MacFarlane v. Day & Ross Inc.

MacFarlane v. Day & Ross Inc.
Court (s) Database
Federal Court Decisions
Date
2010-05-26
Neutral citation
2010 FC 556
File numbers
T-1593-09
Notes
Reported Decision
Decision Content
Federal Court
Cour fédérale
Date: 20100526
Docket: T-1593-09
Citation: 2010 FC 556
Ottawa, Ontario, May 26, 2010
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
WANDA MACFARLANE
Applicant
and
DAY & ROSS INC.
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] In this case, the Applicant is seeking the judicial review of a decision dated September 2, 2009, of an adjudicator appointed pursuant to subsection 242(1) of the Canada Labour Code, R.S.C. 1985, c. L-2, whereby which he ruled that he did not have jurisdiction to hear the complaint submitted by Wanda MacFarlane (the “Applicant”) in which she alleged that she had been unjustly dismissed from her position with Ross & Day Inc. (the “Respondent”), on the ground that a procedure for redress related to her complaint was provided for in the Canadian Human Rights Act, R.S.C. 1985, c. H-6.
[2] For the reasons set out below, this judicial review application shall be allowed in part only. The adjudicator did not breach any principles of natural justice or procedural fairness in conducting the proceedings and rendering his decision, and he correctly ruled that paragraph 242(3.1)(b) of the Canada Labour Code precluded him from hearing and deciding the unjust dismissal complaint. However, the adjudicator was in error when he declined jurisdiction in a manner that would exclude the complaint being referred back to him by the Canadian Human Rights Commission in the exercise of its authority pursuant to paragraph 41(1)(b) or paragraph 44(2)(b) of the Canadian Human Rights Act.
Background
[3] The Respondent was first employed with the Applicant in February of 2001. She was dismissed on July 4, 2008 for the following reasons set out in the written notice of dismissal which was sent to her by the Respondent (Exhibit 2 of the affidavit of Wanda MacFarlane at page 36 of the Application record):
This letter will serve as confirmation of the Company’s decision to terminate your employment, effective immediately.
The reasons for our decision include the following: your grossly negligent conduct which resulted in you deleting 149 records, and your subsequent attempt at covering this up; your recent absence without authorization; your unwillingness to continue working in your current role.
[4] The Applicant challenged this dismissal on August 29, 2008, by filing the following written complaint pursuant to section 240 of the Canada Labour Code (Exhibit 1 of the affidavit of Eric Rowley, at page 18 of Respondent’s record):
I believe I have been unjustly dismissed by Day and Ross Ltd, July 24 (sic), 2008.
Please investigate this matter.
[5] An adjudicator was subsequently appointed pursuant to subsection 242(1) of the Canada Labour Code to hear and decide this complaint, and on April 21, 2009, he served notice that a hearing would be held on August 25 and 26, 2009 (paragraph 9 of the affidavit of Wanda MacFarlane).
[6] After this notice of hearing on her Canada Labour Code complaint was sent out, the Applicant submitted another complaint to the Canadian Human Rights Commission dated May 28, 2009. In a detailed three-page narrative in her complaint addressed to the Commission, the Applicant made, in particular, the following submissions (Exhibit 5 of the affidavit of Eric Rowley at pages 35 and 37 of the Respondent’s record):
I have reasonable grounds to believe that I have been discriminated against. I declare the following to be true to the best of my knowledge.
My name is Wanda Irene MacFarlane and my complaint is against Day & Ross Inc. I am 62 years old and I have been diagnosed with clinical depression, fibromyalgia, and migraine. I believe that I have been discriminated against on the bases both of my age and my disability.
[…]
On July 4 2008 I was terminated, retroactively, by hand delivered letter, having been disabled since May 23rd 2008. I believe that increasing my exposure to applications known to increase my disability until I was no longer able to function, denying me disability insurance, and terminating my employment while I am disabled citing errors made as a result of this known disability constitute discrimination on the basis of disability.
