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166-2-29395 (2001 PSSRB 60)
Djan v. Treasury Board (Solicitor General Canada – Correctional Service)
Before: Y. Tarte
Appearances: Decided without an oral hearing
Decision rendered: June 11, 2001
Jurisdiction – Termination (non-disciplinary) – Incapacity – Disability – Duty to accommodate – Subsection 91(1) of the Public Service Staff Relations Act (PSSRA) – Effect of the exercise by the Canadian Human Rights Commission (CHRC) of its discretion under paragraph 41(1)(a) of the Canadian Human Rights Act (CHRA) – the employer terminated the grievor's employment as a parole officer because of her inability to perform the full range of her duties – the grievor submitted a grievance against the termination of her employment, seeking reinstatement and compensation for lost wages – her grievance was denied by the employer at the final level of the grievance process – because the grievance alleged a failure of the employer to accommodate her medical disability, the grievor's bargaining agent, the Public Service Alliance of Canada (PSAC), referred the matter to the CHRC – in so doing, the PSAC relied on the decision of the Federal Court of Appeal in Canada (Attorney General) v. Boutilier,  3 F.C. 27, wherein the Court stated that, if a grievance relates to a prohibited ground of discrimination under the CHRA, then an adjudicator appointed under the PSSRA has no jurisdiction to entertain it – the reason for this is that there is another administrative procedure for redress available to the employee within the meaning of subsection 91(1) of the PSSRA, namely the filing of a complaint with the CHRC – the CHRC advised the grievor that, pursuant to paragraph 41(1)(a) of the CHRA, it had decided that no further proceedings were warranted on her complaint because she ought to exhaust grievance procedures – the CHRC also advised the grievor that she could ask to have her complaint revived by the CHRC at the conclusion of the grievance process if she was unsatisfied with the result – all employers and bargaining agents in the federal Public Service were invited to make written submissions on the following question relating to the adjudicator's jurisdiction: does an administrative procedure for redress continue to exist within the meaning of subsection 91(1) of the PSSRA when the CHRC directs an employee to exhaust the grievance process but retains the right to consider the human rights issue at a later date – at its request, the CHRC was also permitted to make submissions on this issue – following receipt of all the submissions, the employer advised the Board that the parties to the grievance had reached a tentative settlement and that the grievance would be withdrawn from adjudication – according to the employer, this rendered moot the issue of an adjudicator's jurisdiction to hear this grievance – the PSAC submitted that this is an issue of fundamental importance to labour relations in the federal Public Service and that it will arise again in relation to many future grievances – therefore, it would be in the best interests of labour relations for the adjudicator to render a decision on the jurisdictional issue for the future guidance of all employees, employers and bargaining agents in the federal Public Service – the adjudicator found the PSAC's position to be more compelling – the adjudicator concluded that the fact that the CHRC advised the grievor that she could revive her complaint once she had exhausted the grievance process did not deprive an adjudicator appointed under the PSSRA of the necessary jurisdiction to hear and determine her grievance – in Boutilier, both the Federal Court, Trial Division, on judicial review and the Federal Court of Appeal indicated that an adjudicator appointed under the PSSRA would have jurisdiction to hear and determine a grievance which raised a complaint of a discriminatory practice when the CHRC determined in the exercise of its discretion under paragraph 41(1)(a) or 44(2)(a) of the CHRA that the grievance process ought to be exhausted – the fact that the CHRC retained the right to consider the complaint at the conclusion of the grievance process if the employee was unsatisfied with the result did not change matters – the jurisprudence establishes that the CHRC cannot refuse to consider a complaint merely because another tribunal has issued a decision in relation to it.
|Cases cited:||Canada (Attorney General) v. Boutilier,  1 F.C. 459 (T.D.); Canada (Attorney General) v. Boutilier,  3 F.C. 27 (C.A.); Boudreault v. Canada (Attorney General) (1995), 99 F.T.R. 293; Brine v. Attorney General of Canada (1999), 175 F.T.R. 1.|