Date: 20250903

Files: 566-02-40985 to 40987

 

Citation: 2025 FPSLREB 105

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

 

Joshaua Beaulieu

Grievor

 

and

 

DEPUTY HEAD

(Department of Veterans Affairs)

 

Respondent

Indexed as

Beaulieu v. Deputy Head (Department of Veterans Affairs)

In the matter of individual grievances referred to adjudication

Before: John G. Jaworski, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor: Sean McGee, counsel

For the Respondent: Marc Seguin, counsel

Decided on the basis of written submissions,
filed June 26, September 8, November 22, and December 6, 2023.

REASONS FOR DECISION

I. Individual grievances referred to adjudication

[1] Joshaua Beaulieu (“the grievor”) was employed by the Treasury Board (TB or “the employer”) at the Department of Veterans Affairs (VAC) as a national contact centre network analyst, classified at the program management (PM) 01 group and level. By letter dated May 22, 2019, he was terminated from his employment, effective May 23, 2019.

[2] On June 4, 2019, the grievor grieved the employer’s decision to terminate his employment (“the termination grievance”). In it, he alleged that it was a disguised dismissal because of his medical condition and that he was discriminated against by the employer because of his medical condition, in contravention of the collective agreement entered into between the TB and the Public Service Alliance of Canada (“the Alliance”) for the Program and Administrative Services (PA) group (“the collective agreement”).

[3] As relief, the grievor requested that the employer rescind its decision to terminate him, that it reinstate him to his duties after he sees a doctor about his return to work, that he suffer no prejudice because of presenting the grievances, and that he be made whole.

[4] On September 17, 2019, the Alliance referred the termination grievance to the Federal Public Sector Labour Relations and Employment Board (“the Board”) for adjudication (Board file no. 566-02-40985).

[5] Before his termination, the grievor had filed two other grievances, which were referred to the Board for adjudication on the same day as the termination grievance. They are as follows:

· Grievance presented on February 14, 2019 (Board file no. 566-02-40986). This grievance alleged a violation of the Canadian Human Rights Act (R.S.C. 1985, c. H-6; “the CHRA”) and a breach of the no-discrimination clause (article 19) of the collective agreement. It was in relation to the grievor being presented with an options letter dated December 14, 2018, asking him to make a decision to resolve his leave situation by either returning to duty, retiring on medical grounds, or resigning.

 

· Grievance presented on May 14, 2019 (Board file no. 566-02-40987). This grievance alleged a violation of the CHRA and a breach of the no-discrimination clause (article 19) of the collective agreement. It was in relation to him being presented with of a letter dated April 23, 2019, restricting both his access to the departmental premises where he had worked and his contact with departmental employees.

 

[6] All three matters were scheduled for adjudication before me, by videoconference, for a week, starting on June 19, 2023. At the outset of the hearing, counsel for both parties advised me that they had an agreement to address a jurisdictional objection that the employer was to raise. The employer bases its jurisdictional objection on two grounds. First, it argues that the doctrine of issue estoppel applies, because the grievor’s allegations were fully addressed by the CHRC process. In the alternative, it argues that even if the strict requirements of issue estoppel are not met, the doctrine of abuse of process applies.

[7] They outlined for me the situation as it stood at that time with respect to the grievances and the parties’ positions. I accepted their suggested course of action and ordered that the hearing scheduled for June 19 to 23, 2023, was postponed and that the parties provide written submissions, as follows:

1) By June 23, 2023, the grievor was to provide a list of the issues that he believed were still in issue in the proceedings.

 

2) By August 4, 2023, the employer was to provide its written submissions on its objection to the Board’s jurisdiction.

 

3) By September 8, 2023, the grievor was to provide his written response to the employer’s submissions.

 

4) By September 22, 2023, the employer was to provide any reply submissions to the grievor’s submissions.

 

[8] The parties at times requested extensions of time for the submissions, which I granted. The final submissions were filed on December 6, 2023.

[9] On January 22, 2024, I dismissed the employer’s objection, with reasons to follow, and informed the parties that the matter would be scheduled for hearing.

[10] This decision addresses only the employer’s objection to the Board’s jurisdiction.

II. Background information, to understand the employer’s objection

[11] Before his termination of employment in May of 2019, the grievor was working with VAC in Kirkland Lake, Ontario, as a national contact centre network analyst. In June of 2017, he left work on unpaid sick leave and did not return.

[12] The genesis of the issues and difficulties involving the grievor and his employer is that he suffers from an illness or illnesses, the type and extent of which has not fully been disclosed as of this point, and that as part of a treatment regime, he was prescribed and used medicinal cannabis.

[13] In addition to the three grievances before the Board, the grievor also previously filed six other grievances with the employer between December 30, 2016, and March 16, 2017. Five were in some way related to his allegation of the employer’s failure to accommodate his disability-related need to use cannabis, and the last involved an allegation that the employer breached the collective agreement when it denied him paid leave pending the completion of a fitness-to-work evaluation (FTWE) again that was tangentially somewhat tied to his health and potentially his cannabis use. Those grievances are not before the Board.

[14] The employer’s objection to the Board’s jurisdiction arose from the Federal Court’s decision in Beaulieu v. Canada (Attorney General), 2022 FC 1671, dated December 5, 2022, to dismiss a judicial review application made by the grievor of a Canadian Human Rights Commission (CHRC) decision dated February 23, 2022, to dismiss a complaint he had made against the employer (“the CHRC complaint”). The CHRC’s decision to dismiss the complaint arose from a screening process conducted by an employee of the CHRC (“the officer”) that resulted in the issuance of a report dated December 10, 2018.

[15] Filed as part of the submissions process were the following:

· the CHRC’s Report for Decision of the CHRC complaint dated December 2, 2021 (“the CHRC report”);

 

· the CHRC’s Record of Decision dated February 23, 2022 (“the CHRC decision”); and

 

· the Federal Court’s judgment (2022 FC 1671) dismissing the grievor’s judicial review application of the CHRC decision.