[7] The Canadian Human Rights Commission notified the Respondent of this complaint on July 24, 2009. In its letter, the Commission indicated the following (Exhibit 5 of the affidavit of Eric Rowley at page 32 of the Respondent’s record):
Please note that an initial review of the complaint has not identified any issues related to section 41(1) of the Canadian Human Rights Act. Under section 41(1), the Commission can refuse to deal with complaints in certain circumstances. In particular, the Commission can refuse to deal with a complaint where another redress procedure is available to the complainant, the complaint is beyond the Commission’s jurisdiction, the allegations in the complaint occurred more than one year before the complaint was filed, or the complaint is frivolous, trivial, vexatious or made in bad faith. If you believe that this complaint raises issues under section 41(1), you should notify the Commission within thirty days of receipt of this letter so as not to delay the processing of the complaint.
[8] It is useful to note that this complaint is still pending before the Canadian Human Rights Commission, and that as of the date of the hearing of this judicial review application, no decision pursuant to section 44 of the Canadian Human Rights Act has yet been rendered by the Commission.
[9] On August 14, 2009, the attorney representing the Respondent wrote to the adjudicator to inform him that, in the light of this new complaint submitted under the Canadian Human Rights Act, the Respondent was now challenging the adjudicator’s jurisdiction to hear the Canada Labour Code complaint on the basis of paragraph 242(3.1)(b) of that Code.
[10] The Applicant disputed this jurisdictional challenge on the basis that there was no allegation of discrimination in her Canada Labour Code complaint and that this complaint “can be decided without determining whether discrimination took place” (Exhibit 6 of the affidavit of Wanda MacFarlane at page 50 of the Application record). The Applicant also submitted to the adjudicator the following particulars with respect to her Canada Labour Code complaint (Exhibit 7 of the affidavit of Wanda MacFarlane at page 54 of the Application record):
With regard to the particulars of my unjust dismissal claim, they are as follows:
My letter of dismissal stated four separate and distinct reasons for terminating my employment. […]
It is my position that each an every one of these allegations is unfounded. Further, it is my position that, even if any and all of these allegations were judged on a balance of probabilities to be true, my dismissal would still be found to be unjust because Day & Ross failed to apply progressive discipline.
[11] The adjudicator responded on August 18, 2009 to the various exchanges of the parties concerning his jurisdiction and the continuation of the proceedings before him by rejecting the Respondents’ request for an adjournment and thus maintaining the original schedule for the hearing of the complaint (Exhibit 10 of the affidavit of Wanda MacFarlane at page 63 of the Application record):
Upon reflection, I am of the view that the hearing will continue as scheduled next week and if the employer wishes to pursue their objection to my jurisdiction they can call the necessary evidence to support their contention that there is a connection between the matter before me and the complaint filed before the HRC.
[12] Following a request from the Respondent for a reconsideration of his decision to proceed with the hearing, the adjudicator responded as follows by email dated August 19, 2009, 8:34 am (Exhibit 20 of the affidavit of Eric Rowley, at page 269 of the Respondent’s record):
I have received and read your response document, but in order to ensure fairness in this proceeding it is my view that the hearing must proceed. I note that you refer to certain documents in the company’s Book of Documents. As you are aware, at this time I have received the Book of Documents, but I am not aware of whether or not the complainant has received it, and what her position is with respect to it being before me as evidence. In my view, the only way in which the preliminary matter can [b]e addressed, let alone the merits of the matter, is to continue with the hearing and that is what I have decided. The essence of your objection has an evidentiary basis, and at this time I have no evidence before me.
Both parties are to attend at the hearing as per the Notice of Hearing sent by myself earlier this year and be prepared to raise any preliminary objections. At that time I will address any preliminary matters and decide whether or not to proceed on the merits. I would expect that both parties would be prepared to proceed on the merits if needed.
