FPSLREB Decisions

[1]      This decision deals with a preliminary matter raised pursuant to a complaint filed under section 23 of the Public Service Staff Relations Act (PSSRA). The complaint was filed by the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (UCCO-SACC-CSN) on February 26, 2002.

[2]      The complaint alleged that the Warden of Matsqui Institution, Mr. John Costello, had failed to observe any prohibition contained in section 8, 9 or 10 of the PSSRA. More specifically, it was alleged that Mr. Costello had interfered in union affairs.

[3]      The relief sought in the complaint was that Mr. Costello cease interfering in union affairs and that three union officials who had been suspended or removed from Matsqui Institution be reinstated.

[4]      In spite of strenuous efforts by all sides to mediate the dispute, the matter was not resolved and it was set down for a hearing. The complaint was scheduled to be heard from May 13 to 16, 2003.

[5]      On April 29, 2003, UCCO-SACC-CSN sent a letter to the Public Service Staff Relations Board (PSSRB) seeking an amendment to the section 23 complaint.

[6]      This letter reads, in part:

[…]

The amended complaint widens the breadth of the complaint by adding as respondents Treasury Board (Correctional Service of Canada), Maureen Hines, Erin Malone, Gerry Dewar, Wayne Martson and Donna Mynott, and by specifying that their concerted actions in direct conjunction with the actions of Mr. John Costello constitute violations of sections 8(1), 8(2)A and 8(2)(c)(ii) of the Act.

[…]

[7]      The complaint was further amended by requesting $20,000. in aggravated damages payable to the three union officials.

[8]      By way of letter dated May 2, 2003, the employer objected to this amendment stating, in part:

[…]

The Employee Organization is attempting to inappropriately add parties to the complaint upon which no factual basis has been established. Indeed section 8 of the PSSRA refers to a "person", and further a person in a "managerial or confidential position". Treasury Board (CSC) is not a person as defined by the Act. Erin Malone is a CX-1, and is an employee and is not a person who is defined as in a "managerial and confidential position".

With respect to the claim for damages, a Section 23 complaint is not the appropriate forum for this type of request, and it is the position of the Employer that the Board does not have jurisdiction to award personal damages to individuals under the guise of a section 23 (section 8) complaint of alleged Employer interference.

[…]

[9]      The PSSRB replied to the parties on May 9, 2003, informing them ". that the hearing on the complaint as filed on February 27, 2003 will proceed as scheduled." The PSSRB added: "However, the Board will be ready to entertain the parties' representation on whether the said complaint should be amended as requested."

[10]      At the outset of the hearing, the parties addressed the issue of the amended complaint and both parties wished to have a decision on the amendment before proceeding any further. Accordingly, the parties were asked to submit written reasons and submissions to support their respective position.

[11]      In its written submission received by the Board on June 3, 2003, the employer takes a position (among others) that the delay in amending the complaint is excessive and there are no exceptional or overriding circumstances which have been identified and which would warrant amending the complaint. The employer argues that the amendment ". changes the nature of the complaint, from one that is just as against the warden to one that I assume will makes [sic] wide sweeping allegations as against the 5 additional individuals as well as against the CSC and the TBS." In support of this position, the employer's submission cites the case of Horstead and Public Service Alliance of Canada (Board file 161-2-739).

[12]      In the May 16, 2003 written submission of UCCO-SACC-CSN it states, in part:

[…]

As stated in our April 29^th 2003 amendment and more fully explained on May 13th 2003, Mr. John Costello remains at the center of the amended complaint and all of the amendments relate directly to the actions cited in the initial complaint. There are no new facts and no facts unknown to the employer. The particular facts relied upon to support the complainants allegations with each new respondent will be provided in a timely manner.

[…]

[13]      In Horstead (supra) the Board was faced with the issue of a time delay in the filing of a complaint under section 23 of the PSSRA. As there is no statutory requirement with respect to the timeliness for filing such a complaint, on occasion, some complaints have been filed well after the fact. Such was the case in Horstead (supra) and the adjudicator dealt with this issue by quoting, at pages 10-11, a decision of the Ontario Labour Relations Board:

[…]  In each case, the Board has considered such factors as: The length of the delay and the reasons for it; when the complainant first became aware of the alleged statutory violation; the nature of the remedy claimed and whether it involves retrospective financial liability or could impact upon the pattern of relationships which has developed since the alleged contravention; and whether the claim is of such nature that fading recollection, the unavailability of witnesses, the deterioration of evidence, or the disposal of records, would hamper a fair hearing of the issues in dispute

[…]

[14]      In the spirit of applying general principles of expediency and fairness to proceedings before the Board, I agree that these are important considerations in deciding whether or not to grant the amendment.

[15]      In the instant case, the original complaint was filed on February 26, 2002, and the amendment was filed 14 months later, on April 29, 2003. In the intervening period there were, as stated in the employer's letter of June 3, 2003, ". 6 days of PSSRB assisted Mediation June, August, and October of 2002." A 14-month time period is, in my view, a significant time delay in requesting an amendment, given the facts of this case. However, what were the reasons given by the UCCO-SACC-CSN for this delay?

