FPSLREB Decisions

I. Application before the Chairperson

1 Chris Lorne Williams (“the grievor”), a correctional officer at Dorchester Institution in Sackville, New Brunswick, filed a grievance on May 31, 1999 alleging a breach of the National Joint Council’s Commuting Assistance Directive, which formed part of his collective agreement. The Treasury Board (“the employer”) has raised two preliminary objections on timeliness. The first objection is that the grievance was not filed in a timely manner. The second objection is that the grievance was not referred to adjudication within the required period for referral to adjudication. The grievor’s position is that the grievance is timely because the grievance is a continuing grievance. The grievor’s position is that the referral to adjudication was also timely. In the alternative, the grievor has made an application for an extension of time.

2 Pursuant to section 45 of the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, the Chairperson has authorized me, in my capacity as Vice-Chairperson, to exercise any of his powers or to perform any of his functions under paragraph 61(b) of the Public Service Labour Relations Board Regulations (“the Regulations”) to hear and decide any matter relating to extensions of time.

3 At the commencement of the hearing, Caroline Engmann, the employer’s representative, tabled a book of documents, including a statement of facts. John Mancini, the grievor’s representative, objected to the statement of facts because it represented only the employer’s characterization of the facts. He did not object to the documents included in the book of documents. The book was marked as Exhibit E-1, and I advised the parties that I would regard the employer’s statement of facts simply as its submissions and not as evidence. Some additional facts were agreed to by the parties (set out below). The grievor’s representative also introduced a number of documents that were admitted on consent.

4 The grievor’s representative raised concerns about the Public Service Labour Relations Board’s (“the Board”) practice or policy of hearing timeliness objections and applications and issuing decisions before hearing the merits of the grievances. It was his position that the practice is contrary to arbitral jurisprudence. The purpose of reserving on the preliminary objection and hearing the merits of the grievance is to avoid two applications for judicial review. He also argued that the timeliness of the grievance was not properly characterized as a jurisdictional issue — rather, the issue was whether the grievance was arbitrable. He recognized that I could likely not change the direction of the Board that I come to a determination and issue a decision on the grievance’s timeliness before hearing the merits. He also stated that the parties were not able or willing to proceed on the merits immediately. Ms. Engmann argued that timeliness was a jurisdictional issue. She referred me to Union Carbide Canada Limited v. Weiler et al., [1968] S.C.R. 966. She stated that she expressed no opinion on the Board’s practice of bifurcating hearings when dealing with timeliness issues.

5 I advised Mr. Mancini that I would note his objection. I also stated that a decision on timeliness would be rendered prior to any hearing on the merits. I noted that the parties were not in a position to proceed on the merits of the grievance in any event.

6 Before the hearing, the employer submitted two objections in writing, with submissions, and the grievor’s representative submitted a reply to them. Those submissions are on file with the Board. The parties adopted those letters as part of their oral submissions, and I have considered them in coming to this decision.

II. Summary of the evidence

7 As noted above, the parties tendered a number of agreed exhibits and agreed to a number of facts. I have set out that evidence below.

8 The grievor is a correctional officer at the CX-02 group and level. In 1996, he was represented by the Public Service Alliance of Canada, the predecessor bargaining agent. The Union of Canadian Correctional Officers — Syndicat des agents correctionnels du Canada - CSN (“the bargaining agent”) was certified as the bargaining agent on March 13, 2001.

9 For some time before April 1, 1996, employees at Dorchester Institution received commuting assistance in accordance with the National Joint Council (NJC) Commuting Assistance Directive (Exhibit E-1, tab 4). The Commuting Assistance Directive is incorporated into the collective agreement. The purpose of commuting assistance is set out in the directive as follows:

…

…to help defray excessive costs incurred in employees' daily travel to and from the regularly assigned worksite …

Normally, employees are expected to report for work at their own expense since they are free to choose where they will live …

At some worksite locations, this freedom of choice does not exist because there is no suitable residential community reasonably close to the worksite. The employees must reside elsewhere and become subject to higher transportation costs than would otherwise have been the case.

