Most federally regulated employees rely on the Canada Labour Code as their employment standards legislation, which confers onto them protections for occupational health and safety and protections against unjust dismissal. Under the Code, non-unionized federally regulated employees may be entitled to expansive remedies if they have been unjustly dismissed, which could include things like reinstatement and compensation. However, non-unionized federally regulated employees would do well to be aware of the differences in procedure for dismissals pertaining to human rights violations.
Procedure under the Canada Labour Code
Under the Code, non-unionized federally regulated employees may file a complaint with Employment and Social Development Canada if they believe they have been unjustly dismissed. To do so, the employee must have worked for 12 consecutive months and not be unionized, pursuant to s. 240 of the Code. If the complaint cannot be settled at this stage, they can request that the matter be referred to the Canada Industrial Relations Board. For many employees, their complaint would proceed through the standard unjust dismissal procedure, and if not settled, result in a hearing and adjudication by the Board.
However, there are administrative procedural limitations before the Board can consider an unjust dismissal complaint. These limitations are outlined in s. 242(3.1) of the Code. The first is that no complaint shall be considered by the Board if the employee is laid off due to lack of work or discontinuance of function. The second limitation is that no complaint shall be considered by the Board if a procedure for redress has been provided under Parts I or II of the Code or under any other Act of Parliament. It is this second limitation that causes issues for employees who have been terminated for human rights issues.
Kaseke v. Toronto Dominion Bank, 2025 FCA 8
In a recent case before the Federal Court of Appeal, Kaseke v. Toronto Dominion Bank, the complainant filed an unjust dismissal complaint before the Board which was ultimately dismissed. The Board ruled that the complaint should be addressed under the Canadian Human Rights Commission rather than by the Board. In doing so, the Board cited s. 242(3.1) as a limit to their jurisdiction. The complainant applied for judicial review before the Federal Court of Appeal.
The Court outlined the long-standing principle that employees who believe their termination is a result of human rights violations must follow the procedure outlined under the Canadian Human Rights Act, rather than the one under the Canada Labour Code. The Court noted that the jurisprudence for this issue has followed this principle for over fifty years. Unfortunately, the complainant believed that she could find a fulsome remedy by following the procedure under the Code. She raised in her judicial review the fact that the denial of her complaint would cause her significant prejudice at this stage, since she had missed the necessary time frame to file a complaint under the Canadian Human Rights Act. However, the Court pointed out that she had been advised by the Board early on in her complaint that there would be a jurisdictional issue. Had she filed under the Act, and the Commission determined that the Board would be better suited to handle the issue for her, the Commission could have referred the matter to the Board to deal with. The Court reaffirmed that this is the correct procedure for terminations associated with human rights complaints. The Board must deny jurisdiction over the matter, as the Commission retains primary jurisdiction. Only if the Commission decides to refer the matter to the Board will the Board have jurisdiction to address a termination violating human rights.
Another issue raised by the complainant was that the Canadian Human Rights Act does not provide for the same remedies as those outlined under the Code. The Court rejected this argument. The Court examined relevant jurisprudence showing how the Code operates under a “make whole” philosophy, with the intention to restore an unjustly dismissed employee to the same position they would have been in had they not been unjustly dismissed. However, the Court also indicated that the remedies outlined under the Canadian Human Rights Act are also “make whole” remedies, including orders to cease the discriminatory practice, prevent discrimination in the future, reinstate the complainant, compensate the complainant for expenses and lost wages, and further compensation for pain, suffering, and willful or reckless discrimination.