Code, discrimination under Canadian Human Rights Act — S. 242(3.1)(b) not bar to hearing complaints herein — Another “procedure for redress” contemplating both cause of action and remedy — Other procedure for redress can not be based on different cause of action or provide lesser remedy than procedure under Code — Unclear proceedings under CHRA and Code would yield exact same remedy — While duplication of proceedings to be avoided, Parliament not intending to force aggrieved parties to risk prejudicing unjust dismissal claim by application of provision — Alternative procedure must be clearly duplicative for s. 242(3.1)(b) to apply.
Native peoples — Applicant operating alcohol rehabilitation centre on Indian reserve — Program, curriculum, materials designed for Indians — Eligibility for admission primarily native — Respondents alleging unjust dismissal — Application to review Adjudicator’s decision complaints within federal jurisdiction — Examination of nature of operations, normal activities leading to conclusion applicant’s function falling under Constitution Act, 1867, s. 91(24) — Power to regulate labour relations between applicant and (former) employees integral part of federal jurisdiction over Indians.
This was an application for judicial review of the Adjudicator’s decision that he had jurisdiction to hear the respondents’ complaints of unjust dismissal. The applicant operates an alcohol rehabilitation centre at the Fort Alexander Indian Reserve in Manitoba. It receives federal funds under a program supporting Indian based services. Portions of the rehabilitation program and materials dealt with cultural awareness. Eligibility for admission was “primarily Native, but open to anyone with an interest or need for treatment.” Only a negligible portion of those admitted were people other than Indians. The applicant argued that labour relations are under provincial jurisdiction. It also relied upon Canada Labour Code, paragraph 242(3.1)(b) which provides that an adjudicator shall not consider a complaint where a procedure for redress has been provided either in the Code or any other Act of Parliament. The respondents have brought proceedings under the Canadian Human Rights Act. The applicant argued that paragraph 242(3.1)(b) dealt with the situation in which the remedy available under another procedure for redress is the same as that under subsection 242(4) of the Canada Labour Code. It argued that the remedies under the Canadian Human Rights Act were the same as those under the Canada Labour Code, subsection 242(4). The respondents argued that paragraph 242(3.1)(b) dealt with the situation in which the cause of action under the Code was the same as under another Act. They submitted that the cause of action for discrimination was different from that for unjust dismissal.
Canada Labour Code, section 243 provides that every order of an adjudicator appointed under subsection 242(1) is final and shall not be questioned or reviewed in any court.
Held, the application should be dismissed.
Section 243 did not preclude judicial review of the Adjudicator’s decision. Jurisdictional issues are open to judicial review despite the existence of a privative clause.
The Adjudicator did not err in finding that the applicant was subject to the Canada Labour Code. Labour relations prima facie fall within provincial jurisdiction under the Constitution Act, 1867, section 92, head 13. The Parliament of Canada acquires jurisdiction over labour relations when it is an integral part of, or necessarily incidental to, federal jurisdiction over some other federal object i.e. Indians or Lands reserved for the Indians. It is the nature of the operations of a service and its normal activities that determine whether it is characterized as a federal or provincial service.
The applicant’s function fell under Constitution Act, 1867, section 91, head 24. The power to regulate labour relations between the applicant and employees or former employees formed an integral part of federal jurisdiction over Indians. The Adjudicator did not err in finding that the applicant was a federal business, work undertaking. That the rehabilitation centre was organized and operated primarily for Indians, governed solely by Indians, that its staff were specially trained under the National Native Alcohol and Drug Abuse Program and received First Nations training, and that its rehabilitation program, curriculum and materials were designed for Indians, identified the “Indianness” of the centre and linked it to Indians. One-third of the program was devoted to Indian cultural awareness, values and survival as a native people. The applicant’s focus was alcohol rehabilitation of Indians and that was the function it was designed to perform. That the cultural week was not compulsory, or that a small number of persons who were admitted to the centre were not Indians, did not detract from the integrally Indian operation of the applicant. Eligibility for admission was primarily native. Admission required provision of not only a medical number, but also a treaty number and band. Indians were given priority over others for admission.