…

10 The directive sets out the criteria for authorizing commuting assistance. The implementation of the directive rests with the deputy head of the department (or a delegate):

…

1.2     Implementation

1.2.1   Subject to this directive, a deputy head may authorize commuting assistance.

1.2.2   A deputy head shall review an authorization referred to in this section at least once each fiscal year and, subject to 1.3, may continue, modify or revoke it.

…

1.3      Effect of changes

1.3.1   The local representatives of the bargaining agent shall be consulted concerning the effective date of any modification to or revocation of commuting assistance authorized under this directive.

1.3.2   When commuting assistance is modified or revoked, each employee and local representatives of the bargaining agents shall be given written notice of the change. Such change shall be effective on the first day of the third month following employees' receipt of the written notice, or the effective date of the change, whichever is later.

…

11 On February 22, 1996, the Warden of Dorchester Institution advised all employees that commuting assistance would cease on April 1, 1996 (Exhibit E-1, tab 5):

In 1994, under the recommendation of the Regional Resource Review Committee, the Department of Public Works and Government Services Canada (PWGSC) was asked to conduct a study of the Commuting Assistance given to employees at Dorchester Penitentiary and Westmorland Institution. This was done as another cost-saving measure towards our national deficit.

…

The PWGSC study was completed in late summer of 1995, and the results were communicated to the union executives, at both the regional and local levels, in October 1995. In essence, the review showed that the town of Sackville can now be considered as a “suitable residential community”, in accordance with the Treasury Board Commuting Assistance Directive. Consequently, since Sackville is situated within 16 kilometers from Dorchester/Westmorland, you are no longer entitled to commuting assistance. Therefore, effective April 1, 1996, your commuting assistance shall cease.

…

12 Mr. Williams filed a grievance, dated May 31, 1999 (although it also included an attachment dated June 4, 1999). In his grievance, Mr. Williams stated:

I am grieving the fact that Management is refusing to pay me commuting Assistance. With respect to the Treasury Board manual on commuting, I should be entitled to commuting for the following reasons: the 16 kilometer radius does not provide adequate hospitalization, bilingual services or housing.

…

Since the removal of the commuting allowance, I feel that CSC is treating their staff and families unfairly by using a study by Public Works Government Services of Canada that does not address all of the concerns or goes far enough to determine suitability during the study of Sackville, NB.

…

CSC never gave their employees written notice about their commuting assistance being revoked.

…

13 The balance of the details of the grievance refers to information obtained by the grievor in 1999 on housing, employment, transportation, schools, health care services and other facilities in Sackville. As corrective action, the grievor requested that commuting assistance be reinstated and that he receive retroactive pay from April 1, 1996.

14 In the first-level reply to the grievance (June 21, 1999; Exhibit E-1, tab 7), the CSC stated that it regarded the grievance as untimely since the event grieved occurred on April 1, 1996. The response went on to address the merits of the grievance.

15 On December 23, 1999 a Joint Review Committee was established to review commuting assistance at a number of Correctional Service of Canada (CSC) institutions across the country, including Dorchester Institution (Exhibit E-1, tab 8).

16 The grievor received the final-level reply from the Departmental Liaison Officer on February 13, 2002 (Exhibit E-1, tab 9). The reply did not refer to the timeliness of the grievance. The reply states:

This letter is in reply to your grievance concerning financial commuting assistance to help defray the cost of your travel to the Dorchester Institution.

I have considered the 1999 agreement between the Department and the Union of Solicitor General Employees (USGE), to appoint a neutral third party to carry out a study and to conclude whether employees of Dorchester Institution are entitled to Commuting Assistance.

Public Works and Government Services was retained by the parties to carry out the study. The final report dated June 22, 2001, concludes that there is a sufficient suitable residential community within 16 km of CSD Dorchester Institution and that no commuting assistance is to be provided in accordance with the Treasury Board Commuting Assistance Directive.

Consequently, I deny your grievance and the requested corrective action.

