Ali v. Department of National Defence

Ali v. Department of National Defence
Collection
Canadian Human Rights Tribunal
Date
2022-12-23
Neutral citation
2022 CHRT 44
File number(s)
T2640/1621
Decision-maker(s)
Raymond, K.C., Kathryn A.
Decision type
Ruling
Grounds
Age
Colour
National or Ethnic Origin
Race
Religion
Sex
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2022 CHRT
44
Date:
December 23, 2022
File No(s).:
T2640/1621
Between:
Bibi Ali
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Department of National Defence
Respondent
Ruling
Member: Kathryn A. Raymond, K.C.
Table of Contents
I. Result 3
II. Background 3
III. The Issues: Jurisdiction & Scope of the Complaint 4
IV. Jurisdiction 5
A. Should the FPSLREB Decide the Dispute over the Acting Position? 5
B. Does DND Assert Concurrent or Exclusive Jurisdiction of the FPSLREB? 5
C. Why The Jurisdictional Issue Matters 6
D. Analysis: The Case for Exclusive Jurisdiction of the FPSLREB 7
(i) Applying Horrocks 7
(ii) The Case for Differentiating Staffing Matters 9
E. Analysis: The Case for the FPSLREB being “Better Positioned” 10
(i) The Internal Jurisdictional Issue Under the Act & Its Significance 10
(ii) If a Discretionary Decision by the Tribunal to Assume Jurisdiction is Required 14
F. Conclusion respecting Jurisdiction Over Disputed Content 16
G. Acknowledging that a Jurisdictional Issue Remains to be Decided 16
V. Should the Disputed Content be Struck from Ms. Ali’s SOP? 17
A. Overview of the Issues About the Scope of the Complaint 17
B. DND’s Objects that the Complaint Did Not Include the ENG-05 Allegation 17
C. DND’s Objects that the Allegation Did Not Go Through the Commission’s Process 18
D. DND’s Objects Because the Allegation was Not Referred by the Commission 19
E. Ms. Ali Disputes Her Failure to Raise the ENG-05 Acting Position 20
F. The Commission Agrees 21
G. DND’s Objects that There is an Insufficient Nexus Between the Allegation and the Complaint to Permit Amendment 22
H. The Arguments of Prejudice If Amendment is Permitted or Denied 22
I. The Analysis 23
(i) A Note About Jorge and the Evidence for the Motion About Referral 23
(ii) Clarifying the Facts About the Record Before the Commission 24
(iii) The Significance of the Referral Decision 25
(iv) Observations About Omissions in DND’s Position 26
(v) The Finding Respecting the February 2020 Reply 27
(vi) Offering An Alternative Finding Based on the Content of the Complaint 27
(vii) The Significance of the Commission’s Investigation 27
(viii) The Commission’s Alleged Failure to Consider Whether to Screen Out the Disputed Content Given Ms. Ali’s Access to a Grievance Process 29
(ix) Is There a Sufficient Nexus to the Complaint on the Issue of Liability? 31
(x) Is There a Sufficient Nexus to the Complaint on the Issue of Remedy? 35
(xi) The Assessment of Prejudice 36
J. Overall Conclusion & Direction 36
VI. Order 37
I. Result [1] The Respondent, the Department of National Defence (“DND”), alleges that the Complainant, Ms. Ali, is trying to change the complaint referred to the Tribunal for hearing by altering its scope. DND asks the Tribunal not to assume jurisdiction over new particulars of an allegation in the Complainant’s Statement of Particulars filed in preparation for the hearing. DND says that another tribunal should hear that dispute, based on the Supreme Court of Canada’s decision in Northern Regional Health Authority v. Horrocks, 2021 SCC 42 (Horrocks).
[2] The Tribunal finds it has concurrent jurisdiction with the other tribunal which it should not decline to exercise. Doing so would fragment the issues, leave the Complainant with an incomplete decision on the merits of her complaint and unfairly limit the issue of remedy, should the complaint be upheld.
[3] However, the larger issue concerns whether the disputed content should be struck from the Complainant’s Statement of Particulars on the basis that it constitutes an improper amendment to the complaint. The disputed content has relational relevance to the complaint. It would not be fair to strike the content.