 

[16] The CHRA provides for the creation of the CHRC, which comprises a chief commissioner, a deputy chief commissioner, and not less than 3 or more than 6 other members appointed by the Governor in Council (GIC). The CHRA also provides for the creation of the Canadian Human Rights Tribunal (CHRT), which comprises a maximum of 15 members, including a chairperson and vice-chairperson, appointed by the GIC.

[17] The Financial Administration Act (R.S.C., 1985, c. F-11; “the FAA”) provides that employees of the CHRC, as opposed to its commissioners, who are Governor-in-Council appointees, are employees in the core public administration; therefore, they are employees of the TB.

[18] The CHRC decision was set out over two pages and stated as follows:

...

Before rendering its decision, the Commission reviewed the Complaint Form, the Report for Decision [the CHRC Report], and the submission of the Complainant filed in response to the Report for Decision. After examining this information, the Commission decides, pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, to dismiss this Complaint because having regard to all the circumstances of the Complaint, further inquiry is not warranted.

The Complainant provided lengthy and detailed submissions in response to the Report for Decision. The Commission reviewed these submissions very carefully. It appears from the submissions, that the Complainant believes that the Human Rights Officer was biased and that she did not undertake a thorough investigation. The Commission disagrees with this assertion. The Report for Decision reflects a thorough and even-handed review of the evidence. The Commission agrees with the conclusions and recommendation in the Report for Decision and adopts the Report as its reasons for decision.

The Complainant has been given a number of opportunities, both through the grievance process and the present Complaint, to dispute the approach taken by the Respondent [the employer] to accommodate him and the decision to terminate his employment. He may not agree with the conclusions reached through these processes, but that does not make them wrong. Apparently, the Complainant is awaiting a hearing on some of the grievances that were referred to the Federal Public Service [sic] Labour Relations and Employment Board. He will have additional opportunities there to advance his arguments.

As the Report for Decision notes, the Respondent accommodated the Complainant’s medical needs in the workplace until he went on an unpaid leave of absence in June of 2017. In February of 2019, the Respondent acknowledged the Complainant’s intention to return to work, and requested that he provide additional information about his limitations and restrictions. That information was not limited to the Health Canada assessment. However, the Complainant himself had previously requested that a Health Canada assessment be undertaken, although he later stated that he did not understand why this was being requested. The Respondent needed additional information about the Complainant’s fitness to return to work in the foreseeable future and his limitations upon return, especially in light of the decision by Sun Life that the Complainant was totally and permanently incapacitated. The Complainant refused to provide the necessary information. In so doing, he failed to comply with his legal obligation to cooperate in the accommodation process. At that point, the Respondent’s duty to accommodate ceased.

For these reasons, and those set out in the Report for Decision, the Commission decides pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, to dismiss this Complaint because having regard to all the circumstances of the Complaint, further inquiry is not warranted.

 

[19] Gathered from 2022 FC 1671 and the CHRC report, the following facts give context to the employer’s objection:

· In November of 2016, the grievor provided VAC with a medical note that indicated that he held a prescription for using medical cannabis in the workplace.

 

· In November of 2016, cannabis was a controlled substance in Canada.

 

· In November of 2016, VAC did not have a policy for the use of medical cannabis in the workplace.

 

· The grievor wished to administer the medical cannabis by smoking cannabis buds in a pipe in VAC’s designated smoking area. VAC initially advised him that he could not smoke the cannabis in the area but later changed its position after consulting with its Human Resources (HR) section and the TB. He was permitted to smoke the cannabis in the designated smoking area if he agreed to stay at least 10 feet from other smokers.

 

· In January of 2017, VAC received complaints in relation to the grievor grinding his cannabis at his desk. VAC management told him that he could not do it; nor could he grind his cannabis in the workplace due to the odour associated with it and complaints about the odour.

 

· VAC asked the grievor to participate in an FTWE, to better understand his restrictions and limitations.

 

· VAC received the FTWE results in June of 2017 but noted that the grievor had redacted some of the information in it.

 

· On June 8, 2017, VAC management and HR met with the grievor and his union representative and confirmed to him that based on information in the FTWE results, it could accommodate his medical needs in the workplace. However, during the meeting, he stated he wanted to provide information in response to the information that he had redacted, and he suggested that he undergo a further FTWE and that he wished to remain on leave without (LWOP) pay during the process. VAC agreed to this request.

 

· He went on LWOP in June of 2017. He never returned to work.

 

· In March of 2019, Sun Life Financial, VAC’s disability management provider, determined that the grievor was totally and permanently incapacitated and approved him for disability benefits until 2052.

 

· The grievor did not undergo the second FTWE that was discussed at the June 8, 2017, meeting.

 

· Although the grievor told VAC that his position was that he was not totally and permanently incapacitated, VAC terminated his employment on May 22, 2019.

 

· On December 10, 2018, the grievor made a complaint with the CHRC, alleging that he had been discriminated against since November of 2016. He alleged that VAC discriminated against him in his employment on the grounds of disability by treating him in an adverse and differential manner and by pursuing a discriminatory policy or practice.

 

· On December 5, 2019, the CHRC informed the parties (the complainant and VAC) that it would deal with the complaint. An officer was assigned to investigate the complaint and provide a report and recommendation.

 

· On December 2, 2021, the officer issued the CHRC report.

 

· The officer confirmed reviewing the information submitted by the grievor and VAC.

 

· The officer confirmed interviewing the grievor, VAC’s labour relations advisor who was involved during some of the periods relevant to the complaint, and the grievor’s union representative.

 

· The officer confirmed that they provided a draft report to both the grievor and VAC for comment.

 

· The officer confirmed that the CHRC is a screening body.

 

· The officer confirmed that the CHRC does not decide whether there has been discrimination.

 

· The officer confirmed that the CHRC may decide to send a complaint to the CHRT for a more in-depth inquiry at which witnesses could be called to testify in person. The CHRT is the body that decides whether there has been discrimination.

 

· The CHRC report recommended that the CHRC dismiss the complaint, under s. 44(3)(b)(i) of the CHRA.

