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Human Rights (Fed) - Sex. Giffen v. TM Mobility Inc.
In Giffen v. TM Mobility Inc. (Fed CA, 2024) the Federal Court of Appeal allowed an appeal, this from a denial of the Federal Court of a judicial review, this that "sought to set aside the ... decision of Adjudicator Michael Horan" that "determined that he had no jurisdiction to consider the appellant’s complaint that she had been unjustly dismissed following her return from maternity leave due to the limitation set out in paragraph 242(3.1)(a) of the Canada Labour Code" ... "(t)hat paragraph of the Code precluded an adjudicator from hearing an unjust dismissal complaint where a complainant was laid off because of a lack of work or discontinuance of a function.".
Here the court sets out the federal law on this HRC sex discrimination issue:[4] Division XIV of Part III of the Code creates an unjust dismissal remedy for non-unionized non-managerial employees, working in federally-regulated works, undertakings or businesses, who have one year of service with their employer. Unless one of the exceptions in Division XIV applies, such employees possess protection from unjust dismissal. At the times relevant to this appeal, complaints of unjust dismissal were decided by individual adjudicators, appointed by the federal Minister of Labour. These complaints are now heard by the Canada Industrial Relations Board (the CIRB).
[5] The transitional provisions applicable to the amendments to the Code transferring responsibility for hearing unjust dismissal complaints from individual adjudicators to the CIRB provide that the previous version of the Code applies to all complaints filed before July 29, 2019: see Budget Implementation Act, 2017, No. 1, S.C. 2017, c. 20, ss. 354, 383, 402(1); Order Fixing July 29, 2019 as the Day on which Certain Provisions of that Act Come into Force, SI-2019-76, (2019) C. Gaz. II, 5555 [SI/2019-76]. The appellant’s complaint was filed on January 24, 2019, so the previous version of the Code applies to it.
[6] Two limits on adjudicators’ jurisdiction in the Code are relevant to this appeal. The first was contained in paragraph 242(3.1)(a) of the Code, which, as noted, prohibited an adjudicator from hearing an unjust dismissal complaint if a complainant was laid off due to a lack of work or the discontinuance of a function. The second was contained in paragraph 242(3.1)(b) of the Code, which provided that an adjudicator could not consider a complaint of unjust dismissal where an alternate procedure for redress was provided elsewhere in the Code or under another Act of Parliament. ....
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[11] At the times relevant to this appeal, an employee could make a complaint under paragraph 251.01(1)(a) of the Code to an inspector if they believed their employer had contravened any provision of Part III. Subsection 251.01(4) clarified that the complaint could not be for unjust dismissal. An inspector had investigatory powers under subsection 249(2) of the Code, including the ability to examine documents and obtain statements from the implicated parties. However, in accordance with sections 251 and 251.1, the inspector function was aimed at making findings of unpaid wages and facilitating payment, including by way of an order if required.
[12] The Code has since been amended, effective January 1, 2021 to allow for, among other things, the issuance of compliance orders: Budget Implementation Act, 2017, No. 1, ss. 360, 402(3); Budget Implementation Act, 2018, No. 2, ss. 509, 532, 596, 625; Order Fixing January 1, 2021 as the Day on Which Certain Provisions of those Acts Come into Force, SI/2020-74, (2020) C. Gaz. II, 4086 [Compliance Order Explanatory Note]. Under the current version of subsection 251.06(1) of the Code, a compliance order can require an employer to terminate a contravention of Part III and to take certain steps to ensure the contravention does not continue or reoccur. Subsection 251.06(2) clarifies that a compliance order cannot be used as a substitute for a payment order for unpaid wages or to remedy an unjust dismissal. This tool was "“expected to provide inspectors with an effective tool for handling instances of systemic non-compliance”" (Compliance Order Explanatory Note at 4089). In general, it was part of an effort to improve workplaces, particularly for more vulnerable employees and women: see Compliance Order Explanatory Note at 4088. These provisions were not in force at the times relevant to this appeal.
