Judgments

T-1450-97

Attorney General of Canada (Applicant)

v.

Ross Robert Boutilier (Respondent)

Indexed as: Canada (Attorney General)v. Boutilier (T.D.)

Trial Division, McGillis J.—Ottawa, September 9 and November 13, 1998.

Public Service — Jurisdiction — PSSRB — Judicial review of Adjudicator's decision respondent entitled to marriage leave under collective agreement for same sex union — Employee's right to grieve limited by PSSRA, s. 91(1) requirement no administrative procedure for redress in another Act of Parliament — S. 92 permitting referral of grievance to adjudication only following completion of grievance process — Where s. 91(1) depriving employee of right to grieve, cannot subsequently refer grievance to adjudication under s. 92 — Canadian Human Rights Act, ss. 41(1)(a), 44(2)(a) permitting CHRC to require complainant to exhaust grievance procedures — Where grievance involving discriminatory practice in context of collective agreement, CHRA applies — Grievance alleging discrimination based on denial of employment benefit for reasons directly related to sexual orientation — Within mandate of CHRC, Tribunal under CHRA — CHRA providing —administrative procedure for redress— — Adjudicator lacked jurisdiction to hear grievance.

Human Rights — Judicial review of Adjudicator's decision under PSSRA respondent entitled to marriage leave under collective agreement for same sex union — PSSRA, s. 91(1) depriving employee of right to grieve where another statutory procedure for redress — CHRA, ss. 41(1)(a), 44(2)(a) permitting CHRC to require complainant to exhaust grievance procedures — Indicating Parliamentary intention to permit CHRC to determine whether matter should proceed as grievance under other legislation or as complaint under CHRA, in event of overlap between legislatively mandated grievance procedures — Where substance of grievance involving complaint of discriminatory practice in context of interpretation of collective agreement, CHRA governing procedure to be followed — Employee must file complaint with CHRC — May proceed under PSSRA only if Commission determining, in exercise of discretion under ss. 41(1)(a), 44(2), grievance procedure ought to be exhausted — Grievance alleging discrimination based on denial of employment benefit for reasons directly related to sexual orientation — Within CHRT, CHRC's mandate under CHRA — CHRA —administrative procedure for redress— within PSSRA, s. 91(1) — Respondent not entitled by s. 91(1) to present grievance — Adjudicator lacked jurisdiction.

This was an application for judicial review of a decision of the Public Service Staff Relations Board Chairperson sitting as an adjudicator under the Public Service Staff Relations Act (PSSRA) upholding the respondent's grievance. In 1994, the respondent requested five days of marriage leave as provided for in a collective agreement. The marriage was a same sex union celebration. His request was denied. The respondent grieved the matter, and the grievance was denied. The grievance was referred to adjudication under section 92 of the PSSRA. The Adjudicator concluded that the respondent was entitled to marriage leave, without considering whether he had jurisdiction to entertain the grievance.

The issue was whether the Adjudicator had jurisdiction to entertain the grievance.

Held, the application should be allowed.

An employee's right to present a grievance is limited by the requirement in PSSRA, subsection 91(1) that no administrative procedure for redress exists in another Act of Parliament, and by the requirement in subsection 91(2) for the approval of, and representation by, the bargaining agent. (Since the respondent had the approval of and was represented by the appropriate bargaining agent, subsection 91(2) did not affect his entitlement to present his grievance.) Furthermore, under section 92, an employee may only refer a grievance to adjudication following the completion of the grievance process, up to and including the final level. Where the operation of a limitation contained in either subsection 91(1) or (2) deprives an employee of his qualified right to present the grievance, the employee cannot subsequently refer the grievance to adjudication under subsection 92(1). In the event that an employee does refer such a grievance to adjudication, the adjudicator has no jurisdiction to entertain it.

Canadian Human Rights Act (CHRA), paragraphs 41(1)(a) and 44(2)(a) permit the Commission, in an appropriate case, to require the complainant to exhaust grievance procedures. They also indicate that Parliament expressly considered that situations would arise in which a conflict or an overlap would occur between legislatively mandated grievance procedures, such as that provided for in the PSSRA, and the legislative powers and procedures in the CHRA for dealing with complaints of discriminatory practices. In the event of such a conflict or overlap, Parliament chose to permit the Commission, by virtue of paragraphs 41(1)(a) and 44(2)(a), to determine whether the matter should proceed as a grievance under other legislation or as a complaint under the CHRA. Where the substance of a purported grievance involves a complaint of a discriminatory practice in the context of the interpretation of a collective agreement, the provisions of the CHRA apply and govern the procedure to be followed. In such circumstances, the aggrieved employee must therefore file a complaint with the Commission. The matter may only proceed as a grievance under the PSSRA in the event that the Commission determines, in the exercise of its discretion under CHRA, paragraphs 41(1)(a) or 44(2)(a) that the grievance procedure ought to be exhausted.