II. Background [4] Ms. Ali says that she experienced discrimination as an employee of DND based on harassment and adverse differential treatment. In February 2018, she filed a complaint under the Canadian Human Rights Act R.S.C. 1985, c.H-6 (the “Act”) with the Canadian Human Rights Commission (the “Commission”). Her complaint was eventually referred to the Tribunal by the Commission for inquiry. Whether her complaint is upheld will be determined another day.
[5] DND raised concern about the scope of the complaint when each of the parties provided particulars of their case in Statements of Particulars (“SOPs”). These are required to be filed by the Tribunal’s Rules of Procedure (the “Rules”). Ms. Ali, who worked for DND in an ENG-04 position over the course of a lengthy career with DND, says in her SOP, in part, that she was not considered for an acting ENG-05 position in 2017 on discriminatory grounds. This allegation is not stated in the complaint she filed with the Commission in 2018 which led to this proceeding.
[6] Ms. Ali was not represented when she filed her complaint. She retained counsel in 2021. When SOPs were filed with the Tribunal, her counsel sought the consent of the parties to amend the complaint to add the content included in her SOP. This content included historical background/context, additional allegations that were not included in the complaint, but which occurred within the relevant period of the complaint, and allegations subsequent to the filing of the complaint. DND agreed to all amendments created by the new content in Ms. Ali’s SOP except the allegation about the acting Eng-05 position.
[7] In response to DND’s objection, Ms. Ali’s counsel took the position that the acting position allegation fell within the scope of the existing complaint and that no amendment was necessary. DND brought this motion to strike the disputed content about the acting ENG-05 position from Ms. Ali’s SOP. The disputed content consists of paragraphs 2, 29(e), 57,91, 92 and 102(f) of the SOP.
[8] DND argues that the Tribunal should not permit this on two grounds:
1)(a) because the Tribunal does not have jurisdiction to decide this allegation given the Horrocks decision, and
(b) even if the Tribunal does have jurisdiction, the Tribunal should not assume jurisdiction, and
2) the allegation is a new complaint which has no nexus to the existing complaint and was not referred by the Commission to the Tribunal for inquiry.
III. The Issues: Jurisdiction & Scope of the Complaint [9] The issues are:
Does the Tribunal have jurisdiction to decide whether Ms. Ali was not considered for an acting ENG-05 position on discriminatory grounds? If the Tribunal does have jurisdiction, should it exercise that jurisdiction? If so, should Ms. Ali be permitted to retain the disputed content in her SOP?
IV. Jurisdiction
A. Should the FPSLREB Decide the Dispute over the Acting Position?
[10] DND is a unionized environment and has a collective agreement. The alleged denial of the acting ENG-05 position could have been grieved under the dispute resolution process pursuant to the applicable collective agreement. That grievance would ultimately be decided by the Federal Public Service Labour Relations and Employment Board (the “FPSLREB” or the “Board”). The Board is created and so authorized by the Federal Public Sector Labour Relations and Employment Board Act, SC 2013, c.40, s. 365. DND submits that the disputed content should be decided by the FPSLREB.
[11] Ms. Ali and the Commission dispute that there is any issue with respect to the Tribunal’s jurisdiction and say that it should hear and decide the disputed content.
B. Does DND Assert Concurrent or Exclusive Jurisdiction of the FPSLREB?
[12] DND begins with the point that the FPSLREB is “better positioned” to address the subject matter of the alleged denial of opportunity related to the ENG-05 position. That is due to the Board’s expertise in interpreting and applying collective agreements. DND submits that simply because Ms. Ali says that she was denied the ENG-05 position on discriminatory grounds does not mean that the Tribunal should decide that issue. The submission that the Board is “better positioned” to address the ENG-05 acting opportunity implicitly assumes that the Tribunal has concurrent jurisdiction with the FPSLREB but should make a choice not to act upon its jurisdiction.
[13] DND also appears to assert that the Tribunal does not have jurisdiction, in which case the Tribunal would not have a discretionary decision to make. This is suggested by DND’s citations from the Horrocks decision. The paragraphs in Horrocks that DND relies upon all concern the Supreme Court of Canada’s finding that a labour relations arbitrator, authorized by provincial legislation and the applicable collective agreement, had exclusive jurisdiction over facts that gave rise to an alleged human rights violation and that a human rights adjudicator in Manitoba, authorized by provincial statute, did not have jurisdiction. DND does not state outright that the Tribunal has no jurisdiction over the disputed content based on Horrocks, but its reliance on the specific excerpts it has chosen implies that DND believes that the Tribunal does not have jurisdiction and cannot exercise discretion to hear the matter as the Tribunal could if it had concurrent jurisdiction.
