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Administrative Law - Competing Tribunal Jurisdiction. Kaseke v. Toronto Dominion Bank
In Kaseke v. Toronto Dominion Bank (Fed CA, 2025) the Federal Court of Appeal dismissed a JR, this from a CIRB decision that "declined to consider her unjust dismissal complaint" when it had some CHRC discrimination allegations, this in accordance CLC s.242(3.1)(b) that "provides that no complaint shall be considered by the Board if a procedure for redress has been provided under any other Act of Parliament".
These extracts consider jurisdictional conflict between tribunals, here the CIRB and the CHRC:A. The Board’s decision
[6] To resolve the jurisdictional contest between itself and the Canadian Human Rights Commission, the Board engaged in a two-step analysis analogous to the analysis that the Supreme Court undertook in Horrocks at paras. 39–40.
[7] First, the Board examined the relevant legislative provision—paragraph 242(3.1)(b) of the Code—to determine to whom it grants jurisdiction and over what matters. Relying on the mandatory wording of this paragraph and its interpretation (particularly in MacFarlane v. Day & Ross Inc., 2010 FC 556 [MacFarlane] at paras. 71, 73–74), the Board found that when the Canadian Human Rights Act provides a procedure for redress in respect of a complaint, the Canadian Human Rights Commission has primary jurisdiction. It is only if the Commission exercises its statutory discretion under the Canadian Human Rights Act to refer the matter back to the Board that the latter has jurisdiction.
[8] Second, the Board determined that the dispute between Ms. Kaseke and the Bank falls within the scope of the Commission’s jurisdiction. In this connection, the Board carefully reviewed the complaint and found that human rights allegations lay at the core of Ms. Kaseke’s complaint. The Board further found that these allegations could reasonably constitute a basis for a substantially similar complaint under the Canadian Human Rights Act. As a result, the Board declined to consider Ms. Kaseke’s complaint.
B. This Court’s jurisprudence supports the Board’s decision
[9] The Board’s interpretation of paragraph 242(3.1)(b) of the Code is in line with the jurisprudence from this Court going back five decades.
[10] Decided in 1974, Re Cooper and the Queen, 1974 CanLII 2561 (FCA), [1974] 2 FC 407 (FCA) [Re Cooper] involved section 31 of the Public Service Employment Act, R.S.C. 1970, c. P-32. Under that section, the deputy head of a ministry had the power to recommend to the Public Service Commission the release of an employee who was incompetent or incapable of performing the duties of the position they occupied. The section further provided the employee with a right of appeal to the appeal board against the recommendation. The deputy minister of the ministry where Mr. Cooper worked recommended that the latter be released from his employment because he was incapable of performing the duties of the position he occupied. Mr. Cooper appealed the recommendation to the appeal board. After the appeal board dismissed his appeal, Mr. Cooper filed a grievance for disciplinary discharge under a different statute—the Public Service Staff Relations Act, R.S.C. 1970, c. P-35. Subsection 90(1) of that statute, worded in terms practically identical to those of paragraph 242(3.1)(b) of the Code, provided that a grievance could not be presented if it related to a matter in respect of which an "“administrative procedure for redress is provided in or under an Act of Parliament”". This Court found that the right of appeal in subsection 31(3) of the Public Service Employment Act constituted an administrative procedure for redress with the consequence that no grievance could be presented for adjudication. In the words of this Court, the appeal board was the "“tribunal endowed by Parliament”" to deal with this employment matter: Re Cooper at 412–413.
[11] Similarly, in another decision, this Court concluded that subsection 90(1) (by then subsection 91(1) of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35) prevented an employee from presenting a grievance under that Act because the Canadian Human Rights Act sets out an administrative procedure for redress in respect of grievances relating to human rights: Canada (Attorney General) v. Boutilier, 1999 CanLII 9397 (FCA), [2000] 3 FC 27 (FCA) [Boutilier].
[12] I note that the Public Service Staff Relations Act is the predecessor of the Federal Public Sector Labour Relations Act, S.C. 2003, c. 22, s. 2. Subsection 208(2) of the latter bars the presentation of a grievance "“in respect of which an administrative procedure for redress is provided under any Act of Parliament, other than the Canadian Human Rights Act”". Parliament’s decision to amend the legislation does not alter this Court’s constant interpretation—more on that below—according to which the phrase "“in respect of which an administrative procedure for redress is provided under any Act of Parliament”" confers primary jurisdiction to the tribunal empowered under any other Act of Parliament.