The question to be addressed is the existence of a —procedure for redress—, and not the nature or the extent of the remedies available under any such procedure. The procedure for redress referred to in subsection 91(1) does not have to be identical to the grievance procedure mandated by the PSSRA. Nor do the remedies in the two procedures have to be identical. The length of time taken by the Commission and the Human Rights Tribunal, respectively, to deal with a complaint or to conduct a hearing into a complaint is an irrelevant consideration in determining whether the procedure in the CHRA constitutes —an administrative procedure for redress—.

The substance of the respondent's grievance was an allegation of discrimination based on the denial of an employment benefit for reasons directly related to his sexual orientation. It fell squarely and directly within the terms of the statutory mandate accorded to the Commission and the Human Rights Tribunal under the CHRA. The CHRA provides the respondent with an administrative procedure for redress in relation to the question of the interpretation of the marriage leave provision in the collective agreement. The respondent was not entitled, by virtue of subsection 91(1), to present his grievance at any of the levels of the grievance process. Consequently, the respondent had no right to refer his grievance to adjudication under subsection 92(1) of the PSSRA, and the Adjudicator had no jurisdiction to entertain the application.

The failure to raise a jurisdictional issue at adjudication does not prevent a party from raising it on judicial review.

statutes and regulations judicially considered

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

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].

Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 2 (as am. by S.C. 1998, c. 9, s. 9), 41(1)(a) (as am. by S.C. 1995, c. 44, s. 49), 42, 44(1),(2)(a).

Public Service Staff Relations Act, R.S.C., 1985, c. P-35, ss. 91, 92 (as am. by S.C. 1992, c. 54, s. 68).

cases judicially considered

applied:

Mohammed v. Canada (Treasury Board), [1998] F.C.J. No. 845 (T.D.) (QL); Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854; (1996), 140 D.L.R. (4th) 193; 40 C.R.R. (2d) 81; 204 N.R. 1; Byers Transport Ltd. v. Kosanovich, [1995] 3 F.C. 354; (1995), 126 D.L.R. (4th) 679; 95 CLLC 210-045; 185 N.R. 107 (C.A.); leave to appeal to S.C.C. dismissed, [1995] S.C.C.A. No. 444.

considered:

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; (1993), 100 D.L.R. (4th) 658; 13 Admin. L.R. (2d) 1; 46 C.C.E.L. 1; 17 C.H.R.R. D/349; 93 CLLC 17,006; 149 N.R.1; Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84; (1987), 40 D.L.R. (4th) 577; 8 C.H.R.R. D/4326; 87 CLLC 17,025; 75 N.R. 303; Chopra v. Canada (Treasury Board), [1995] 3 F.C. 445; (1995), 100 F.T.R. 226 (T.D.).

APPLICATION for judicial review of an Adjudicator's decision (Boutilier and Treasury Board (Natural Resources), [1997] C.P.S.S.R.B. No. 54 (QL)) that the respondent was entitled to marriage leave for a same sex union under the terms of a collective agreement. Application allowed on the ground that the Adjudicator lacked jurisdiction to entertain the grievance.

appearances:

Harvey A. Newman and Micheline Langlois for applicant.

Dougald E. Brown and Pamela J. MacEachern for respondent.

Steven R. Chaplin for intervener (Public Service Staff Relations Board).

solicitors of record:

Deputy Attorney General of Canada for applicant.

Nelligan Power, Ottawa, for respondent.

Maclaren, Corlett, Ottawa, for intervener (Public Service Staff Relations Board).

The following are the reasons for order rendered in English by

McGillis J.:

INTRODUCTION

The applicant Attorney General of Canada (Attorney General) has challenged by way of judicial review a decision dated June 4, 1997 [[1997] C.P.S.S.R.B. No. 54 (QL)] of the Chairperson of the Public Service Staff Relations Board, sitting as an adjudicator appointed under the Public Service Staff Relations Act, R.S.C., 1985, c. P-35, as amended, in which he upheld a grievance filed by the respondent Ross Robert Boutilier. The principal question to be determined is whether the Adjudicator had jurisdiction to entertain the grievance.