 

[20] Section 44(3) of the CHRA states as follows:

 

[21] During the judicial review process that led to 2022 FC 1671, the grievor attempted to file with the Court additional material, including 47 documents, as well as an additional (second) affidavit and then a third affidavit, which also had attached 57 documents. The Court ruled that it would not allow the admission of the second affidavit or any of the initial additional 47 documents. It did allow the admission of the third affidavit with its 57 documents but stated this:

...

... the new evidence will not form part of my analysis of the parties’ arguments as to whether the Decision is on its merits reasonable (if I adopt the standard of review proposed by the Respondent) or correct (if I adopt the standard proposed by the Applicant).

...

 

[22] The Court determined that the standard of review of the CHRC decision was reasonableness, stating in part at paragraph 52 of 2022 FC 1671 as follows:

[52] ... the Federal Court of Appeal has recently held that it is well settled that the deferential reasonableness standard applies to the merits of Commission decisions to refer, or to decline to refer, human rights complaints to the Canadian Human Right [sic] Tribunal [Tribunal] for further inquiry ... The Act provides the Commission with a high degree of latitude in performing its screening function on receipt of an investigation report ....

 

[23] The issue before the Court upon judicial review was set out at paragraphs 55 through 59 and 64 of 2022 FC 1671 as follows:

[55] In cases such as this, the Commission performs a screening function to determine whether a complaint requires further inquiry by the Tribunal ... As a screening body, the Commission may decide to send the complaint to the Tribunal for a more in-depth inquiry where witnesses may be called to testify in person. The Tribunal is then the body that decides whether or not there has been discrimination. The Commission may decide to send a complaint to the Tribunal where there is enough information to support the allegations in the complaint and/or where there is a factual or legal issue that requires further inquiry by the Tribunal.

[56] In screening complaints, the Commission relies upon the work of an investigator ... The report produced by the investigator is not a decision of the Commission. Instead, its purpose is to help the Commission make a decision about what should happen next in the complaint.

[57] However, as noted by this Court ... in decisions made pursuant to section 44 of the Act, as is the case here, when the Commission adopts the investigator’s recommendations and provides no reasons or only brief reasons, the investigator’s report is deemed to be part of the Commission’s reasons ... In addition to this general principle, in the case at hand the Decision expressly adopts the Report as part of its reasons.

[58] As such, this application for judicial review concerns the Decision of the Commission and the Report underlying it. I do not understand either of the parties to disagree with this approach....

[59] While the parties’ arguments focus significantly upon VAC’s termination of the Applicant’s employment, I understand that the Applicant also seeks to impugn the Officer’s conclusions (and therefore those of the Commission) surrounding other aspects of his allegations that VAC failed to accommodate his disability in the workplace. The Report analyses the Complaint under four issues articulated as follows:

A. Complainant requested to smoke and grind medical cannabis in the workplace;

B. Breaks and tracking time to medicate;

C. Paid leave (code 699) pending the HC FTWE (between February- May 2017); and

D. Events that followed the June 2017 HC FTWE.

...

[64] As explained in Vavilov, reasonableness review is concerned with determining whether an administrative decision bears the hallmarks of reasonableness - justification, transparency and intelligibility - and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision (at para 99). Applying those principles, the Applicant’s arguments do not undermine the reasonableness of this portion of the Officer’s analysis. The Court is able to understand how the Officer arrived at the conclusion that this aspect of the Applicant’s allegation was addressed. The Applicant urges the Court to find that the Officer should have arrived at a different conclusion, based on VAC’s process and its requirement that he distance himself from other smokers. However, this is not the Court’s role in judicial review.

 

[24] The Court found that there was no reviewable error in the CHRC decision and as such dismissed the application for judicial review.

[25] Pursuant to the direction issued by the Board, the grievor set out in a brief outline the issues that he and his union believed were still in issue in the grievances. That outline stated as follows:

...

There are three grievances in question:

1. Termination grievance

2. Discrimination associated with the employers requirement of a fitness to work evaluation FTWE. This includes, but is not limited to, the source of information the employer sought or should have sought, and the failure to address the issues raised by the Grievor.

3. Discrimination (and associated harassment) connected with the Employer’s prohibition of the Grievor from contacting persons at VAC, or attending at or near the premises, and in its treatment of the Grievor in connection with that prohibition.

Each of the Grievances is set within a larger context of what the grievor will describe at the hearing as harassment, discrimination, and behavior - including improper conduct at or related to the workplace that was directed at him. This was conduct that the griever found to be offensive and that should reasonably have been understood to be offensive. This behavior left him feeling demeaned, belittled, humiliated, embarrassed, and intimidated. The Employer’s conduct severely impacted his medical condition. This conduct included the treatment he received when the Employer was advised he needed to use medical cannabis and that he was seeking an accommodation as a result.

The grievor’s position is that, as a result of his request to be accommodated to address his medical needs, the employer harassed him by creating and/or failing to prevent a discriminatory work environment for him and by failing to properly apply the applicable processes, given his circumstances. This behavior by the employer caused a deterioration of his medical condition, to the point where he needed to take a medical leave of absence. In 2019, after he had been on leave for a year and a half, the employer sent him a letter outlining a series of options. The Grievor was told that he must submit to a FTWE by a Health Canada doctor. In doing so, the employer did not satisfy the preconditions for requiring a Health Canada FTWE, much less, to do so as a precondition for a return to active employment, or as a condition for maintaining his employment. Among other requirements for a mandatory FTWE that were not met, the Employer did not seek information or an update from the Grievor’s personal health care providers, or indicate how and why it had determined it was unlikely it could obtain the necessary information from those healthcare providers. The Employer also did not address the Grievor’s requests regarding the information and issues that should be assessed by Health Canada when it performed the FTWE.

