Executive Summary: Key Legal and Evidentiary Issues

• Sylvie Ashby filed a harassment and discrimination complaint against Parks Canada with the Canadian Human Rights Commission, which declined to deal with it for failure to exhaust grievance remedies under s. 41(1)(a) and s. 42(2) of the Canadian Human Rights Act.

• The Commission failed to reasonably analyze whether a grievance procedure was actually available to Ashby during the non-unionized periods when key discriminatory incidents occurred.

• Several culminating incidents—including the humiliating performance evaluation received in November 2018 and the February 2019 meeting—took place while Ashby was not unionized and lacked access to the grievance process.

• A union representative promised to file a grievance but never did, yet the Commission attributed the failure to exhaust grievance procedures exclusively to Ashby without justification.

• The Commission's reasoning was found unreasonable for treating each incident in isolation rather than considering the complaint as an ongoing pattern of harassment spanning both unionized and non-unionized periods.

• The Federal Court granted the judicial review in part, awarding Ashby $3,000 in costs and remitting the matter to the Commission for redetermination by a different commissioner.

The facts of the case

Sylvie Ashby worked intermittently for Parks Canada between June 2015 and October 2023, holding various positions under different employment contracts. Her employment and union status changed frequently: during certain periods—typically summer and fall—she held fixed-term contracts of more than three months, which entitled her to union representation through the Public Service Alliance of Canada (PSAC). During other periods—often in winter—she was on contracts of less than three months or on-call contracts, which did not carry union protection.

Allegations of harassment and discrimination

Ashby alleged that she was subjected to harassment and discrimination throughout her employment on the basis of her national or ethnic origin, age, and genetic characteristics. According to the complaint, the incidents of harassment and discrimination began on June 13, 2015 and ended on February 25, 2019. These incidents included derogatory remarks about her age, physical appearance, and linguistic identity as a francophone; the inappropriate assignment of additional tasks; and the minimization by managers of her concerns about these incidents. Ashby further alleged that she did not receive a permanent position because of discrimination—a colleague reportedly informed her shortly before the end of her contract in the fall of 2018 that management was afraid to give her a permanent role for fear she might fall ill.

The performance evaluation and the culminating events

The situation reached its peak with a negative and humiliating performance evaluation. In October 2018, Ashby requested from her supervisor a copy of her performance evaluation for a previous contract that had ended in October 2017. According to the complaint, this evaluation should have been provided at the end of the contract. However, it had been drafted in March 2018 and sent directly to Ashby's file without her knowledge. Ashby only received this evaluation on November 16, 2018. She alleged it contained falsehoods damaging to her reputation and that it constituted "concrete evidence" of harassment. After receiving the evaluation in November 2018, Ashby met with a Parks Canada human resources representative and also contacted a union representative. The union representative told her he would file a grievance, but he never did and the deadline to file a grievance lapsed. A complaint letter from Ashby led to a meeting with a senior Parks Canada executive on February 25, 2019. According to Ashby's complaint, the executive lied and attempted to intimidate her during that meeting. She described it as "the last event, and certainly the most humiliating of all." The date of that meeting corresponds to the end date of the alleged discrimination. After these incidents, Ashby received another employment contract for the summer of 2019 but resigned on July 17, 2019.

The complaint and the Commission's process

Ashby filed her complaint with the Canadian Human Rights Commission in January 2020. Parks Canada filed its response to the complaint on September 21, 2020, denying any contravention of the Canadian Human Rights Act. Ashby subsequently filed a reply on October 23, 2021. However, according to a letter filed by the Commission under Rule 318 of the Federal Courts Rules, the response and reply were not placed before the Commission at the time of its decision. On February 6, 2024—four years after the complaint was filed—a Commission officer presented a "Decision Report" recommending that the Commission not deal with Ashby's complaint, concluding that the grievance process had been available to Ashby and that her failure to use it was solely attributable to her. The report focused primarily on incidents that occurred during unionized periods—such as the assignment of additional tasks from September to December 2015, the remarks about her age in June 2017, and a colleague's comment about a permanent position in the fall of 2018—while omitting analysis of key events during non-unionized periods, including the incidents in the summer of 2015, the spring of 2016, the meetings in November 2018 and February 2019, and the performance evaluation itself.

