THE FACTS
[2]
The
facts are not in dispute and may be summarized as follows.
[3]
The
applicant began working with the Canada Customs and Review Agency (CCRA) in
about 1992. In 1999 and 2000, she became involved in a number of disputes with
her employer and co-workers. Her bargaining agent, the respondent, represented
her on a number of matters. The applicant was dissatisfied with the quality of
representation and refused to cooperate with the respondent’s representatives.
On November 21, 2000, she was advised that the respondent would no longer
represent her, effective December 1, 2000.
[4]
The
applicant took no steps to challenge the respondent’s decision until August 19,
2002, when she filed a statement of claim in the Alberta Court of Queen’s
Bench. The statement of claim was served on the respondent on October 21, 2003.
The respondent brought a motion to dismiss for want of jurisdiction. By
consent, the matter was adjourned sine die while Ms McConnell sought
legal advice and legal aid and funding.
[5]
On
September 21, 2002, the applicant’s employment with CCRA was terminated for
“medical incapacity”. She commenced a number of actions and raised a number of
concerns in relation to the representation provided by the respondent and the
circumstances surrounding her dismissal from CCRA. On September 22, 2002, she
filed before the Board a termination grievance against her employer alleging
wrongful dismissal. She requested that the respondent provide representation
with respect to her wrongful dismissal allegation.
[6]
On
March 15th, 2004, the applicant filed a complaint with the Public
Service Staff Relations Board (the PSSRB or the old Board) under section 23 of
the PSSRA alleging that the respondent had breached its duty of fair
representation under subsection 10(2) by failing to represent her on a number
of matters, including a worker’s compensation claim filed in April 2000, a
human rights complaint filed in July 2000, and a wrongful dismissal claim filed
in September 2002. She sought an apology from the respondent, among other
corrective action.
[7]
On
April 1, 2005, the Public Service Labour Relations Act, S.C. 2003, c. 22
(the PSLRA) replaced the PSSRA, and the PSLRB replaced the former PSSRB. The
PSLRB was granted the power, under Part 5 of the Public Service
Modernization Act, S.C. 2003, c. 22, s. 39, to dispose of proceedings
before the old Board in accordance with the new statute, the PSLRA.
[8]
The
respondent raised two preliminary issues before the Board, namely (1) that the
complaint should be dismissed because it was untimely, and (2) that the Board did
not have jurisdiction over her allegations on the handling of her workers
compensation and human rights complaints or on the ordering of an apology.
These issues were dealt with by way of written submissions.
[9]
On
September 13th, 2005, the Board dismissed for delay the applicant’s complaint
against the respondent. The Board found that she had been pursuing legal action
on a number of fronts since the termination of her employment, which the Board
attributed to the year 2000. She had filed her complaint against the respondent
only on March 15, 2004. Considering, however, that the respondent had been made
aware of her complaint by way of allegations contained in her statement of
claim filed before the Alberta Court of Queen’s Bench and served on the
respondent on October 21, 2003, the Board adopted that date, as it was more
favourable to the applicant. It found that the delay, close to three years, was
excessive and warranted the dismissal of the complaint. The applicant had not
met her burden of establishing that circumstances exceptional or outside of her
control prevented her from acting any sooner.
[10]
The
applicant now asks this Court to review the Board’s decision.
THE COMPLAINT
[11]
The
complaint filed by the applicant, who was unrepresented at the time, read in
its relevant part (Applicant’s Record, pages 52-54):
My complaint is as
follows:
PIPSC’s has failed to
take any steps to secure my employment rights in the following matters:
WCB claim filed in April
2000
Return to work following
a workplace injury from April 2000
Human Rights complaint
filed in July 2000
Disciplinary
actions taken by employer during 1999-2002
PSSRB
jurisdiction issues with CCRA regarding termination
Representation in
adjudication proceedings
PIPSC also acted in an
arbitrary fashion and showed bad faith in:
Failing to
thoroughly investigate my allegations of sexual harassment, personal harassment
and discriminatory acts by CCRA managers seriously
By making sport of my
situation by making libellous inflammatory remarks
By offering
no assistance to assist me back to work following a workplace injury
By failing to
thoroughly investigate my concerns over Dave Riffle competency
By
deliberately deceiving me as to intentions
By failing to
investigate my complaints regarding Lee Bettencourt
By failing to investigate
all the employment matters financial and otherwise before it filed as
grievances
By having unauthorized
discussions with CCRA management with the intent purpose to undermine my
position
Failing to allow
numerous grievances on financial matters and otherwise to proceed to
adjudication
Failing to advise me how
to proceed with ALL the outstanding matters, deadlines, rights, time limits,
given that they refused to represent me
By placing me
under unreasonable standard and expectations
I recently advised
Nelligan Payne O’Brien that I wanted PIPSC to fund my statement of claim
against CCRA for wrongful dismissal which was drafted by a lawyer. No response
was received.
