FPSLREB Decisions

[1]   The hearing held on February 25, 2003, dealt only with the preliminary objection regarding the adjudicator's jurisdiction to hear grievance 166-2-31767 and the application for extension 149-2-236, as a result of the agreement of the parties to this effect.

[2]   No witnesses were heard at the hearing, the evidence submitted being summarized in the documents in the list of exhibits.

[3]   Jean Cherrier has been employed with Correctional Services Canada (CSC) since October 1978 as a corrections officer at the Montée-St-François Institution in Laval.

[4]   He was dismissed on August 3, 2001, and the employer informed him of the action in the following terms (Exhibit G-6):

[Translation]

RE: Dismissal

Dear Mr. Cherrier:

This letter is further to the disciplinary hearing held on July 16, 2001, regarding the offence committed on January 10, 2000. I have taken into consideration the comments provided by you and your representative at the hearing, the investigation report on this incident, and the whole of your disciplinary file.

On March 31, 1999, you verbally and physically assaulted a work colleague. On May 8, 1999, following an investigation, I imposed a four-day (4) suspension and a financial penalty of $1,000 on you.

On June 23, 2000, following an investigation that revealed that on September 27, 1999, you breached the conditions issued for carrying out an escort on compassionate grounds, thereby contravening the Commissioner's Directive, the post order, and the CSC Standing Orders, I imposed a ten-day (10) suspension and a financial penalty of $300.

On January 10, 2000, during a medical assessment with a health professional, you allegedly uttered death threats against CSC staff and inmates. Following these threats, charges were laid under the Criminal Code and you pleaded guilty to these charges. On November 14, 2000, the judge handed down a sentence, with a three-year (3) probationary period with conditions that are incompatible with your employment (or continued employment) at Correctional Services Canada.

In addition, your enhanced reliability clearance has expired and, given recent events, it has not been renewed.

The seriousness of the offences and your behaviour in general are not compatible with your role as a peace officer and the values of Correctional Services Canada. Accordingly, you have breached the relationship of trust between employer and employee.

Consequently, under the authority conferred on me by sections 11(2)(f) and 11(2)(g) of the Financial Administration Act, I have no option but to terminate your employment as of this date.

In accordance with the terms and provisions of your collective agreement, you have the right to present a grievance regarding this decision and to send it directly to the final level of the grievance process.

[5]   A grievance was presented in respect of this decision on August 22, 2001, as follows (Exhibit G-1):

[Translation]

We hereby object to the dismissal of Jean Cherrier as set out in the letter of August 3, 2001.

Corrective action sought

We request the reinstatement of Jean Cherrier, reimbursement of all lost wages and all other lost benefits. - To be represented by the UCCO-SACC-CSN at all levels.

[6]   A complaint was also filed with the Canadian Human Rights Commission (CHRC) on December 5, 2001, against discrimination that allegedly occurred between January 30, 1995, and August 3, 2001. The allegation in the complaint reads as follows (Exhibit E-8):

[Translation]

[. . .]

ALLEGATION

   Correctional Services Canada discriminated against me by failing to make the necessary accommodations for my disability (post-traumatic stress syndrome), in contravention of section 7 of the

Canadian Human Rights Act.

[. . .]

[7]   In the details provided in his complaint, Mr. Cherrier identifies a trigger element that he pinpoints in January 1995. Following the death of an AIDS inmate on January 30, 1995, Mr. Cherrier allegedly experienced post-traumatic stress that was disputed by the employer both by a second medical opinion and at the Commission de la santé et de la sécurité du travail (CSST). He was absent from work until July 31, 1995, when he returned on a gradual and adjusted basis.

[8]   The elements of the complaint can be summarized as follows:

A.   The refusal to apply resuscitation measures (at the time of the incident on January 30, 1995) resulted in a seven-day suspension without pay and a reprimand.

B.   The decision of the Commission des lésions professionnelles (CLP) issued on November 19, 1999, recognized the occupational injury (of January 30, 1995) and entitled him retroactively to benefits, thereby annulling the previous decisions of the CSST and the Bureau de révision, which had found no relation between the incident and the diagnosis.

C.   During 1999, Mr. Cherrier was the subject of three disciplinary investigations. For the first, related to an absence from his post on January 1, 1999, no disciplinary action was taken despite a resumption of the investigation. The second incident, on March 31, 1999, resulted in a four-day suspension without pay and a $1,000 penalty for verbal and physical assault on a colleague. When he contravened directives during an escort on September 27, 1999, he received a three-day suspension without pay and a $300 penalty, which was in addition to a 15-day suspension without pay during the investigation.