17 The bargaining agent wrote to the NJC on October 15, 2004, asking that the grievance be scheduled for a hearing (Exhibit E-1, tab 10). In the letter, the bargaining agent’s representative stated that the grievance had been held in abeyance since August 1999. The letter continued as follows:

…

The employer …now refuses to process this grievance to the N.J.C. for a hearing claiming that the grievance is untimely. The grievance is not at all untimely and is a major concern for Correctional Officers at the Dorchester and Westmoreland Institutions of the Correctional Service of Canada. These officers commissioned Dr. Daniel Bourgeois to provide a study on the Suitable Residential Community for the CSC institutions located in Dorchester, New Brunswick. This report has been produced since February 6, 2004 and it concludes as follows:

“The Hopper study contains three significant flaws that make its conclusion invalid. First, it underestimates the number of CSC employees eligible for the CAA. Second, it underestimates the number of residential units necessary to accommodate CSC employees within 16 kilometers of the Dorchester institutions. Third, it neglects the absence of French-language secondary education facilities. It also contains three minor flaws.
It thus appears from our data, as well as from the corrected Hopper study data, TBS was not justified in its decision to rescind the CAA to CSC-Dorchester employees. If our data are correct, these employees should receive their allowance from TBS retroactively. ”

…

18 The employer made submissions to the NJC on the timeliness of the transmittal of the grievance (Exhibit E-1, tab 12) and objected to the timeliness of the referral of the Departmental Liaison Officer’s reply to the next level.

19 The bargaining agent responded to those submissions (Exhibit E-1, tab 13), setting out the dates of the grievance and the transmittals to each level. Its submission continued as follows:

…

These facts alone leave no room for the employer to argue today that the grievance is untimely and we ask that the objection be overruled on these facts standing alone.

After this timely grievance process, the bargaining agent at the time and the employer, agreed to implement a joint Review Committee to review and analyze Commuting Assistance in various institutions amongst which [sic] the Dorchester and Westmorland Institutions.

It is important to consider that the parties agreed that “The results of the Institutional Joint Review Committee will be submitted to and seriously considered by Treasury Board and the Public Service Alliance of Canada” on December 23, 1999.

The Williams grievance was thus put in abeyance after having been transmitted to the final level. As the bargaining agent at the time knew in August 1999, after receiving Mr. Williams final level transmittal, that the parties had already initiated discussions towards achieving the joint studies agreed to in December that same year.

…

20 At the hearing before the NJC, the bargaining agent’s representative made submissions on the timeliness of the referral to the NJC as well as on the timeliness of the initial filing of the grievance. The Executive Committee came to an impasse on the grievance on March 29, 2006 (Exhibit E-1, tabs 14 and 15) and it was unable to reach a consensus on the preliminary issue of timeliness or on the merits of the case. In accordance with the NJC Constitution and By-Laws, the decision of the Executive Committee was communicated to Diane Lacelle, Director General of Labour Relations, CSC (Exhibit E-1, tab 15). On April 28, 2006, the Director of Labour Relations, CSC, sent a letter to Mr. Williams, forwarding the NJC’s decision (Exhibit E-1, tab 16).

21 At this hearing, the employer agreed to the following facts as set out in a letter Mr. Mancini sent to the Board dated September 13, 2006 (Exhibit E-1, tab 20):

…

Mr. Williams worked April 29 and 30 2006, checked for his mail and Madame Laframboises letter was not delivered. Mr. Williams worked May 4, 5, 6 and 7, 2006, again checked for his mail and Madame Laframboise’s letter was not delivered. Mr. Williams did not work on May 8 through 13, 2006 and on his return May 14, 2006, Madame Laframboise’s letter was delivered. The employer is in a position to know that officers regularly check for their mail and why they have particularly compelling reasons to do so. The employer is also in a position to know at what time it delivered the said letter. The employer is in a position to know that whatever it did in the handling of Madame Laframboise’s letter, the time elapsed between April 28 2006, the date on the letter and May 14 2006, falls squarely into the usual time frames for such matters at Dorchester Penitentiary.

…

22 The referral-to-adjudication form was signed by the bargaining agent on June 9, 2006. Mr. Mancini produced a fax log indicating that it was faxed to the Board on June 12, 2006. The originals of the referral-to-adjudication form and attachments were received by the Board on August 3, 2006.

