Human Rights

The adjudicability of human rights grievances for employees covered by the Public Service Staff Relations Act

In 2000, the Supreme Court of Canada denied the Public Service Alliance of Canada’s application for leave to appeal in the Mohammed* case. This meant that the Federal Court of Appeal decision in that case was the law and that the filing and adjudication of grievances dealing in whole or in part with human rights was not allowed. It was a profound disappointment to this union that the Supreme Court’s decision effectively barred individual members from having direct access to the grievance and adjudication procedure on human rights matters. Unionized employees under the PSSRA are the only unionized employees in Canada unable to directly use the grievance procedure on human rights issues. The PSAC regards this as unacceptable and we are pressing for legislative changes.

However, at the time that the Supreme Court of Canada denied our appeal, a number of issues were still unclear and awaiting future developments.

The PSAC now wishes to advise its members that the basic framework re human rights matters is now settled and should remain the same until the PSSRA is changed to allow direct access to the grievance and adjudication procedure. The essence is that, while direct filing and processing of human rights grievances is still not possible, there is now indirect access to the grievance and adjudication procedure if (but only if) the Canadian Human Rights Commission has issued a s. 41 order with regard to a CHRC complaint by the same member on the same issue. The CHRC acts, in essence, as a gatekeeper, sending some matters to the grievance/adjudication procedure and keeping others for CHRC processing. Please note that there is no possible access to the PSSRA grievance/adjudication procedure without first having filed a CHRC complaint and receiving a s. 41(1) direction from the CHRC. The terms "bounce-back" or ‘kick-back" are the informal terms being used to describe cases that the CHRC has decided should be re-routed to the grievance/adjudication procedure. The other significant development is that, contrary to the earlier situation, s. 99 references are no longer available as a means for bringing individual human rights issues to the PSSRB.

Note that the Mohammed case is now officially cited as Boutilier, [2000] 3 F.C. 27 (FCA). Boutilier and Mohammed were heard together and covered by the same decision.

The following is a summary of the present, settled situation.

1) Grievances related to human rights may not be filed directly with employer (Boutilier/Mohammed barrier)

The courts have now concluded that employees governed by the Public Service Staff Relations Act (PSSRA) no longer have the right to direct use of the grievance procedure in any matter related to human rights. The key decision is the Federal Court of Appeal’s December 2, 1999 decision in Boutilier,[2000] 3 F.C. 27, also known as Mohammed.

The basis for the FCA’s denial of direct use of the grievance procedure on human rights matters is that s. 91(1) of the PSSRA stipulates that the right to file grievances is limited to matters for which Parliament has not provided another "administrative procedure for redress". Boutilier held that Parliament had established another "administrative procedure for redress" re human rights, i.e., the complaint procedure under the Canadian Human Rights Act (CHRA), therefore there is no direct right to file human rights grievances under the PSSRA.

2) CHRC s. 41(1) (a) or (b) order prerequisite for filing a human rights-related grievance

The FCA in Boutilier also held that Parliament intended for the Canadian Human Rights Commission (CHRC) to act, in effect, as a gatekeeper or screening house in dealing with human rights matters for PSSRA employees. The Court stated that, in handling a complaint:

"the CHRC may, if it chooses, send the matter to grievance pursuant to subsection 41(1) of the CHRA" (see para. 18 of Boutilier).

As a result, the PSSRA grievance procedure becomes valid and available only if the CHRC invokes s. 41(1) of the CHRA to direct that the complainant use the grievance procedure.

The Court in Boutilier recognized the difficulties in this procedure when it stated:

"In my view, Parliament has enacted a particular method of resolving these questions, a rather complex, costly and time-consuming method perhaps, but until Parliament can be convinced to change its legislation, this Court will honour that legislative choice…."

3) Factors to be considered by CHRC re a s. 41(1) "bounce-back" to grievance procedure

The CHRC’s manual on the complaint process describes the factors to be considered in deciding whether to direct a complainant to use the grievance process. This decision is made at the intake step, with a recommendation made by an officer and the final decision by the Commission itself. The factors to be considered include:

- whether the issue is one requiring immediate attention by the CHRC;

- whether the grievance process has the mandate [i.e., jurisdiction] to deal with the issue;

- whether all the necessary remedies are available (Note that PSSRA adjudicators do not have the power to award damages for pain & suffering, nor to order appointments, including promotions, but Human Rights Tribunals do have those remedial powers); and

- the wishes of the complainant re whether to use the grievance procedure (Note: the CHRC will grant considerable weight to the complainant’s wishes, but is not required to follow them).