The Adjudicator did not err in finding that paragraph 242(3.1)(b) was not a bar to his hearing the respondents’ complaints. Reference to another “procedure for redress” in paragraph 242(3.1)(b) indicates that the paragraph contemplated both the cause of action and remedy. The other “procedure for redress” cannot be based on a different cause of action or provide a lesser remedy than the procedure under the Code. It was unclear that the procedures under the Canadian Human Rights Act and the Canada Labour Code would yield the exact same remedy. The Court did not have sufficient information as to the similarities and differences between the respondents’ unjust dismissal complaints and human rights complaints to hold that paragraph 242(3.1)(b) was a bar to the Adjudicator’s jurisdiction. The party seeking to rely on paragraph 242(3.1)(b) must demonstrate that there exists, under other legislation, a procedure for aggrieved parties to pursue a claim for unjust dismissal and obtain a remedy the same as an adjudicator could grant under subsection 242(4) of the Code. While duplication of proceedings should be avoided, Parliament did not intend that an aggrieved party should be forced to run the risk that an unjust dismissal claim would be prejudiced by application of this provision. For paragraph 242(3.1)(b) to apply, the alternative procedure for redress must be clearly duplicative.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canada Labour Code, R.S.C., 1985, c. L-2, ss. 242 (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 16), 243.
Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 53.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5].
CASES JUDICIALLY CONSIDERED
APPLIED:
Canada Post Corp. v. Pollard, [1994] 1 F.C. 652; (1993), 161 N.R. 66 (C.A.); Alberta Wheat Pool v. Jacula (1992), 58 F.T.R. 277 (F.C.T.D.); National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; (1990), 74 D.L.R. (4th) 449; 45 Admin. L.R. 161; 114 N.R. 81; Reference re Industrial Relations and Disputes Act, [1955] S.C.R. 529.
DISTINGUISHED:
Four B Manufacturing Ltd. v. United Garment Workers of America et al., [1980] 1 S.C.R. 1031; (1979), 102 D.L.R. (3d) 385; 80 CLLC 14,006; [1979] 4 C.N.L.R. 21; 30 N.R. 421.
CONSIDERED:
Canadian Imperial Bank of Commerce v. Hefni et al. (1994), 72 F.T.R. 232 (F.C.T.D.).
REFERRED TO:
Toronto Electric Commissioners v. Snider, [1925] A.C. 396; [1925] 2 D.L.R. 5; [1925] 1 W.W.R. 785 (P.C.); Commission du Salaire Minimum v. Bell Telephone Company of Canada, [1966] S.C.R. 767; (1966), 59 D.L.R. (2d) 145; Canada Labour Relations Board et al. v. Yellowknife, [1977] 2 S.C.R. 729; (1977), 76 D.L.R. (3d) 85; 77 CLLC 14,073; 14 N.R. 72; Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754; (1978), 93 D.L.R. (3d) 641; 69 CLLC 14,190; 25 N.R. 1.
AUTHORS CITED
Shorter Oxford English Dictionary, 3rd ed., Oxford: Clarendon Press, 1973, “redress.”
APPLICATION for judicial review of the Adjudicator’s decision that he had jurisdiction to hear the respondents’ unjust dismissal complaints against the applicant which operated an alcohol rehabilitation centre on an Indian reserve. Application dismissed.
COUNSEL:
Robert B. Doyle and Harvey I. Pollock for applicant.
Jeffrey F. Harris for respondents.
SOLICITORS:
Pollock & Company, Winnipeg, for applicant.
Keyser, Harris, Winnipeg, for respondents.
The following are the reasons for order rendered in English by
Rothstein J.: This is an application for judicial review of an August 27, 1993 decision of Gary T. Brazzell, Q.C., an adjudicator appointed by the Minister of Labour for Canada under subsection 242(1) of the Canada Labour Code, R.S.C., 1985, c. L-2, as amended. The applicant operates an alcohol rehabilitation centre located on the Fort Alexander Indian Reserve approximately 80 kilometres northeast of Winnipeg. The respondents, Maureen Abraham, Darlene Ahmo, and Mary Arkinson (the respondents), allege unjust dismissal by the applicant and have sought a decision of an adjudicator under subsection 242(3) [as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 16] of the Canada Labour Code.