D.   Mr. Cherrier was diagnosed with burnout on October 7, 1999, a diagnosis that was set aside by a second opinion on November 3, 1999. The employer ordered him back to work on January 1, 2000, but the return to work was unsuccessful and on January 2, 2000, he was diagnosed with major depression with symptoms of paranoia. This latter diagnosis was set aside by a second opinion on January 10, 2000, and by Health Canada on January 14, 2000.

E.   During the examination for the second opinion, Mr. Cherrier allegedly uttered death threats against his superiors. The employer proceeded to lay criminal charges and Mr. Cherrier was jailed on January 18, 2000. A verdict of parole following a guilty plea was issued on November 14, 2000.

F.   A diagnosis of major depression was made on January 25, 2000, and confirmed on February 29, May 31 and September 13, 2000. On September 13, 2000, Dr. Belzile reported total temporary disability and predicted that Mr. Cherrier would probably experience permanent disability if he was to return to working with inmates in a prison or other setting. Mr. Cherrier was declared eligible for disability benefits as of January 3, 2000, as a result of a decision by SunLife on November 28, 2000.

G.   On November 8, 2000, the probation officer for Mr. Cherrier's file concluded that he presented a low risk of danger provided that he continued his personal program and he did not return to the same work environment.

H.   A disciplinary hearing was held on January 28, 2000, with respect to the threats made during the medical examination on January 10, 2000. Following a disciplinary hearing on July 16, 2001, Mr. Cherrier was sent the notice of dismissal on August 3, 2001.

[9]   Mr. Cherrier concludes his complaint as follows (Exhibit E-8):

[Translation]

[. . .]

   I feel that Correctional Services Canada discriminated against me because of my disability (post-traumatic stress syndrome) and did so on several occasions. In particular, since January 30, 1995, the respondent has refused to acknowledge my disability.

   Moreover, following the decision of the Commission des lésions professionnelles on November 19, 1999, confirming that I had indeed suffered an occupational injury, the employer continued to deny my disability and took action against me that did not take it into consideration.

   Lastly, on August 3, 2001, by dismissing me, the respondent did not consider the fact that the actions and comments on which it based its decision are symptoms of my disability (post-traumatic stress).

[10]   On November 22, 2002, the CHRC informed the employer of its decision with respect to Mr. Cherrier's complaint as follows (Exhibit E-7):

[Translation]

[. . .]

   Prior to making its decision, the Commission studied the report that was disclosed to you earlier and all the related observations provided thereafter. After examining this information, the Commission has decided, under subsection 41(1) of the

Canadian Human Rights Act, to deal with the complaint because:

• the current grievance process deals with the dismissal and thus does not cover a substantial portion of the complainant's allegation; and
• the grievance process does not provide adequate guarantees that the aspect of the complainant's disability will be taken into consideration to the extent that the alleged offences are the result of the complainant's disability.

[. . .]

Arguments

[11]   The employer argues that the Public Service Staff Relations Board (PSSRB) does not have jurisdiction in these cases. Under section 91 of the Public Service Staff Relations Act (PSSRA), the grievor may not file a grievance when another administrative procedure for redress is provided by another Act of Parliament.

[12]   Following the employer's decision to dismiss him, Mr. Cherrier presented a grievance to the PSSRB, as well as a complaint to the CHRC. In both actions, Mr. Cherrier objects to his dismissal, thereby creating a conflict or overlap between the procedures.

[13]   In keeping with Boutilier rendered by the Federal Court of Appeal [2000] 3 F.C. 27, Parliament chose to authorize the CHRC to decide whether the issue should be dealt with by grievance under the PSSRA or by complaint under the Canadian Human Rights Act (CHRA). The CHRC is the only body authorized to determine, under the terms of sections 41 and 44 of the CHRA, whether the matter must be dealt with through the grievance process or the complaint process. In the event of a conflict or overlap, the PSSRB cannot decide the matter through the grievance process unless authorized to do so by the CHRC under sections 41 and 44. Byers Transport Ltd. v. Kosanovich [1995] 3 F.C. 354 (A.C.) clarifies that an adjudicator may not proceed with examination of a grievance when another Act provides other redress.

