The Statute

The Code denies the right to a hearing where “any other Act of Parliament” provides a procedure for redress. Often this will be the Canadian Human Rights Act. ¹

Similar to the issues of manager and discontinuance, this represents a complete defence.

The Code also has a similar provision which also allows for the denial of a hearing where there are “other means available to the complainant to resolve the subject matter of the complaint that the Board considers should be pursued”. ²

The statutory wording on this subject was slightly revised in July of 2019, at the same time when the hearing of the complaints was transferred to the CIRB.

Prior to the revision, the excepting words were:

242 (3.1) No complaint shall be considered by the Board under subsection (3) in respect of a person if

...

(b) a procedure for redress has been provided under Part I or Part II of this Act or under any other Act of Parliament.

The amended version now reads as follows:

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.

The amended wording does not change the substance of the Code. However, the issue of the revisions may be important as the complaint of unjust dismissal and Part II reprisal issues come before the same decision maker. To date, the case law has not noted any significance to this event. It may raise the issue as to why the distinction exists between alternative remedies, given that each comes before the same body.

Unfair Labour Practice Complaint

A leading case on this subject is a 1995 Federal Court of Appeal decision. ³ The issue in this case arose as the employee had first filed an unjust dismissal complaint, one which disputed that there was a legitimate discontinuance of a function. This was then followed by a second unfair labour practice complaint which asserted that she had been terminated due to her pro-union sympathies. ⁴

The union, as the legal representative of the employee, settled the second complaint. Although the employee had objected to this settlement, she withdrew this action.

The adjudicator in the unjust dismissal complaint found in her favour, concluding that there was not a genuine discontinuance and that she had been terminated due to her union activity. The issue of the duplicative means of redress was not raised. This question was raised by the employer on first review, in which the trial court found that the adjudicator’s jurisdiction was not ousted and upheld the award.

The Federal Court of Appeal reversed. One point made was that there was an “essential finding of fact” made by the adjudicator that the employee had been terminated due to her union involvement, one which, in turn, led to the conclusion that the discontinuance was in bad faith.

Two Part Test

Given this conclusion, the Court of Appeal stated that the means of redress for this activity was an unfair labour practice complaint. Two questions, the court stated, should be considered in the examination of this issue of a “procedure for redress”:

1. The fact situation must be essentially the same;
2. The differing remedies need not provide the same redress; what is important is that there is another means of remedy.

Strayer, J.A. added that “no doubt that procedure must be capable of producing some real redress which could be of personal benefit to the same complainant”.

Other Complaint Withdrawn

A further decision on this topic followed in 2018. ⁵ K-B was an active member of the flight attendants union. The union had alleged that the employee had been terminated due to this conduct and filed a complaint on this basis. An unjust dismissal complaint went to hearing, prior to which the union withdrew the prior anti-union complaint.

The adjudicator used the same two step analysis. She found that the fact situation was the same in each complaint. She then concluded that the remedy under the anti-union complaint could have provided a remedy of real benefit. For these reasons, the complaint was dismissed.

Other Complaint Amended to Remove Anti-Union Animus

Both these decisions were reviewed in a recent CIRB decision. ⁶ In this instance, the unfair labour practice complaint alleged that the employee’s union activity led to her termination. The unjust dismissal action claimed that the dismissal was unjust and that the allegations made against her for termination, an incident involving a missing ring, was unfounded. The initial complaint of unjust dismissal had included that she had been dismissed due to her union activity. This was amended to remove this assertion by the time the complaint had reached the Board for hearing, an event which took place prior to the employer’s objection to jurisdiction had been raised.

Given the lack of any anti-union animus in the amended complaint, the Board concluded that there was no alternate means of redress. The Board dismissed the objection.

Potential Not Actual Alternative

One adjudicative decision concluded that if there was another process of redress available, it did matter that this remedy had not been sought. It need only exist for the bar against the unjust dismissal to follow. ⁷ In this case, the employee had filed the unjust dismissal complaint in which he alleged that his termination was due to his complaint of safety issues. The case otherwise met the test of Byers and it was dismissed.

This issue was reviewed recently by the CIRB. ⁸ Two complaints had been filed, an unjust dismissal and one under the Part II of the Code dealing with Occupational Health & Safety, alleging that the same person was the subject of reprisals following her exercise of her rights dealing with health and safety issues under the Code.

The Board concluded that that the unjust dismissal claim was barred by the existence of the second remedy, given that the factual foundation for each complaint was “extremely similar”.

The same conclusion was reached in a situation in which the employee filed an unjust dismissal complaint and a human rights remedy, again on the same factual foundation. ⁹

Cannot Confer Jurisdiction By Consent

In the same case, the employer raised and then withdrew its jurisdictional objection. The Board refused to accept this conduct as a waiver of jurisdiction and dismissed the complaint.

Reserve of Jurisdiction

Such a case involving the Human Rights Act was before the Federal Court on first review in 2010. [/efn_note] McFarlane v Day & Ross; upheld in FCA in brief reasons Sept 2014 [/efn_note]

The adjudicator in the McFarlane decision noted that there are two lines of authority which considered the nature of the order to be made, given a finding of duplicated actions.

The first is to decline jurisdiction, yet reserving jurisdiction should the Human Rights Commission decide to refer the claim back to the Code regime. ¹⁰

The second view is simply to decline jurisdiction. This approach was followed in the McFarlane case. The Federal Court took exception to the use of this view.

The applicant had been terminated for just cause in response to which she filed a complaint for unjust dismissal. A adjudicator was appointed and a hearing date was scheduled. Following this communication of the future hearing date, the applicant filed a human rights complaint, alleging adverse treatment due to age and disability. As of the date of the hearing before the Federal Court dealing with the unjust dismissal case, the complaint before the Human Rights Commission was still pending. ¹¹

A hearing proceeded before the adjudicator on August 25. He heard evidence and submissions on the issue of jurisdiction and adjourned the hearing on the merits pending his decision on this preliminary issue. The adjudicator concluded that he lacked jurisdiction and dismissed the complaint.

The analysis was as follows:

1. Are the facts essentially the same in the two cases?
2. Does the Canadian Human Rights Act provide for “some real redress” which would be of personal benefit to the employee?

He answered both questions affirmatively and dismissed the complaint.  As later noted by the Federal Court upon review, had the adjudicator stopped here, this would have ended the matter. However, he continued to add that he had no jurisdiction to hear complaints of unjust dismissal which raise human rights issues.

The Federal Court agreed that the Code complaint must be declined where a “substantially similar complaint” has been filed under the human rights statute. Also, even where no human rights process has been engaged, of the Code complaint raises human rights issues which could reasonably form the basis for a substantially similar complaint under the Human Rights Act. ¹²

However, should the Commission decide to refer the complaint to the adjudicator, in such event, the adjudicator would have the jurisdiction to hear the case. In such a case, there would be no reason why the adjudicator could not hear human rights issues which arise in the context of the complaint.

The Federal Court decision continued to note that there are situations under the unjust dismissal regime in which the adjudicator could consider human rights issues in its assessment of whether the termination was unjust. This would include a termination made for a reasons which would show a violation of the Human Rights Code. ¹³

The end result of this case was that the adjudicative decision was upheld on the substantive decision to decline jurisdiction, a decision, which should, however, have retained jurisdiction in the event of a referral back to it by the Human Rights inquiry.