III. Summary of the arguments

A. For the employer

23 The employer’s representative submitted that the triggering event for this grievance was the February 22, 1996, memorandum advising that the commuting assistance was being eliminated. The collective agreement was clear that an employee had to file a grievance within 25 days of the event being grieved. Mr. Williams should have grieved within either 25 days of February 22, 1996, or 25 days of the implementation of the decision (April 1, 1996). Instead he waited three years and only filed his grievance in 1999.

24 The employer advised the grievor from the beginning that the grievance was untimely and maintained that position at the NJC grievance hearing.

25 The grievor viewed the event that he was grieving as having occurred in 1996, as evidenced by his requested corrective action of commuting assistance compensation from April 1, 1996.

26 The employer’s representative referred me to a number of adjudicator’s decisions on timeliness: Sittig v. Treasury Board (Transport Canada), PSSRB File No. 166-02-24117 (19960524); Sallenback v. Treasury Board (Solicitor General Canada — Correctional Service), PSSRB File No. 166-02-28734 (19990915); Rinke v. Treasury Board (Agriculture and Agri-Food Canada), PSSRB File No. 166-02-27705 (19971211); and Mark v. Canadian Food Inspection Agency, 2007 PSLRB 34. She argued that the decision in Mark was of particular relevance. In that decision, the adjudicator held that ongoing communications between the parties did not justify the delay in filing a grievance. Mark also refers to good labour relations reasons for imposing time limits.

27 The employer’s representative submitted that this grievance is not a continuing violation of the collective agreement. If one examines the Commuting Assistance Directive, it does not create a circumstance that lends itself to a continuing violation. She referred me to its paragraphs 1.2.1 and 1.2.2, which set out the responsibility of the deputy head to review commuting assistance at least once each fiscal year. That speaks to a point in time — a discrete act by the deputy head — and does not support the position that this is a continuing grievance. She also referred me to paragraphs 1.3 and 1.3.2, which set out the requirement to consult and communicate with bargaining agents and employees. That still does not make this a grievance of a continuing nature. The grievor was aware or ought to have been aware of the revocation of commuting assistance in 1996 when it occurred.

28 The employer’s representative also argued that the referral of the grievance to adjudication on August 3, 2006, was untimely. The date of August 3, 2006 was the date communicated to the employer by the Board. There is no correspondence from the Board indicating that the reference was submitted on June 12, 2006. It is up to the Board to clarify whether it received a fax on June 12, 2006.

B. For the grievor

29 The grievor’s representative submitted that the grievance was filed against an ongoing violation of the collective agreement. Commuting assistance is a form of compensation for the cost of community services, and the employer unilaterally put an end to it. Commuting assistance can either be provided or not based on whether services exist within a community. Circumstances can change as services change, which supports the conclusion that the grievance is of an ongoing nature. He referred me to Brown and Beatty, Canadian Labour Arbitration, at para. 2:3128:

When the violation of the agreement is of a continuing nature, compliance with the time-limits for initiating a grievance may not be as significant …Continuing violations consist of repetitive breaches of the collective agreement rather than simply a single or isolated breach. They may arise in such circumstances as an illegal strike, the non-payment of money, or benefit premiums…

Mr. Mancini submitted that commuting assistance resembles a benefit premium.

30 Mr. Mancini asked, if a new employee arrives at Dorchester, can he or she not file a grievance against the lack of commuting assistance? If one accepts the employer’s argument that this is not a continuing grievance, all future grievances are foreclosed because of the employer’s 1996 decision. Even if one assumes that the employer was right in 1996, it does not mean that it was still correct in 1999. It is a question of evidence.

31 Mr. Mancini submitted that the jurisprudence cited by the employer was not relevant since none of the decisions related to continuing grievances.

32 Mr. Mancini conceded that the requested corrective action in the grievance cannot extend back to April 1, 1996. The corrective action would only begin 25 days before the filing of the grievance in 1999.

33 Mr. Mancini submitted that the parties were of the view that this was a continuing grievance, as evidenced by the fact that the grievance was held in abeyance and that commuting assistance at Dorchester Institution was being studied. On the basis that the grievance was in fact a continuing grievance, the objection of the employer to the timeliness of its filing should be dismissed.