[14] It was not until DND’s later submissions about staffing decisions that DND expressly claimed that the FPSLREB has exclusive jurisdiction. This was in the context of DND’s submission that the disputed content concerns staffing decisions which are to be decided by the FPSLREB because of the Federal Public Sector Labour Relations Act, SC 2003, c. 22, s. 2.
C. Why The Jurisdictional Issue Matters
[15] The issue of whether the Board, the Tribunal or both have jurisdiction is significant, as is the question of whether the Tribunal should exercise its jurisdiction, if it has jurisdiction. DND asserts that Ms. Ali should pursue the alleged denial of the acting ENG-05 position before the Board. It is by no means clear that Ms. Ali could do so.
[16] In labour relations disputes arising under a collective agreement, an employee has no personal legal ability to take a matter to arbitration. Grieving a dispute, which an employee may do, does not give the employee a personal right of access to an independent and neutral arbitrator. That is dependant upon the union agreeing to take the grievance forward to arbitration. It can be difficult for an employee to overcome a decision by a union not to do so, given the additional procedural hurdle that presents, the limited legal grounds upon which the duty of fair representation rests, the difficulty of obtaining evidence of unfair representation and related issues. The issue of practical access to the FPSLREB is not addressed in the motion materials. If the Tribunal concludes it cannot or should not exercise jurisdiction, Ms. Ali may be left with questions about her access to justice if she is not able to obtain a decision on the merits concerning the ENG-05 acting position from the Board.
[17] To be clear, the Tribunal is obligated to decide whether it has jurisdiction based on the law. The impact on the parties cannot drive the result. Prejudice to either party is only to be considered if the Tribunal is required to decide whether to exercise its jurisdiction.
D. Analysis: The Case for Exclusive Jurisdiction of the FPSLREB
[18] The Tribunal is not persuaded by DND’s contention that the FPSLREB has exclusive jurisdiction over the disputed content based on Horrocks or because the disputed content concerns a staffing issue.
(i) Applying Horrocks
[19] DND asserts that the Supreme Court of Canada decided in Horrocks that an allegation of a human rights violation does not bring a dispute within the jurisdiction of a human rights tribunal. As in this case, Ms. Horrock’s workplace was unionized. A human rights adjudicator in Manitoba took jurisdiction over a human rights issue raised by Ms. Horrocks. The decision of the adjudicator to assume jurisdiction was challenged. Ultimately, the Supreme Court of Canada found that a labour arbitrator had exclusive jurisdiction to determine disputes, including allegations about discrimination, arising from the collective agreement. It did so on the basis that Manitoba’s Labour Relations Act contained a mandatory dispute resolution clause. The court concluded that this conferred exclusive jurisdiction over disputes arising under the collective agreement upon the labour arbitrator.
[20] The court made this legal finding conditional by holding that its ruling was subject to “clearly expressed legislative intent to the contrary” (at para 39) but found nothing in the legislation authorizing the human rights adjudicator to hear human rights complaints that expressed a contrary intent. In other words, the statutory authorization to hear a human rights complaint was not enough on its own to override the mandatory dispute resolution clause in Manitoba’s Labour Relations Act.
[21] DND specifically relies upon paras 30, 46, 50-52 of Horrocks. These are the paragraphs in the decision which confirm that the arbitrator in that case has exclusive jurisdiction; these paragraphs negate the exercise of discretion by the human rights adjudicator in assuming jurisdiction. The court expressly states that this conclusion “is not a judicial preference but an interpretation of the mandate given to arbitrators by statute” (para 30).
[22] DND implies that this case is analogous with Horrocks because the disputed content is subject to the Federal Public Sector Labour Relations Act. DND submits that jurisdiction for the final settlement of disputes arising from Ms. Ali’s collective agreement lies with the Board. DND emphasizes that, in Horrocks, the Supreme Court of Canada found that the Manitoba Human Rights Commission adjudicator erred in finding that she had jurisdiction by focusing too narrowly on the legal characterization of the claim as involving human rights rather than on whether the facts of the dispute fell within the scope of Ms. Horrocks’ collective agreement. DND argues, similarly, that the facts relating to Ms. Ali’s acting allegations fall squarely within the scope of her collective agreement. DND points out that the collective agreement contains an article that prohibits discrimination (Article 44).