FACTS

Mr. Boutilier has been employed by the Department of Natural Resources Canada as a physical scientist for over 10 years in Halifax, Nova Scotia. At all relevant times, Mr. Boutilier was covered by the Physical Sciences Group Collective Agreement (222/91) between the Professional Institute of the Public Service and the Treasury Board (collective agreement).

In May 1994, Mr. Boutilier made a verbal request for marriage leave for the period from July 11 to 15, 1994, given his intention to engage in a public ceremony of commitment with his homosexual partner. On July 8, 1994, he formally requested in writing five days of —marriage leave for the purpose of getting married as provided for in . . . collective agreement for the Physical Sciences (clause) 20.09(b)(iv)—. In an attachment to his leave form, he indicated that the —marriage— was a —same sex Union celebration, though it would be a marriage where current provincial legislation altered—, and that he and his partner planned to take a week-long holiday after the ceremony. He further indicated as follows:

The only difference between our celebration and a marriage is the legal obstacle that has been placed in our path. The collective agreement intends to recognize the significance of this event in our lives, and I want this benefit. Refusal to allow this benefit goes contrary to the current interpretation of the Charter of Rights and Freedoms, against the policies and priorities of our union, and against the expectation of fairness in dealing which I have of my employer.

Clause 20.09(b)(iv) of the collective agreement, under which Mr. Boutilier claimed marriage leave, provides as follows:

20.09 Leave With Pay for Family-Related Responsibilities

. . .

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

. . .

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

In the alternative, Mr. Boutilier requested special leave without pay under clause 20.13 of the collective agreement, entitled —Leave With or Without Pay For Other Reasons—, which provides that —[a]t its discretion, the Employer may grant leave with or without pay for purposes other than those specified in this Agreement.—

The collective agreement also contains the following —no discrimination— clause:

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

On July 9, 1994, Mr. Boutilier and his partner participated in a union ceremony conducted by Reverend Darlene Young of the Universal Fellowship of Metropolitan Community Churches, a legally recognized Christian Church. They exchanged vows in front of family members and friends, and undertook to live openly as a couple. At the conclusion of the ceremony, they received a Certificate of Holy Union. The union ceremony was similar in most respects to a traditional marriage ceremony, but did not include the signing of a marriage licence. No licence or certificate of marriage was issued under the laws of Nova Scotia, nor were banns read.

Prior to the union ceremony, Mr. Boutilier and his partner had participated in religious preparatory interviews with Reverend Young. They had also executed powers of attorney and wills, in the same manner as many heterosexual couples, in order to confirm their commitment and to ensure the greatest possible legal protection for their union. Those documents were presented to their guests at the union ceremony.

On August 4, 1994, Mr. Boutilier's request for marriage leave under clause 20.09(b)(iv) of the collective agreement was denied. His alternative request for special leave under clause 20.13 was also denied. Mr. Boutilier was therefore required to use vacation leave for the week-long holiday which he took following the union ceremony.

On August 18, 1994, Mr. Boutilier presented a grievance of the decision to deny him the requested leave. In the grievance form, Mr. Boutilier indicated simply that he wished to grieve the action of management in denying him five days' leave under clause 20.09(b)(iv), or alternatively five days' leave under clause 20.13.

On October 20, 1994, the grievance was denied at the final level by an Assistant Deputy Minister who stated, in part, that —[t]he circumstances surrounding your request for leave under (clause) 20.09(b)(iv) do not constitute a marriage as contemplated in the collective agreement.— He also denied Mr. Boutilier's alternative request for special leave under clause 20.13 of the collective agreement.

On November 2, 1994, Mr. Boutilier referred his grievance to adjudication under section 92 [as am. by S.C. 1992, c. 54, s. 68] of the Public Service Staff Relations Act.

In a decision dated June 4, 1997, the Adjudicator upheld Mr. Boutilier's grievance with respect to marriage leave.

In his decision, the Adjudicator reproduced the written argument submitted by Mr. Boutilier's representative, which indicated that the issues to be determined on the adjudication were as follows [at paragraph 11]:

The issue this Tribunal has to decide is whether Mr. Boutilier is entitled to marriage leave pursuant to Section 20.09 of the collective agreement between the Professional Institute of the Public Service and Treasury Board. Mr. Boutilier's marriage was to a same-sex partner. The employer denied his request for marriage leave saying that what took place between Ross Boutilier and his partner was not marriage as contemplated in the collective agreement. The employer denied Mr. Boutilier's request for leave solely because of the interpretation the employer has put on the definition of marriage. The second issue, which flows from the employer's interpretation of the word marriage, is whether that interpretation is contrary to the Canadian Human Rights Act. Does denying marriage leave to Mr. Boutilier in the present circumstances constitute discrimination based on sexual orientation? The definition of marriage suggested by the employer applies only to a heterosexual employee.

