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Labour (Fed) - Human Rights (CHRC). 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. . 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. . Casper v. Canada (Attorney General)
In Casper v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed a federal labour (FPSLREBA) JR, here regarding a CHRC 'duty to accomodate' a medically-disabled employee:[1] The applicant seeks judicial review of a decision of the Federal Public Sector Labour Relations and Employment Board: 2023 FPSLREB 36. The Board dismissed two grievances alleging discrimination by the applicant’s employer for failing to accommodate his return to work after a leave of absence.
[2] The applicant had been a service delivery specialist at the Citizenship and Immigration Canada case processing centre in Vegreville, Alberta. After a medical diagnosis, and several incidents of conflict in the workplace, the applicant took a leave of absence. The next year, the applicant told his employer that he wanted to return to work, subject to his doctor’s advice that he work at a different location. Despite the employer’s efforts, the applicant did not return to work.
[3] In dismissing the grievances, the Board found that a prima facie case of discrimination had been established, but the employer had satisfied its duty to accommodate.
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[5] In the first grievance, filed six months after expressing his wish to return to work, the applicant claimed that the process used to return him to work, known as "“priority status referral”", was ineffective and unreasonably delayed. The Board concluded that an employer is not required to follow any particular procedure in order to satisfy its duty to accommodate; the priority status referral process was a reasonable approach. The Board also decided that the delay in getting the referral process up and running was not unacceptable.
[6] In the second grievance, the applicant claimed that the employer had failed in its duty to accommodate, in the processes it employed and in not pursuing others. On this, the Board considered the employer’s efforts — the number of job referrals, exempting the applicant from certain job requirements and modifying the interview process. The Board found that when the employer offered the applicant a service delivery specialist position at a case processing centre in Ottawa, it engaged in a "“reasonable accommodation”" that met the applicant’s sole accommodation request.
[7] The Board then considered the conduct of the applicant, relying on the Supreme Court’s decision in Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 and the Board’s decisions in Ahmad v. Canada Revenue Agency, 2013 PSLRB 60 and Leclair v. Deputy Head (Correctional Service of Canada), 2016 PSLREB 97. Central Okanagan provides that the search for accommodation is a "“multi-party inquiry”"; a complainant has a duty to facilitate the implementation of an employer’s reasonable proposal and a duty to accept a reasonable accommodation: Central Okanagan at p. 994.
[8] The Board recognized that the move to Ottawa would be a challenge in many respects. Nonetheless, it found that the applicant in declining the position had rejected a reasonable accommodation, and was not entitled to insist on a perfect or preferred accommodation. It is not for this Court to reweigh the evidence that underpinned this conclusion.
[9] The Board went on to consider the parties’ efforts after the Ottawa deployment offer. The Board characterized the applicant’s efforts as "“half-hearted and sporadic”", noting that his unavailability for extended periods precluded him from participating in interviews for available positions in Edmonton, Saskatoon and Calgary. The Board concluded that the applicant "“effectively made it impossible for the employer to accommodate him”". These are factually suffused findings to which deference is owed.
[10] Under reasonableness review, there is no basis to intervene in the Board’s decision. I do not accept the applicant’s submission that the Board’s decision was unreasonable by failing to consider whether the employer had demonstrated "“undue hardship”" under subsection 15(2) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6. It was reasonable for the Board to conclude, based on the law and its factual findings, that the employer offered a reasonable accommodation and that the process ended due to the applicant’s lack of cooperation. In these circumstances, as the applicant’s counsel acknowledged at the hearing, the Board was not required to conduct an "“undue hardship”" analysis.
[11] I also reject the applicant’s submission that the Board found the nature of the applicant’s leave of absence—as personal-needs-based and not medical—to lower the employer’s accommodation obligations. The Board made its determination about the employer’s obligations having found "“clear”" evidence that the employer accepted the applicant’s disability, honoured his doctor’s recommendations, and was prepared to return him to work on that basis.
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