Date: 20110218
Docket:
A-91-09
Citation: 2011 FCA 62
CORAM: NOËL J.A.
NADON J.A.
TRUDEL J.A.
BETWEEN:
LUC BEAULNE
Applicant
and
PUBLIC
SERVICE ALLIANCE OF CANADA
Respondent
REASONS FOR
JUDGMENT
NADON J.A.
[1]
This is an application for judicial review, filed by the applicant, of a
decision of the Public Service Labour Relations Board (the Board) rejecting his
complaint made pursuant to section 13 of the Parliamentary Employment
and Staff Relations Act (the Act) against the respondent, the Public
Service Alliance of Canada.
[2]
According to the applicant’s complaint, filed February 13, 2007, the
respondent breached its duty of fair representation by representing his former
girlfriend, a non-member of the bargaining unit, in a personal matter involving
only the applicant and the former girlfriend, both of whom are employees of the
House of Commons, but work in different locations. According to the applicant,
the respondent took an adversarial position to his own in this matter by
defending his former girlfriend.
[3]
The complaint also states that the respondent failed to grieve the
applicant’s dismissal by his employer on November 6, 2006, despite the
fact that the applicant had asked the respondent to do so many times.
[4]
The applicant’s complaint was heard over a period of nine days, before Board
Member John A. Mooney (the “Member”). After finding that he had jurisdiction to
hear the applicant’s complaint, the Member turned to the merits of the
complaint.
[5]
In his view, the complaint concerned separate events, that is, the events
that occurred during the period from 2001 to 2003, and other events that
occurred in the year 2006. Regarding the events from 2001 to2003, namely, the
respondent’s breach of its duty of fair representation, the Member found that
the respondent had breached its duty, in that the president of the bargaining
unit to which the applicant belonged had acted in bad faith against him by
taking the side of his former girlfriend, who was not a member of the
bargaining unit.
[6]
Unfortunately for the applicant, the Member held that the applicant had
filed his complaint out of time, having filed it on February 13,
2007, nearly four years after the events. Consequently, the Member could not find
in the applicant’s favour. According to the Member, there were no exceptional circumstances
or circumstances beyond the applicant’s control that could allow him to excuse the
four-year delay. At paragraph 308 of his Reasons, the Member writes:
[308] The
complainant has not established that circumstances that were exceptional or
outside of his control prevented him from acting sooner. His only explanation
is that the matter was the fault of the respondent, which had made him ill.
Although Dr. LaRue’s testimony has established that the complainant was unwell
starting as early as November 2003, that evidence does not establish that the
complainant’s state of health prevented him from filing a complaint.
[7]
After making this finding, the Member then turned to the events of 2006,
namely, the respondent’s failure to grieve the applicant’s dismissal by the
employer on November 6, 2006.
[8]
In finding that this part of the complaint, too, had to be dismissed, the Member
considered several factors, including the fact that the applicant had not
clearly expressed his intention to grieve his dismissal in the six e-mails he
sent to the respondent between November 23, 2006, and January 1, 2007;
the fact that the applicant, in his e-mail dated January 22, 2007, stated
in no uncertain terms that he intended to file a grievance; and the fact that
the respondent had not received the e-mails he had sent after November 23,
2006, including the one dated January 22, 2007, because of an automated mail-filter
program designed to block e-mails containing language deemed to be
pornographic.
[9]
Although he found that the terms used by the applicant in his e-mails were
not pornographic (in his view, they were at worst inoffensive swear words) and
that the respondent should have informed senders that it used a mail-filter
program, the Member concluded that, in the circumstances, the respondent had
not treated the applicant in a discriminatory manner because the mail-filter
program was designed to screen all e-mails sent to the respondent union by its Members.
In other words, the mail-filter program was not designed to block only the
applicant’s e-mails. More specifically, the Member took the view that although installing
the filter showed a lack of good judgment on the respondent’s part, it did not
amount to arbitrary or capricious conduct or bad faith on its part.
[10]
In finding as he did, the Member noted that the applicant could have filed
his own grievance, given that he had been a union representative and the vice-president
of his bargaining unit in 2003 and that during that same period, he had taken a
course on filing grievances.
