Ronald Brown v Warren Gibson Limited, 2020 CIRB 948 (CanLII),
The complainant) filed a complaint alleging that he was unjustly dismissed from his employment by the respondent. ESDC referred the complaint to the Board on April 17, 2020, after the complainant requested adjudication of his complaint. The complainant had also filed a complaint with the Canadian Human Rights Commission on January 24, 2020, in which he claimed that the respondent had discriminated against him in employment on the basis of disability, in contravention of the Canadian Human Rights Act (the Act).
The respondent objected to the Board’s jurisdiction.
The Code sets out the following limitation on the Board’s consideration of unjust dismissal complaints:
242 (3.1) No complaint shall be considered by the Board under subsection (3) in respect of a person if
…
(b) a procedure for redress has been provided under Part I or Part II of this Act or under any other Act of Parliament.
The leading case on jurisdiction in this context is MacFarlane v. Day & Ross Inc., 2010 FC 556. The Board reviewed the case law and noted: “ … courts and adjudicators have asked two questions in applying section 242(3.1)(b) in unjust dismissal complaints: is the complaint essentially the same in the other procedure for redress, and does the other procedure provide real redress of personal benefit to the same complainant?”
In the case at hand, the Board found that “… that the complainant’s human rights complaint is substantially similar to his unjust dismissal complaint … that the human rights complaint mechanism and the broad remedies available under the Act provide real redress which could be of personal benefit to the complainant.” Accordingly, the Board was precluded from considering the present unjust dismissal complaint pursuant to section 242(3.1)(b).”
The complaint was dismissed, noting, however:
36] In accordance with the FC’s decision in MacFarlane 2010, supra, the Board concludes that it has residual jurisdiction with respect to the present unjust dismissal complaint. Although the Board must decline to consider the complaint pursuant to section 242(3.1)(b), the CHRC has the statutory discretion under the Act to determine that the human rights complaint could be more appropriately dealt with according to the unjust dismissal provisions provided for under the Code. In the event that the CHRC reaches this conclusion, the Board would then have jurisdiction to hear the unjust dismissal complaint, as well as the human rights allegations insofar as they relate to the dismissal, upon referral from the CHRC.