[13] Faced with this scheduling and process decision, the Respondent then requested that the proceedings be bifurcated. The adjudicator responded as follows that same day by email dated August 19, 2009 1:05 pm (Exhibit 22 of the affidavit of Eric Rowley, at page 275 of the Respondent’s record):
I will hear submissions on your request to bifurcate the hearing, but unless convinced to do so, I would expect the hearing to proceed on the merits.
[14] A hearing was thus held before the adjudicator on August 25, 2009, during which evidence was submitted and representations were made concerning the jurisdictional issue. After hearing the parties on the jurisdictional issue, the adjudicator decided to reserve his decision. He decided to adjourn the hearing on the merits of the complaint until he had ruled on the jurisdictional issue (paragraph 39 of the affidavit of Wanda MacFarlane and paragraph 59 of the affidavit of Eric Rowley).
The adjudicator’s decision
[15] The adjudicator ruled that he did not have jurisdiction to hear the complaint under the Canada Labour Code in view of paragraph 242(3.1)(b) thereof, as interpreted by the Federal Court of Appeal in Byers Transport Ltd. v. Kosanovich, [1995] 3 F.C. 354, 126 D.L.R.. (4th) 679, [1995] F.C.J. No. 1066 (QL), leave to appeal to the S.C.C. dismissed, [1995] S.C.C.A. No. 444 (QL) (hereinafter referred to as “Byers Transport”).
[16] The adjudicator noted that he needed to address two questions to determine the jurisdictional issue under paragraph 242(3.1)(b) of the Canada Labour Code: a) is the factual situation in the Canadian Human Rights Act complaint essentially the same as in the Canada Labour Code complaint? and b) does the Canadian Human Rights Act process provide for some real redress which would be of personal benefit to the Applicant?
[17] He answered these questions as follows at paragraphs 19 to 21 of his decision:
19. In the matter before me, despite the contention of the complainant, I have no hesitation concluding that the complaint before me is essentially the same as the complaint she filed with the CHRC. In my view, although the complaint she filed with the CHRC is more detailed, one need look no farther than her own words found in the second last paragraph. These words are set forth above in paragraph 8. She clearly and without equivocation claims that her termination amounted to discrimination on the basis of disability. Therefore, I have no alternative but to conclude that complaint (sic) before the CHRC is essentially the same as that before me. This is especially so when one considers the fact the complainant submits that the “errors” that lead to her dismissal were as a result of her disability.
20. With respect to the remedial power under the CHRA, I agree with [t]he analysis of adjudicator Cooper in Duncan, [[2000] C.L.A.D. No. 588]. In that case, at paragraph 17, the learned adjudicator identifies some of the broad remedies available under the CHRA. Although they are not necessarily the same as those available under the Code, one would be hard pressed to categorize them as other than “real redress which could be of personal benefit to the same complainant.”
21. For all of the reasons above I have no hesitation in concluding that I am statute barred from hearing this matter.
[18] This could have put an end to the matter. However the adjudicator then went one step further at paragraphs 22, 23 and 24 of his decision, and ruled that he had no jurisdiction to hear complaints for unjust dismissal raising human rights violations:
22. In coming to this conclusion I note that the Code has not been amended, as other pieces of legislation across the country have, to reflect the decision of the Supreme Court of Canada in Parry Sound (District) Social Services Administration Board and O.P.S.E.U., Local 324 [2003] 2 S.C.R.157, 2003 SCC 42. This decision concluded amongst other things, that an arbitrator appointed under a collective agreement, had the authority to interpret the pertinent Human Rights legislation. This was because, according to the court, the pertinent Human Rights legislation is incorporated into each collective agreement. Parry Sound, supra has been applied by arbitrators and adjudicators across the country, and has seen the amendment of various pieces of legislation to reflect the state of the law as formulated by the Supreme Court of Canada.
23. That said, as an adjudicator appointed under the provisions of the Canada Labour Code, I am a creature of statute and therefore cannot go on a “frolic of my own”. I must apply the statute as drafted.
[…]
24. It is my conclusion that as I am without jurisdiction to hear this matter the complaint, it would be futile to hear evidence on the merits of the complaint.