I recently advised
Nelligan Payne O’Brien that I wanted PIPSC to fund my human rights complaint
which includes the duty to accommodate my return to work. No response was
received.
THE STANDARD OF REVIEW
[12]
The
Supreme Court of Canada in Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R.
941 (the PSAC 1993 case) found that decisions of the PSSRB are reviewable on
the patent unreasonableness standard. It explained, at pages 962-963 of its
reasons:
Why Should There be
Deferential Treatment of This Board by the Courts?
There are a number
of reasons why the decisions of the Board made within its jurisdiction should
be treated with deference by the court. First, Parliament in the Act
creating the Board has by the privative clause indicated that the decision of
the Board is to be final. Secondly, recognition must be given to the fact
that the Board is composed of experts who are representative of both labour and
management. They are aware of the intricacy of labour relations and the
delicate balance that must be preserved between the parties for the benefit of
society. These experts will often have earned by their merit the
confidence of the parties. Each time the court interferes with a decision
of such a tribunal confidence is lost not only by parties which must appear
before the Board but by the community at large. Further, one of the
greatest advantages of the Board is the speed in which it can hold a hearing
and render a decision. If courts were to interfere with decisions of the
Board on a routine basis, victory would always go to the party better able to afford
the delay and to fund the endless litigation. The court system itself
would suffer unacceptable delays resulting from the increased case load if it
were to attempt to undertake a routine review.
None of this is to
say that some form of review is not salutary and necessary. Certainly,
the courts are eminently well suited for determining whether the Board has
exceeded the jurisdiction which is granted to it by its enabling statute.
Further, the courts are in the best position to determine whether there has
been such an error in the procedure followed by it that there has been a denial
of natural justice which would result in a loss of jurisdiction by the
tribunal. As well, all parties have the right to be protected from a
decision that is patently unreasonable. Beyond that the courts need not
and should not go. A board which is created and protected by a privative
clause is the manifestation of the will of Parliament to create a mechanism
that provides a speedy and final means of achieving the goal of fair resolution
of labour‑management disputes. To serve its purpose these decisions
must as often as possible be final. If the courts were to refuse to defer
to the decisions of the Board, they would negate both the very purpose of the
Act and its express provisions.
[13]
The
application of the pragmatic and functional approach and a consideration of the
four contextual factors (the presence or absence of a privative clause or
statutory right of appeal; the expertise of the tribunal relative to that of
the reviewing court on the issue in question; the purposes of the legislation
and the provision in particular; and, the nature of the question) lead me to conclude
that the decision of the Board to dismiss the applicant’s complaint for delay
is also reviewable on the patent unreasonableness standard.
Privative clause
[14]
Decisions
of the Board are protected by a privative clause (section 51 of the PSLRA). The
existence of a privative clause, albeit different to that currently found in
the PSLRA, was a key factor in the PSAC 1993 case.
Expertise, purpose of
the legislation and nature of the question
[15]
The
applicant filed her complaint under section 23 of the PSSRA. Under that
statute, there was no time limit for the filing of complaints. The PSLRA imposes
a 90-day time limit for the filing of complaints. Despite the Board having to
dispose of the complaint in accordance with the PSLRA, the Board explained that
this did not have the effect of retroactively applying time limits. Rather, the
question of delay had to be dealt with according to the principles developed
under the PSSRA.