[23] The Tribunal notes that DND did not identify what provisions in the federal statutes it references are said to confer exclusive jurisdiction on the Board. Horrocks concerns the specific legislation in Manitoba in issue in that case, not the Federal Public Sector Labour Relations Act, the Public Service Employment Act or the Federal Public Sector Labour Relations and Employment Board Act.
[24] It is not necessary to compare the wording of the Labour Relations Act in Manitoba, which was in issue, and the federal statutes relevant here to determine whether they grant the Board exclusive jurisdiction such that the result in this case should be the same as in Horrocks. In Horrocks, the Supreme Court of Canada decided that the Canadian Human Rights Tribunal has concurrent jurisdiction with labour arbitrators and other statutory tribunals possessing jurisdiction over human rights. This is because of the Canadian Human Rights Act.
[25] The court pointed out that “to displace labour arbitration as the sole forum for disputes arising from a collective agreement… some positive expression of the legislature’s will” is required, at para 33. The court emphasized that the “mere existence of a competing tribunal is insufficient”. The court then explained what would negate the exclusive jurisdiction of the labour arbitrator:
Ideally, where a legislature intends concurrent jurisdiction, it will specifically so state in the tribunal’s enabling statute. But even absent specific language, the statutory scheme may disclose that intention. For example, some statutes specifically empower a decision-maker to defer consideration of a complaint if it is capable of being dealt with through the grievance process (see, e.g., Human Rights Code, R.S. B. C. 1996, c. 210, s. 25; Canada Labour Code, ss. 16(1.1) and 98(3); Canadian Human Rights Act, R.S.C. 1985, c. H-6, ss. 41 and 42). Such provisions necessarily imply that the tribunal has concurrent jurisdiction over disputes that are also subject to the grievance process…. In these circumstances, applying an exclusive arbitral jurisdiction model would defeat, not achieve, the legislative intent. (Emphasis added)
[26] DND does not acknowledge this finding of the Supreme Court of Canada in Horrocks in its submissions for the motion and, therefore, does not offer arguments about why it is not applicable or should be distinguished and not followed.
[27] The Tribunal can see no basis to conclude otherwise than that it is bound by the finding of the Supreme Court of Canada in Horrocks. The Tribunal has concurrent jurisdiction with labour arbitrators and statutory tribunals such as the FPSLREB over matters involving facts that give rise to allegations of discrimination.
(ii) The Case for Differentiating Staffing Matters [28] DND argues that the ENG-05 allegation is a staffing issue. DND makes a blanket assertion at para 48 of its submissions that the FPSLREB has exclusive jurisdiction over staffing matters as a specialized staffing tribunal with expertise to hear grievances related to staffing actions under the authority of the Public Service Employment Act, SC 2003, c.22, ss12,13.
[29] The ENG-05 allegation is not just a staffing issue. The allegation raises a human rights issue. DND’s submission does not identify how the FPSLREB could have exclusive jurisdiction over a staffing issue alleged to be caused by discrimination. DND does not offer a specific legislative interpretation of the Public Service Employment Act or explain how Horrocks would not apply. DND’s argument that this is a different situation because the issues also involve staffing matters is not persuasive.
[30] The Tribunal has concurrent jurisdiction over the human rights issues in this case. Whether the facts also involve staffing issues or personnel issues, for example, such as when a complainant’s employment is terminated, is not the correct analysis.
E. Analysis: The Case for the FPSLREB being “Better Positioned”
[31] In Horrocks, the court commented that “[w]here two tribunals have concurrent jurisdiction over a dispute, the decision-maker must consider whether to exercise its jurisdiction in the circumstances of a particular case” at para 41. The court declined to elaborate regarding the factors that should guide the determination of forum. At first glance, the Tribunal is required to make a decision about whether it should act upon its concurrent jurisdiction. However, the Tribunal is required to hold an inquiry into complaints that are referred to it by the Commission and to effect a resolution of all disputed issues within the scope of the complaint.