[14]   In the instant case, the CHRC decided, under subsection 41(1) of the CHRA, to deal with the complaint as stated in Exhibit E-8. The PSSRB may not therefore hear Mr. Cherrier's grievance, since the CHRC has decided to be seized with the complaint pursuant to subsection 41(1) of the Act.

[15]   Moreover, since Mr. Cherrier filed a complaint with the CHRC, he may not present a grievance to the PSSRB, because another administrative procedure for redress is available to him under the CHRA. Section 91 of the PSSRA prohibits Mr. Cherrier from filing a grievance.

[16]   The decisions rendered in Audate (Board file 166-2-27755), Kehoe (Board file 166-2-29657), Djan (Board file 166-2-29395) and Chopra v. Canada (Treasury Board) , [1995] 3 F.C. 445 are consistent. The bargaining agent may not ask the PSSRB to convene a hearing of the grievance until the CHRC has decided on the complaint under paragraph 44(2)(a). The PSSRB does not have the ability to sit when it does not have jurisdiction over the grievance file.

[17]   In the instant case, only the CHRC could return jurisdiction to the PSSRB under paragraph 44(2)(a) of the CHRA and the adjudicator has no choice but to dismiss the grievance for want of jurisdiction.

[18]   In its reply to the employer's objection, the bargaining agent recognized the principle set out by the Federal Court whereby the adjudicator appointed under the PSSRA only has jurisdiction to hear and decide the grievance that gave rise to a complaint of discrimination when the CHRC determines, by exercising the powers conferred on it under paragraph 41(1)(a) or 44(2)(a) of the CHRA, that the grievance process must be exhausted (Exhibit G-5). This principle can be applied only when the grievance and the complaint are of the same nature and cover the same matters, which is not the case in this instance.

[19]   The decisions submitted by the employer state that a complaint and a grievance based on the same human rights issues may not be submitted simultaneously to two procedures for redress.

[20]   Counsel for the grievor argues that it is possible, under Canada's legal framework, to present a grievance against a dismissal under section 91 of the PSSRA and, also, to file a complaint with the CHRC in the case of an offence under section 7 of the CHRA. Our legal framework permits both courses of redress when the grievance and the complaint do not relate to the same matters.

[21]   Mr. Cherrier's complaint alleges that the employer did not take the necessary accommodation measures, thereby contravening section 7 of the CHRA (Exhibit G-8).

[22]   On the other hand, the grievance (Exhibit G-1) objects to the dismissal described in correspondence sent to him dated August 3, 2001. The dismissal is clearly motivated by the employer for the disciplinary reasons set out in the August 3, 2001 letter (Exhibit G-6). The employer's response at the final level (Exhibit E-3) confirms that the dismissal was decided upon following review of the disciplinary file.

[23]   Thus, Mr. Cherrier's complaint is different in nature from the grievance he presented.

[24]   The decision rendered in Boutilier (supra) states that an adjudicator must examine the jurisdictional matters and, ideally, most of them would be resolved at the commencement of the grievance proceedings.

[25]   While the Boutilier decision indicates that a grievance cannot be brought before the PSSRB in a case where jurisdiction falls to the CHRC, that is not the case in this instance. Mr. Cherrier argues in support of his grievance that the dismissal is a grossly exaggerated measure and does not make any reference to the allegations of violations of his human rights. He made a formal commitment, through his counsel, not to raise issues that might be under the jurisdiction of the CHRC during the hearing of the grievance.

[26]   The PSSRB has jurisdiction to decide the grievance objecting to the dismissal for disciplinary reasons. The fact that Mr. Cherrier filed a complaint with the CHRC for failure to accommodate does not remove the PSSRB's jurisdiction because there are two separate procedures for redress.

[27]   With respect to the extension, counsel for the grievor asked to take the matter under reserve pending evidence on the merits, to which counsel for the employer agreed.

[28]   In reply, counsel for the employer points out that Mr. Cherrier, in the last three paragraphs of his complaint (Exhibit E-8), clearly describes the dismissal as discrimination by the employer, which did not take into account the fact that the actions and comments on which it based its decision are symptoms of the grievor's disability (post-traumatic stress). Thus, both procedures for redress used by Mr. Cherrier are intended to contest his dismissal and seek the same remedy. Therefore, the PSSRB does not have jurisdiction and must respect the decision of the CHRC, which decided to deal with the complaint under subsection 41(1) of the CHRA.