[13] At the time of the appellant’s complaint, a penal prosecution was the only remedy under the Code available to address a violation of the maternity leave provisions in Part III of the Code that did not give rise to unjust dismissal or non-payment of wages. Paragraph 256(1)(a) of the Code created a statutory offence for contraventions of any provision in Part III with the exception of listed provisions that are not at play here. Pursuant to subsection 256(1.1), upon conviction, a party was subject to a fine. Subsection 258(2) also allowed a convicting court to order an employee’s reinstatement or otherwise compensate them for their loss of employment. The parties made no submissions on the ability to pursue a breach of the maternity leave provisions under the penal offence framework.
[14] The Canadian Human Rights Act, R.S.C. 1985, c. H-6 [the CHRA] is also relevant to this appeal. The provisions in effect at the times relevant to this appeal have not been amended.
[15] The first set of relevant provisions in the CHRA prohibit discrimination in employment on any of the prohibited grounds listed in that Act. These include discrimination on the basis of sex, which is defined as including discrimination on the basis of child-birth or pregnancy. Subsections 3(1) and (2) and section 7 of the CHRA provide as follows:Prohibited grounds of discrimination
Motifs de distinction illicite
3 (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
3 (1) Pour l’application de la présente loi, les motifs de distinction illicite sont ceux qui sont fondés sur la race, l’origine nationale ou ethnique, la couleur, la religion, l’âge, le sexe, l’orientation sexuelle, l’identité ou l’expression de genre, l’état matrimonial, la situation de famille, les caractéristiques génétiques, l’état de personne graciée ou la déficience.
Idem
Idem
(2) Where the ground of discrimination is pregnancy or child-birth, the discrimination shall be deemed to be on the ground of sex.
(2) Une distinction fondée sur la grossesse ou l’accouchement est réputée être fondée sur le sexe.
...
[…]
Employment
Emploi
7 It is a discriminatory practice, directly or indirectly,
7 Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects :
(a) to refuse to employ or continue to employ any individual, or
a) de refuser d’employer ou de continuer d’employer un individu;
(b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination.
b) de le défavoriser en cours d’emploi. [16] Secondly, the CHRA contains several provisions establishing enforcement mechanisms. More specifically, individuals who believe they have been the victim of discrimination may file a complaint with the Canadian Human Rights Commission (the Commission) by virtue of subsection 40(1) of the CHRA. Subsection 41(1) of the CHRA provides the Commission, prior to the conduct of an investigation, with the discretion to decline to deal with a complaint if alternate procedures for redress are available. ....
[17] The Commission may also decline to deal with a complaint after an investigation and receipt of a report from one of its investigators if it is of the view that the complaint would be more appropriately dealt with under a different procedure. ....
[18] Where the Commission determines after an investigation, having regard to all the circumstances, that an inquiry into a complaint is warranted, subsection 44(3) of the CHRA provides that the Commission may refer the complaint to the Canadian Human Rights Tribunal (the Tribunal) for an inquiry. By virtue of subsection 49(1) of the CHRA, the Commission also possesses the authority to refer a complaint to the Tribunal for inquiry at any stage after the receipt of a complaint if it is satisfied, having regard to all of the circumstances, that an inquiry is warranted.
[19] The Tribunal possesses broad remedial authority and, among other things, may require employers to reinstate employees who have been dismissed in violation of the prohibitions against discrimination set out in the CHRA. The Tribunal may also award damages, including compensation for lost wages and benefits between the date of termination and reinstatement. ....
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[44] In this regard, human rights law recognizes that discrimination on the basis of sex includes discrimination on the basis of pregnancy: Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219, 1989 CanLII 96 at 1242. This recognition is now enshrined in subsection 3(2) of the CHRA.
[45] Further, it is firmly settled that the CHRA prohibits both intentional or direct discrimination as well as adverse effect discrimination, which exists when a practice or decision gives rise to discrimination on a prohibited ground in the absence of any intent to discriminate: Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd, [1985] 2 S.C.R. 536, 1985 CanLII 18 at 551; Canada Post Corp. v. Public Service Alliance of Canada, 2010 FCA 56, [2011] 2 F.C.R. 221 at para. 89; Canada (Human Rights Commission) v. Toronto-Dominion Bank, [1998] 4 F.C. 205, 1998 CanLII 8112 (C.A.) at paras. 82 (Isaac C.J., dissenting but not on this point), 136–137 (Robertson J.A., majority reasons), 182 (McDonald J.A., concurring reasons). It is also well established that a decision is discriminatory if one of the factors it rested on was discriminatory even if there were many other non-discriminatory factors that also led to the decision: Stewart v. Elk Valley Coal Corp., 2017 SCC 30, [2017] 1 S.C.R. 591 at para. 46; Canada (Attorney General) v. Rahmani, 2016 FCA 249 at para. 4. These are foundational principles of human rights law.
