Jaroslaw Holowko v The Royal Bank of Canada, 2022 CIRB 1028 (CanLII)
The case was decided by an external adjudicator.
The complainant filed an unjust dismissal (s. 240) and a reprisal complaint under s. 246.1, which had not been withdrawn. The employer argued that he was barred from proceeding with the reprisal complaint.
[9] In order to rule on the employer’s request for dismissal, the Board must determine whether the complaint filed by the complainant on May 13, 2021, under sections 246.1(1) and 209.3(1) of the Code should be dismissed in accordance with section 246.1(2) of the Code. Indeed, if this second complaint is “based on substantially the same facts” as the complaint previously filed under section 240(1) of the Code, it must be dismissed since the complainant did not withdraw his first complaint.
The Board noted:
[14] Indeed, when a procedure for redress is available under Part I or Part II of the Code, a complainant does not have a choice: they cannot file an unjust dismissal complaint under Part III of the Code. Section 242(3.1)(b) of the Code prevents them from doing so.
[15] However, when a reprisal complaint under Part III of the Code or an unjust dismissal complaint under the same part of the Code can be filed, which is the case here, the complainant would have a choice: pursue a remedy under section 240(1) of the Code or pursue a remedy under section 246.1(1) of the Code.
[16] However, the Code is clear about the fact that both procedures for redress cannot exist concurrently if they are based “on substantially the same facts.”
[26] The objective of the Code is clear: when an employee who has been terminated has the option of filing a complaint under section 240(1) or a complaint under section 246.1(1), they must opt for one or the other when the two procedures are based “on substantially the same facts.” They cannot file the second complaint unless they have withdrawn the first.
The complaint that the complainant filed under section 246.1(1) of the Code was dismissed.