When an unjust dismissal complaint under the Canada Labour Code alleges discrimination, does the Canada Industrial Relations Board (the “CIRB”) have jurisdiction to hear it, or must the employee proceed through the Canadian Human Rights Commission instead?
In Kaseke v. Toronto Dominion Bank, 2025 FCA 8, the Federal Court of Appeal affirmed an earlier decision of the CIRB, which held that if the facts giving rise to an unjust dismissal complaint could also ground a human rights complaint, paragraph 242(3.1)(b) of the Canada Labour Code bars the CIRB from hearing it, because the Canadian Human Rights Act provides another procedure for redress. The CIRB may only hear the matter if the CHRC first refers the complaint back.
Facts
Precious Kaseke was an employee of TD Bank. Banks are one of the few federally regulated employers in Canada. Kaseke filed an unjust dismissal complaint under s. 240 of the Canada Labour Code, alleging that she had been constructively dismissed due to age- and race-based discrimination and harassment. The complaint was referred to the CIRB.
Six months later, the CIRB raised a jurisdictional issue: under s. 242(3.1)(b) of the Code, the CIRB cannot hear an unjust dismissal complaint if another federal statute provides a procedure for redress. Because discrimination is actionable under the Canadian Human Rights Act, the Board questioned whether the proper forum was instead the Canadian Human Rights Commission (CHRC).
After receiving submissions, the CIRB concluded that the core of the complaint was discrimination, and because the Canadian Human Rights Act provides a mechanism to address such allegations, the CIRB declined to consider her unjust dismissal complaint. Ms. Kaseke sought judicial review.
Decision of the Federal Court of Appeal
The Federal Court of Appeal provided the following reasons for its decision to dismiss Ms. Kaseke’s Application for Judicial Review, thereby affirming the CIRB’s decision to dismiss her complaint of unjust dismissal:
[6] To resolve the jurisdictional contest between itself and the Canadian Human Rights Commission, the Board engaged in a two-step analysis analogous to the analysis that the Supreme Court undertook in Horrocks at paras. 39–40.
[7] First, the Board examined the relevant legislative provision—paragraph 242(3.1)(b) of the Code—to determine to whom it grants jurisdiction and over what matters. Relying on the mandatory wording of this paragraph and its interpretation, the Board found that when the Canadian Human Rights Act provides a procedure for redress in respect of a complaint, the Canadian Human Rights Commission has primary jurisdiction. It is only if the Commission exercises its statutory discretion under the Canadian Human Rights Act to refer the matter back to the Board that the latter has jurisdiction.
[8] Second, the Board determined that the dispute between Ms. Kaseke and the Bank falls within the scope of the Commission’s jurisdiction. In this connection, the Board carefully reviewed the complaint and found that human rights allegations lay at the core of Ms. Kaseke’s complaint. The Board further found that these allegations could reasonably constitute a basis for a substantially similar complaint under the Canadian Human Rights Act. As a result, the Board declined to consider Ms. Kaseke’s complaint.
…
[15] … It should be emphasised that it is the availability of another procedure for redress that bars the Board’s jurisdiction, not whether a complaint has been filed seeking to access that other procedure.
[16] The above makes clear that paragraph 242(3.1)(b) confers on the Canadian Human Rights Commission primary jurisdiction to consider an unjust dismissal complaint that raises allegations of discrimination.
…
[25] Parliament’s general intention in enacting the unjust dismissal provisions cannot prevail over the clear and mandatory text of paragraph 242(3.1)(b)—the sole provision at issue. This text is the anchor of the interpretative exercise. Paragraph 242(3.1)(b) confers primary jurisdiction on the Canadian Human Rights Commission in relation to non unionized federal employees’ complaints of unjust dismissal that could be adjudicated under the Canadian Human Rights Act. Although the Board is not precluded from considering human rights issues that lie at the heart of an unjust dismissal complaint, the Board can only consider such a claim if the Canadian Human Rights Commission refers the complaint back to the Board pursuant to paragraph 41(1)(b) or paragraph 44(2)(b) of the Canadian Human Rights Act. In the absence of a referral from the Commission, the Board has no jurisdiction to consider the complaint.
Commentary
While some might find unduly harsh the decision to leave Ms. Kaseke without any remedy, for what may be perceived as a procedural error, it is important to note that the Federal Court of Appeal also observed that Ms. Kaseke was effectively warned by the CIRB that she might not be in the correct place: On November 4, 2021, the Board wrote to the parties regarding paragraph 242(3.1)(b) of the Code and its impact on the Board’s jurisdiction. The Board informed Ms. Kaseke in a timely manner of the jurisdictional issue. While awaiting the Board’s decision on this issue, Ms. Kaseke could have filed a complaint with the Canadian Human Rights Commission within the one-year time period provided by paragraph 41(1)(e) of the Canadian Human Rights Act, thereby avoiding the prejudice she now suffers. In doing so, and no matter the Board’s ultimate decision, not only would Ms. Kaseke have acted within the Canadian Human Rights Act time limit, but she would have also been in a position to seek to persuade the Canadian Human Rights Commission to refer her complaint back to the Board on the basis that the matter could be more appropriately dealt with in a hearing before the Board
Takeaways for Employees
The takeaway for employees is, if you work in one of the few non-unionized federally workplaces in Canada, and if you believe that the facts giving rise to an unjust dismissal complaint could also ground a human rights complaint, then you need to start your case by making a complaint to the Canadian Human Rights Commission.
More realistically, if you’re unsure (a) whether your workplace is federally or provincially regulated, and/or (b) whether the facts giving rise to an unjust dismissal complaint could also ground a human rights complaint — each of which is a complicated legal question — it's best to contact an experienced employment lawyer before you find yourself in the wrong place and without any avenue for redress.
Sean Bawden: Experience. At Work.
I am an experienced employment lawyer and wrongful dismissal lawyer practicing across Ontario and beyond with Kelly Santini LLP, which is based in Ottawa.
I have also been a part-time professor at Algonquin College and have taught Employment Law, Trial Advocacy for Paralegals, and Small Claims Court Practice. I am a past president (2024-2025) of the County of Carleton Law Association (“CCLA”), and have sat as a safe sport adjudicator.
I can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321 x233.
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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
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