[16]
Under
the PSSRA, the old Board developed a practice of requiring complainants who did
not file their complaint within a reasonable time frame to establish that
circumstances which are exceptional or outside their control prevented them
from acting any sooner. When long delays occur, the prejudice to the other
party was presumed: see Walcott v. Turmel, 2001 PSSRB 86; Harrison v.
Public Service Alliance of Canada, 2001 PSSRB 45; Teeluck v. Public
Service Alliance of Canada, 2001 PSSRB 45.
[17]
The
issue before the Court is therefore the Board’s application of a test that the
old Board developed to deal with complaints that were not filed on a timely
basis. The question of whether a complaint should be dismissed for delay is a
question of mixed fact and law which relates to the finality of decisions in
labour matters and their speedy enforcement. It falls squarely within the
Board’s jurisdiction over labour relations matters. The Board has greater
expertise than the courts in matters falling within its own jurisdiction.
Conclusion
[18]
Having
regard to the four contextual factors, I conclude that decisions of the Board here
at issue on questions of mixed fact and law are reviewable according to the
patent unreasonableness standard.
[19]
As
for issues of natural justice or procedural fairness, the Court simply
determines whether those principles were breached. Such issues do not attract
the functional and pragmatic analysis: see CUPE v. Ontario (Minister of
Labour), [2003] 1 S.C.R. 539 at paragraph 100; Canada (Attorney General)
v. Fetherston, 2005 FCA 111, [2005] F.C.J. No. 544 at paragraph 16; Transport
Besner Atlantic Ltée et al., 2006 FCA 146, [2006] F.C.J. No. 641 at
paragraph 26.
ANALYSIS
[20]
The
applicant claims that the Board based its decision on an erroneous finding of
fact when it stated that her employment was terminated in 2000. Consequently,
she says, its decision is patently unreasonable.
[21]
There
is no doubt that the Board erred on the date of the termination of the
applicant’s employment. Her employment was terminated effective September 4,
2002. I find, however, that the Board’s decision to dismiss the complaint for
delay was not based on the termination date. The error made by the Board is
therefore inconsequential.
[22]
The
record shows that the respondent declined to represent her “in her dealings
with the employer”, effective December 1, 2000 (see letter from the respondent,
A.R. p. 30). The Board retained this date. “This …”, it wrote, “… is when the
critical event that triggers the complaint occurred and is the date from which
the length of the delay should be determined” (paragraph 13 of the Board’s
reasons). Some thirty-nine (39) months elapsed from that date of December 1,
2000, to the date of the filing of the complaint, March 15, 2004. The Board,
however, retained as the final point the date of October 21, 2003, when the
applicant served on the respondent the statement of claim in the action she
took against the respondent before the Alberta Court of Queen’s Bench
(paragraph 13 of the Board’s reasons). The Board was willing to accept that the
respondent was made aware of the complaint on that date since the allegations
in the statement of claim included all the allegations in the complaint. The
Board concluded that the delay in pursuing the complaint was “close to three
years” (paragraph 27 of the Board’s reasons).
[23]
The
applicant submits that her request to the respondent to provide representation
with respect to the termination of her employment in 2002 was a fresh request
that restarted the clock and that it was not covered by the respondent’s
original refusal to represent her in 2000.
[24]
The
Board found otherwise. It stated that the continued requests, to the extent
that they related to the original request for representation on her grievances
and human rights complaints, remained untimely. The Board indicated that the
decision of the respondent not to represent her on these matters was clearly
communicated in 2000 “and repeated requests on the same matters cannot re-start
the clock” (paragraph 22 of its reasons).
[25]
The
Board recognized that the applicant made additional requests to the respondent
not covered by its original refusal to represent the complainant, such as on the
wrongful dismissal claim against CCRA. The Board attributed to sometime in 2004
the refusal of the respondent to represent her with respect to her wrongful
dismissal claim. Since the wrongful dismissal claim set out identical grounds
to those in the grievances and human rights complaints, the respondent’s
initial refusal could be taken to include any subsequent versions of the same
allegations. Transforming grievances and human rights complaints into an action
did not change the substance of the dispute nor did it require the bargaining
agent to issue a fresh refusal (paragraph 25 of its reasons).