The applicant’s position is that labour relations are under provincial jurisdiction and that Mr. Brazzell, as an adjudicator appointed under the Canada Labour Code, erred in finding that he had jurisdiction to hear the unjust dismissal complaints. Also, the applicant says that the respondents have brought proceedings under the Canadian Human Rights Act, R.S.C., 1985, c. H-6, as amended, alleging that they had been discriminated against on the basis of their sex. By virtue of paragraph 242(3.1)(b) of the Canada Labour Code, which provides that an adjudicator shall not consider a complaint when another procedure for redress is available in the Canada Labour Code or any other Act of Parliament, Mr. Brazzell erred in finding there was no bar to his adjudicating the complaints in this case in view of the proceedings under the Canadian Human Rights Act.
Although counsel did not find it necessary to address section 243 of the Canada Labour Code, which is, in substance, a privative clause, I will briefly deal with it now. Section 243 states:
243. (1) Every order of an adjudicator appointed under subsection 242(1) is final and shall not be questioned or reviewed in any court.
(2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an adjudicator in any proceedings of the adjudicator under section 242.
On its face, section 243 would seem to preclude judicial review of the adjudicator’s decision. However, as was indicated in Canada Post Corp. v. Pollard, [1994] 1 F.C. 652 (C.A.), at page 659, and in Alberta Wheat Pool v. Jacula (1992), 58 F.T.R. 277 (F.C.T.D.), at pages 278-279, following National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, at pages 1369-1370, jurisdictional issues are open to judicial review despite the existence of a privative clause. As the issues before me relate to the adjudicator’s jurisdiction to hear and adjudicate the complaints of the respondents, section 243 does not preclude this application for judicial review.
The powers of Parliament with respect to labour relations were delineated by Estey J. in Reference re Industrial Relations and Disputes Act, [1955] S.C.R. 529 (the Stevedoring case), at page 564, as follows:
These authorities establish that there is a jurisdiction in the Parliament of Canada to legislate with respect to labour and labour relations, even though these relations are classified under Property and Civil Rights within the meaning of s. 92(13) of the B.N.A. Act and, therefore, subject to provincial legislation. This jurisdiction of Parliament to so legislate includes those situations in which labour and labour relations are (a) an integral part of or necessarily incidental to the headings enumerated under s. 91; (b) in respect to Dominion Government employees; (c) in respect to works and undertakings under ss. 91(29) and 92(10); (d) in respect of works, undertakings or businesses in Canada but outside of any province.
In this case, the relevant provisions of the Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1 [R.S.C., 1985, Appendix II, No. 5]] (formerly The British North America Act, 1867) are:
91. … the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next herein-after enumerated; that is to say,”
…
24. Indians, and Lands reserved for the Indians.
…
92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subject next herein-after enumerated; that is to say, -
…
13. Property and Civil Rights in the Province.
The Stevedoring case, supra, makes it clear that labour relations, prima facie, fall within provincial jurisdiction by virtue of head 13 of section 92 of the Constitution Act, 1867. The Parliament of Canada acquires jurisdiction over labour relations only in the four instances listed by Estey J. In my view, therefore, the issue is whether the labour, or labour relations in this case, is an integral part of, or necessarily incidental to, federal jurisdiction over Indians or Lands reserved for the Indians.