Ashby's observations on the Decision Report

The Commission gave Ashby the opportunity to submit observations on the Decision Report before a decision was rendered. Ashby filed detailed written observations on February 14, 2024. She acknowledged that she had been mistaken in her complaint and that she was indeed unionized during certain periods of employment, including from September 8 to December 2, 2015. For that period, she explained that she believed she was not unionized, noting that she may have misunderstood her contract, which was in English, and apologized for the error. However, she emphasized on multiple occasions that certain incidents took place outside that period, particularly between 2017 and 2019, when she was not unionized. She noted that it was impossible to file a grievance regarding her performance evaluation for the contract ending in October 2017 because by the time she received it in November 2018, she was no longer unionized. She observed that she had only exchanged texts with the union representative between November and December 2018 and received no subsequent response, leading her to presume the representative was not acting because she was not unionized. Ashby also observed that her 2023 contract and the events of 2023 were not "directly related" to her complaint, which concerned only incidents between 2015 and 2019.

The Commission's decision

On March 21, 2024, the Commission rendered its decision, refusing to deal with Ashby's complaint under s. 41(1)(a) and s. 42(2) of the Canadian Human Rights Act, finding that she had not exhausted the grievance settlement procedure available to her and that she was the sole person responsible for this failure. The Commission adopted the analysis of the Decision Report, stating it would not deal with the complaint "for the reasons described in the report." In responding to Ashby's observations, the Commission stated that Ashby's lack of understanding that she was unionized from September 8 to December 2, 2015 was not "a reasonable explanation for the failure to have exhausted the grievance process." As for the performance evaluation, the Commission concluded that Ashby had held other unionized positions with the employer after November 2018 and had returned to work for the employer from May 11 to October 9, 2023, and therefore had "several opportunities to file a grievance" after learning of her evaluation in November 2018 but did not do so.

The standard of review

The Federal Court, per Justice McHaffie, determined that the standard of reasonableness applied to the Commission's decision, following the framework established in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. While the case could potentially engage the correctness standard as a jurisdictional boundary issue between the Commission and a grievance arbitrator, the Court noted that the applicable jurisprudence—including the Federal Court of Appeal's decision in Bergeron v Canada (Attorney General), 2022 FCA 209—supported reasonableness as the appropriate standard. The Court further noted that the central aspects of the Commission's decision involved primarily factual and/or discretionary questions warranting deference. In any event, the Court found that the outcome would be the same regardless of which standard was applied.

The ruling and the overall outcome

The Federal Court concluded that the Commission's decision was unreasonable because the Commission did not justify its conclusion in light of the relevant factual and legal constraints. The Commission had drawn an unjustified conclusion that a grievance remedy was available for the entirety of the alleged harassment and discrimination practice without considering the incidents of discrimination that occurred while Ashby did not have union protection. The Commission did not explain its conclusion that Ashby could have filed a retroactive grievance concerning incidents that took place while she was not unionized and/or concerning an alleged practice of harassment comprising incidents during both unionized and non-unionized periods. The reasoning concerning the performance evaluation was also found irrational and unjustified: the officer concluded that a grievance appeared available because the union representative had confirmed he would file one, even though he never did—a conclusion that ignored the fact that Ashby was not unionized in November 2018, as confirmed in the Decision Report's own summary of unionized and non-unionized periods. The Commission's additional reasoning that Ashby could have filed a grievance during subsequent positions was found unintelligible, given that after November 2018 she held only two unionized positions—one for a month in the summer of 2019 and one in 2023, three years after filing her complaint with the Commission—and no explanation was provided for how she could file a retroactive grievance for incidents that occurred months or years earlier during periods when she was not even unionized. The Court also noted that the complaint rested not simply on isolated incidents but on an ongoing practice of harassment and discrimination manifested intermittently over years, and the Commission's analysis failed to account for the nature of the alleged harassment and for the fact that the culminating incidents triggering the complaint occurred while Ashby was not unionized. The judicial review was granted in favor of Sylvie Ashby; the Commission's March 21, 2024 decision was set aside and the matter was remitted to the Commission for redetermination by a different commissioner, in light of the Court's reasons. Ashby's request for the Court to order the Commission to rule on the merits of her complaint was not granted, as the Court was not satisfied this was one of the "limited situations" warranting such a remedy. Costs were awarded in favor of Ashby in the amount of $3,000, all-inclusive, in accordance with the agreement of the parties.