[46] As concerns the interpretation of maternity leave provisions in minimum employment standards legislation, there is support in the case law for the view that proceeding in the fashion the respondent did in this case violates the statutory protections in minimum standards legislation, like the Code, afforded to women who take maternity leaves because allowing others to accumulate experience that those who take maternity leaves cannot accumulate renders the right to reinstatement a hollow one.
[47] For example, in Re Barrie (City) and C.U.P.E. Loc., 2380) (1994), 40 L.A.C. (4th) 168, 1994 CanLII 18700 (Ont. Lab. Arb.), Arbitrator Michel Picher considered a collective agreement provision that reduced an employee’s vacation credits for the period of an employee’s pregnancy leave. The arbitrator concluded that the prorating of vacation entitlements for employees on pregnancy leave did not constitute discrimination on the basis of sex: at 182. He noted that the provision did not intend to isolate a particular group but rather identified a variety of circumstances where the extended absence of an employee justified the reduction of vacation credits: at 181. Nevertheless, the provision was found to have violated the statutory protection of the seniority of an employee who exercises their right to pregnancy leave as its effect was to diminish the rights and privileges enjoyed by employees by virtue of their seniority: at 186. The arbitrator held that the concept of seniority in the Ontario minimum standards legislation, similar to the Code, was "“…sufficiently broad to include ‘service’”" (at 186). The arbitrator provided as an example an employee "“who has been absent for three months on pregnancy leave returns to work and is told that she is now considered three months junior to another employee originally hired on the same day, whether for the purposes of a job competition, lay-off or any other right that relates to seniority or service”" (at 185–186). The arbitrator also held that the proration was effectively a penalty as "“what was otherwise an accrued right is taken away from the employee by reason only of the fact that she has taken pregnancy leave”" (at 189).
[48] Turning now to the case law interpreting Division XIV of the Code, the test applied by adjudicators and the CIRB to ascertain whether an employee was laid off due to a lack of work or discontinuance of a function requires an employer to establish that there was an economic justification for the lay off and that it had a reasonable explanation for the selection of the employee to be laid off: Enoch Cree Nation Band v. Thomas, 2004 FCA 2, 247 F.T.R. 158 at para. 5; Kassab v. Bell Canada, 2008 FC 1181, 337 F.T.R. 152 at para. 24. It is arguable that reliance on discriminatory reasons for selection of the employee to be laid off or making the selection in violation of the maternity leave provisions in the Code cannot constitute a reasonable explanation. Thus, the issues the adjudicator failed to address were central to the ability of the respondent to rely on paragraph 242(3.1)(a) of the Code.
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[53] Byers Transport Ltd. v. Kosanovich, [1995] 3 F.C. 354, 1995 CanLII 3515 (C.A.) involved an unjust dismissal complaint that raised the same issues as had been settled in the context of an unfair labour practice complaint filed under Part I of the Code. The Canada Labour Relations Board (or the CLRB, the predecessor name for the CIRB) possessed exclusive jurisdiction over unfair labour practice complaints, with broad remedial authority to remedy unfair labour practices. By reason of the CLRB’s jurisdiction over the unfair labour practice complaints, this Court found that paragraph 242(3.1)(b) of the Code meant that an adjudicator has no jurisdiction to consider an unjust dismissal complaint that is in essence identical to an unfair labour practice complaint.
[54] MacFarlane v. Day & Ross Inc., 2010 FC 556, [2011] 4 F.C.R. 117 [MacFarlane] involved a situation where the complainant filed both an unjust dismissal complaint and a complaint with the Commission, following her dismissal. The adjudicator found that both complaints were essentially the same and held that paragraph 242(3.1)(b) of the Code deprived him of jurisdiction to hear the unjust dismissal complaint. The Federal Court applied the reasonableness standard to the adjudicator’s characterization of the nature of the two complaints and found that the adjudicator’s determination that the two complaints were the same was reasonable.
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