The Employer was advised that the Grievor’s was medically able to return to work. Notwithstanding this it, accepted a form letter from the SunLife Insurance Company that the grievor was totally disabled for the long term as conclusive evidence that the grievor was totally and permanently disabled. Even though the Sun Life form stated that it was subject to review, and even though it provided no information to substantiate the conclusions of the form. The Employer accepted it as supporting a conclusion that no further medical inquiries were required before terminating his employment. The Employer terminated his employment despite the Grievor’s repeated insistence that he had never been diagnosed with and did not have a disability that rendered him totally and permanently disabled or incapacitated. The Grievor’s evidence will be that any diagnosis that he had been unfit for the workplace was transient.

The employer ultimately terminated him for incapacity, which was:

1. done without complying with the formal process or any reasonable requirements for such a termination, including the review of medical and non-medical information within its possession;

2. done without satisfying itself that there was a valid, justifiable and sufficiently conclusive medical opinion or body of medical opinions to satisfy the conclusion that there was no reasonable prospect of a return to work within the foreseeable future; and

3. the culmination of its discriminatory actions towards the grievor.

The employer based its decision entirely or primarily on information it apparently received from SunLife insurance. There is no indication from Sun Life of the medical information it had in its possession or that it had reviewed in order to arrive at that conclusion, including whether it was recent and from whom it was obtained. A medical report obtained shortly after termination states that the griever would be able to return to work due to the remission of his illness. A proper review prior to the termination of his employment would have led to a conclusion that the Grievor was capable or would soon be capable of returning to work.

Ultimately, the grievor’s position is that, in terminating the Grievor, the employer

1. failed to meet the formal and reasonable preconditions for termination for incapacity.

2. failed to conduct a proper evaluation of the Grievor’s medical condition at the time of the decision;

3. relied on a statement by a third party that does not state the basis for the conclusion, the recency of the information, or the efforts made to ensure the Grievor’s health care professionals had adequate input into the medical conclusions;

4. concluded improperly and unreasonably and without regard to the facts, or without a sufficient factual basis, that the Grievor was incapacitated within the meaning of the law and jurisprudence to the point where his employment could be terminated because of incapacity;

5. imposed conditions on the options offered to the Grievor (including medical retirement) that were unreasonable and discriminatory;

6. acted in a manner that was discriminatory, furthering its previous actions which had constituted harassment and discrimination; and

7. did not accommodate to the point of undue hardship.

The grievances relating to the interdiction of contacting VAC, coming onto the property or entering the building (even when there was another government department on the same property and office space was shared between these two departments) and about the FTWE are linked to the termination grievance and the more general background of harassment and discrimination as alleged by the grievor. The Grievor will testify that the Employer failed to accommodate him and that it discriminated against him.

This summary does not address remedy issues, given the manner in which the parties have agreed to proceed.

[Sic throughout]

 

III. Summary of the arguments

A. For the employer

[26] The employer bases its jurisdictional objection on two grounds. First, it argues that the doctrine of issue estoppel applies, because the grievor’s allegations were fully addressed by the CHRC process. In the alternative, it argues that even if the strict requirements of issue estoppel are not met, the doctrine of abuse of process applies.

[27] Issue estoppel precludes relitigating an issue if these three requirements are satisfied, as identified by the Supreme Court of Canada in Danyluk v. Ainsworth Technologies, 2001 SCC 44:

...

(1) that the same question has been decided;

(2) that the judicial decision which is said to create the estoppel was final; and,

(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

...

 

[28] The Board and its predecessors have considered and applied issue estoppel. In this respect, the employer refers me to Bernard v. Canada Revenue Agency, 2017 PSLREB 46 (upheld in 2019 FCA 144); Iwata v. Deputy Minister of Human Resources and Skills Development Canada, 2012 PSST 19; Brown v. Commissioner of Correctional Service of Canada, 2012 PSST 17; and Lavigne v. Deputy Minster of Justice, 2010 PSST 7.

[29] The employer submits that the three requirements are met in this matter, as the grievor previously alleged before the CHRC that the employer did not accommodate him following his request to grind and smoke cannabis at work and then terminated him due to his disability.

[30] During the CHRC investigative process conducted by the officer, the grievor made submissions with respect to his termination, the FTWE process, and smoking and grinding cannabis in the workplace. His list of issues indicates the following:

· the employer terminated him for incapacity, and “each of the Grievances is set within a larger context of what the grievor will describe at the hearing as harassment, discrimination, and behaviour - including improper conduct at or related to the workplace that was directed at him”;

 

· “the grievances relating to the interdiction of contacting VAC [employees], coming onto the property or entering the building and about the FTWE [process] are linked to the termination grievance and the more general background of harassment and discrimination as alleged by the grievor”; and

 

· “the Grievor will testify that the Employer failed to accommodate him and that it discriminated against him.”

 

[31] The notices filed with the CHRC, with respect to the grievances before the Board, indicated as follows:

· The employer discriminated against the grievor because of his disability.

 

· The employer terminated him while he was on medical leave for less than two years. He was willing to participate in an FTWE with Health Canada, but the employer terminated him before he had the chance to.

 

· The employer also restricted him from entering the workplace and from communicating by phone or in person with any VAC employees. He feels that that decision was made for discriminatory reasons.

 

[32] The employer submits that the substance of the grievances before the Board is that the grievor was terminated because his disability was not suitably accommodated by VAC. On the merits, he raises the same issues as those raised before the CHRC and that were subjected to judicial review in 2022 FC 1671; as such, the first condition of issue estoppel is established.

[33] The employer submits that the grievor was heard. In in 2022 FC 1671, the Court held that the CHRC report and the CHRC decision demonstrate that the grievor was provided opportunities to make submissions, including providing documents to both the investigator and following receipt of the CHRC report. The CHRC report also sets out that the CHRC officer considered two medical reports and that the CHRC itself considered the grievor’s complaint, the CHRC report, and the grievor’s submissions filed in response to the CHRC report.

[34] The employer submits that the CHRC officer was unbiased. In 2022 FC 1671, the Court determined that the officer was unbiased by using the applicable test to assess bias, which is whether the officer approached the case with a closed mind.

[35] The employer refers to Connolly v. Canada Post Corp., 2005 NSCA 55, and states that in that case, the Court opined that in the nature of an investigatory proceeding, the CHRC’s decision had the effect of finally disposing of the complaint under the CHRA.