[13] Paragraph 242(3.1)(b) is found in Part III of the Code. Part III contains provisions that set out employment conditions, including rights on termination of employment. One of these provisions, section 240, permits a person who has been dismissed and considers the dismissal to be unjust to file a complaint. Subsection 242(3) provides that the Board will consider the complaint. However, paragraph 242(3.1)(b) of the Code limits the Board’s jurisdiction. It reads:"Limitation on complaints "
"Restriction "
"(3.1) No complaint shall be considered by the Board under subsection (3) in respect of a person if "
"(3.1)"" Le Conseil ne peut procéder à l’instruction de la plainte dans l’un ou l’autre des cas suivants : "
"… "
"[…] "
"(b) a procedure for redress has been provided under Part I or Part II of this Act or under any other Act of Parliament. "
"b)"" les parties I ou II de la présente loi ou une autre loi fédérale prévoient un autre recours." [14] Not surprisingly, when tasked with the interpretation of paragraph 242(3.1)(b) of the Code, this Court arrived at the same conclusion as it had in Re Cooper and Boutilier regarding subsection 90(1) of the Public Service Staff Relations Act.
[15] For instance, in Byers Transport Ltd. v. Kosanovich, 1995 CanLII 3515 (FCA), [1995] 3 FC 354 (leave to appeal to SCC refused, 24944 (21 March 1996)) [Byers], this Court ruled that paragraph 242(3.1)(b) ousts the Board’s jurisdiction to hear an unjust dismissal complaint pursuant to subsection 242(3) when there is evidence that a complainant’s employment was eliminated because of her perceived support for unionization. This is so because section 97, found in Part I of the Code, provides that a person may make a complaint of an unfair labour practice. This Court determined that the right to make a complaint under Part I of the Code constitutes a "“procedure for redress”" within the meaning of paragraph 242(3.1)(b). A parallel conclusion was reached in Joshi v. Canadian Imperial Bank of Commerce, 2015 FCA 105 (leave to appeal to SCC refused, 36440 (24 September 2015)) [Joshi] where this Court considered a discrimination complaint under the Canadian Human Rights Act to be another procedure for redress. It should be emphasised that it is the availability of another procedure for redress that bars the Board’s jurisdiction, not whether a complaint has been filed seeking to access that other procedure: Macfarlane at para. 73.
[16] The above makes clear that paragraph 242(3.1)(b) confers on the Canadian Human Rights Commission primary jurisdiction to consider an unjust dismissal complaint that raises allegations of discrimination. Here the court considers the rights-claimant's argument that CHRC remedies were restrictive in contrast the the CIRB, as a de facto form of prejudice:(3) The absence of real redress
[30] Ms. Kaseke’s third argument is one that she made before the Board: all the remedies that she is seeking are not available to her under the Canadian Human Rights Act. The Board found that this argument could not be entertained given the jurisprudence on this issue. I share the Board’s conclusion.
[31] In Byers, this Court held that for the purpose of determining whether a procedure for redress has been provided elsewhere within the meaning of paragraph 242(3.1)(b), that procedure does not have to yield exactly the same remedies as those available pursuant to Part III of the Code. Rather, the other procedure must be capable of producing some real redress which could be of personal benefit to the complainant: Byers at para. 39. Likewise, in Boutilier, this Court held that while another procedure for redress must be a "“real remedy”", it "“need not be an equivalent or better remedy as long as it deals ‘meaningfully and effectively with the substance of the employee’s grievance’”": Boutilier at para. 23.
[32] Before this Court, Ms. Kaseke argues that the Canadian Human Rights Act is not a real remedy or redress, because unlike Part III of the Code it will not "“make her whole”".
[33] There is no denying that the "“make whole”" philosophy—ordering remedies intended to put the unjustly dismissed employee in the position they would have been in had there been no unjust dismissal—underlies Part III of the Code: Geoffrey England, Individual Employment Law, 2nd ed. (Toronto: Irwin Law, 2008) [England] at 383; Murphy v. Canada (Adjudicator, Labour Code) (C.A.), 1993 CanLII 3009 (FCA), [1994] 1 FC 710 at 722. For a recent example, see Amer v. Shaw Communications Canada Inc., 2023 FCA 237.
[34] But the "“make whole”" philosophy is not unique to Part III of the Code. One objective of the Canadian Human Rights Act is to make whole a claimant’s economic losses and psychological harm suffered due to the violation of their human rights by restoring the claimant to the position they would have been in had the unlawful discrimination not occurred: England at 255; Peter Newman and Jeffrey Sack, "“eText on Wrongful Dismissal and Employment Law”" (October 2024) at ch 13.2.2, online: (CanLII) Lancaster House. According to one author, the make whole approach under the Canadian Human Rights Act has much in common with the make whole approach under the Code: England at 257. In this connection, I note that section 53 of the Canadian Human Rights Act grants broad remedial powers to the Canadian Human Rights Tribunal when it institutes, at the Canadian Human Rights Commission’s request, an inquiry into a complaint. Section 53 allows the Tribunal to order the employer to:. cease the discriminatory practice and take steps to prevent the practice from happening in the future (paragraph 53(2)(a));
. make available to the complainant the rights, opportunities or privileges that were denied such as reinstating the complainant to their position (paragraph 53(2)(b));
. compensate the complainant for any or all of the wages that the complainant was deprived of and for any expenses incurred by the complainant as a result of the discriminatory practice (paragraph 53(2)(c));
. compensate the complainant for any or all additional costs of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the complainant as a result of the discriminatory practice (paragraph 53(2)(d));
. compensate the complainant, by an amount not exceeding $20,000, for any pain and suffering that the complainant experienced as a result of the discriminatory practice (paragraph 53(2)(e)); and
. pay the complainant up to $20,000 if the discrimination was wilful or reckless (subsection 53(3)). [35] Section 53 also allows the Tribunal to award interest on an order to pay financial compensation (subsection 53(4)).