(i) The Internal Jurisdictional Issue Under the Act & Its Significance [32] The decision respecting concurrent jurisdiction over the human rights issues that are relevant to the complaint was effectively made by the Commission when it assumed jurisdiction in its Section 41 Decision. The Commission referred the complaint in its entirety to the Tribunal in its Referral Decision pursuant to sections 44(3) and 49. The Commission’s concurrent jurisdiction has been transferred to the Tribunal.
[33] The issue to be decided by the Tribunal is whether the denied acting ENG-05 position has a sufficient nexus to the complaint such that it falls within its scope. If the allegation has a sufficient nexus to the complaint, the allegation falls within the scope of the complaint and thereby the jurisdiction of the Tribunal over the complaint. The Tribunal is required to hold an inquiry into allegations that fall within the scope of the complaint and must comply with the statutory regime within which it operates.
[34] In Canada, the federal human rights regime is not a direct access model. The Commission screens complaints, and the Tribunal hears complaints referred to it by the Commission. No party has direct access to the Tribunal. When the Commission refers a complaint to the Tribunal, the Tribunal acquires jurisdiction.
[35] Section 49(1) and (2) of the Act make it clear that the Chair of the Tribunal is required upon referral by the Commission pursuant to section 44(3) to “institute an inquiry” by assigning a member of the Tribunal to “inquire into the compliant”. Section 50(1) states that the member “shall inquire into the complaint.” In other words, when a complaint is referred to the Tribunal, it is expected to act upon that referral.
[36] The Supreme Court of Canada’s conclusion in Horrocks, that Parliament intended there be concurrent jurisdiction for proceedings under the Act concerning discrimination allegations in a federal unionized workplace, is based upon the court’s interpretation and application of sections of the Act that speak to the authority of the Commission. When the court wrote that certain provisions in a statute will necessarily imply that the tribunal has concurrent jurisdiction over disputes that are also subject to the grievance process, the court specifically identified sections 41 and 42 which apply to the Commission. Sections 41 and 42 grant the Commission statutory authority to defer a human rights complaint if it can reasonably be dealt with through a grievance process, not the Tribunal. Further, once a complaint has gone through a different legal process, if the complainant requests, the Commission has the ability to determine whether it should proceed to address the complaint, not the Tribunal. When the court described “the expression of legislative intent that negates the exclusive jurisdiction of other decision-makers”, it confirmed the concurrent jurisdiction and authority of the Commission.
[37] This authority includes that, in deciding whether to grant access to the Tribunal, the Commission may consider whether the complaint has been rendered “trivial, frivolous, vexatious or made in bad faith” pursuant to section 41(1)(d) by reason of another process. That is what happened in this case.
[38] Ms. Ali’s allegations of harassment and discrimination by her manager originally became the subject of a grievance which was withdrawn on the basis that DND would provide an internal investigation. Accordingly, an internal harassment complaint within DND was filed by Ms. Ali. Following its conclusion, Ms. Ali apparently was dissatisfied with that internal process in terms of fairness and result. She subsequently filed her human rights complaint with the Commission in 2018.
[39] Commission staff considered Ms. Ali’s complaint in light of section 41. Because of DND’s previous internal investigation, they specifically considered whether her complaint was trivial, frivolous, vexatious or made in bad faith pursuant to section 41(d) of the Act. In doing so, they considered whether Ms. Ali was required to file a grievance under the collective agreement if she did not consider the outcome of the internal investigation to be satisfactory. A “Section 41 Report” was, in fact, issued by Commission staff with a recommendation that the complaint be dismissed.
[40] The Board of Commissioners of the Commission received and considered the Section 41(1) Report. They make decisions that become the Commission’s decisions (see Jorge v Canada Post 2021 CHRT 25 (Can LII) (“Jorge”) at para 137). The Board of Commissioners did not accept the recommendation of their staff to dismiss the complaint. They decided that the Commission should consider the complaint on the understanding that, if warranted, the complaint would be sent on to the Tribunal for hearing.
[41] The Board of Commissioners provided written reasons for the Commission’s decision (the “Section 41 Decision”) to the parties. This decision was not judicially reviewed and became final. DND had an opportunity to dispute the jurisdiction asserted by the Commission by applying to judicially review the Commission’s Section 41 Decision or as part of a judicial review of the Commission’s ultimate referral of the complaint to the Tribunal. It did not do so.
