Date: 20071114
Docket: T-1873-06
Citation: 2007 FC 1182
Ottawa, Ontario, November
14, 2007
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
PAUL
VIDLAK
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Mr.
Vidlak, representing himself, sought judicial review of a decision of the Chairperson of the Public Service
Labour Relations Board, dated August 14, 2006. In that decision, the Chairperson
denied Mr. Vidlak’s request for an extension of time in which to bring a grievance
against his former employer, the Canadian International Development Agency
(CIDA). At the hearing on September 6, 2007, I dismissed the application with
brief oral reasons which I now will provide in writing with the addition of
particulars and authorities.
BACKGROUND:
[2]
Mr.
Vidlak was employed by CIDA as a senior project officer in its Eastern and
Central Europe Branch from November, 1998. In January, 2001, in the course of a
performance review, Mr. Vidlak was instructed by his Director to find a new position
in CIDA or in another department. An unsigned statement from the Director dated
January 24, 2001, refers to this as a consequence of following-up on the
recommendation of his last two performance evaluations.
[3]
Mr.
Vidlak alleges that this directive to find another job stemmed from questions he
had raised about financial arrangements with foreign recipients of CIDA grants
and the lack of oversight from CIDA respecting those matters. Mr. Vidlak did
not then seek to grieve the Director’s instruction nor has he filed any
contemporaneous documentary evidence supporting his allegation. He says that he
had made informal inquiries with his union but was not advised that he could
pursue a grievance action.
[4]
After
a series of temporary secondments to other departments, Mr. Vidlak was informed
in July 2003 that his position at CIDA was being terminated because of the
decline of program activities. He then accepted a deployment to his present
position in another department. Mr. Vidlak did not grieve the termination of
his position at CIDA. The applicant says that he was trying to find an accommodation
with CIDA management and wished to avoid a confrontation. To this end, he says,
“numerous pieces of correspondence” were exchanged with CIDA officials and
meetings were held to discuss his settlement proposals. Again, none of the
correspondence or other supporting documentation has been filed in these
proceedings.
[5]
In
October, 2003, Mr. Vidlak wrote a letter to the Minister then responsible for
CIDA raising concerns about the agency’s supervision of aid recipients. The
Minister subsequently commissioned a study of these complaints by an
independent consulting firm. Mr. Vidlak received a copy of the resulting report
(the BMCI report) on February 28th, 2005. The report validated his
concerns, at least in part, and recommended changes in procedure. Mr. Vidlak
asserts that he then made inquiries of his union on how best to address the issue
of his dismissal but that the union delayed in responding to him.
[6]
On
October 18, 2005 the union informed Mr. Vidlak that it would not pursue his
claim as it was considered out of time. He was subsequently advised that he
could seek an extension of time for filing his grievance under paragraph 61(b)
of the Public Service
Labour Relations Board Regulations.
[7]
Mr Vidlak is a member
of the Public Service Alliance of Canada (PSAC). Under the collective agreement
which governed his employment, he had a window of 25 days during which to file
a grievance. Pursuant to section 61 of the Regulations, time limits
imposed by such agreements may be extended, either by agreement of the parties
(s. 61(a)) or, by the Chairperson on the application of one of the parties in
the interest of fairness (s. 61(b)).
[8]
The
applicant wrote to the Board on November 15, 2005 requesting an extension of
time pursuant to s. 61(b) within which to file a grievance with respect to the
treatment he received from CIDA in 2002. It appears clear from the
record that this was a simple error and that Mr. Vidlak was referring to the sequence
of events from the January 2001 performance review and direction to find new
employment to the July 2003 termination of his position.
[9]
Treasury
Board Secretariat objected to acceptance of the grievance because of the passage
of time and resulting prejudice to the employer. In subsequent correspondence,
the Secretariat sought particulars from Mr. Vidlak to explain the delay and
provided evidence of prejudice suffered as a result of the departure of
officials with knowledge of the circumstances. By letter dated May 23, 2006 Mr.
Vidlak stated that he had delayed in filing a grievance for two reasons which I
paraphrase and summarize as follows:
1. he is not a confrontational
individual and had sought to reach a settlement with CIDA officials;
and
2. things changed when he
received a copy of the BMCI Report confirming his concerns and
exposing management’s actions towards him as spiteful and ill-founded.
DECISION:
[10]
In reasons for decision
dated August 14, 2006 the Board Chairperson refused Mr Vidlak’s request for an
extension on the grounds that he had failed to meet the criteria for the exercise
of discretion pursuant to s. 61(b) as set out in Schenkman v. Treasury
Board (Public Works and Government Services Canada), 2004 PSSRB 1. These
criteria are:
- clear, cogent and compelling reasons for the delay;
- the length of the delay;
- due diligence of the grievor;
- balancing the injustice to the employee against the prejudice to
the employer; and
- chance of success of the grievance.
[11]
The
Chairperson found that the applicant had failed to provide cogent reasons
explaining the delay and justifying why he should be relieved of the
consequences of his failure to file a grievance on time. Even if the release of
the BMCI Report was to be taken as the date for calculation of the delay, the
applicant was still nine months short and provided no explanation except to say
that he has a non-confrontational personality. This, the Chairperson concluded,
is not a clear, compelling and cogent reason for the delay. Further, the
applicant had neither proven due diligence nor provided any evidence of a
credible chance of success. No evidence had been provided of the applicant’s
communications with his union from which it might be concluded that he had been
misled in any way.
ISSUES:
[12]
The
issue in these proceedings was whether the Chairperson erred in refusing to
exercise discretion to grant the extension of time. In doing so, the applicant
submits, he was denied procedural fairness.