[11]
The Member also noted that the applicant had not given a reasonable
explanation for his failure to file a grievance himself, apart from his
assertion that he was sick at the time because of the respondent’s actions. In
response to this explanation, the Member again stated that he had not been
presented with any evidence that the applicant’s illness made it impossible for
him to take action to challenge his dismissal. At paragraphs 324 and 325 of his
Reasons, the Member added the following:
[324] In
addition, the complainant should have paid attention to his employee status
well before the date of his dismissal. Starting on December 9,
2004, he knew that his sick leave would run out in November 2006
(Exhibit P-2, at page 92). Well before the date of his dismissal, he
should have asked the respondent to extend his sick leave, as Ms. Lemire
explained in her testimony.
[325] I
reject the complainant’s allegation that the respondent attempted to have him
dismissed. There is no evidence that the bargaining agent is responsible for
the complainant’s dismissal.
[12]
In my view, the application for judicial review must be dismissed.
[13]
The applicant’s representative, Mr. Doucet, tried to persuade us that
there were exceptional circumstances justifying the delay in filing the
complaint with regard to the first period. These circumstances, particularly
the applicant’s illness and the fact that he had tried to resolve the problem
internally, were considered by the Member, but he was not persuaded that he
should make an exception to the rule that a complaint must be filed within a
reasonable time.
[14]
Considering the evidence, I find that it was not unreasonable for the Member
to conclude as he did in this regard.
[15]
As an additional argument, Mr. Doucet submitted that, in any event,
there had been no delay in filing the complaint because, in reality, there was
only one period in issue. In other words, according to Mr. Doucet, the
events from 2001 to 2003 could not be separated from those in 2006.
[16]
In my view, this argument must fail, since it is obvious that the
applicant’s complaint concerns different events, namely, the lack of fair
representation with respect to the events of 2001 to 2003 involving his
ex-girlfriend, and the respondent’s failure to grieve his dismissal in
November 2006. With respect, I cannot see any connection between these two
sets of events that would compel us to consider the complaint as concerning a
single event.
[17]
Regarding the events in 2006, the Member clearly explained why, in the
circumstances, he could not find in the applicant’s favour. In arriving at this
conclusion, the Member considered all the relevant facts adduced in evidence,
weighed them and found that the respondent had not acted in an abusive or a
discriminatory manner toward the applicant. In my view, that finding cannot be
said to be unreasonable.
[18]
I will make one final point before concluding. At the end of the hearing,
Mr. Doucet, on behalf of the applicant, asked us to relieve the applicant
of having to pay the costs granted against him by Justice Pelletier in an
Order dated October 15, 2010. Justice Pelletier’s Order denied a
motion by the applicant to quash an Order of this Court dated May 28, 2010,
and compel Member Mooney to testify before this Court.
[19]
Having found that the applicant’s motion was abusive and should be
sanctioned, Justice Pelletier wrote the following at paragraphs 9 and
10 of his Reasons:
[translation]
[9] The Court is of the opinion that this motion is a flagrant abuse
of process and should be sanctioned. The record filed by the respondent shows
that because of the two previous orders made by this Court, by which
Mr. Beaulne was ordered to pay the costs in those motions,
Mr. Beaulne owes the respondent the amount of $2,457.08
($1,228.54 x 2). The respondent asks that Mr. Beaulne pay
this debt within the next 30 days, failing which his application will be
dismissed. In my view, this would place an unwarranted financial burden on Mr. Beaulne
that would impede his rightful access to this Court. On the other hand, the
obstinacy of Mr. Beaulne or his representative on this issue caused the respondent
financial loss and slowed the case’s progress.
[10] The respondent is entitled to costs in this motion, which the
Court assesses at $1,228.54 (including disbursements and taxes). The obligation
to pay the costs in this motion is stayed until the Court rules on Mr. Beaulne’s
application.
[Emphasis added]
[20]
The applicant interprets paragraph 10 of Justice Pelletier’s Reasons
for decision as allowing us to relive him of having to pay the costs awarded by
our colleague. In my view, this is clearly not how Justice Pelletier’s
words should be interpreted. There can be no doubt as to
Justice Pelletier’s intention. By staying the payment of the costs until
this Court could dispose of the application for judicial review, he allowed the
applicant to have his application for judicial review heard. Moreover, Justice Pelletier
did not make his Order conditional on the appeal panel’s decision; it was still
to be enforced, no matter what the outcome of the appeal.
[21]
For these reasons, I would dismiss the application for judicial review,
but, because of the particular circumstances of this case, I would not allow
costs to the respondent.
“M. Nadon”
“I agree.
Marc Noël J.A.”
“I agree.
Johanne Trudel J.A.”
Certified true
translation
Michael Palles
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