Docket:
A-188-13
Citation:
2014 FCA 42
CORAM:
DAWSON J.A.
GAUTHIER J.A.
NEAR
J.A.
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BETWEEN:
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KENNY ROBERTS
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Applicant
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and
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UNION OF CANADIAN CORRECTIONAL
OFFICERS
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Respondent
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REASONS FOR JUDGMENT
DAWSON J.A.
[1]
This is an application for judicial review of a
decision of the Public Service Labour Relations Board rendered on August 31,
2010 (2010 PSLRB 96). In its decision the Board dismissed part of a complaint
made by the applicant under paragraph 190(1)(g) of the Public Service
Labour Relations Act, S.C. 2003, c. 22, s. 2 (Act) alleging that the
respondent Union breached its duty of fair representation.
[2]
The applicant alleged that the Union breached
its duty of fair representation in four respects all relating to a grievance
brought by the applicant following the termination of his employment:
i) The Union did not arrange for the applicant to be
represented by a lawyer, and did not advise the applicant that he could retain
counsel privately.
ii) The Union representative who later appeared on the
applicant’s behalf at the grievance hearing failed to adequately prepare for
the hearing.
iii) The Union representative failed to represent the
applicant adequately at the hearing.
iv) The Union failed to seek judicial review of the negative
decision rendered following the conclusion of the hearing.
[3]
The Board dismissed the first three allegations
on the ground that the applicant’s complaint was not filed within the time
mandated by subsection 190(2) of the Act. The Board found the final allegation
was made on a timely basis, however the applicant had failed to address this
issue in his evidence and submissions at the hearing. As a result, the Board
reserved its decision on the final allegation so that the parties could file
further written submissions on this issue. The decision to dismiss the first
three allegations is the decision under review in this application.
[4]
Ultimately, on December 10, 2010, the Board
dismissed the final allegation (2010 PSLRB 129). This decision is the subject
of another application for judicial review brought by the applicant in Court
File number A-175-13, which was heard at the same time as the present application.
The reasons disposing of the application for judicial review in Court File
A-175-43 are cited as 2014 FCA 41.
[5]
Subsection 18.1(2) of the Federal Courts Act,
R.S.C. 1985, c. F-7 read with subsection 28(2), provides that an
application for judicial review of a federal board’s decision must be brought
within 30 days of the communication of the decision by the Board to the
parties, or within any further time a judge of this Court may fix.
[6]
The notice of application for judicial review of
the Board’s August 31, 2010 decision was filed on or about January 14,
2011. As a result, the applicant sought an extension of time for the issuance
and filing of the notice of application in his notice of application.
[7]
The jurisprudence establishes that to obtain
such an extension of time an applicant should generally demonstrate:
- A continuing intention to pursue the application.
- The application discloses an arguable case.
- No prejudice would result to the respondent if the extension is
granted.
- There is a reasonable explanation for the delay.
(See, for example,
Baksa v. Neis (c.o.b. Brookside Transport), 2002 FCA 230, [2002] F.C.J.
No. 832).
[8]
In the present case, the applicant provided no evidence
explaining the delay and no evidence as to his continuing intention to pursue
the application. In the absence of such evidence there is no basis on which the
requested extension may be granted. Moreover, having read the applicant’s
written submissions and heard the oral arguments, I am satisfied that the
application does not disclose an arguable case.
[9]
The Board decided that the first three
allegations were not brought within the required time frame because subsection
190(2) of the Act requires that a complaint alleging breach of the duty of fair
representation is made “not later than 90 days after the date on which the
complainant knew, or in the Board’s opinion ought to have known” of the acts
giving rise to the complaint. The Board found that it had no jurisdiction to expand
that time limit and that the applicant had sufficient knowledge of the facts giving
rise to the first three allegations by September 2006. It followed that the
applicant’s May 31, 2007 complaint was untimely.
[10]
The Board’s interpretation of subsection 190(2)
of the Act, its findings of fact and its application of the facts to the
limitation period contained in subsection 190(2) are all owed deference by this
Court (Boshra v. Canadian Association of Professional Employees, 2011
FCA 98, 415 N.R. 77, at paragraph 44).
[11]
The applicant has failed to establish even an
arguable case that the Board’s decision was unreasonable. No principle of law
or equity trumps Parliament’s intent that complaints about an alleged breach of
the duty of fair representation must be brought within 90 days of learning of
the facts that give rise to the complaint. The applicant can not credibly dispute
the factual determination that he possessed the requisite knowledge to complain
by September of 2006.
[12]
Given the applicant’s failure to explain his
delay in commencing this application, his failure to demonstrate a continuing
intention to pursue the application and his failure to demonstrate an arguable
case, I am satisfied that the interests of justice do not require that an
extension of time be given.
[13]
It follows that I would dismiss the application
for judicial review with costs.
“Eleanor R. Dawson”
“I agree.
Johanne Gauthier J.A.”
“I agree.
D.G. Near J.A.”
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