ANALYSIS:
[13]
Where the exercise of
statutory discretion is at issue, the courts should not interfere where the
discretion was exercised in good faith, in accordance with the principles of
natural justice, and was not based on irrelevant or extraneous considerations: Maple
Lodge Farm Ltd. v. Canada, [1982] 2 S.C.R. 2, 137 D.L.R. (3d) 558.
[14]
The Federal Court of
Appeal recently reviewed the pragmatic and functional approach to the standard
of review as applied to questions of mixed fact and law decided by the PSLRB,
and held that it was one of patent unreasonableness: McConnell v.
Professional Institute of the Public Service of Canada, 2007 FCA 142, [2007]
F.C.J. No. 507 at paragraphs 12 – 18. As stated by the Supreme Court of Canada
in Law Society of New Brunswick v. Ryan 2003 SCC 20, [2003] 1 S.C.R. 247 at paragraph 52 a decision
that is patently unreasonable is one that is clearly irrational and so flawed
that no amount of curial deference can justify letting it stand.
[15]
On the issue of
procedural fairness, however, the standard is strict, allowing for no level of
curial deference: Slattery v. Canada (Canadian Human Rights Commission) (T.D.), [1994] 2 F.C. 574, [1994] F.C.J. No. 181.
[16]
The
applicant submits that he has
provided a satisfactory explanation for the delay, most of which he asserts was
due to circumstances beyond his control. This explanation included: that he was
attempting to resolve the issue by alternative dispute mechanisms as he is a
non-confrontational person; that he was not able to bring his grievance until
after the release of the BCMI report; that the filing of the grievance was postponed
by the long delay in his union’s response to his request; and, that he was
unaccustomed to the grievance process and unaware of the deadlines.
[17]
Mr. Vidlak states that
he further demonstrated due diligence and a continuing intention to pursue the
matter. The findings of the Board that he had failed to provide evidence of the
same were not in accordance with natural justice, as, he submits, the Board
should have notified the self-represented applicant that such evidence would
prove helpful to his case.
[18]
The respondent, on the
other hand, argues that Mr. Vidlak failed to provide valid reasons to support
an extension to the time limits and that the Chairperson correctly applied the
criteria developed by the jurisprudence: Schenkman, above. It is clear
from her decision that she took into account all the considerations raised by
the applicant. It was correct for the Chairperson to conclude that the applicant’s
reasons for failing to begin a grievance were not clear, compelling and
cogent. The applicant simply chose not to use the appropriate redress
mechanism available to him.
[19]
Mr.
Vidlak had several opportunities to grieve against his treatment by the
management of CIDA, including the time at which he was advised to seek
alternate employment and the point at which he was advised that his position
was being terminated, and possibly, although I think it doubtful, upon the
release to him of the BMCI Report, as the Chairperson suggested. In my view,
the latter occasion simply provided evidence upon which he could possibly have relied
in support of his complaints about the earlier events. As he had direct
personal knowledge of those events, I question whether he could properly claim to
have had notice of the basis for his grievance only from the release of that
report.
[20]
But
supposing that premise to be valid for the present, from each of these possible
starting points there was a 25-day window in which Mr. Vidlak could have brought
his grievance to the PSLRB. He did not, and the delay between the initial
controversy and this application has grown sufficiently wide to make his burden
quite substantial.
[21]
The
onus was on Mr. Vidlak to establish due diligence in pursuing his grievance to
demonstrate that it had a fair chance of success and to provide clear, cogent
and compelling reasons for the delay. Mr. Vidlak provided no documentary record
to substantiate his claim that he had been actively pursuing the matter of his
dismissal from the outset such as the “numerous pieces of correspondence”
exchanged with CIDA officials or his e-mails to and from union
representatives.
[22]
Mr.
Vidlak submits that to establish a reasonable chance of success it was
sufficient for him to have informed the Board of the BMCI Report. Having read
the excerpts of the BMCI Report filed in evidence on this application, together
with Mr. Vidlak’s hand-written annotations, it is not clear to me that it
establishes a nexus between his performance review in January, 2001 and the
subject of his complaints to the Minister in October, 2003. At best, it
confirms that some of his disclosures in 2003, after his position was
terminated, were well-founded. The applicant did not provide a sufficient
evidentiary basis to draw the inference that his negative performance review in
2001 was connected to the concerns he raised more than two and a half years
later. The Chairperson did not err, in my view, in concluding that the
applicant had not established that his grievance had a credible chance of
success.
[23]
When
provided the opportunity to provide adequate particulars of the reasons for his
delay, Mr. Vidlak simply repeated his claims and assertions. It was not enough
to claim that he is by nature non-confrontational and that this should be taken
as an explanation for his failure to act. The Chairperson reasonably found,
based upon his own words, that Mr. Vidlak had chosen not to challenge his dismissal
and had elected to pursue alternative avenues to seek a remedy. In my view, he
cannot now complain of unfair treatment by the Board as a result of his own
decisions.
[24]
Based
on the evidence before her, the Chairperson concluded that she was unable to
grant the extension sought by Mr. Vidlak. I find that the Chairperson’s
findings in applying the Schenkman test were not patently unreasonable,
and, accordingly, I will not set her decision aside.
[25]
As
for Mr. Vidlak’s argument that the Board should have notified him that particular
pieces of evidence may have benefited his case, in an ideal world this would be
the case. The reality is that tribunals do not have the resources to lead each
self-represented applicant by the hand through the process. The burden is upon
them to provide evidence to support their claims, particularly where, as here,
a grievance is out of time and an extension is sought. When the union chose not
to become involved, Mr. Vidlak would have been well advised to have sought legal
advice.
[26]
The
respondent is not seeking costs and none will be awarded.
JUDGMENT
IT IS THE JUDGMENT OF
THIS COURT that this application is dismissed
without costs.
“Richard G. Mosley”
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