Position of the Applicant
[19] The Applicant, who is self-represented, has identified ten issues in her application for judicial review. The Applicant added issues and expanded upon some issues in her memorandum of fact and law and in her oral submissions at the hearing of this application. Many of these issues are overlapping. I will summarize the Applicant’s position as follows.
[20] First, the Applicant submits that the adjudicator violated the principles of natural justice and procedural fairness since the Applicant was not able to adequately hear the proceedings and the adjudicator did little to remedy that problem. Indeed, the Applicant submits that the hearing room, situated in a local civic centre, was noisy. She thus found herself unable to fully follow the proceedings. Although she did ask the adjudicator to take appropriate measures, she claims he failed to do so.
[21] Second, the Applicant claims that she was never given an opportunity to make her submissions on the bifurcation of the proceedings sought by the Respondent. This again raises issues pertaining to natural justice and procedural fairness.
[22] Third, the Applicant submits that the reasons of the adjudicator for declining jurisdiction are deficient since the adjudicator’s analysis does not reveal his reasoning process, nor does it demonstrate that the relevant law and policy were properly applied, nor does it specifically respond to the arguments of the Applicant. Although this submission is, to a certain extent, related to the Applicant’s arguments challenging the merits of the decision, it does raise some natural justice and procedural fairness considerations.
[23] Finally, the Applicant submits that the adjudicator was wrong in declining jurisdiction. He is said to have failed to properly identify the essential nature of her Canada Labour Code complaint, which makes no reference to human rights issues, and failed to carry out a proper analysis thus leading him to conclude that both complaints were essentially the same and consequently erroneously refusing to exercise his jurisdiction.
Position of the Respondent
[24] The Respondent asserts that no breach to procedural fairness or to the principles of natural justice occurred in this case. In response to the Applicant’s allegation that she was unable to follow the hearing, it is claimed that she made only one comment on this matter at the beginning of the hearing, and that the adjudicator remedied the situation appropriately. The Applicant did not raise the issue after the adjudicator had corrected the situation, and her failure to object after assistance had already been provided is fatal to her argument. Moreover, the Applicant actively participated in the hearing; it can thus be inferred that she could and did hear the proceedings.
[25] The Respondent adds that the adjudicator properly decided to bifurcate the proceedings as he had the authority to determine the procedure to be followed under paragraph 242(2)(b) of the Canada Labour Code. Further, the Applicant offered no evidence showing that she objected to the sought bifurcation at the time of the hearing. At no time during the hearing or prior to the issuance of the decision did the Applicant raise any issue regarding the fairness of the hearing, the process, or the adjudicator’s actions. Moreover, the reasons given by the adjudicator to bifurcate the proceedings were reasonable in the circumstances.
[26] The Respondent adds that the adjudicator reasonably determined that the complaint filed under the Canadian Human Rights Act was essentially the same as the complaint before him. Consequently, paragraph 242(3.1)(b) of the Canada Labour Code clearly applies in this case, and the adjudicator was thus without jurisdiction to consider the complaint under the Canada Labour Code.
The legislation
[27] The relevant provisions of the Canada Labour Code are subsection 240(1) and sections 242 and 243 which read as follows:
240. (1) Subject to subsections (2) and242(3.1), any person
(a) who has completed twelve consecutive months of continuous employment by an employer, and
(b) who is not a member of a group of employees subject to a collective agreement,
may make a complaint in writing to an inspector if the employee has been dismissed and considers the dismissal to be unjust.
242. (1) The Minister may, on receipt of a report pursuant to subsection 241(3), appoint any person that the Minister considers appropriate as an adjudicator to hear and adjudicate on the complaint in respect of which the report was made, and refer the complaint to the adjudicator along with any statement provided pursuant to subsection 241(1).