[42] It is recognized that the Section 41 Decision concerned the Commission’s assertion of jurisdiction over the complaint, not the acting ENG-05 position or the more general issue of denied promotional opportunities. As explained below, these allegations had not yet been made to the Commission. The Section 41 Decision, however, set the foundation of the Commission’s jurisdiction over the complaint.
[43] Ultimately, the complaint was referred by the Commission to the Tribunal for inquiry (the “Referral Decision”) pursuant to section 44(3) and 49. In referring the complaint to the Tribunal, the Commission further exercised its decision to exercise concurrent jurisdiction over the complaint in proceedings pursuant to the Act.
[44] The Tribunal’s jurisdiction over the complaint is not in question. The issue of the Tribunal’s jurisdiction over the ENG-05 allegation is dependant upon the relevance of that allegation to the complaint it has received.
[45] The Tribunal’s responsibility is to conduct an inquiry commensurate with the scope of the complaint referred to it. The Tribunal should not be re-visiting the history of the complaint before the Commission without a defensible reason to do so, such as when there is an ambiguity about what was referred in the Referral Decision. The Tribunal will not engage in a form of indirect judicial review of a final decision of the Commission (Jorge, para 236). The Tribunal has no authority to do so.
[46] Specifically, the Tribunal does not have the authority to make a decision under section 41, which must be made by the Commission. Section 44(2), similarly, gives the Commission the authority to decide to defer a complaint following receipt of an investigation report if the Commission concludes that the complainant ought to exhaust reasonably available grievance or review procedures. It is the Commission that is authorized to make the decision about whether a complaint, in whole or in part, is referred to the Tribunal pursuant to sections 44(3) and 49. On making a referral pursuant to section 44(3), the Commission must be satisfied that an inquiry is warranted, and that the complaint should not be referred to a grievance or other review process.
[47] The Tribunal has no statutory authority to defer matters referred to it by the Commission for jurisdictional reasons. The Tribunal has no jurisdiction to order that a complaint or part of a complaint referred to it by the Commission be sent elsewhere, in this case, to be addressed through the Board’s arbitration process. If the ENG-95 allegation is properly a part of the complaint, the Tribunal cannot order that the allegation be sent to another decision-maker.
[48] In summary, the Tribunal derives its concurrent jurisdiction through the Commission under the limited access regime prescribed by the Act. The Tribunal does not decide whether to exercise concurrent jurisdiction as it does not have the jurisdiction or authority to decide whether to apply section 41 or 44(2), or to decline a referral made to it pursuant to section 44(3) and section 49. The decision respecting concurrent jurisdiction was effectively made by the Commission previously when it made its Section 41 Decision and was made again when the Commission referred the complaint to the Tribunal in its Referral Decision pursuant to section 44(3) and 49. The Tribunal is required to hold an inquiry into any matter that is relevant to a complaint referred to it by the Commission and to effect a resolution of all disputed issues within the scope of the complaint.
[49] For reasons explained below, the Tribunal has concluded that the allegation respecting the ENG-05 acting position falls within the scope of the complaint. The Tribunal has concurrent jurisdiction over this allegation, which it is required to exercise.
(ii) If a Discretionary Decision by the Tribunal to Assume Jurisdiction is Required [50] If the Tribunal is incorrect in its interpretation of the Commission’s determination of concurrent jurisdiction over the complaint and its effect, and there is a discretionary decision for the Tribunal to make about exercising its concurrent jurisdiction, given that the Tribunal has decided that the ENG-05 allegation falls within the scope of the complaint, the appropriate forum, the balance of convenience, judicial economy and the interests of justice all but obligate the Tribunal to exercise its jurisdiction to hear the complaint.
[51] It is far more expeditious and efficient to permit amendment of the complaint, if that is appropriate and needed, so that the complaint may be dealt with in its entirety in one proceeding than to decline jurisdiction over one allegation and inform Ms. Ali that, if she wishes to have a decision about the ENG-05 allegation, she is required to begin a separate proceeding for that one allegation with the Board. As explained above, it is not even clear and obvious that she could do so or do so in an efficient or timely manner. DND’s submissions do not address issues of judicial economy by reason of the Tribunal already having the disputed content in issue before it. In the Tribunal’s view, it would create more work for all parties that is unnecessary and duplicative if the Tribunal were to decline to exercise concurrent jurisdiction in these circumstances.