The principles governing legislative jurisdiction in respect of labour relations have been enunciated in numerous cases (see Toronto Electric Commissioners v. Snider, [1925] A.C. 396, (P.C.); the Stevedoring case, supra; Commission du Salaire Minimum v. Bell Telephone Company of Canada, [1966] S.C.R. 767; Canada Labour Relations Board et al. v. Yellowknife, [1977] 2 S.C.R. 729; Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754; and Four B Manufacturing Ltd. v. United Garment Workers of America et al., [1980] 1 S.C.R. 1031). In the last-mentioned case, Beetz J., at page 1045, summarized the test to be applied as follows:
In my view the established principles relevant to this issue can be summarized very briefly. With respect to labour relations, exclusive provincial legislative competence is the rule, exclusive federal competence is the exception. The exception comprises, in the main, labour relations in undertakings, services and businesses which, having regard to the functional test of the nature of their operations and their normal activities, can be characterized as federal undertakings, services or businesses … [Underlining mine.]
At page 1047, Beetz J. stated:
The functional test is a particular method of applying a more general rule namely, that exclusive federal jurisdiction over labour relations arises only if it can be shown that such jurisdiction forms an integral part of primary federal jurisdiction over some other federal object: the Stevedoring case.
In the Yellowknife case, supra, Pigeon J. pointed out, at page 736:
In considering this question, one has to bear in mind that it is well settled that jurisdiction over labour matters depends on legislative authority over the operation, not over the person of the employer.
In the Four B case, supra, Four B was an Ontario corporation, carrying on the business of sewing shoe uppers under contract for a shoe manufacturing company, the business of the company being conducted on an Indian reserve. All of the corporation’s issued shares were held by four brothers, all being members of the Band. The company was in no way owned or controlled by the Band Council which had no share in its profits. At issue in the Supreme Court of Canada was the jurisdiction of the Ontario Labour Relations Board to certify a bargaining agent with respect to employees of the company’s plant on the reserve and to make another order directing the company to re-instate four of its employees.
In his judgment, Beetz J. stated the following, at page 1046, in addition to the governing test quoted above:
There is nothing about the business or operation of Four B which might allow it to be considered as a federal business: the sewing of uppers on sport shoes is an ordinary industrial activity which clearly comes under provincial legislative authority for the purposes of labour relations. Neither the ownership of the business by Indian shareholders, nor the employment by that business of a majority of Indian employees, nor the carrying on of that business on an Indian reserve under a federal permit, nor the federal loan and subsidies, taken separately or together, can have any effect on the operational nature of that business. By the traditional and functional test, therefore, The Labour Relations Act applies to the facts of this case, and the Board has jurisdiction.
At pages 1047-1048, Beetz J. stated:
I think it is an oversimplification to say that the matter which falls to be regulated in the case at bar is the civil rights of Indians. The matter is broader and more complex: it involves the rights of Indians and non-Indians to associate with one another for labour relations purposes, purposes which are not related to “Indianness”; it involves their relationship with the United Garment Workers of America or some other trade union about which there is nothing inherently Indian; it finally involves their collective bargaining with an employer who happens to be an Ontario corporation, privately owned by Indians, but about which there is nothing specifically Indian either, the operation of which the Band has expressly refused to assume and from which it has elected to withdraw its name.
But even if the situation is considered from the sole point of view of Indian employees and as if the employer were an Indian, neither Indian status is at stake nor rights so closely connected with Indian status that they should be regarded as necessary incidents of status such for instance as registrability, membership in a band, the right to participate in the election of Chiefs and Band Councils, reserve privileges, etc. For this reason, I come to the conclusion that the power to regulate the labour relations in issue does not form an integral part of primary federal jurisdiction over Indians or Lands reserved for the Indians. Whether Parliament could regulate them in the exercise of its ancillary powers is a question we do not have to resolve any more than it is desirable to determine in the abstract the ultimate reach of potential federal paramountcy.
In the case at bar, the articles of incorporation of the applicant provide that its undertaking as a corporation is restricted “[T]o manage and operate an alcohol abuse rehabilitation centre.” Applicant’s counsel argues that there is nothing integral to Indians or Lands reserved for Indians about the operation of an alcohol abuse rehabilitation centre and that the focus of the operation of the centre is on treating alcoholism. He further points out that admission to the centre is not limited to Indians and that some people other than Indians have been admitted. He also says that Indians do not have a right to be admitted to the centre.