34 Mr. Mancini submitted that based on the fax log, it was clear that the referral to adjudication was submitted to the Board on June 12, 2006. The employer has not established that the fax was not sent on that date.

35 Mr. Mancini also submitted that if there are any mistakes on the part of the grievor or bargaining agent in the referral to adjudication that an extension of time should be granted, as there is no prejudice to the employer. He relied on his written submissions of September 13, 2006:

…

…Mr. Williams referred the matter to adjudication on June 12 2006, according to the PSSRB Regulations and Rules of Procedure 1993, the referral would have been made on the 37th day after having received a reply. Given all the circumstances, Mr. Williams could have still asked the Board to allow his referral. Among other things, the Board would certainly have considered the seven plus years since the grievance was filed whether or not the entire period or a vast proportion of it was attributable to the employers negligence and or obstinate refusal to act, what prejudice the employer may have sustained for this 7 day untimely referral, whether or not Mr. Williams had formally or informally given the employer some notice of his intention to refer the matter.

We ask that the Board consider the implications of the attached management decision by Mr. Simon Coakeley Regional Deputy Commissioner dated August 16, 2006. Mr. Williams had mistakenly “referred” the April 25 2006 NJC decision to the Board by filing a grievance form on the matter on June 1 2006. As we know, Mr. Williams corrected this error as the present file demonstrates. At the very least, this management decision establishes that the employer had knowledge of Mr. Williams intention to refer the matter to adjudication as of the 1st of June 2006, within 15 days of his effective notification and within 28 days starting April 28 2006 (according to the “old” regulation).

The enormity of the employer’s pettiness lies in the employers thanks to Mr. Williams for having granted an extension to grievance deadline on August 16 2006, after a 7 year delay, and the employers August 28 2006 objection on timeliness for 7 days.

…

36 Mr. Mancini also stated that if the grievance were found to be untimely, then the grievor was requesting an extension of time.

C. Reply submission of the employer

37 Ms. Engmann stated that although the employer objected to both the timeliness of the grievance and the timeliness of the referral to adjudication, the core of its objection is the timeliness of the filing of the grievance. With respect to the timeliness of the referral to adjudication, she stated that it was not within the power of the employer to explain why the Board did not acknowledge receipt of the fax sent on June 12, 2006.

38 The employer’s representative submitted that the evidence did not support the contention that the grievance was a continuing one. The fact that the parties are still talking about the matter does not make it a continuing grievance.

39 She also submitted that the review conducted by the parties, commencing in 1999, was consistent with the requirement in the Commuting Assistance Directive that the deputy head regularly review commuting assistance.

40 Ms. Engmann argued that the bargaining agent did not demonstrate, in accordance with the Board’s jurisprudence, that the discretion to extend time limits should be exercised. She referred me to the five criteria set out in the jurisprudence (e.g., see Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1):

• clear, cogent and compelling reasons for the delay;

• the length of the delay;

• the due diligence of the grievor;

• balancing the injustice to the employee against the prejudice to the employer in granting an extension; and

• the chance of success of the grievance.

IV. Reasons

A. Timeliness of the grievance

41 This grievance was not presented to the employer in accordance with the time limits set out in the collective agreement. The grievor’s position is that the grievance is a continuing one. In National Film Board v. Coallier, [1983] F.C.J. No. 813, the Federal Court of Appeal held that a continuing grievance can allow the extension of time limits in a collective agreement, although the remedy may only extend back to the twenty-five days prior to the filing of the grievance (the time limit specified in the collective agreement for the filing of a grievance). I have concluded that the grievance is not a continuing grievance and there is therefore no relief against the time limits specified in the collective agreement.

42 The test for determining whether a grievance is a continuing one is whether there was a recurring breach of a collective agreement obligation and not merely recurring damages. In Parking Authority of Toronto v. C.U.P.E., Local 43 (1974), 5 L.A.C. (2d) 150 (at pp. 152-153), the arbitrator defines a continuing course of conduct as

…conduct which is renewed at regular intervals and is capable of being considered as a series of separate actions rather than as one action which may just happen to have continuing consequences.