[36] In this context, I am of the view that while the remedies available under the Canadian Human Rights Act may not be exactly the same as those under Part III of the Code, they are quite similar. More importantly, the remedies available under the Canadian Human Rights Act at the relevant time would have provided Ms. Kaseke a possibility of real redress. . Northern Regional Health Authority v. Horrocks
In Northern Regional Health Authority v. Horrocks (SCC, 2021) the Supreme Court of Canada considered the chronically vexed issue of which legal regime had jurisdiction over a human rights complaint that occured in a employment/labour relations context (another Weber exclusive jurisdiction issue). The issue is similar to that of 'paramountcy' [as in Croplife Canada v Toronto (Ont CA, 2005) but instead of being between competing levels of goverment here it's between competing adjudicators at the same level of government (here a provincial human rights tribunal and a labour arbitrator):[1] Labour relations legislation across Canada requires every collective agreement to include a clause providing for the final settlement of all differences concerning the interpretation, application or alleged violation of the agreement, by arbitration or otherwise. The precedents of this Court have maintained that the jurisdiction conferred upon the decision‑maker appointed thereunder is exclusive. At issue in this case, principally, is whether that exclusive jurisdiction held by labour arbitrators in Manitoba extends to adjudicating claims of discrimination that, while falling within the scope of the collective agreement, might also support a human rights complaint.
....
[5] ... Properly understood, this Court’s jurisprudence has consistently affirmed that, where labour legislation provides for the final settlement of disputes arising from a collective agreement, the jurisdiction of the decision‑maker empowered by that legislation — generally, a labour arbitrator — is exclusive. Competing statutory tribunals may carve into that sphere of exclusivity, but only where that legislative intent is clearly expressed. Here, the combined effect of the collective agreement and The Labour Relations Act, C.C.S.M., c. L10 is to mandate arbitration of “all differences” concerning the “meaning, application, or alleged violation” of the collective agreement (s. 78(1)). In its essential character, Ms. Horrocks’ complaint alleges a violation of the collective agreement, and thus falls squarely within the arbitrator’s mandate. The Human Rights Code does not clearly express legislative intent to grant concurrent jurisdiction to the adjudicator over such disputes. It follows that the adjudicator did not have jurisdiction over the complaint, and the appeal should be allowed. The majority of the court considers these issues at paras 13-41, summarizing at 39-41. In this case the labour relations regime was dominant, but the case softened Weber's exclusivity to allow for as yet undefined exceptions where 'concurrent jurisdiction' exists:(c) Summary
[39] To summarize, resolving jurisdictional contests between labour arbitrators and competing statutory tribunals entails a two‑step analysis. First, the relevant legislation must be examined to determine whether it grants the arbitrator exclusive jurisdiction and, if so, over what matters (Morin, at para. 15). Where the legislation includes a mandatory dispute resolution clause, an arbitrator empowered under that clause has the exclusive jurisdiction to decide all disputes arising from the collective agreement, subject to clearly expressed legislative intent to the contrary.
[40] If at the first step it is determined that the legislation grants the labour arbitrator exclusive jurisdiction, the next step is to determine whether the dispute falls within the scope of that jurisdiction (Morin, at paras. 15 and 20; Regina Police, at para. 27). The scope of an arbitrator’s exclusive jurisdiction will depend on the precise language of the statute but, in general, it will extend to all disputes that arise, in their essential character, from the interpretation, application, or alleged violation of the collective agreement. This requires analysing the ambit of the collective agreement and accounting for the factual circumstances underpinning the dispute (Weber, at para. 51). The relevant inquiry is into the facts alleged, not the legal characterization of the matter (Weber, at para. 43; Regina Police, at para. 25; Quebec (Attorney General) v. Quebec (Human Rights Tribunal), 2004 SCC 40, [2004] 2 S.C.R. 223 (“Charette”), at para. 23).
[41] Where 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. For the reasons given below, concurrency does not arise in this case. I would therefore decline to elaborate here on the factors that should guide the determination of the appropriate forum.
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