(2) An adjudicator to whom a complaint has been referred under subsection (1)
(a) shall consider the complaint within such time as the Governor in Council may by regulation prescribe;
(b) shall determine the procedure to be followed but shall give full opportunity to the parties to the complaint to present evidence and make submissions to the adjudicator and shall consider the information relating to the complaint; and
(c) has, in relation to any complaint before the adjudicator, the powers conferred on the Canada Industrial Relations Board, in relation to any proceeding before the Board, under paragraphs 16(a), (b) and (c).
(3) Subject to subsection (3.1), an adjudicator to whom a complaint has been referred under subsection (1) shall
(a) consider whether the dismissal of the person who made the complaint was unjust and render a decision thereon; and
(b) send a copy of the decision with the reasons therefor to each party to the complaint and to the Minister.
(3.1) No complaint shall be considered by an adjudicator under subsection (3) in respect of a person where
(a) that person has been laid off because of lack of work or because of the discontinuance of a function; or
(b) a procedure for redress has been provided elsewhere in or under this or any other Act of Parliament.
(4) Where an adjudicator decides pursuant to subsection (3) that a person has been unjustly dismissed, the adjudicator may, by order, require the employer who dismissed the person to
(a) pay the person compensation not exceeding the amount of money that is equivalent to the remuneration that would, but for the dismissal, have been paid by the employer to the person;
(b) reinstate the person in his employ; and
(c) do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal.
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.
240. (1) Sous réserve des paragraphes (2) et 242(3.1), toute personne qui se croit injustement congédiée peut déposer une plainte écrite auprès d’un inspecteur si :
a) d’une part, elle travaille sans interruption depuis au moins douze mois pour le même
b) d’autre part, elle ne fait pas partie d’un groupe d’employés régis par une convention collective.
242. (1) Sur réception du rapport visé au paragraphe 241(3), le ministre peut désigner en qualité d’arbitre la personne qu’il juge qualifiée pour entendre et trancher l’affaire et lui transmettre la plainte ainsi que l’éventuelle déclaration de l’employeur sur les motifs du congédiement.
(2) Pour l’examen du cas dont il est saisi, l’arbitre :
a) dispose du délai fixé par règlement du gouverneur en conseil;
b) fixe lui-même sa procédure, sous réserve de la double obligation de donner à chaque partie toute possibilité de lui présenter des éléments de preuve et des observations, d’une part, et de tenir compte de l’information contenue dans le dossier, d’autre part;
c) est investi des pouvoirs conférés au Conseil canadien des relations industrielles par les alinéas 16a), b) et c).
(3) Sous réserve du paragraphe (3.1), l’arbitre:
a) décide si le congédiement était injuste;
b) transmet une copie de sa décision, motifs à l’appui, à chaque partie ainsi qu’au ministre.
(3.1) L’arbitre ne peut procéder à l’instruction de la plainte dans l’un ou l’autre des cas suivants :
a) le plaignant a été licencié en raison du manque de travail ou de la suppression d’un poste;
b) la présente loi ou une autre loi fédérale prévoit un autre recours.
(4) S’il décide que le congédiement était injuste, l’arbitre peut, par ordonnance, enjoindre à l’employeur :
a) de payer au plaignant une indemnité équivalant, au maximum, au salaire qu’il aurait normalement gagné s’il n’avait pas été congédié;
b) de réintégrer le plaignant dans son emploi;
c) de prendre toute autre mesure qu’il juge équitable de lui imposer et de nature à contrebalancer les effets du congédiement ou à y remédier.
243. (1) Les ordonnances de l’arbitre désigné en vertu du paragraphe 242(1) sont définitives et non susceptibles de recours judiciaires.
(2) Il n’est admis aucun recours ou décision judiciaire — notamment par voie d’injonction, de certiorari, de prohibition ou de quo warranto — visant à contester, réviser, empêcher ou limiter l’action d’un arbitre exercée dans le cadre de l’article 242.