Reasons for decision

[29]   Following the referral to adjudication of the grievance presented on Mr. Cherrier's behalf, the adjudicator assigned by the PSSRB must consider the question of jurisdiction submitted by the employer. Linden J. clarifies the situation as follows in Boutilier (supra)

[. . .]

An Adjudicator must, therefore, grapple with these jurisdictional matters before or during hearings but, hopefully, most of them can be resolved at the commencement of the grievance proceedings.

[. . .]

[30]   The adjudicator's jurisdiction to hear a grievance arises from sections 91 and 92 of the PSSRA, which read as follows:

   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.

(3) An employee who is not included in a bargaining unit for which an employee organization has been certified as bargaining agent may seek the assistance of and, if the employee chooses, may be represented by any employee organization in the presentation or reference to adjudication of a grievance.

(4) No employee who is included in a bargaining unit for which an employee organization has been certified as bargaining agent may be represented by any employee organization, other than the employee organization certified as bargaining agent, in the presentation or reference to adjudication of a grievance.

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

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

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.

   (3) Nothing in subsection (1) shall be construed or applied as permitting the referral to adjudication of a grievance with respect to any termination of employment under the Public Service Employment Act.

   (4) The Governor in Council may, by order, designate for the purposes of paragraph (1)(b) any portion of the public service of Canada specified in Part II of Schedule I.

[31]   The employer examined the grievance presented by Mr. Cherrier to the final level of the grievance process and gave a negative response on February 15, 2002 (Exhibit E-2). Mr. Cherrier's grievance was referred to adjudication under paragraph 92(1)(b) of the PSSRA (Exhibit G-2). Thus, the prerequisite conditions set out in subsection 92(1) had been met.

[32]   Analysis of the documents submitted in evidence by the parties relates to three elements: the grievance presented on August 22, 2001 (Exhibit G-1), the complaint filed with the CHRC on December 5, 2001 (Exhibit E-8), and the notice sent by the CHRC on November 22, 2002, explaining its decision to deal with the complaint (Exhibit E-7).

[33]   Mr. Cherrier's grievance objects to the dismissal "as set out in the letter of August 3, 2001", but does not give reasons for the objection. The employer justified the decision to dismiss by the breach of the relationship of trust and having considered the grievor's disciplinary file and the non-renewal of his enhanced reliability clearance, as stated in the letter submitted as Exhibit G-6. At first glance, the grievance appears to be a grievance objecting to a disciplinary measure and there is no reference to human rights violations.

[34]   At the hearing, counsel for Mr. Cherrier explained that the grievance would be contested, at the hearing on the merits, on the basis that the dismissal is an excessive disciplinary measure taken by the employer with respect to the alleged facts. He undertook not to submit any evidence against the disciplinary measure that might be considered to relate to human rights.

[35]   Mr. Cherrier indicated in his complaint filed with the CHRC (Exhibit E-8) that the employer had not assumed its obligation of accommodation with respect to his disability (post-traumatic stress syndrome). Further, he stated in the details of his complaint that the employer acted in a discriminatory manner in three ways:

• first by refusing to acknowledge his disability as of January 30, 1995;
• by continuing to deny that disability despite the decision of the Commission des lésions professionnelles on November 19, 1999;
• by not taking into account that the actions and comments that gave rise to the decision to dismiss are symptoms of the disability.

[36]   The CHRC decided to deal with the complaint "under subsection 41(1) of the CHRA". It based its decision on the following grounds (Exhibit E-7):

[Translation]

[. . .]

• the current grievance process deals with the dismissal and thus does not cover a substantial portion of the complainant's allegation, and

• the grievance process does not provide adequate guarantees that the aspect of the complainant's disability will be taken into consideration to the extent that the alleged offences are the result of the complainant's disability.

[37]   A review of the case law in light of the summary of the evidence will enable me to address the question of jurisdiction based on the evidence submitted.

[38]   It is first necessary to assess the nature of the grievance presented by Mr. Cherrier because, according to Strayer J. in Byers Transport Ltd. (supra):

[. . .]

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. 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.

[. . .]

(N.B. Underlining added by the undersigned)

[39]   According to Strayer J., the facts outlined in the complaint must be essentially the same in the grievance process in order for the adjudicator to lose the jurisdiction conferred on him under paragraph 242(3.1)(b) of the Canada Labour Code.