This grievance deals with the interpretation and application of the leave entitlement provision of the collective agreement. Section 20.09 must be read and interpreted with other provisions of the agreement and in light of the law of the land. The human rights issue in this case is that the employee benefit in question i.e. marriage leave would be available to a heterosexual employee. This case makes us look at the prohibition on discrimination based on sexual orientation in light of the judicial pronouncements since the Hewens case.

The written argument submitted on behalf of Mr. Boutilier focussed virtually exclusively on the question of whether the denial of the marriage leave constituted discrimination based on sexual orientation. In the conclusion of the written submissions, Mr. Boutilier's representative summarized her position by indicating that the definition of —marriage— proposed by the employer had —the effect of denying the provision of an employment benefit to homosexual employees contrary to the [Canadian Human Rights Act].— She therefore requested that the definition of marriage be interpreted in a manner which would —eliminate its discriminatory effect on gays and lesbians.— She further stated as follows:

We have little doubt that this leave will be available to employees within one year. As usual we trust that this Tribunal will serve to lead the way by applying all sections of the collective agreement in a manner free of discrimination. Marriage is an important goal for many gays and lesbians for one thing they seek: public acceptance of who they are. It is part of their struggle for equality. Your decision could be one more step in eliminating discrimination against gays and lesbians.

Mr. Boutilier's representative further submitted that the Adjudicator had jurisdiction to hear the case, and that he must interpret the collective agreement in a manner consistent with the Canadian Human Rights Act, R.S.C., 1985, c. H-6, as amended.

The Adjudicator also summarized in his decision the position advanced by counsel for the employer at the adjudication, namely that the word —marriage— in the collective agreement means a legal marriage. Counsel for the employer made no submissions concerning whether the Adjudicator had jurisdiction to entertain the adjudication. Similarly, he made no submissions concerning whether the denial of the marriage leave constituted discrimination based on sexual orientation.

In his decision, the Adjudicator held that a decision made on a grievance under the Public Service Staff Relations Act must [at paragraph 29] —reflect the societal values— in the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] and in the Canadian Human Rights Act, and that he must interpret the collective agreement in a manner [at paragraph 32] —consistent with the very basic human rights principles mandated by Parliament.— In concluding that Mr. Boutilier was entitled to marriage leave, he stated, in part, as follows [at paragraphs 34-38]:

I recognize that marriage has traditionally been limited to unions between men and women. This principle has been consecrated in case law for a long time. The law however is never static. It moves over time to reflect the values of the society it regiments . . . .

Giving marriage leave benefits to gays and lesbians pursuant to a collective agreement, does not take away from the institution of marriage between heterosexuals. Rather, the granting of such —family related— leave in situations such as the one I am faced with in this case, merely recognizes the fact that the homosexual community possesses the right to establish families in pursuance of their sexual orientation.

I have decided that Mr. Boutilier's grievance should succeed. In doing so, I need not do violence to the collective agreement, strike down portions of it or read in missing portions, I need only interpret its words in a manner that is consistent with the principles set out in the Canadian Human Rights Act. Rejecting this grievance, on the other hand, would amount to denying to Mr. Boutilier the equal benefit of the collective agreement as required by the Canadian Human Rights Act.

Although the grievor's request for marriage leave precedes the 1996 amendments to the Canadian Human Rights Act referred to earlier, the Federal Court in Nielsen v. Canada (Human Rights Commission), 95 CLLC 230-021 at 145,214/5, has previously ruled that, as of 6 August 1992, sexual orientation has to be read into section 3 of the Canadian Human Rights Act as a prohibited ground of discrimination. The principles contained in the Canadian Human Rights Act therefore clearly apply in this case. The application of those principles in this matter requires that I do more than simply pay lip-service to them.

My decision in this case should not be taken to mean that the grievor has entered into a lawful marriage under the laws of Nova Scotia. That I have no authority to do. This decision merely recognizes that the steps taken by the grievor in this case were sufficient to bring about the application of paragraph 20.09(b)(iv) of the collective agreement and that —marriage— for the purposes of article 20.09 includes the union which took place in this case. Article 20.09 generally applies to leave for family related responsibilities. The definition of family after Lorenzen and Yarrow must necessarily include certain homosexual relationships.