43 In British Columbia v. B.C.N.U. (1982), 5 L.A.C. (3d) 404, the arbitrator relied on the definition of a continuing grievance set out in Gorsky’s Evidence and Procedure in Canadian Labour Arbitration (1981), at page. 35:

The appropriate rule for deciding the isolated or continuing nature of the grievance is the rule developed in contract law. The recurrence of damage will not make a grievance a continuing grievance. It is necessary that the party in breach violate a recurring duty. When a duty arises at intervals and is breached each time, a "continuing" violation occurs, and the agreement's limitation period does not run until the final breach. When no regular duty exists and the harm merely continues or increases without any further breach, the grievance is isolated, and the period runs from the breach, irrespective of damage.

44 In his grievance, the grievor requests the payment of commuting assistance retroactively to April 1, 1996. Despite the concession by the bargaining agent representative that the grievance cannot extend back to that date, the fact that it is the corrective action requested at the time the grievance was filed indicates that the grievance is focused on the original decision of the deputy head. The grievance also refers to the flaws in the PWGSC study done in 1995, which further reinforces the conclusion that the grievance is focused on the deputy head’s decision to end commuting assistance. The grievance also alleges that the employer never provided written notice of the end of commuting assistance, as required in the directive, which also relates to the original decision of the employer to end commuting assistance.

45 It is also important to review the Commuting Assistance Directive. The decision of the deputy head to authorize or revoke commuting assistance is a discretionary decision. There is also a requirement that the deputy head review the authorization at least once each fiscal year, and he or she may “continue, modify or revoke” the commuting assistance, subject to the requirements of consultation and communication in writing to affected employees. This supports the conclusion that the decision to revoke the commuting assistance was a discretionary decision made at one point in time, and a grievance against that decision is not a continuing grievance. This is not the same as a pay or benefit premium grievance where there is an ongoing entitlement to payment under a collective agreement provision.

46 As noted in Mark (at paragraph 27), “[o]ngoing discussions about the employer’s decision cannot be considered a perpetuation of the alleged original violation.” Similarly, the fact that a grievance is held in abeyance pending a review of the current circumstances does not make the grievance a continuing one.

B. Timeliness of the referral to adjudication

47 The bargaining agent provided evidence that the referral to adjudication was faxed to the Board on June 12, 2006. The Regulations provide that an initiating document is deemed to be received on the date of its fax transmission as long as the original and a copy are sent to the executive director “as soon as possible” (section 3). There is no reason to doubt that the referral was in fact faxed on June 12, 2006. Accordingly, the date of receipt of the referral should have been identified by the Board as June 12, 2006.

48 The Regulations provide that a grievance may be referred to adjudication no later than 40 days after the receipt of a decision at the final level. The NJC’s final grievance decision, although dated April 28, 2006, was not communicated to Mr. Williams until May 14, 2006. The employer did not dispute the date that Mr. Williams received the grievance response on this date. Accordingly, the referral to adjudication was timely.

C. Application for extension of time

49 The grievor’s representative did not make extensive representations on the application for an extension of time apart from arguing that there would be no prejudice to the employer in granting it. I do not find any cogent or compelling reasons provided by the grievor to justify granting an extension of time. The revocation of commuting assistance was clearly communicated to the grievor, after discussions with his bargaining agent. The only possible reason for the delay, on the record before me, is the time taken to gather information to support the grievance. As noted in Mark, that is not a valid reason for a delay in filing a grievance.

50 It appears from the record that the substance of this grievance was indirectly addressed by the parties (the employer and the previous bargaining agent) through a joint review study completed in 2001.

51 For all of the above reasons, I make the following order:

V. Order

52 The objection of the employer on the timeliness of the filing of the grievance is allowed.

53 The objection of the employer on the timeliness of the referral to adjudication is dismissed.

54 The application for an extension of time is dismissed.

55 The grievance is dismissed.

May 2, 2008.

Ian R. Mackenzie,
Vice-Chairperson
and adjudicator