[26]
It
cannot be said that these findings were patently unreasonable.
[27]
The
applicant further submits that the Board failed to consider the totality of her
allegations. She says that the Board failed to investigate her allegation of
sexual harassment and personal harassment by CCRA managers and failed to
appreciate that the respondent did not advise her on the manner in which she
should proceed on all outstanding matters.
[28]
The
Board never got to the merits of her allegations. It only ruled on the
respondent’s preliminary objection regarding the timeliness of the complaint.
Once it ruled that the applicant had not demonstrated that there were
circumstances exceptional or outside her control that would justify a delay of “close
to three years” in pursuing a complaint against the respondent, the Board had
no choice but to dismiss the complaint.
[29]
The
applicant invokes finally the doctrine of legitimate expectations.
[30]
Her
claim is directed firstly at the respondent, her bargaining agent: see her
affidavit at paragraph 10; Applicant’s Record, page 26; and paragraph 68 of her
memorandum of fact and law. Basically, she argues that she had a reasonable
expectation that, irrespective of their previous disagreements, the bargaining
agent would represent her in her dispute with CCRA relating to the termination
of her employment. This is an issue that goes to the merit of the applicant’s
dispute with her bargaining agent. It is an issue that was not before the Board
in the present proceedings. It is therefore one that I would not address.
[31]
Her
claim concerning the doctrine of legitimate expectations is also directed at
the Board (see paragraphs 76, 77, 78, 79 and 80 of her memorandum of fact and law).
She claims she had legitimate expectations that the Board would consider all
her allegations before making a decision regarding delay. This is not a case
where the doctrine is meant to apply (Brown and Evans, Judicial Review of
Administrative Practice in Canada, loose-leaf edition 7:2430 ff; Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at
paragraph 26; Pulp, Paper and Woodmakers of Canada Local 8 v. Canada
(Minister of Agriculture, Pesticides Directorate) (1994), 174 N.R. 37 at
paragraphs 37 to 42 (F.C.A.)). When a Board comes to the conclusion that a
complaint is untimely, it does not turn its mind to the allegations made in the
complaint.
[32]
I
would therefore dismiss this application.
COSTS
[33]
At
the opening of the hearing, the applicant informed the Court that she wished to
withdraw the allegations of “fraud or perjured evidence” set out in her notice
of application.
[34]
The
respondent is nevertheless seeking costs on a solicitor-client basis under the
authority of Hamilton v. Open Window Bakery Ltd., [2004] 1 S.C.R. 303,
paragraph 26.
[35]
The
respondent has explained the reasons for its request in paragraphs 39 and 40 of
its memorandum of fact and law, which read:
Ms. McConnell has
alleged, in her notice of application, that the Board’s decision was made on
the basis of “fraud or perjured evidence”. Her affidavit also states that “the
evidence relied upon by PSLRB when it made its decision was based on false
information”. She has filed no evidence to support these serious allegations
against the Institute. Counsel for the Institute has written on three occasions
to address this matter: once to Ms. McConnell personally (before she was
represented by counsel), and twice to her counsel. Despite these letters, Ms.
McConnell has refused to withdraw these serious allegations.
Allegations of fraud and
dishonesty are serious and potentially very damaging to those accused of
deception. When, as here, a party makes such allegations unsuccessfully and
with access to information sufficient to conclude that the other party was
neither dishonest nor fraudulent, costs on a solicitor-and-client scale are
appropriate (Hamilton v. Open Window Bakery Ltd., [2004] 1 S.C.R. 303 at
paragraph 26.)
[36]
The
respondent’s concern about the serious and potentially very damaging character
of these allegations is understandable. Considering, however, that these
allegations never came up for adjudication and in view of the record as a
whole, I would decline to grant the request except for the ordinary costs.
CONCLUSION
[37]
This
application should be dismissed with costs.
"Alice Desjardins"
"I
agree.
Gilles Létourneau J.A."
"I
agree.
C.
Michael Ryer J.A."
Email this Content