[40]   In Chopra (supra), Simpson J. ruled that an adjudicator appointed under the PSSRA did not have jurisdiction to hear a grievance based solely on the no discrimination clause of the collective agreement; the grievor alleged discrimination by the employer based on race. Simpson J. commented, in part, that:

[. . .]

. . . the complaint and the grievance are substantially the same. Both raise issues of discrimination . . .

[. . .]

[41]   In Mohammed v. Canada (Treasury Board) [1998] a.c.f. 845, Cullen J. ruled on the want of jurisdiction of an adjudicator appointed under the PSSRA to decide a grievance based solely on the no discrimination clause in the collective agreement. The employee alleged that the employer discriminated against him on the basis of race and religion. The reason for his decision relies mainly on the following finding of fact:

   In the case at bar, the applicant is only requesting relief on the basis of the no discrimination clause; not using the clause as an aid to interpreting other provisions of the Master Agreement. What is to be determined is whether the facts, as alleged, demonstrate a case of discrimination on a prohibited ground.

[42]   In Canada (Attorney General) v. Boutilier, [1999] 1 F.C. 459 (Trial Division), McGillis J. found that the employee was not entitled to refer a grievance to adjudication under subsection 92(1) of the PSSRA. The judge described the nature of the employee's grievance as follows:

[. . .]

   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.

[. . .]

[43]   In O'Hagan et al. v. Canada (Attorney General) (1999), 162 F.T.R. 15, Weston J. ruled that the adjudicator did not have jurisdiction to decide the grievance, in which the grievors claimed to have been victims of sexual harassment. He explained the grounds for his decision as follows:

[. . .]

There is little doubt that in the case at bar the subject matter of the grievance is sexual harassment as contained in Article 43 [of the collective agreement]. In Boutilier, there is little doubt that the entire substance of the grievance dealt with discrimination based on the denial of an employment benefit directly related to Mr. Boutilier's sexual orientation. It was held that the allegation of discrimination "underlies and forms the central and indeed the only issue in the grievance". In the case before me it is clear that the subject matter is sexual harassment which likewise forms the central and, indeed, the only issue in the grievance. Section 14 of the CHRA recognizes sexual harassment as a prohibited ground of discrimination. As indicated previously, the Tribunal [Canadian Human Rights] is also afforded broad remedial powers pursuant to subsection 53(2) of the CHRA.

[. . .]

[44]   In Audate (supra), Chairperson Yvon Tarte finds as follows, given the want of jurisdiction to decide the case:

[. . .]

the testimony of Ms. Audate was clear. According to the grievor, the disciplinary measure was imposed on her because she was black and of Haitian origin.

[. . .]

Since the resolution of Ms. Audate's grievance depends on a ruling of discriminatory practice by the employer, based on one or more of the prohibited grounds of discrimination under the CHRA, I conclude that I am without the necessary jurisdiction to decide the case.

[. . .]

[45]   In Kehoe (supra), Chairperson Yvon Tarte declines jurisdiction under sections 91(1) and 92(1) of the PSSRA to hear the grievance as follows:

[. . .]

The only logical conclusion to which one may come when examining Ms. Kehoe's grievance is that its essence relates to fundamental human rights issues, i.e. discrimination and harassment on the basis of disability. These issues are not merely accessory to the grievance, but rather form its very pith and substance. When one tries to determine the scope of the grievance while making abstraction of those issues, all that remains is an unparticularized allegation of constructive dismissal.

[. . .]

In the circumstances of the case at hand, as Ms. Kehoe's grievance raises issues which can be pursued through the complaint process set out in the CHRA, and in light of the decision which the Federal Court of Appeal rendered in Boutilier (C.A.), supra, I find that, on the face of the record before the Board, Ms. Kehoe's grievance is not one which may be presented pursuant to subsection 91(1) of the Act and, as such, cannot be referred to adjudication pursuant to subsection 92(1). I further find it appropriate to have recourse, in this case, to the process set out in section 84 of the Regulations.

[. . .]

For the reasons above, I find that Ms. Kehoe's grievance is not one that may be referred to adjudication pursuant to section 92 of the PSSRA.

[. . .]

[46]   Thus, in all of these cases, the essence of the grievances related to human rights issues. These issues were not accessory to the grievance, but constituted its essence.