[36] The employer also refers to Bank of Nova Scotia v. Amalsadia, [2011] C.L.A.D. No. 202 (QL), and states that in that matter, the adjudicator, when considering the issue of the finality of issue estoppel in an unjust dismissal, held that the CHRC’s decision was final and judicial, as each party was given a full opportunity to present all their facts and submissions before a final decision was made.

[37] Finally, the employer submits that the employer and grievor are the same parties as in the CHRC complaint and 2022 FC 1671.

[38] Alternatively, the employer submits that this matter can be dismissed on the basis of abuse of process. It states that that doctrine applies even if the strict requirements of issue estoppel are not met. It notes that the Ontario Supreme Court in Peter B. Cozzi Professional Corporation v. Szot, 2019 ONSC 5071 (“Cozzi”), held that the purpose of both doctrines is to promote finality to litigation and that duplicative litigation, potentially inconsistent results, undue costs, and inconclusive proceedings are to be avoided. In that respect, in addition to Cozzi, the employer also refers me to Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (“CUPE”); and Bernath v. Canada, 2005 FC 1232.

[39] The employer also references British Columbia (Workers’ Compensation Board) v. British Columbia (Human Rights Tribunal), 2011 SCC 52; Canada v. MacDonald, 2021 FCA 6; Huron Commodities Inc. v. Alexander, 2019 C.L.L.C. para. 210-034; Hydro Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43; and Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970.

B. For the grievor

[40] The grievor also refers me to Danyluk, stating that issue estoppel requires this two-step process: the first is to consider the three preconditions (as set out earlier in the employer’s submissions), and the second, if the first three preconditions have been met, is to determine, as a matter of discretion, whether issue estoppel ought to be applied.

[41] The Court in Danyluk identified these seven factors to consider in the exercise of discretion:

...

... the wording of the statute from which the power to issue the administrative order derives, the purpose of the legislation, the availability of an appeal, the safeguards available to the parties in the administrative procedure, the expertise of the administrative decision maker, the circumstances giving rise to the prior administrative proceedings and ... the potential injustice....

...

 

[42] The grievor submits that in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, the Court added that the list in Danyluk “... merely indicates some circumstances that may be relevant in a particular case to determine whether, on the whole, it is fair to apply issue estoppel. The list is not exhaustive. It is neither a checklist nor an invitation to engage in a mechanical analysis.” The Court stated this at paragraph 39:

[39] ... unfairness may arise in two main ways which overlap and are not mutually exclusive. First, the unfairness of applying issue estoppel may arise from the unfairness of the prior proceedings. Second, even where the prior proceedings were conducted fairly and properly having regard to their purposes, it may nonetheless be unfair to use the results of that process to preclude the subsequent claim.

 

[43] Tuccaro v. Canada, 2016 FCA 259, holds that as for the first step of the analysis, the burden of proof is with the party that made the motion, which must show that it is plain and obvious that the three preconditions are met. The grievor submits that the employer did not satisfy its burden.

[44] In Canada Post Corp. v. Barrette (T.D.), 1998 CanLII 9125 (FC), the Court stated this:

...

... Because of the public responsibilities conferred by legislatures on the statutory decision makers and the purpose-designed decision-making process, there has been considerable reluctance to apply the doctrine of issue estoppel to the adjudication of human rights complaints by the specialist tribunals....

...

[45] The grievor states that in Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64, the Board held that issue estoppel did not apply because the question before the CHRC was different from the one presently before the Board. The Board’s decisions cited by the employer all deal with decisions relating to prior Board decisions. Of the three, only in one, Bernard, does the Board find that issue estoppel was made out.

[46] The grievor submits that the facts in Malik and Burke v. Deputy Head (Department of National Defence), 2014 PSLRB 79, bear more of a resemblance to his case. Both Malik and Burke demonstrate that the Board does not take lightly its statutory responsibility to hear grievances. While it does not hesitate to apply the doctrine of estoppel in cases in which litigants attempt to abuse its processes by relitigating final decisions, it will do so only if the facts demand that conclusion. In all other cases, it will hear the grievance.

[47] The grievor submits that none of the preconditions of issue estoppel can apply to him because the CHRC’s decision was not judicial. In a judicial decision, the decision maker exercises “adjudicative authority”. This is not the CHRC’s role, as it acknowledges in the CHRC report, when it states that it is a screening body and that it does not decide whether there has been discrimination. The Supreme Court of Canada in Cooper v. Canada (Human Rights Commission), [1996] 3 SCR 854 at para. 53, held that the CHRC is a not an adjudicative body, which is the role appointed to the CHRT. The CHRC fulfils a screening analysis; its job is not to determine if a complaint is made out.

[48] In Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, the Supreme Court of Canada held again that the decision to refer a complaint to a board of inquiry is not a determination that the complaint is well founded or even within the purview of the CHRA; those determinations may be made by the board of inquiry.

[49] In Canada (Attorney General) v. Ennis, 2021 FCA 95, the Federal Court of Appeal held that the role of the Court sitting in judicial review is only to consider the procedural fairness and reasonableness of the decision under review, not to reweigh the evidence that was before the decision maker. A finding that a non-judicial decision is reasonable does not convert that decision into a judicial decision. Similarly, a reviewing court’s decision about the reasonableness of a non-judicial decision is not a judicial decision on the merits.

[50] The grievor also submits that even if the decision were a judicial decision, the employer did not establish the three preconditions for issue estoppel. The parties are not the same. The parties to the grievances also include the Alliance, which is a party to the collective agreement. In addition, while the decision might have been final, it was so only for the purposes of deciding the grievor’s complaint before the CHRC; it was not meant to be a final determination of his discrimination allegations. That is made clear in the record in the CHRC report, which states as follows that the grievor would have the opportunity to be heard by the Board: “Apparently, the Complainant [grievor] is awaiting a hearing on some grievances that were referred to the Federal Public Service [sic] Labour Relations and Employment Board.”