Given his conclusion that Mr. Boutilier was entitled to marriage leave, the Adjudicator found that it was unnecessary for him to consider the question of special leave. However, he nevertheless observed that Mr. Boutilier would not have been entitled to special leave on the basis of the wording of clause 20.13 of the collective agreement. In particular, he noted that the employer's decision to refuse special leave was [at paragraph 40] —well within the exercise of discretion— permitted under the terms of the collective agreement.

The Adjudicator did not consider whether he had jurisdiction to entertain the grievance.

ISSUE

The principal issue to be determined in this application for judicial review is whether the Adjudicator lacked jurisdiction, under the provisions of the Public Service Staff Relations Act, to entertain the grievance.

ANALYSIS

In order to determine whether the Adjudicator lacked jurisdiction to entertain the grievance filed by Mr. Boutilier, the legislative scheme in the Public Service Staff Relations Act and the Canadian Human Rights Act must be considered, as well as the jurisprudence.

(i) Legislative scheme in the Public Service Staff Relations Act

Subsections 91(1) and (2) of the Public Service Staff Relations Act permit an aggrieved employee to present a grievance, concerning the interpretation of a provision in a collective agreement, up to the final level in the statutory grievance process in certain defined circumstances. Those sections provide as follows:

GRIEVANCES

Right to Present Grievances

91. (1) Where any employee feels aggrieved

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

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

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

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

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

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

Following the presentation of the grievance, up to and including the final level of the process, an employee who is unsatisfied may refer the grievance to adjudication under section 92 of the Public Service Staff Relations Act. For the purposes of the present case, subsections 92(1) and (2) are relevant, and provide as follows:

Adjudication of Grievances

    Reference to Adjudication

92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to

(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,

(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),

(i) disciplinary action resulting in suspension or a financial penalty, or

(ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or

(c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty,

and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.

(2) Where a grievance that may be presented by an employee to adjudication is a grievance described in paragraph (1)(a), the employee is not entitled to refer the grievance to adjudication unless the bargaining agent for the bargaining unit, to which the collective agreement or arbitral award referred to in that paragraph applies, signifies in the prescribed manner its approval of the reference of the grievance to adjudication and its willingness to represent the employee in the adjudication proceedings.

A review of the statutory scheme reveals that an employee possesses only a qualified right to present a grievance at each of the levels specified in the statutory process in the Public Service Staff Relations Act. In particular, an employee's right to present a grievance is qualified or limited in two respects: by the requirement in subsection 91(1) that no administrative procedure for redress exists in another Act of Parliament; and, by the requirement in subsection 91(2) for the approval of and representation by the bargaining agent. Furthermore, under section 92, an employee may only refer a grievance to adjudication following the completion of the grievance process, up to and including the final level. In the event that an employee is not entitled to present the grievance at each of the levels in the process, by reason of the operation of a statutory limitation in either subsection 91(1) or (2), the grievance may not be referred to adjudication under section 92. In other words, where the operation of a limitation contained in either subsection 91(1) or (2) deprives an employee of his qualified right to present the grievance, the employee cannot sub-sequently purport to refer the grievance to adjudication under subsection 92(1). In the event that an employee purports to refer such a grievance to adjudication, the adjudicator has no jurisdiction to entertain it.¹

In the present case, Mr. Boutilier had the approval of and was represented by the appropriate bargaining agent. As a result, subsection 91(2) did not affect his entitlement to present his grievance concerning the interpretation of the collective agreement.

(ii) Does the Canadian Human Rights Act provide an —administrative procedure for redress— within the meaning of the Public Service Staff Relations Act

The question which must be determined is whether Mr. Boutilier was precluded from presenting his grievance at each of the levels in the grievance process on the basis that the Canadian Human Rights Act provided him with an administrative procedure for redress, within the meaning of subsection 91(1) of the Public Service Staff Relations Act.

In order to determine that question, the nature and substance of the Canadian Human Rights Act must be considered.

In enacting the Canadian Human Rights Act in 1977, Parliament adopted the principle of equal opportunity for all individuals, and created a mechanism for the eradication and prevention of discrimination in Canadian society. The importance of the Canadian Human Rights Act in protecting basic societal values and in advancing broad policy considerations has been recognized by the Supreme Court of Canada. For example, in Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, La Forest J., in a concurring majority judgment, noted at page 585 that a human rights tribunal —has direct influence on society at large in relation to basic social values.— La Forest J. also emphasized, in the majority judgment in Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84, the quasi-constitutional nature of the Canadian Human Rights Act in protecting fundamental human rights.