[16]      The May 16, 2002 written submission for UCCO-SACC-CSN states in part:

[…]   There are no new facts and no facts unknown to the employer   […]

There was nothing that I was made aware of that advanced a reason for this delay. No new facts came to light between the time of the initial filing of the complaint and the filing of the amendment. This includes a lengthy period whereby the two parties themselves met in mediation to attempt resolution.

[17]      The second point raised in the Ontario Labour Relations Board decision above is "when the complainant first became aware of the alleged statutory violation." As stated above, this was in February 2002.

[18]      Next for consideration is the nature of the remedy claimed, including aspects of financial liability. The initial complaint stated that the remedy requested was a cease and desist order, as well as reinstating the three correctional officers to their former position. The amended complaint adds the element of damages in the amount of $20,000. payable to each of the three correctional officers.

[19]      The additional request for damages does, in my view, significantly alter the original complaint. No longer is the UCCO-SACC-CSN limiting the corrective action to an order of compliance, but rather it is expanding it to seek an award of some $60,000. in total damages. The employer's submission states that the PSSRB has no jurisdiction to award damages in cases involving complaints under sections 23 and 8 of the PSSRA.

[20]      Without deciding whether or not the Board has jurisdiction to award damages as a form of redress under section 23, certainly any damages that the three correctional officers incurred, if, in fact they incurred any at all, would have been known either at the outset of the complaint or shortly thereafter. I was not made aware of any new development that took place to indicate why the request for damages was not made at the outset.

[21]      The last element in considering this request is whether the passage of time would result in ". fading recollections, the unavailability of witnesses, the deterioration of evidence, or the disposal of records." The employer's submission did not suggest any of these would occur, so I must infer that these elements would not prevent the amendment from being properly advanced.

[22]      However, considering the matter as a whole, I cannot find any reason to grant the request for amending the complaint. If there are no new facts, as stated in the UCCO-SACC-CSN letter of May 29, 2003, then I cannot find any grounds to grant the requested amendment. All of the facts were known to the parties when the complaint was filed in February 2002 including facts relating to the identity of persons who were allegedly in breach of one of the prohibitions set out in section 8 of the Act, and hence ought to have been designated as respondents to the complaint in its original formulation. Nothing new has materialized. Therefore, in my view, there is no basis on which to permit the amendment.

[23]      The very essence of the original complaint was, in my view, that Mr. John Costello either suspended or transferred three correctional officers, who were also local officials, and, in doing so, ". paralysed the local union in Matsqui ."

[24]      This complaint can still be dealt with, without the amendment, and thereby the central issue can, in my view, be addressed.

[25]      If reasons for the delay in filing the amendment had been advanced, I would have considered them and decided accordingly. However, I would not have permitted adding the name of Ms. Erin Malone to the list of respondents, as Ms. Malone is a Correctional Officer and a member of the bargaining unit.

[26]      The complaint is filed under section 23(1)(a) of the PSSRA and this is where the foundation for the complaint initiates. This section states:

23. (1) The Board shall examine and inquire into any complaint made to it that the employer or an employee organization, or any person acting on behalf of the employer or employee organization, has failed

(a) to observe any prohibition contained in section 8, 9 or 10;

[...]

[27]      The Board addressed this issue in the following decisions: Desrosiers v. Public Service Alliance of Canada, 2001 PSSRB 41 (161-2-968, 970 to 1014, 1016 to 1094, 1096 to 1102, 1105 and 1106); Lai v. Professional Institute of the Public Service of Canada, 2000 PSSRB 79 (161-34-1128); Tucci v. Professional Institute of the Public Service of Canada, 2000 PSSRB 80 (161-34-1129); Martel v. Veley, 2000 PSSRB 89 (161-2-1126); and Godin v. Public Service Alliance of Canada (Union of Solicitor General Employees), 2001 PSSRB 16 (161-2-1121). In these decisions, the Board came to the conclusion that the prohibitions contained in paragraph 8(2)(c) of the PSSRA, supra, apply to employers, not to employee organizations or their representatives. The same rationale applies to an alleged breach of paragraph 8(2)(a): a contextual reading of subsections 23(1) and 8(2) together leads to the conclusion that a person contemplated under those provisions must have some form of authority over employees, which is vested solely with the employer.

[28]      Ms. Malone was not a person acting on behalf of the employer or employer organization when it was alleged that a prohibition contained in section 8 of the PSSRA was not observed. As such, she could not be named in the complaint filed by the UCCO-SACC-CSN.

[29]      I would, similarly, not have permitted adding the Treasury Board Secretariat (TBS) and the Correctional Service of Canada (CSC) as respondents because sections 8, 9 and 10 of the PSSRA refer to persons, not the employer. This issue was dealt with in Professional Institute of the Public Service of Canada v. Treasury Board (Board files 161-2-1104 and 169-2-620).

[30]      The remaining elements of the amendment would have been dealt with in accordance with the reasons for requesting the amendment. Given the fact that no new elements were being advanced, and all facts were known to the parties when the initial complaint was filed, the request for the amendment is denied.

[31]      Registry officials at the Board will be instructed to set down a date for hearing the initial complaint.

Joseph W. Potter,
Vice-Chairperson

OTTAWA, July 3, 2003.