[51] The grievor contests the employer’s argument that the “same question test” has been met. The employer’s submission that “... the Board cannot uphold the grievances without a finding of discrimination” misses the point; the same questions with respect to discrimination in these grievances were never answered by the CHRC. Two of the grievances are allegations of a breach of article 19 (the no-discrimination clause) of the collective agreement, and the third is against his termination. While the grievor acknowledges that related questions were considered by the CHRC, the questions before it were different, and the CHRC did not make a global finding that the employer did not violate his rights only that it decided not to refer the complaint to the CHRT. With respect to the grievance alleging discrimination with respect to the employer’s decision to bar the grievor from the workplace, neither the CHRC report nor the CHRC decision make any finding on it.

[52] While the CHRC made findings related to the FTWE request, it could not consider the grievor’s allegations, which he seeks to make before the Board, namely, “... the employer did not satisfy the preconditions for requiring a Health Canada FTWE, much less, to do so as a precondition for a return to active employment, or as a condition for maintaining his employment.” Nor could the CHRC consider the grievor’s allegation that the employer “... did not address the grievor’s requests regarding the information and issues that should be assessed by Health Canada when it performed the FTWE.” The CHRC also could not address the grievor’s allegation that the employer violated the collective agreement.

[53] In the termination grievance, the ultimate question to be answered is whether the employer satisfied the requirements for termination under s. 12(1)(e) of the FAA, which is legislation outside the CHRC’s jurisdiction. In addition, the CHRC is not able to consider whether the employer violated the collective agreement.

[54] While the Board and the CHRC may have some overlapping jurisdiction, the CHRC did not and could not deal with the essential elements of the grievances. The Board’s jurisdiction is broader and encompasses virtually all aspects of the workplace; in contrast, the CHRC and CHRT consider only violations of the CHRA. In Izrailov v. Greyhound Canada Transportation Corp, 2020 CHRT 23, the CHRT stated at paragraph 84 as follows:

[84] The Tribunal is not tasked with nor does it have jurisdiction to decide if a corporation or other federal entity has complied with employment and labour relations law such as the Canada Labour Code, other federal labour legislation or with collective agreements. The complaint inquiry process at the Tribunal is not a labour arbitration process and the Tribunal is not the Canada Industrial Labour [sic] Relations Board (CIRB). The Tribunal is also not a court with inherent jurisdiction. The Tribunal is a quasi-judicial, administrative body governed by the Act. It is therefore not my role in this inquiry to decide if Greyhound’s termination of the Complainant’s employment was correct under labour law, employment law or labour relations law....

 

[55] The grievor states that the burden of proof is different between the Board and the CHRC. Before the CHRC, it is incumbent on the complainant (in this case, the grievor) to establish a prima facie case of discrimination, while in termination grievances before the Board, the employer has the burden to show that it had cause to terminate the grievor.

[56] The grievor submits that even if the Board finds that the three preconditions of issue estoppel are established, it should exercise its discretion, dismiss the preliminary objection, and hear the grievances. Of the seven factors in Danyluk that the Supreme Court of Canada set out to keep in mind when considering exercising discretion, the third, fourth, and seventh apply in his case. Most crucially, he highlights the potential for injustice; he seeks to challenge the termination of his employment, which is frequently referred to as “capital punishment” in the labour relations context. Given the gravity of this sanction, the Board has granted relief from procedural defaults, to ensure that terminated grievors are not unjustly deprived of the opportunity to challenge the terminations of their employment. In that respect, the grievor refers me to Trenholm v. Staff of the Non-Public Funds, Canadian Forces, 2005 PSLRB 65.

[57] The CHRC might have considered his termination; however, he was never allowed any process remotely mirroring the one provided by the Board in hearing termination grievance cases. He was not given the opportunity to receive disclosure from the employer or to cross-examine witnesses. Nor was his entire file before the CHRC, as it considered only narrow aspects of his relationship with the employer. The grievor has never been given the opportunity to properly challenge the termination of his employment. It would be profoundly unjust to deprive him of this opportunity based on the CHRC’s decision not to refer his complaint to the CHRT.

[58] The employer argues that if it cannot show the preconditions for issue estoppel, then abuse of process applies. CUPE sets out the application of abuse of process in labour arbitrations. The Supreme Court of Canada set out that the union in that case was not entitled to relitigate, either at “common law or under statute”, the issue decided against the grievor in his criminal proceedings. In that case, issue estoppel was unavailable because the parties were different. The Court reasoned that it would be a “blatant abuse of process” to allow the union to relitigate the same issue that had been decided by the criminal court. The grievor’s position is that in contrast to the matter in CUPE, the questions to be decided by the Board are different from those that were in front of the CHRC.

[59] The grievor also referred me to Schweneke v. Ontario (2000), 47 OR (3d) 97; Monfourny v. Deputy Head (Department of National Defence), 2023 FPSLREB 37; Iwata; Brown; Lavigne; Canada (Attorney General) v. Burke, 2021 FCA 18; Ferrare v. Kingston Interval House (2002), 19 CCEL (3d) 59; Sketchley v. Canada (Attorney General), 2005 FCA 404; Anani v. Royal Bank of Canada, 2020 FC 870; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; Ont. Human Rights Comm. v. Simpsons-Sears, [1985] 2 SCR 536; Legault v. Treasury Board (Department of Human Resources and Skills Development), 2007 PSLRB 82; White Bear First Nation v. Bird, 2021 FCA 50; and CUPE.

C. The employer’s reply

[60] The employer reiterates its position that the CHRC decision satisfied the three preconditions set out in Danyluk.

[61] The fact that the CHRC’s report has been described as non-adjudicative in other contexts has no bearing on whether it is judicial in the sense intended in Danyluk.

[62] The employer acknowledges that with respect to the first part of the Danyluk test, the grievor’s CHRC complaint overlaps with the grievances before the Board, which is why the employer requests that the grievances be denied.