[28] Subsection 3(1), section 7, subsections 40(1), 41(1), 44(1)(2)(3) and 53(2) and (3) of the Canadian Human Rights Act read as follows:
3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee,
40. (1) Subject to subsections (5) and (7), any individual or group of individuals having reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice may file with the Commission a complaint in a form acceptable to the Commission.
41. (1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that
(a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available;
(b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act;
(c) the complaint is beyond the jurisdiction of the Commission;
(d) the complaint is trivial, frivolous, vexatious or made in bad faith; or
(e) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint.
44. (1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation.
(2) If, on receipt of a report referred to in subsection (1), the Commission is satisfied
(a) that the complainant ought to exhaust grievance or review procedures otherwise reasonably available, or
(b) that the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under an Act of Parliament other than this Act, it shall refer the complainant to the appropriate authority.
(3) On receipt of a report referred to in subsection (1), the Commission
(a) may request the Chairperson of the Tribunal to institute an inquiry under section 49 into the complaint to which the report relates if the Commission is satisfied
(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and
(ii) that the complaint to which the report relates should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in paragraphs 41(c) to (e); or
(b) shall dismiss the complaint to which the report relates if it is satisfied
(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or
(ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e).
53. (2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate:
(a) that the person cease the discriminatory practice and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or to prevent the same or a similar practice from occurring in future, including
(i) the adoption of a special program, plan or arrangement referred to in subsection 16(1), or
(ii) making an application for approval and implementing a plan under section 17;
(b) that the person make available to the victim of the discriminatory practice, on the first reasonable occasion, the rights, opportunities or privileges that are being or were denied the victim as a result of the practice;
(c) that the person compensate the victim for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice;
(d) that the person compensate the victim for any or all additional costs of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice; and
(e) that the person compensate the victim, by an amount not exceeding twenty thousand dollars, for any pain and suffering that the victim experienced as a result of the discriminatory practice.
(3) In addition to any order under subsection (2), the member or panel may order the person to pay such compensation not exceeding twenty thousand dollars to the victim as the member or panel may determine if the member or panel finds that the person is engaging or has engaged in the discriminatory practice wilfully or recklessly.
3. (1) Pour l’application de la présente loi, les motifs de distinction illicite sont ceux qui sont fondés sur la race, l’origine nationale ou ethnique, la couleur, la religion, l’âge, le sexe, l’orientation sexuelle, l’état matrimonial, la situation de famille, l’état de personne graciée ou la déficience.
7. Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects :
a) de refuser d’employer ou de continuer d’employer un individu;
b) de le défavoriser en cours d’emploi.
40. (1) Sous réserve des paragraphes (5) et (7), un individu ou un groupe d’individus ayant des motifs raisonnables de croire qu’une personne a commis un acte discriminatoire peut déposer une plainte devant la Commission en la forme acceptable pour cette dernière.
41. (1) Sous réserve de l’article 40, la Commission statue sur toute plainte dont elle est saisie à moins qu’elle estime celle-ci irrecevable pour un des motifs suivants :
a) la victime présumée de l’acte discriminatoire devrait épuiser d’abord les recours internes ou les procédures d’appel ou de règlement des griefs qui lui sont normalement ouverts;
b) la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale;
c) la plainte n’est pas de sa compétence;
d) la plainte est frivole, vexatoire ou entachée
de mauvaise foi;
e) la plainte a été déposée après l’expiration d’un délai d’un an après le dernier des faits sur lesquels elle est fondée, ou de tout délai supérieur que la Commission estime indiqué dans les circonstances.
44. (1) L’enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l’enquête.
(2) La Commission renvoie le plaignant à l’autorité compétente dans les cas où, sur réception du rapport, elle est convaincue, selon le cas :
a) que le plaignant devrait épuiser les recours internes ou les procédures d’appel ou de règlement des griefs qui lui sont normalement ouverts;
b) que la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale.
