The Federal Court of Appeal has denied an application for judicial review brought by a former non-unionized employee at TD Bank who alleged that her constructive dismissal was rooted in age and race-based discrimination.
The ruling reaffirms that when an unjust dismissal complaint hinges on human rights allegations, the Canadian Human Rights Commission holds primary jurisdiction — unless the Commission refers the matter back to the Canada Industrial Relations Board.
The court’s decision stems from P.K.’s original complaint under subsection 240(1) of the Canada Labour Code (the Code), which permits non-unionized federally regulated employees who consider their dismissal unjust to seek redress through the Board. In her filing, P.K. argued that her resignation amounted to a constructive dismissal caused by targeted discrimination and harassment.
The Board, however, declined to hear the matter, citing paragraph 242(3.1)(b) of the Code. That provision bars the Board from considering a complaint if “a procedure for redress has been provided under any other Act of Parliament.” According to the Board, the presence of human rights allegations meant P.K.’s complaint should proceed under the Canadian Human Rights Act, which falls under the Commission’s jurisdiction.
P.K. then sought judicial review, contending that the Board had erred by characterizing her dispute as one exclusively suited to the Commission. TD Bank, meanwhile, challenged the timeliness of her application, raising separate arguments that were ultimately moot; the court found that even if the matter was timely, the Board’s refusal to hear the complaint was correct in law.
Throughout its reasons, the court reiterated that where discrimination allegations lie “at the core” of an unjust dismissal complaint, paragraph 242(3.1)(b) effectively ousts the Board’s jurisdiction unless the Commission opts to refer the matter back.
“When the Canadian Human Rights Act provides a procedure for redress in respect of a complaint, the Canadian Human Rights Commission has primary jurisdiction,” the court stated, quoting the Board’s analysis. It added that “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.”
Correctness standard
Central to the court’s reasoning was the well-established principle that disputes about the jurisdictional boundaries of administrative bodies must meet a correctness standard. The court determined the Board’s decision satisfied that criterion.
It reasoned that the Board followed the two-step approach endorsed in Canadian case law: first interpreting the relevant legislative provision — here, paragraph 242(3.1)(b) — to discern which body holds jurisdiction, then determining whether the particular complaint falls within the scope of that body’s authority.
The court highlighted the mandatory wording of paragraph 242(3.1)(b), which states that “no complaint shall be considered by the Board” if another federal statute provides a procedure to handle the issues raised. The presence of discrimination allegations, said the court, was pivotal: “The Board found that human rights allegations lay at the core of P.K.’s complaint,” and these could reasonably be pursued under the Canadian Human Rights Act. Notably, the court pointed to multiple prior decisions affirming that parallel recourse to the Commission displaces the Board’s jurisdiction for unjust dismissal complaints rooted in alleged discrimination.
Concurrent jurisdiction argument
In pressing her case, P.K. invoked decisions such as Canada (House of Commons) v. Vaid and Northern Regional Health Authority v. Horrocks, both of which considered scenarios where multiple tribunals might have concurrent jurisdiction over claims involving alleged discrimination.
However, the court concluded that those rulings turned on statutes clearly giving one body exclusive purview over the dispute. In Vaid, for instance, the relevant Act contained a provision that overrode other legislation, funnelling the matter into a parliamentary employment framework. Similarly, Horrocks examined a Manitoba labour statute granting exclusive jurisdiction to labour arbitration boards. Those scenarios, the court said, were not analogous to P.K.’s, because the Code explicitly defers to the Commission in cases of human rights allegations.
P.K. also invoked Wilson v. Atomic Energy of Canada Ltd., a Supreme Court of Canada ruling confirming that non-unionized employees under federal jurisdiction may have similar protections to unionized workers when dismissed unjustly. While the court acknowledged that Parliament intended to “level the playing field” for non-unionized workers, it explained that paragraph 242(3.1)(b) still applies when another Act of Parliament covers the discrimination issues raised. The Board is not prevented from examining human rights questions in every instance, but only if the Commission has first chosen to refer the complaint back. Otherwise, “the Board has no jurisdiction to consider the complaint,” the court said, quoting an earlier decision.
Beyond pointing to case law, P.K. argued she would suffer prejudice from having to redirect her complaint to the Commission long after filing her initial unjust dismissal claim. Yet the court noted the Board had notified both parties of this jurisdictional concern months after P.K. filed her complaint, giving her an opportunity to submit a timely claim to the Commission in parallel. According to the court, P.K. could have avoided the risk of missing the Canadian Human Rights Act’s one-year limitation by filing with the Commission while awaiting the Board’s final word. The decision also referenced prior judgments stating that the “make whole” remedies available under the Canadian Human Rights Act are sufficiently robust. While not always identical to the Code’s remedial provisions, the court found they are “capable of producing some real redress which could be of personal benefit.”
The court concluded by dismissing the application for judicial review, effectively endorsing the Board’s stance that it lacked the discretion to consider P.K.’s allegations. Because paragraph 242(3.1)(b) imposes a clear legislative bar, the court held that no error was committed. As a result, P.K. must seek redress for her discrimination claims through the Commission if she wishes to pursue her case further, and the Board would only gain jurisdiction if the Commission were to refer those issues back.
Concluding that the Board’s approach was correct, the court dismissed the judicial review and awarded $1,500 in costs.
For more information, see Kaseke v. Toronto Dominion Bank, 2025 FCA 8 (CanLII).