Counsel for the respondents refers to the National Native Alcohol and Drug Abuse Program (NNADAP), a program sponsored jointly by the Department of National Health and Welfare and the Department of Indian Affairs and Northern Development. Under the NNADAP, federal funds are provided for projects which are designed and operated by Indian people. Under the NNADAP Contribution Agreement made as of March, 1992 between Her Majesty the Queen in right of Canada and the applicant, paragraph 1(1) provides:
1. (1) The Project shall consist of the objectives and activities set out in Appendix “A”.
Appendix “A” provides in part:
A. SERVICE DELIVERY
1. PROJECT OBJECTIVES:
(1) To provide a residential treatment program for those suffering from alcoholism that is consistent with the goals of the program which are to establish Indian based services,
…
2. PROJECT ACTIVITIES RELATING TO OBJECTIVES IN (1):
(1) Twenty-eight (28) day rehabilitation program and a seven (7) day assessment program, which includes:
…
(h) building cultural awareness in client group;
…
(4) Treatment centre and outreach staff training (Sagkeeng):
(a) NNADAP training;
…
(e) Nechi training. [First Nations Training]
By-law No.1 of the applicant corporation provides, in part:
3. Qualification: A director shall be a member of the Corporation and of the Fort Alexander Indian Band.
…
25. Qualifications: A person seeking a membership of the Corporation shall:
(a) …
(b) be a member of the Fort Alexander Indian Band.
The rehabilitation program of the centre consists of a four-week lecture schedule: week 1—alcohol and alcoholism, week 2—self-awareness, week 3—cultural week, and week 4—review week. A portion of the contents of the lecture materials is entitled “SELF-CONCEPT AS AN INDIAN.” This portion contains a discussion of Indian values, native culture and identity, cultural values and modern society, pipe ceremonies, survival as native people / AA meetings and means of maintaining spirituality.
In the admission package of the applicant, the page headed “ELIGIBILITY FOR ADMISSION” contains the following qualifications amongst others:
Primarily Native, but open to anyone with an interest or need for treatment.
In the 1991-1992 fiscal year, out of the 342 persons admitted, 304 were status Indians, 31 were non-status Indians or Métis and seven were other. Figures for the years 1987-1992 also demonstrate that only a negligible portion of those admitted were people other than Indians.
The evidence before me indicates that the features of the applicant distinguish it from the facts in Four B, supra. We are not here concerned with an ordinary manufacturing business carried on an Indian reserve. Rather, the rehabilitation centre in question is engaged in the provision of a form of health care service designed and operated to meet the needs of its Indian beneficiaries.
The fact that the rehabilitation centre is organized and operated primarily for Indians, governed solely by Indians, that its facilities and services are intended primarily for Indians, that its staff are specially trained under the NNADAP and receive First Nations training, and that its rehabilitation program, curriculum and materials are designed for Indians, all serve to identify the inherent “Indianness” of the centre and link it to Indians.
To say that the focus of the applicant is on the treatment of alcoholism is to gloss over the way in which the applicant operates its program. The applicant’s program of alcohol rehabilitation involves a 33 percent component, i.e. one out of three weeks, other than the review week, devoted to Indian cultural awareness, values and survival as Native people. The focus of the applicant is on alcohol rehabilitation of Indians and that is the function its program is designed to perform.
That the cultural week may not be compulsory or that a small number of persons who are admitted to the applicant’s centre are not Indians, does not detract from the integrally Indian operation of the applicant. Its normal activity is to provide alcohol rehabilitation services for Indians. As I understand the dicta of Beetz J. (page 1045 of Four B), it is the nature of the operations of a service and its normal activities that determine whether or not it is characterized as a federal or provincial service. The fact that a small number of non-Indians are treated at the centre or that the cultural week may not be compulsory, does not detract from the centre’s normal activities and functions.