[63] The employer submits that the grievor failed to differentiate that his allegations before the Board are different from those that were before the CHRC. He did not allege any breach of the collective agreement other than article 19 (the no-discrimination clause), which he alleged in his termination grievance. This is precisely what he alleged in his CHRC complaint. The substance of his grievances before the Board is demonstrably the same as that of the CHRC complaint.

[64] Burke and Malik are distinguishable and do not assist. They both raised new questions that had not been answered in earlier proceedings. In Burke, the grievor challenged his termination only once, before the Board, unlike in the present case, in which the grievor is attempting to challenge the termination of his employment in both the proceedings before the CHRC and the Board. In Malik, the grievor did not attempt to pursue the discrimination allegations with the Board after the CHRC dismissed them.

[65] In the event that the Board finds that these grievances do raise novel allegations, the Board should address only these and dismiss the discrimination allegations that were already addressed in the CHRC process. The grievor is not entitled to the colloquial “two bites of the cherry” on questions that he previously brought to the CHRC.

[66] The second part of the Danyluk test, which is that the CHRC’s decision was not final, contradicts the jurisprudence. Parliament conferred on the CHRC the discretion to dismiss complaints under s. 44 of the CHRA.

[67] With respect to the allegation that the parties are not the same, since the bargaining agent was not a party to the CHRC proceedings, the Board rejected this argument and, in any event, found that a bargaining agent is a privy to the grievor’s interests.

[68] Despite its position that the Danyluk test has been met, the employer also submits that the Board should not exercise its discretion to hear the grievances for the following reasons:

...

a) The CHRC has subject matter expertise in complex issue of fact and law pertaining to allegations of discrimination and a failure to accommodate;

b) The Federal Court determined that the CHRC process was procedurally fair; the grievor’s procedural rights were safeguarded;

c) Sub-paragraph 44(3)(b)(i) of the CHRA provides a clear authority to the CHRC to dismiss complaints on the basis that “having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted”;

d) ... the Grievor has faced no barriers to justice. He had the opportunity to challenge his termination, and the events leading up to it, and he chose to do so before the CHRC. He subsequently applied for judicial review of the CHRC’s decision and was afforded all the same rights as any applicant;

e) The Grievor has alleged no other potential injustice arising from the application of issue estoppel in this case.

...

 

[69] The Board’s exercise of discretion to hear questions already addressed by the CHRC would result in an absurdity. It would mean that grievors could choose to pursue discrimination allegations with the CHRC first and if unsuccessful, test substantially the same allegations in a grievance before the Board. That would not only allow two bites at the cherry but also would pose a collateral attack on the CHRC’s decision and impose duplicative costs on decision-making bodies. Employers should be able to rely on the finality of CHRC decisions rendered under s. 44 of the CHRA.

[70] The employer also referred me to Farhan v. Canada Revenue Agency, 2021 FPSLREB 48; Sabourin v. House of Commons, 2005 PSLRB 84; and Public Service Alliance of Canada v. Canada (Treasury Board), 2005 FC 1297.

IV. Reasons

[71] For the reasons that follow, I find that issue estoppel has not been established; nor has it been established that the Board hearing these grievances would be an abuse of process. As such, the employer’s objection is dismissed.

A. Issue estoppel

[72] Issue estoppel is a legal concept that provides that a party may not relitigate an issue that has been finally decided in prior judicial proceedings between the same parties or those who stand in their place. It requires a two-step analysis.

[73] The first step in the two-step analysis has the court (or in this case, the Board) consider whether the party making the motion established the three preconditions, which are as follows:

1) the same question has been decided in earlier proceedings;

 

2) the earlier judicial decision was final; and

 

3) the parties to that decision or their privies are the same in both proceedings.

 

[74] In this matter, before determining the three preconditions, it is fundamental to first verify two things: one, what exactly is the decision being put forward as the basis for the issue estoppel, and two, whether that decision is a judicial decision.

[75] While at first glance, it may appear that the decision that is being relied upon to support issue estoppel is that of the Federal Court (2022 FC 1671), in reality it is the CHRC report.

[76] The parties in their written submissions clearly reference the decision in issue being the CHRC decision. It is clear that the Court, in rendering its judicial review of the CHRC decision (2022 FC 1671), did not hear the grievor’s complaint on its merits. As set out in that decision, the task and test of the Court on judicial review was (as stated at paragraph 64) to review the reasonableness of the decision. The task of the Court on judicial review is not to determine whether the decision reached was right or wrong or to rehear a matter on its merits but whether the decision being challenged before it bears the hallmarks of reasonableness.

[77] In addition, at paragraphs 52 and 55 to 58, the Court talks about how in cases like this one, in which the CHRC relies on a report of an officer who conducted a screening function, the report becomes part of the decision. In essence, the CHRC decision, which largely accepts the CHRC report that is incorporated into it, is the decision that stands as the one being held up by the employer in this matter as creating the issue estoppel with respect to the grievances before the Board.

[78] The Supreme Court of Canada in Danyluk defined “judicial decision” at paragraph 35 as follows:

35 A common element of the preconditions to issue estoppel set out by Dickson J. in Angle [Angle v. Minister of National Revenue, 1974 CanLII 168(SCC)], supra, is the fundamental requirement that the decision in the prior proceeding be a judicial decision. According to the authorities ... there are three elements that may be taken into account. First is to examine the nature of the administrative authority issuing the decision. Is it an institution that is capable of receiving and exercising adjudicative authority? Secondly, as a matter of law, is the particular decision one that was required to be made in a judicial manner? Thirdly, as a mixed question of law and fact, was the decision made in a judicial manner? These are distinct requirements:

It is of no avail to prove that the alleged res judicata was a decision, or that it was pronounced according to judicial principles, unless it emanated from such a tribunal in the exercise of its adjudicative functions; nor is it sufficient that it was pronounced by such a tribunal unless it was a judicial decision on the merits. It is important, therefore, at the outset to have a proper understanding of what constitutes a judicial tribunal and a judicial decision for present purposes.

...