[52] Further, isolating one set of facts or an allegation from consideration could have implications for the merits of either a human rights complaint before the Tribunal or the FPSLREB. The Referral Decision makes it clear that the discrimination is said to arise on multiple grounds and be intersectional in nature. It could work an injustice to an alleged victim of discrimination or harassment to leave out relevant facts or to carve an allegation out of a complaint so that it is dealt with separately and negate the opportunity to consider the intersectionality of grounds of discrimination. Sometimes allegations need to be considered in context of other facts and allegations so that the overlapping intersectionality that establishes that discrimination has occurred becomes apparent. It would not only be in the interests of judicial economy but is also in the interests of justice to have all matters within the scope of the complaint heard and decided, at once, by one decision-maker.
[53] DND submits that the Board is better positioned to decide the ENG-05 allegation because it is, at its core, a dispute arising from Ms. Ali’s employment relationship with DND, which is governed by a collective agreement. DND says that these allegations necessitate the interpretation and application of Article 44 of the collective agreement which prohibits discrimination in employment on the grounds asserted by Ms. Ali in her allegations, namely religion, national origin, race, colour, sex, and age. DND submits that this is a function that the Board is uniquely qualified to perform. On this point, DND asserts that the interpretation and application of collective agreements has been described by the Federal Court of Appeal as the heartland of the Board’s expertise in Canada (Attorney General) v. Fehr, 2018 FCA 159 at para 4.
[54] DND points out that the Board also has statutory jurisdiction to interpret, apply, and award remedies pursuant to the Act, and routinely hears cases involving discrimination in employment. The Commission has standing in grievances requiring interpretation or application of the Act, and Ms. Ali is entitled to free representation by her union, the Professional Institute of the Public Service of Canada, with respect to disputes arising from matters covered under the collective agreement. DND further notes that, “as emphasized by Justice Brown in Horrocks, unions are subject to both to the duty of fair representation (as codified in this case by s. 187 of the Federal Public [Sector] Labour Relations Act) and by application of human rights legislation.”
[55] As further support for its argument that the Board is better positioned than the Tribunal to address the disputed content, DND submits that staffing issues require different considerations than the issues raised by Ms. Ali. DND includes here the performance and skills of her and that of other candidates, “…the profile of the other candidates (i.e., their age, colour, national origin, race religion or sex), the qualifications required for [the] ENG-05 [position], and the team’s operational needs which were not investigated at the Commission stage.” DND submits that having the Tribunal deal with these issues would add considerably to the proceeding.
[56] These are all reasons why the Board could have heard and decided the issues respecting the disputed content. These are not persuasive reasons why the Tribunal should not exercise its concurrent jurisdiction regarding the complaint before it.
F. Conclusion respecting Jurisdiction Over Disputed Content
[57] The Tribunal has concurrent jurisdiction and is already engaged in active jurisdiction over Ms. Ali’s human rights complaint. The disputed content is properly included as part of the complaint before the Tribunal. The Tribunal has jurisdiction over the disputed content.
G. Acknowledging that a Jurisdictional Issue Remains to be Decided
[58] Before leaving the issue of jurisdiction, the Tribunal wishes to acknowledge that DND also advanced an argument based on the law respecting when amendments to a complaint may be made. The argument is relevant to the exercise of jurisdiction by the Tribunal in this case.
[59] DND submits that the ENG-05 allegation is different and should be heard by the Board, not by the Tribunal, because the Commission did not consider the specific matter of the acting ENG-05 position during its screening, investigation and referral process. The Tribunal recognizes that the disputed content must be appropriate to include in Ms. Ali’s SOP as a particular or as an amendment to the complaint for the Tribunal to have concurrent jurisdiction, as the Tribunal has no jurisdiction independent of the Commission’s referral of the complaint. This issue is addressed below.
V. Should the Disputed Content be Struck from Ms. Ali’s SOP?
A. Overview of the Issues About the Scope of the Complaint
[60] The issues raised by DND’s objections and the responses of the other parties are:
Whether the allegation about the ENG-05 acting position was included in the complaint; If not, whether the allegation can bypass the Commission’s screening roles during its process; Whether the allegation about the ENG-05 position was referred by the Commission to the Tribunal; If not, whether there is a sufficient nexus between the allegation and the complaint to permit amendment of the complaint; and, Whether any party would be prejudiced should the amendment be granted or denied.