(Note: while the present CHRC manual does not clearly instruct Commission officers to consult with the union before recommending a s. 41(1) bounce-back, the Commission regards that as implicitly required and has undertaken to amend the manual to make this clear. Union consultation is important because: 1) union approval & representation is required before any collective agreement grievance may proceed; and 2) the union has knowledge of PSSRA jurisdiction and remedy matters that the CHRC officer may not have.)

4) Possible return to CHRC after grievance/adjudication procedure finished

Once the grievance/adjudication procedure following a s. 41(1) order is ended, the complainant may ask the CHRC to re-open the complaint file and the CHRC must then seriously consider that request and decide whether it will do so. This second-look by the CHRC reflects court decisions that require the Commission to look at the specifics of the situation and make up its mind whether further CHRC proceedings are warranted. In making its decision, the CHRC will consider:

- whether the remedy obtained in the grievance/adjudication process is sufficient;

- whether any human rights issues remain outstanding; and

- the parties’ submissions re why the Commission should or should not proceed

5) Treasury Board’s instructions re human rights grievances, CHRC complaints & complaints under Treasury Board harassment policy

The PSAC met with representatives from the CHRC and Treasury Board in order to discuss the change in the jurisprudence and discuss how each of the parties would apply this change. Treasury Board informed us that with respect to attempts to file grievances on CHRA human rights grounds, departments would be instructed to tell the employee to "file a complaint with the CHRC [and] ... to put the employee’s grievance in abeyance in case CHRC kicks it back". Treasury Board is within its rights to place such grievances in abeyance because, as described above, there is no right to file a human rights grievance until the CHRC issues a s. 41(1) order. The PSAC understands that TB is encouraging departments to attempt informal problem solving while the grievance is in abeyance pending the CHRC’s decision on the s.41(1) bounce-back issue. We support them in this approach.

6) When to file human rights grievances and when time limits begin to run

Members may wish to attempt to file a human rights grievance before or at the same time as filing a CHRC complaint, but there is no legal need to do so. As indicated, TB is instructing departments to hold such grievances in abeyance pending the CHRC’s bounce-back decision. Even though such a grievance will not be officially processed by the employer unless a s.41(1) direction is issued, it may be useful to file a grievance before or at the same time as filing a CHRC complaint in order to have access to informal problem solving with the employer while the grievance is in abeyance.

Legally, the time limits for filing a human rights grievance only begin to run once the complainant is notified by the CHRC of a s. 41(1) bounce-back order. Time limits for grievances do not run prior to a s.41(1) order because there is no legal right to grieve until the s. 41(1) direction is issued. Once a s. 41(1) direction is issued by the CHRC, complainants should be certain to activate the grievance process within the time limits established by the collective agreement. This applies whether the complainant has already filed a grievance that is being held in abeyance or will be filing a grievance only after the s.41(1) direction is issued.

7) Djan case and temporary uncertainty whether s.41(1) bounce-back procedure valid

Djan (166-2-29395) was the first case after the FCA decision in Boutilier in which the PSSRB attempted to deal with a grievance that went to adjudication as the result of a CHRC s. 41(1) order. Treasury Board immediately objected to the PSSRB’s jurisdiction to hear this grievance by a PSAC member, despite the fact that the Federal Court of Appeal in Boutilier (cited above) had very clearly held that a s.41(1) direction by the CHRC would legitimize use of the PSSRA grievance/adjudication procedure. In a decision released June 11, 2001, the PSSRB agreed that it did, in fact, have jurisdiction. Treasury Board decided not to appeal that decision to the Federal Court and the s. 41 (1) jurisdiction issue appears to be settled.

8) Section 99 references no longer possible

Previously, the PSAC had contemplated using s. 99 references under the PSSRA as a means to bring members’ human rights issues before the PSSRB. The provisions of s. 99 restrict its use to issues that are not enforceable by individual grievances. After Djan, it is clear that individual grievances re human rights matters are now possible, provided, of course, that the CHRC has issued a s.41(1) direction validating the grievance procedure in a particular case. In light of that, the s. 99 reference is no longer a plausible option.