[Emphasis in the original]

 

[79] As set out at paragraph 35 of Danyluk, key to that assessment is the fact that the decision, even if it was pronounced according to judicial principles, must emanate from such a tribunal in the exercise of its adjudicative functions. However, Danyluk goes further, stating that it is not sufficient that the decision was pronounced by such a tribunal exercising its adjudicative functions unless in doing so, it was on its merits.

[80] The CHRA established the CHRC. It was established not as an adjudicative tribunal; that function was given to the CHRT. The function of the CHRC is that of a screening agency. This was confirmed by the Supreme Court of Canada in Cooper and Halifax (Regional Municipality). The CHRC’s function is not to decide discrimination.

[81] Indeed, the CHRC report specifically acknowledges that point by stating that it does not decide whether there has been discrimination; that determination is made by the CHRT. It acknowledges that it carries out a “screening function”. It does not consider the complaints that come before it on their merits.

[82] Therefore, it is clear that the CHRC does not exercise an adjudicative function as defined by the Supreme Court of Canada in Danyluk, and as such, the CHRC decision does not meet the definition of a judicial decision. As it does not meet this initial test, there is no need to conduct further the analysis of the three preconditions that are the first part of the test for issue estoppel set out in Danyluk. As the first part of the test cannot be met, I do not need to move to the second part.

B. Abuse of process

[83] In the alternative, the employer argued that if issue estoppel is not established, it would be an abuse of process to allow the grievances to proceed. I do not agree with that proposition.

[84] The parties to the complaint and the grievances are not necessarily the same. The parties to the complaint before the CHRC were the grievor and VAC. Grievances involving a collective agreement before the Board are between the employer, in this case the TB, and a bargaining agent, in this case the Alliance. The TB and VAC are two distinct entities, and the grievor and the bargaining agent are two distinct entities; they are not necessarily synonymous nor interchangeable. The CHRC decision acknowledges as much when it states, “Apparently, the Complainant is awaiting a hearing on some of the grievances that were referred to the Federal Public Service [sic] Labour Relations and Employment Board. He will have additional opportunities there to advance his argument.”

[85] That is an important distinction.

[86] The collective agreement is a contract and is enforceable by the Board under the jurisdiction conferred on it in s. 209(1)(a) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”). Indeed, a grievor who alleges a breach of a collective agreement can have a grievance alleging that breach proceed to adjudication before the Board only if the bargaining agent represents them. This is set out in s. 209(2). If a grievor does not have that representation, or if a grievance is initially referred to the Board with it but the bargaining agent withdraws it, the grievor can no longer proceed to challenge the issue before the Board, and the matter is withdrawn or deemed withdrawn. This is because the collective agreement is a contract between the employer and the bargaining agent.

[87] Grievances alleging a breach of a collective agreement are distinct from grievances about an employer disciplining an employee and involving a termination of employment, suspension from work, or financial penalty or a termination for other reasons. Such grievances can be referred to adjudication before the Board under ss. 209(1)(b) and (c) of the Act with or without the participation of a bargaining agent. In those proceedings, the parties are the employer and the individual grievor.

[88] The Act defines “employer” for its purposes, which includes the TB and any separate agency defined under the Act. The TB is created under s. 5(1) of the FAA. Section 5(1) states that it is a committee of the King’s Privy Council for Canada, which is presided over by the president and shall consist of the minister and four other members of the King’s Privy Council for Canada to be nominated from time to time by the Governor in Council.

[89] The TB is a distinct entity from VAC, which is a federal government department established under the Department of Veterans Affairs Act (R.S.C., 1985, c. V-1).

[90] The questions before the Board in determining if the two grievances alleging a breach of the collective agreement (file nos. 566-02-40986 and 40987) and the grievance as to whether the termination of the grievor’s employment under the FAA was justifiable in law (file no. 566-02-40985) are different from the question that the CHRC was required to answer, namely, whether, based on the investigation conducted by its officer, it felt that the complaint should be referred to the CHRT for adjudication.

[91] The questions to be answered by the Board are the questions on their merits: whether there was a breach of the relevant collective agreement between the TB and the Alliance by virtue of the grievor’s treatment with respect to his health and use of medical cannabis, and whether he was legitimately terminated from his employment under the FAA and if discrimination was a factor. Those are distinctly different than the question that the CHRC had to answer, which was whether, based on the limited information gathered, to refer the complaint to the CHRT for a hearing on the merits of whether there was or was not discrimination under the CHRA.

[92] Additionally, and most importantly, the Board is a quasi-judicial, independent, third-party tribunal. Its mandate and powers are set out in the Act. Its mandate is specialized to deal with disputes in the broader federal public service as specifically defined in it, and the majority of disputes are grievances between employees and the federal employer being represented in large part by the TB and several separate agencies as employers.

[93] Similar to a court of competent jurisdiction, grievance hearings on their merits before the Board allow for the presiding Board member sitting as a panel of the Board to sit as an independent adjudicator of the dispute between the parties. One of the vitally important aspects of hearings before the Board is that it hears grievance matters de novo or afresh. It does not sit as an appellate body or in judicial review of another person’s or body’s decision.

[94] Board hearings generally follow the pattern of a civil trial at a court of first instance. Depending on the type of grievance or complaint before it, one party leads its evidence through documents and witnesses first, with the other party leading its after that.

[95] There are processes for documentary production, and witnesses are examined in chief and subject to cross-examination and re-examination. It is a vigorous process that allows the presiding panel to assess the evidence. Upon the completion of the evidence, the parties are allowed an opportunity to make arguments. Only after that vigorous process does the panel of the Board issue a decision.

[96] This process before the Board is clearly much more rigorous than that which was carried out by the CHRC in its screening process. It is an adjudicative process before the Board that Parliament has established for this purpose and has deemed in the Act as a specialized tribunal in this respect. The process followed in reaching the CHRC decision largely relied on the assessment of an employee of the TB (the employer) who makes a recommendation to the CHRC. The employee is not independent and does not carry out an adjudicative or quasi-judicial function.

[97] For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

V. Order

[98] The objection to jurisdiction is dismissed.

September 3, 2025.

John G. Jaworski,

a panel of the Federal Public Sector Labour Relations and Employment Board