(3) Sur réception du rapport d’enquête prévu au paragraphe (1), la Commission :
a) peut demander au président du Tribunal de désigner, en application de l’article 49, un membre pour instruire la plainte visée par le rapport, si elle est convaincue :
(i) d’une part, que, compte tenu des circonstances relatives à la plainte, l’examen de celle-ci est justifié,
(ii) d’autre part, qu’il n’y a pas lieu de renvoyer la plainte en application du paragraphe (2) ni de la rejeter aux termes des alinéas 41c) à e);
b) rejette la plainte, si elle est convaincue :
(i) soit que, compte tenu des circonstances relatives à la plainte, l’examen de celle-ci n’est pas justifié,
(ii) soit que la plainte doit être rejetée pour l’un des motifs énoncés aux alinéas 41c) à e).
53. (2) À l’issue de l’instruction, le membre instructeur qui juge la plainte fondée, peut, sous réserve de l’article 54, ordonner, selon les circonstances, à la personne trouvée coupable d’un acte discriminatoire :
a) de mettre fin à l’acte et de prendre, en consultation avec la Commission relativement à leurs objectifs généraux, des mesures de redressement ou des mesures destinées à prévenir des actes semblables, notamment :
(i) d’adopter un programme, un plan ou un arrangement visés au paragraphe 16(1),
(ii) de présenter une demande d’approbation et de mettre en oeuvre un programme prévus à l’article 17;
b) d’accorder à la victime, dès que les circonstances le permettent, les droits, chances ou avantages dont l’acte l’a privée;
c) d’indemniser la victime de la totalité, ou de la fraction des pertes de salaire et des dépenses entraînées par l’acte;
d) d’indemniser la victime de la totalité, oude la fraction des frais supplémentaires occasionnés par le recours à d’autres biens, services, installations ou moyens d’hébergement, et des dépenses entraînées par l’acte;
e) d’indemniser jusqu’à concurrence de 20 000 $ la victime qui a souffert un préjudice moral.
(3) Outre les pouvoirs que lui confère le paragraphe (2), le membre instructeur peut ordonner à l’auteur d’un acte discriminatoire de payer à la victime une indemnité maximale de 20 000 $, s’il en vient à la conclusion que l’acte a été délibéré ou inconsidéré.
The issues
[29] Though stated differently by the parties, the fundamental issues raised by these proceedings are as follows:
a. What is the standard of review applicable in this case?
b. Were the principles of natural justice or procedural fairness violated by the adjudicator?
c. Did the adjudicator err in declining jurisdiction?
The standard of review
[30] Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir) at para. 62 established a two-step process for determining the standard of review: “[f]irst, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review”.
[31] As a general rule, issues involving principles of natural justice or turning on procedural fairness are to be reviewed on the basis of a correctness standard: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 43. As noted by the Federal Court of Appeal in Sketchley v. Canada (Attorney General), 2005 FCA 404, [2005] F.C.J. No.2056 (QL) at para. 53:
CUPE [C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29] directs a court, when reviewing a decision challenged on the grounds of procedural fairness, to isolate any act or omission relevant to procedural fairness (at para. 100). This procedural fairness element is reviewed as a question of law. No deference is due. The decision-maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this duty.
[32] Consequently, the issues of natural justice and procedural fairness raised by the Applicant shall be reviewed on a standard of correctness.