[47]   I cannot accept the argument of counsel for the employer by which the adjudicator assigned by the PSSRB is automatically ousted from jurisdiction to hear a grievance when the CHRC seizes itself of a complaint for the purposes of investigation pursuant to subsection 41(1) of the CHRA. The decisions and judgments cited in the instant case clearly show that an adjudicator must evaluate the nature and the scope of the redress used by the grievor to determine whether a human rights element is at the heart of the grievance and whether there is a conflict or overlap between the grievance and another administrative procedure of redress provided for in some other federal Act. The fact that the CHRC proceeded with an evaluation of the complaint filed with it and that it decided to deal with that complaint, pursuant to its incorporating legislation (CHRA), cannot oust the adjudicator assigned to the grievance from his responsibilities to determine his jurisdiction pursuant to his own incorporating legislation (PSSRA).

[48]   The principle set out by McGillis J. in Boutilier (supra) must be applied in this case. McGillis J. wrote as follows:

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.

(N.B. Underlining added by the undersigned)

[49]   I believe that the content of the complaint filed with the CHRC by Mr. Cherrier and the notice from the CHRC explaining its decision to deal with this complaint are relevant elements to this case. I cannot simply ignore the content of these documents. I must, therefore, consider them with all of the other elements submitted in evidence at the hearing, in order to evaluate the nature and scope of the grievance objecting to the dismissal.

[50]   The dismissal is contested by grievance on the basis that it constitutes an excessive disciplinary measure in response to the actions alleged against the employee. The wording of the grievance does not give reasons in its support and thus can be thought to be essentially disciplinary in nature. The commitment of Mr. Cherrier's counsel not to submit to the adjudicator any human rights elements reinforces this impression.

[51]   However, in his complaint, Mr. Cherrier complains of the discrimination by his employer, which failed to assume its obligation to make accommodations related to the disability (post-traumatic stress syndrome) that he suffers. Very specifically, he alleges in his complaint that his employer acted in a discriminatory manner in three ways:

[Translation]

• first by refusing to acknowledge his disability as of January 30, 1995;

• by continuing to deny that disability despite the decision of the Commission des lésions professionnelles on November 19, 1999;

• by not taking into account that the actions and comments that gave rise to the decision to dismiss are symptoms of the disability.

[52]   Thus, in his CHRC complaint, Mr. Cherrier complains that his employer discriminated by dismissing him. In this regard, the grievance and the complaint object to the employer's decision to dismiss him and there is clearly a conflict or overlap between the two procedures for redress used by Mr. Cherrier.

[53]   Although Mr. Cherrier's counsel undertook not to submit any elements of evidence relating to human rights at the hearing on the merits of the grievance, it does not change the fact that there is nevertheless a conflict or overlap between the two procedures for redress. The fact that Mr. Cherrier chose to exercise his right of complaint to the CHRC in respect, among others, of his dismissal clearly shows the existence of another administrative procedure for redress within the meaning of subsection 91(1) of the PSSRA.

[54]   It appears from the evidence submitted before me that the facts surrounding the dismissal on which the adjudicator could have been seized on the merits of the grievance involve certain issues raised in the complaint, whether in respect of the intentional nature of the actions alleged against the complainant or the problem of reintegration as a result of the employee's disability. In these circumstances, it is in the best interest of the grievor that the decision to dismiss him be considered under a procedure for redress that can consider all relevant aspects, including those that might be of a human rights nature.

[55]   In light of all of the above elements, it would appear clear that contradictory decisions could be rendered by each body in which the dismissal is being contested, which is definitely contrary to the interest of the parties and to the sound application of administrative justice (Boutilier (supra)).

[56]   I find that another administrative procedure for redress is available to Mr. Cherrier, within the framework of the CHRA, to contest his dismissal. The complaint filed with the CHRC is broader than the grievance and specifically includes the dismissal. I therefore decline jurisdiction to decide this grievance pursuant to subsection 91(1) of the PSSRA.

[57]   Accordingly, the grievance is dismissed for want of jurisdiction, under reserve of a possible referral to the PSSRB by the CHRC pursuant to paragraph 44(2)(a) of the CHRA.

[58]   In light of the want of jurisdiction, it is not necessary to decide the application for extension (149-2-236), said application to be submitted to the adjudicator should the matter be referred to the PSSRB pursuant to paragraph 44(2)(a) of the CHRA.

Léo-Paul Guindon
Board Member

OTTAWA, May 7, 2003

P.S.S.R.B. TRANSLATION