B. DND’s Objects that the Complaint Did Not Include the ENG-05 Allegation
[61] As indicated, DND asserts that the ENG-05 allegation was not raised in Ms. Ali’s complaint and is outside the scope of the complaint. Accordingly, DND submits that the relevant paragraphs in Ms. Ali’s SOP should be struck.
[62] DND asserts that, in all respects, Ms. Ali’s complaint was limited to the manner in which she was managed by a specific manager. DND submits that Ms. Ali raised very specific categories of events in her complaint.
[63] DND uses the titles written by Ms. Ali in her complaint to describe what it says are the relevant categories of allegations in the complaint. These include, but are not limited to, “Problem Employee”, “Administrative Work/Threat of Discipline”, “Performance Monitoring/Workload Distribution”, “Retaliation” and alleged “Continued Intimidation After Separation”. DND refers, as well, to the use of similar titles in a more detailed version of the complaint that was filed by Ms. Ali early in the Commissions’ process before Ms. Ali secured legal counsel. In placing emphasis only upon these two documents that were prepared by Ms. Ali at the Commission stage, which describe the complaint without reference to the ENG-05 acting position allegation, DND implies that Ms. Ali consistently did not refer to subject matter for which the allegation would be relevant.
C. DND’s Objects that the Allegation Did Not Go Through the Commission’s Process
[64] DND states that the acting allegations and the remedies now put forward in Ms. Ali’s SOP “…have not been vetted… and have not been investigated or scrutinized by the Commission….” DND submits that allowing the ENG-05 issue to proceed now would circumvent the Commission’s process. This includes not only an alleged lack of investigation into the allegation but that the Commission’s Section 41 Report and the parties’ submissions before the Commission were limited to DND’s handling of the internal harassment complaint filed by Ms. Ali with DND. DND asserts that there was no decision by the Commission to deal with the ENG-05 allegation despite Ms. Ali’s failure to grieve that decision.
[65] DND submits that the Commission cannot deal with a complaint if it should be screened out by the Commission on the basis of section 41(1)(a) of the Act. In this case, DND says that Ms. Ali ought to have used the grievance process under the collective agreement to dispute the ENG-05 acting position; because she failed to grieve, the Commission cannot deal with her complaint. DND adds that Ms. Ali’s recourse to DND’s separate internal investigation does not mean that she should not have to exhaust the grievance procedure in relation to the acting ENG-05 position. DND points out that the internal harassment investigation did not consider staffing issues.
[66] DND also says that it would be unfair to permit the disputed content to remain. It submits that it is prejudiced in its ability to raise an objection pursuant to section 41 of the Act to argue that Ms. Ali should have filed a grievance if she wished to dispute the outcome of the acting ENG-05 position.
[67] Regarding the alleged subsequent lack of investigation by the Commission into the ENG-05 allegation, DND emphasizes that the inclusion of the allegation now would permit Ms. Ali to circumvent the Commission’s broader screening process which is based upon consideration of an investigation report pursuant to section 44(3). DND relies upon Karas v Canadian Blood Services and Health Canada, 2021 CHRT 2 (Can LII) (“Karas”) at para 140 where the Tribunal found that permitting additions at a late stage before the Tribunal circumvented the process under the Act to the prejudice of the respondent. DND further cites Jorge, at para 86, as authority for the proposition that the fact the disputed content was not vetted through the Commission’s investigatory process alone is a reason to deny an amendment and strike the disputed content.
[68] DND acknowledges that in Jorge the Tribunal rejected a similar argument that the respondent was prejudiced by reason of the Commission not having an opportunity to investigate but says that Jorge may be distinguished because, unlike the facts in Jorge, in this case no notice of the acting allegations was given by the complainant at the Commission stage. DND asserts that the acting allegation was only raised after the referral of the complaint.
D. DND’s Objects Because the Allegation was Not Referred by the Commission
[69] DND further points out that the Referral Decision, which sets the parameters for the inquiry, addressed specific allegations in the complaint. It did not refer to any allegation that Ms. Ali was denied an ENG-05 acting opportunity. DND says, therefore, th