[33] A stringent standard of review has also been applied to decisions of adjudicators made pursuant to subsection 242(3.1) of the Canada Labour Code. In Canada Post Corp. v. Pollard, [1994] 1 F.C. 652 (C.A); [1993] F.C.J. No. 1038 (QL), the Appeal Division of the Federal Court of Canada made a lengthy analysis of the standard of review applicable to decisions of adjudicators under that provision, and it ruled that such decisions were jurisdictional in nature and thus subject to a standard of correctness in judicial review proceedings. This was again reiterated by Strayer J.A. in the 1995 decision of Byers Transport, at page 371, with respect to both paragraphs 242(3.1)(a) and (b) of the Canada Labour Code:
In reviewing the adjudicator's conclusion that he was not precluded from jurisdiction over the claim by virtue of paragraph 242(3.1)(a), the learned trial judge applied the standard of patent unreasonability. He found no such unreasonability to exist in the adjudicator's conclusion. The appellant argues that the adjudicator's finding was one of jurisdiction for which the standard of review should have been correctness. I agree. In its decision in Pollard this Court had occasion to consider the standard of review in respect of the application of subsection 242(3.1). It held that a determination as to whether an adjudicator is precluded by this subsection from considering the unjust dismissal complaint of a person is a finding as to the existence of jurisdiction and the standard for judicial review of such a determination is that of correctness. This is so notwithstanding the provisions of the privative clause which states as follows: [follows section 243 of the Canada Labour Code reproduced above]
[34] However, Dunsmuir, at para. 54, holds that deference will usually be called for where a tribunal is interpreting its own statute or statutes closely connected to its function. Nevertheless, a tribunal must be correct where it is interpreting its constitutive legislation to determine true questions of jurisdiction, such as jurisdictional lines between two or more competing specialized tribunals: Dunsmuir, at paras. 59 and 61. In this case, the issue is, therefore, whether Dunsmuir has modified the standard of review applicable to the interpretation and application of paragraph 242(3.1)(b) of the Canada Labour Code. I rule that it has not.
[35] In this type of case, the adjudicator must decide a true question of jurisdiction; he must delineate his jurisdiction from that of the Canadian Human Rights Commission. In making this determination, the adjudicator must not only interpret the relevant provisions of the Canada Labour Code, but also the provisions of the Canadian Human Rights Act. The legislative scheme set out in the Canadian Human Rights Act is beyond the scope of the adjudicator’s usual expertise. In these circumstances, it is my view that, either under the case law prior to Dunsmuir and Dunsmuir itself, the standard of review applicable to determinations by adjudicators under paragraph 242(3.1)(b) of the Canada Labour Code is that of correctness.
[36] My view is reinforced by Johal v. Canada (Revenue Agency), 2009 FCA 276, 312 D.L.R. (4th) 663, [2009] F.C.J. 1198 (QL), a case decided after Dunsmuir by the Federal Court of Appeal (“Johal”). In that case, the issue was similar to the one herein. The question to be decided in that case was whether the appellants were barred from presenting individual grievances under the Public Service Labour Relations Act, S.C. 2003, c. 22, as their employer’s staffing program addressed the subject matter of the grievance. While the federal Court of Appeal found that arbitration was available to the appellants, it applied a standard of correctness in interpreting the various statutory provisions at issue. Evans J.A. noted the following in Johal at paras. 28 to 30:
28 There is no case precisely on point. However, in similar contexts this Court has held that determining whether employees come within statutory exclusion clauses analogous to subsection 208(2) is a jurisdictional question, and therefore reviewable on a standard of correctness: see, for example, Canada Post Corp. v. Pollard, [1994] 1 F.C. 652 (F.C.A.) ("Pollard") and Byers Transport Ltd. v. Kosanovich, [1995] 3 F.C. 354 at 371 and 373 ("Byers") (Canada Labour Code), and Canada (Attorney General) v. Boutilier, [2000] 3 F.C. 27 ("Boutilier") (Public Service Staff Relations Act, the predecessor of the PSLRA).
29 After those cases were decided, Dunsmuir (at para 54) expanded the scope of judicial deference to specialized tribunals' interpretation of their "home" legislation, and legislation closely related to it, emphasizing (at para. 59) that only the interpretation of those statutory provisions which raise "true" questions of jurisdiction or vires is reviewable on a standard of correctness. Further, writing for the Court in Nolan v. Kerry (Canada) Inc., 2009 SCC 39, Justice Rothstein inferred from Dunsmuir that reviewing courts must exercise caution in characterizing an issue as jurisdictional, and (at para. 34)
... will only exceptionally apply a correctness of [sic ] standard when interpretation of [the tribunal's home statute] raises a broad question of the tribunal's authority.
30 In my opinion, correctness is the applicable standard of