The purpose and scheme of the Canadian Human Rights Act was described in Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, in which the Supreme Court of Canada considered the capacity of the Canadian Human Rights Commission (Commission) to decide general questions of law. In analysing the legislative scheme, La Forest J., writing for the majority, noted at page 889 that the Canadian Human Rights Act —sets out a complete mechanism for dealing with human rights complaints.— He further noted that the Commission is —the statutory body entrusted with accepting, managing and processing complaints of discriminatory practices.— At pages 889 to 890, he described the roles of the Commission and the Human Rights Tribunal in the following terms:

The Scheme of the Act

The Act sets out a complete mechanism for dealing with human rights complaints. Central to this mechanism is the Commission. Its powers and duties are set forth in ss. 26 and 27, and Part III of the Act. Briefly put, the Commission is empowered to administer the Act, which includes among other things fostering compliance with the Act through public activities, research programs, and the review of legislation. It is also the statutory body entrusted with accepting, managing and processing complaints of discriminatory practices. It is this latter duty which is provided for in Part III of the Act.

A complaint of a discriminatory practice may, under s. 40, be initiated by an individual, a group, or the Commission itself. On receiving a complaint the Commission appoints an investigator to investigate and prepare a report of its findings for the Commission (ss. 43 and 44(1)). On receiving the investigator's report, the Commission may, after inviting comments on the report by the parties involved, take steps to appoint a tribunal to inquire into the complaint if having regard to all of the circumstances of the complaint it believes an inquiry is warranted (ss. 44(3)(a)). Alternatively the Commission can dismiss the complaint, appoint a conciliator, or refer the complainant to the appropriate authority (ss. 44(3)(b), 47(1) and 44(2) respectively).

If the Commission decides that a tribunal should be appointed, then, pursuant to the Commission's request, the President of the Human Rights Tribunal Panel appoints a tribunal (s. 49). This tribunal then proceeds to inquire into the complaint and to offer each party the opportunity to appear in person or through counsel before the tribunal (s. 50). At the conclusion of its inquiry the tribunal either dismisses the complaint pursuant to s. 53(1) or, if it finds the complaint to be substantiated, it may invoke one of the various remedies found in s. 53 of the Act. These remedies include an order that a person cease a discriminatory practice; that a right, opportunity or privilege denied the victim be made available to him or her; and that the person engaged in the discriminatory practice compensate the victim of the practice for lost wages and expenses resulting from the practice and, where it is warranted, pay a fine to the victim. Finally, if the tribunal was composed of less than three members, it is open to a party to appeal the tribunal's decision to a three-member Review Tribunal on any question of law or fact or mixed law and fact (ss. 55 and 56).

A review of the legislative scheme and the jurisprudence concerning its nature and purpose confirms unequivocally that the Canadian Human Rights Act codifies and embodies the procedure for dealing with complaints of discriminatory practices in relation to matters coming within the legislative authority of Parliament. Furthermore, specific provisions of the Canadian Human Rights Act establish the Commission's primacy in dealing with grievances founded on allegations of discriminatory practices. In particular, paragraph 41(1)(a) [as am. by S.C. 1995, c. 44, s. 49], section 42, subsection 44(1) and paragraph 44(2)(a) of the Canadian Human Rights Act provide as follows:

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;

. . .

42. (1) Subject to subsection (2), when the Commission decides not to deal with a complaint, it shall send a written notice of its decision to the complainant setting out the reason for its decision.

(2) Before deciding that a complaint will not be dealt with because a procedure referred to in paragraph 41(a) [sic] has not been exhausted, the Commission shall satisfy itself that the failure to exhaust the procedure was attributable to the complainant and not to another.

. . .

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

. . .

it shall refer the complainant to the appropriate authority.

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

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

In circumstances where the Commission is considering exercising its discretion under paragraph 41(1)(a) not to deal with the complaint, it must also consider, by virtue of subsection 42(2), whether the failure to exhaust the grievance procedure was attributable to the complainant. In circumstances where the failure to exhaust the grievance procedure is caused by virtue of the operation of the statutory limitation in subsection 91(1) of the Public Service Staff Relations Act, which prevents the presentation of the grievance, the Commission will have no difficulty in determining that question.