Counsel for the applicant referred to certain statistics which he said demonstrated that many alcohol rehabilitation centres in Manitoba provide services primarily to Indians. He submitted that simply because Indians are treated at these centres, does not bring them under federal jurisdiction. I could not deduce, from the statistics to which he referred, whether or not other alcohol rehabilitation centres in Manitoba provide services primarily to Indians. But even if they do, the issue is not decided by a calculation, in the abstract, of whether a particular facility caters primarily to Indians or to others. It is necessary to assess the nature of the operations of the facility to decide whether it is under federal or provincial jurisdiction. There was no evidence before me as to the nature of the operations of other alcohol rehabilitation centres in Manitoba.
Counsel for the applicant submitted that Indians do not have a right of admission to the applicant’s rehabilitation centre. However, it is clear that the eligibility for admission is “primarily native.” Although a witness for the applicant, Ken Courchene, a member of the applicant’s Board of Directors, and the admission package, describe its programs as “cross-cultural,” in which the non-Native could easily identify, the centre is said, by the same admission package, to cater to Natives and Native communities. Indeed, the admission process involves providing the centre not only with a medical number, but also with a treaty number and band. The inference that I draw is that, for admission purposes, Indians are given priority over others. The applicant’s focus is primarily on Indians and its facilities are available first and foremost to Indians. The question of eligibility for admission therefore, is integrally bound up with Indian status.
Applying the test formulated in Four B, I am of the view that the function of the applicant falls under head 24 of section 91 of the Constitution Act, 1867. The power to regulate labour relations between the applicant and its employees or former employees forms an integral part of primary federal jurisdiction over Indians. The Adjudicator was not in error in finding that the applicant was a federal business, work or undertaking.
Having arrived at this conclusion, it is necessary to consider the second argument of the applicant—that the Adjudicator is prohibited from considering this matter because of paragraph 242(3.1)(b ) of the Canada Labour Code. Paragraph 242(3.1)(b) provides:
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.
Applicant’s counsel submits that paragraph 242(3.1)(b) deals with the situation in which the remedy available under another procedure for redress is the same as under subsection 242(4) of the Canada Labour Code. In this case he argues that the remedies under the Canadian Human Rights Act are the same remedies as under subsection 242(4) of the Canada Labour Code.
Respondents’ counsel says that paragraph 242(3.1)(b) deals with the situation in which the cause of action under Division XIV [Part III] of the Canada Labour Code is the same as under another provision of the Canada Labour Code or another Act of Parliament. He submits that the cause of action of discrimination under the Canadian Human Rights Act is different than the cause of action of unjust dismissal under the Canada Labour Code. He further submits that there is insufficient evidence before me to make the type of determination contemplated by paragraph 242(3.1)(b).
Counsel for the applicant asserts that the unjust dismissal complaints arise from alleged acts of discrimination practised against the respondents by the applicant. Counsel for the respondents says that in two cases, the complaints are based on constructive unjust dismissal while in the other case there was actual dismissal. None of this information is in the evidence before me. What is in the record are the unjust dismissal complaints of the three respondents which make reference to their complaints to the Human Rights Commission. However, each of these complaints also states:
I know of no other avenue of redress [other than under Division XIV of the Canada Labour Code].
The decision of the Adjudicator indicates, at page 3, that one of the objections made by the applicant was:
The Complainants were not dismissed by the Employer as required by section 240(1) of the Code
There is also reference to another objection of the applicant:
[T]he Complainants had not completed 12 consecutive months of continuous employment with the Employer as required by section 240(1)(a) of the Code.
I was not directed to anything in the evidence that describes the respondents’ human rights complaints or their relationship to the unjust dismissal complaints before the adjudicator in this case.
“Redress” is defined in The Shorter Oxford English Dictionary, 3rd ed. as meaning, inter alia:
6. To set (a person) right, by obtaining, or (occas.) giving, satisfaction or compensation for the wrong or loss sustained.
