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Human Rights - Human Rights versus Labour (2). Theriault v. Atlantic Towing Limited
In Theriault v. Atlantic Towing Limited (Fed CA, 2025) the Federal Court of Appeal dismissed a JR against a CIRB decision that denied an employee's "request to amend his complaint of unjust dismissal" and dismissed the "complaint for lack of jurisdiction."
An issue arose in relation to CLC S.242(3.1)(b) which "prohibit[ed] the Board from considering any complaint for which a procedure for redress was provided under Part I or Part II of the Code or under any other Act of Parliament" (here, whether the CHRA has jurisdiction over the matter):[2] Mr. Theriault was dismissed from his employment as a crew member on board Atlantic Towing’s vessels effective January 6, 2022 due to non-compliance with the company’s mandatory COVID-19 vaccination policy (the Policy). Prior to his dismissal, Mr. Theriault had requested, but was refused, an exemption from the vaccination requirement on religious grounds.
[3] Mr. Theriault filed his unjust dismissal complaint on April 4, 2022, pursuant to subsection 240(1) of Part III the Canada Labour Code, R.S.C. 1985, c. L-2 (the Code).
[4] On March 4, 2024, the Board informed the parties that it had identified a jurisdictional question arising from paragraph 242(3.1)(b) of the Code, a provision prohibiting the Board from considering any complaint for which a procedure for redress was provided under Part I or Part II of the Code or under any other Act of Parliament. The Board requested submissions on the issue from the parties.
[5] In response, Mr. Theriault’s counsel acknowledged that the prohibition set out in paragraph 242(3.1)(b) extends to redress under the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA), whether or not a complainant takes steps to access such redress. Counsel stated that, in the circumstances, Mr. Theriault wished to withdraw any part of his complaint referencing "“a failure to accommodate”" and to proceed solely on the basis that he should have been exempted from mandatory vaccination for practical reasons (he worked on a small ship and would test daily) or placed on unpaid leave of absence.
[6] In its decision, the Board first refused Mr. Theriault’s request to amend his complaint, finding that the essential nature of the complaint was that Atlantic Towing "“unjustly dismissed [Mr. Theriault] by refusing his request for a religious exemption from vaccination”."
[7] The Board then considered the two questions to be addressed in determining the application of paragraph 242(3.1)(b) of the Code (Hayes v. Royal Bank of Canada, 2021 CIRB 961 (Hayes); Brown v. Warren Gibson Limited, 2020 CIRB 948): (a) whether a complaint would be essentially the same in the CHRA redress procedure; and (b) whether the CHRA procedure would provide real redress to a complainant. The Board answered both questions positively, found that it was required to decline jurisdiction and that it could not exercise its residual jurisdiction to consider the complaint in the absence of a referral from the Canadian Human Rights Commission.
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[9] We do not find Mr. Theriault’s arguments persuasive. The Board did not make a reviewable error in centring its analysis on whether the amendment would change the essential nature of the complaint. The Board carefully reviewed the documents in the record and explained its reasons for concluding that the essential nature of Mr. Theriault’s complaint was a claim for unjust dismissal on the part of Atlantic Towing "“by refusing his request for a religious exemption from vaccination”." We are of the view that the Board reasonably read Mr. Theriault’s references to possible options to termination in his 2022 submissions as tangential to his request for religious accommodation, and not as a distinct basis of unjust dismissal.
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