The question of whether an adjudicator lacks jurisdiction under subsection 91(1) of the Public Service Staff Relations Act to consider a grievance based on allegations of discrimination has been considered by the Trial Division in Chopra v. Canada (Treasury Board), [1995] 3 F.C. 445 (T.D.) and in Mohammed v. Canada (Treasury Board), [1998] F.C.J. No. 845 (T.D.) (QL).

In Chopra v. Canada (Treasury Board), Simpson J. concluded that an adjudicator lacked jurisdiction to entertain a grievance based on allegations of discrimination, by reason of the operation of subsection 91(1) of the Public Service Staff Relations Act. In that case, the employee had filed two complaints with the Commission, and had also referred a grievance to adjudication. Simpson J. concluded, at page 460, that the Canadian Human Rights Act provided redress, in that the Commission had jurisdiction over the substance of the grievance and could —offer a broader range of remedies than an adjudicator—. In her decision, Simpson J. placed considerable emphasis on the question of —redress—, as opposed to the availability of a —procedure for redress—.

The decision of Simpson J. in Chopra v. Canada (Treasury Board), supra, was rendered after Byers Transport Ltd. v. Kosanovich, [1995] 3 F.C. 354 (C.A.); application for leave to appeal to S.C.C. dismissed [1995] S.C.C.A. No. 444, but it does not appear that counsel brought this case to her attention. In Byers Transport Ltd. v. Kosanovich, supra, the Federal Court of Appeal considered the interpretation to be accorded to paragraph 242(3.1)(b) of the Canada Labour Code, R.S.C., 1985, c. L-2 [as enacted by R.S.C., 1985 (1st Supp.), c. 9, s. 16], which precludes an adjudicator from hearing a complaint where —a procedure for redress has been provided elsewhere in or under this or any other Act of Parliament—. Strayer J.A., writing for the majority, observed as follows, at page 378:

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

A review of the analysis in Byers Transport Ltd. v. Kosanovich, supra, confirms that the question to be addressed is the existence of a —procedure for redress—, and not the nature or the extent of the remedies available under any such procedure.

The approach taken in Byers Transport Ltd. v. Kosanovich, supra, was applied in Mohammed v. Canada (Treasury Board), supra, by Cullen J., in determining whether an adjudicator appointed under the Public Service Staff Relations Act erred in refusing to exercise jurisdiction to hear a grievance based on allegations of discrimination. In that decision, Cullen J. noted, at paragraph 19, that —the focus of the inquiry is whether, in the words of subsection 91(1) another `procedure for redress' is available.— He further stated as follows, at paragraph 27:

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

am in agreement with the approach taken by Cullen J. in Mohammed, supra.

In Chopra v. Canada (Treasury Board), supra, Simpson J. also held that the grievance procedures in the Public Service Staff Relations Act were to be accorded primacy over the procedure in the Canadian Human Rights Act. In that regard, she stated as follows, at page 453:

The CHRA [Canadian Human Rights Act] clearly contemplates that, if grievance or other procedures are available, they will normally be exhausted before a complaint is entertained or an investigator's report is considered. The CHRA [Canadian Human Rights Act] is not intended to be the first forum for redress if other procedures, such as grievance procedures, are available.

Given my analysis of the legislative scheme, I have determined that the procedure outlined in the Canadian Human Rights Act was intended by Parliament to provide the sole redress for a complaint of a discriminatory practice in the context of the interpretation of a provision in a collective agreement, unless the Commission determines, in the exercise of its discretion, that the grievance process ought to be exhausted. In the circumstances, I respectfully disagree with the statement of Simpson J. that —[t]he CHRA is not intended to be the first forum for redress—.

In her analysis in Chopra v. Canada (Treasury Board), supra, Simpson J. also considered the question of —timing— in determining whether the Canadian Human Rights Act can provide redress in the labour relations context. In that regard, she noted that no evidence had been adduced before her to establish the length of time that it takes for the Commission to deal with a complaint. She further noted as follows, at page 459:

Had evidence been available which showed that the CHRC [Commission] is unable to dispose of complaints in a reasonable time frame, I might have been prepared to conclude that the CHRC does not offer redress in a labour relations context. However, there was no evidence before me which supported such a conclusion.