In legal terminology, satisfaction or compensation would be the remedy sought. The wrong sustained would relate to a cause of action. In the context of paragraph 242(3.1)(b), I think both cause of action and remedy are contemplated by reference to another “procedure for redress.” The other “procedure for redress” cannot be based on a different cause of action or provide a lesser remedy than the procedure under Division XIV of the Canada Labour Code. Under Division XIV, a procedure is provided for individuals to pursue claims for unjust dismissal. A body of jurisprudence has developed in respect of this cause of action. It is not at all clear generally, and certainly not in this case, that a proceeding under the Canadian Human Rights Act, based on discrimination, involves the exact same principles, considerations and defences as a claim for unjust dismissal under the Canada Labour Code. Indeed, the applicant has raised objections before the Adjudicator that are specific to the unjust dismissal claims under the Canada Labour Code. With respect to remedy, a brief review of section 53 of the Canadian Human Rights Act and subsection 242(4) of the Canada Labour Code indicates that the statutory provisions, although not identical in wording, appear in substance to be similar. However, again, a body of jurisprudence has developed in respect of each type of remedy and it is not clear, at this stage, that the procedures under the Canadian Human Rights Act and the Canada Labour Code would yield the exact same remedy. For these reasons, and because I do not have sufficient information before me as to the similarities and differences between the respondents’ unjust dismissal complaints and human rights complaints, I find that the Adjudicator did not err in concluding that paragraph 242(3.1)(b) of the Canada Labour Code was not a bar to his jurisdiction in this case.
In coming to my conclusion on this issue, I have had regard to the decision of Jerome A.C.J. in Canadian Imperial Bank of Commerce v. Hefni et al. (1994), 72 F.T.R. 232 (F.C.T.D.) and the authorities cited therein. At pages 238-239, Jerome A.C.J. states:
I also note in Pollard, the Federal Court of Appeal agreed with MacKay, J., that the adjudicator’s interpretation of s. 242(3.1)(b) had been the correct one. The adjudicator had stated:
“The alternative procedure for redress referred to in s. 242(3.1)(b) must be a procedure that will ‘redress’ the issue of whether the dismissal was unjust.”
This conclusion was the result of the following analysis, which although concerned with the relationship between the unjust dismissal provisions and those prohibiting dismissal because of antiunion [sic] activity, is equally valid when considering the anti-discrimination in employment provisions of the Canadian Human Rights Act:
…
The fact that a similar remedy may be awarded in either case does not mean the procedure for redress has been provided elsewhere.
A similar interpretation of s. 242(3.1)(b) was proposed in Employment Law in Canada:
…
The reviewable issues under the Human Rights Act and Part I of the Canada Labour Code are whether dismissal is tainted by, respectively, one of the proscribed human rights grounds or an antiunion [sic] element. These issues are distinct from the issue of ‘just cause’ for dismissal, although the presence of ‘just cause’ is plainly relevant as evidence of whether an employer’s motive for dismissal is tainted by the proscribed grounds.” [I. Christie, G. England & B. Cotter, Employment Law in Canada, 2nd ed. (Toronto: Butterworths, 1993), at pp. 684-685.]
Section 242(3.1)(b) will therefore not bar a complaint unless it can be shown that an alternative procedure is available to the complainant to determine the specific issue of whether or not cause existed for the dismissal. [Footnotes omitted.]
In my view, it must be demonstrated, by the party seeking to rely on paragraph 242(3.1)(b), that under another statutory provision, there exists a procedure for aggrieved parties to pursue a claim for unjust dismissal and obtain a remedy the same as an adjudicator could grant under subsection 242(4) of the Canada Labour Code. The applicant has not demonstrated this to be so.
While duplication of proceedings should be avoided, and paragraph 242(3.1)(b) appears to have been enacted for that purpose (perhaps among others), I am certain that Parliament did not intend that aggrieved parties should be forced to run the risk of their unjust dismissal claim being prejudiced by application of this provision. For paragraph 242(3.1)(b) to apply, the alternative procedure for redress must be clearly duplicative.
As I have found that the Adjudicator did not err in finding that the applicant was subject to the Canada Labour Code and as he did not err in finding that paragraph 242(3.1)(b) of the Canada Labour Code was not a bar to his hearing and adjudicating the complaints of the respondents, this application for judicial review is dismissed.