In a recent Federal Court of Appeal (the “FCA”) decision, Kaseke v The Toronto-Dominion Bank, 2025 FCA 8, the FCA reaffirmed the jurisdictional lines between the Canadian Industrial Relations Board (the “Board”) and the Canadian Human Rights Commission (the “Commission”) with respect to unjust dismissal complaints.
Background
The Applicant, a former employee, filed an unjust dismissal complaint under section 240 of the Canada Labour Code (“Code”), alleging she was constructively dismissed as a result of discrimination and harassment on the basis of her age and race (the “Complaint”). The Board declined to consider the Complaint, pursuant to section 242(3.1)(b) of the Code, finding that the Commission has primary jurisdiction and the allegations in the Complaint could reasonably constitute the basis of a substantially similar complaint under the Canadian Human Rights Act (“Act”).
The Applicant sought judicial review of the Board’s decision to the FCA. The FCA dismissed the Application finding that the Board’s decision was correct and ordered costs in favour of the employer.[1] The FCA’s decision confirmed the scope of the Board’s jurisdiction where allegations of human rights breaches are intertwined with allegations of an unjust dismissal.
Legal Analysis
Section 242(3.1)(b) of the Code states that the Board shall not consider an unjust dismissal complaint if a procedure for redress has been provided under Part I or Part II of the Code or under any other Act of Parliament. The Applicant challenged the interpretation of this provision as it relates to the jurisdiction of the Board and the Commission when an unjust dismissal complaint raises allegations of human rights breaches.
The FCA concluded that the interpretation of section 242(3.1)(b) of the Code is settled law. Section 242(3.1)(b) confers primary jurisdiction on the Commission to consider an unjust dismissal complaint that raises human rights issues that lie at the heart of the allegations of unjust dismissal. In these circumstances, the Board only has jurisdiction if the Commission exercises its statutory discretion under section 41(1)(b) of 44(2)(b) of the Act to refer the matter back to the Board.
The Applicant argued that the Board did not consider Supreme Court of Canada jurisprudence that addressed Parliament’s intention behind section 242(3.1)(b) of the Code in making its decision. Among other things, the Applicant argued that the Supreme Court’s decision in Wilson[2] declared that the purpose of Division XIV of the Code is to level the playing field between non-unionized and unionized federal employees by allowing non-unionized employees to file unjust dismissal complaints. The FCA found that this general intention does not prevail over the clear and mandatory language of section 242(3.1)(b) of the Code ousting the Board’s jurisdiction where another procedure for redress has been provided.
Relying on that mandatory language, the FCA also found that the Board does not have jurisdiction to deal with the Applicant’s complaint even if the Applicant had not filed a complaint under the Act and may now be prejudiced from filling a complaint under the Act. In any event, the FCA noted that, on the fact of this case, the Applicant could have filed a complaint to the Commission within the limitation period as the Board notified the parties of a jurisdictional issue in a timely manner.
Lastly, the Court rejected the Applicant’s arguments that the remedies under the Act would not make her whole. The FCA found that while the remedies available under the Act and the Code are not exactly the same, they are quite similar. More importantly, the remedies under the Act would have provided the Applicant with the possibility of real redress.
Key Takeaway for Employers
Section 242(3.1)(b) ousts the Board’s jurisdiction where there is a procedure for redress under Part I or Part II of the Code or under any other Act of Parliament, including the Act. When faced with an unjust dismissal complaint under the Code that raises allegations of discrimination and harassment under the Act, employers should consider whether a preliminary objection to the Board’s jurisdiction may be appropriate.
Fasken lawyers Tala Khoury and Shakila Salem represented The Toronto-Dominion Bank in this matter.