In my respectful opinion, the question of the length of time taken by the Commission and the Human Rights Tribunal, respectively, to deal with a complaint or to conduct a hearing into a complaint is an irrelevant consideration in determining whether the procedure in the Canadian Human Rights Act constitutes —an administrative procedure for redress—, within the meaning of subsection 91(1) of the Public Service Staff Relations Act. The legislative scheme in the Canadian Human Rights Act is either —an administrative procedure for redress— or it is not. The question of whether its procedures are administered in a timely, effective and efficient manner is irrelevant in assessing whether Parliament created a procedural mechanism for redress, within the meaning of subsection 91(1) of the Public Service Staff Relations Act.

My review of the relevant legislative provisions and the jurisprudence has therefore led me to conclude that the Canadian Human Rights Act provides an —administrative procedure for redress—, within the meaning of subsection 91(1) of the Public Service Staff Relations Act, for a grievance based on a discriminatory practice arising from an employer's interpretation of a provision in a collective agreement.

(iii) Nature of grievance filed by Mr. Boutilier

I must now consider the nature of the grievance filed by Mr. Boutilier in order to determine whether the Adjudicator had jurisdiction to entertain it.

In the present case, the question raised by Mr. Boutilier in his grievance is a complex, controversial and fundamental human rights issue concerning the availability of an employment benefit, namely marriage leave, to a homosexual couple. The entire substance of his grievance is an allegation of discrimination based on the denial of an employment benefit to him for reasons directly related to his sexual orientation. In other words, the allegation of discrimination underlies and forms the central, and indeed the only, issue in the grievance. To phrase the grievance in the terms of sections 2 [as am. by S.C. 1998, c. 9, s. 9] and 7 of the Canadian Human Rights Act, Mr. Boutilier alleges that the employer differentiated adversely in relation to him in the course of employment, on a prohibited ground of discrimination, namely his sexual orientation, by denying him marriage leave. In my opinion, his case falls squarely and directly within the terms of the statutory mandate accorded to the Commission and the Human Rights Tribunal under the Canadian Human Rights Act.

In the circumstances, I am satisfied that the Canadian Human Rights Act provides Mr. Boutilier with an administrative procedure for redress in relation to the question of the interpretation of the marriage leave provision in the collective agreement, within the meaning of subsection 91(1) of the Public Service Staff Relations Act. Mr. Boutilier was therefore not entitled, by virtue of subsection 91(1) of the Public Service Staff Relations Act, to present his grievance at any of the levels of the grievance process. Consequently, Mr. Boutilier had no right to refer his grievance to adjudication under subsection 92(1) of the Public Service Staff Relations Act, and the Adjudicator had no jurisdiction to entertain the adjudication.

(iv) Failure of applicant to raise jurisdictional issue at adjudication

During the course of his submissions, counsel for Mr. Boutilier argued that counsel for the applicant was precluded from raising the jurisdictional issue on the application for judicial review, given his failure to raise it at the adjudication. I cannot accept that argument. In the majority decision in Byers Transport Ltd. v. Kosanovich, supra, Strayer J.A. held that the failure to raise a jurisdictional issue before an adjudicator does not prevent a party from raising it on judicial review. In that regard, he stated as follows, at page 373:

The respondent objected before us to this matter having been raised on judicial review when it had not been raised by the appellant before the Adjudicator. This objection cannot be sustained. It is clear from cases such as Pollard that paragraph 242(3.1)(b) constitutes a limit on the jurisdiction of the Adjudicator. That limit cannot be ignored simply by being disregarded by the parties or the Adjudicator. The Adjudicator had an obligation in the first instance to consider whether he was barred by paragraph 242(3.1)(b) from considering the complaint. He was not excused from considering that question by the silence or the consent, expressed or implied, of the parties. The fact that he did not consider it does not preclude, or excuse, this Court from determining whether he was acting within his jurisdiction.

I have therefore concluded, on the basis of Byers Transport Ltd. v. Kosanovich, supra, that the applicant was entitled to raise the jurisdictional issue on the application for judicial review.

DECISION

For these reasons, I have concluded that the Adjudicator lacked jurisdiction to entertain the grievance which Mr. Boutilier purported to refer to adjudication. Given my conclusion, it is unnecessary for me to consider any other issues raised in this application for judicial review.

The application for judicial review is allowed with costs. The decision of the Adjudicator dated June 4, 1997 is quashed.

¹ See also Mohammed v. Canada (Treasury Board), [1998] F.C.J. No. 845 (T.D.) (QL) in which Cullen J. concluded, at para. 21, that ss. 91(1) and 92(1) of the Public Service Staff Relations Act provide a limited, rather than exclusive, jurisdiction to an adjudicator.