FPSLREB Decisions

I. Matters before the Board

1 On November 14, 2007, Rudy Moreno Quadrini (“the complainant”) filed a complaint under paragraph 190(1)(g) of the Public Service Labour Relations Act (“the new Act”), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, against the Canada Revenue Agency (“the CRA”) and CRA Commissioner William V. Baker. The complainant subsequently clarified that the respondents should be identified as the CRA and R. Larry Hillier, CRA Assistant Commissioner, Ontario Region (“the respondents”).

2 The complainant outlined the particulars of his complaint as follows:

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Unfair labour practice under s. 185 and 186 (2) (a) (iii) & (iv) by failure to extend me a job offer like 371 other similarly affected employees as required under the Human Resources Agreement (“HRA”) between the CRA and Ontario Ministry of Revenue (“OMoR”), whether outside of it or pursuant to article 4.1 thereof by:
- CTAO refusing to invite me to a Q&A session held in Whitby on 11/05/2007 while subjecting me to all other related CRA-HRA information sessions and processes such as, CRA Employee Information and Consent Form for example
- Mr. Hillier refusing to acknowledge, correspond or provide any related or relevant basis or oral/written requested information/documentation to letters of 10/19/2007, 10/23/2007, 10/29/2007 and 10/31/2007
- Ms. Laurie Wallace refusing to provide relevant basis up to 10/26/2007
- Mr. Hillier’s written refusal to extend me a job offer per letter of 9/13/2007 and thus intimidating, threatening, coercing and discriminating against me among other OMoR-CTAR affected employees and delivering said letter to OMoR HR Branch allegedly outside of the HRA process
- CTAO advising OMoR that no job offer forthcoming for me pre-8/30/2007
- Mr. Hillier’s refusal to extend me an introduction letter of 8/17/2007
- CTAO leaving my OMoR position scheduled on p.23 of Appendix 1 to the HRA despite contemplated and willful refusal to hire me

…

3 The provisions of the new Act that the respondents allegedly breached read as follows:

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      185. In this Division, "unfair labour practice" means anything that is prohibited by subsection 186(1) or (2), section 187 or 188 or subsection 189(1).

      186. (2) Neither the employer nor a person acting on behalf of the employer, nor a person who occupies a managerial or confidential position, whether or not that person is acting on behalf of the employer, shall

(a) refuse to employ or to continue to employ, or suspend, lay off or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment, or intimidate, threaten or otherwise discipline any person, because the person

…

(iii) has made an application or filed a complaint under this Part or presented a grievance under Part 2, or

(iv) has exercised any right under this Part or Part 2;

…

4 As corrective action, the complainant sought the following from the Public Service Labour Relations Board (“the PSLRB”):

An order requiring the CRA to comply with the Act and HRA to:

(i) extend an offer of employment as required under the HRA to me, whom, the CRA, Mr. Hillier or any other person acting on behalf of the CRA, has refused to employ, continue to employ or otherwise discriminated against or discharged in disguise, contrary to paragraph 186 (2) (a) and the HRA,

(ii) pay me, as a result the failure, any employment related compensation and benefits of any kind whatever in an amount equal to the remuneration that would, but for the failure, have been paid to me by the CRA making me whole compared to other CTAR affected OMoR employees in the context of those transferring to the CRA in the context of the HRA, and

(iii) rescind the disguised disciplinary action taken against me by all the CRA’s refusals by: rescinding and retracting the letter of September 13, 2007, writing me a letter of apology from Mr. Hillier copied to OMoR including the admission of error by he and the CRA, providing any and all requested information and documentation; in respect of the failure and pay compensation in an amount equal to any financial or other penalty imposed on me by the CRA including any and all costs or legal costs incurred.

5 The complaint was accompanied by a five-page covering letter dated November 9, 2007, and marked “Personal & Confidential” and “Without Prejudice.” The complainant also attached 125 pages of documents to which he made footnoted references in his letter.

6 It is unclear why the complainant marked his letter “Personal and Confidential” or considered it to be “Without Prejudice.” As the letter contains statements that are necessary to understand the nature of his complaint as well as the position that he adopted regarding the procedure for hearing his complaint, he must have intended that it form part of the official record and that it be placed before the PSLRB. As such, I believe that I am at full liberty to refer to the contents of the letter in this decision and that doing so offers no prejudice to the complainant. I have taken the same position regarding other subsequent submissions from the complainant similarly marked “Personal and Confidential” and “Without Prejudice.”

7 In the covering letter, the complainant restated his cause of action in the following terms:

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Hereby made under paragraph 190(1)(g) of the Public Service Labour Relations Act (hereafter and in accompany [sic] FORM 16 “the Act”) respecting the employer’s refusal to: employ or to continue to employ, or discriminate against with respect to employment, or intimidate, threaten and otherwise discipline the complainant; as prohibited by section 185 and more particularly, subparagraphs 186(2)(a)(iii) and (iv), contrary to Article 4.1 of its Human Resources Agreement (“HRA”) with the Ontario Ministry of Revenue (“OMoR”) under which it is required to offer a job by November 13

…

8 The complainant requested that the PSLRB proceed to determine his complaint on the basis of written submissions:

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… this matter is relatively straightforward such that, it is unlikely that a hearing will be necessary. I propose that it be dealt with entirely in writing and accordingly attach herewith only pertinent evidentiary documentation … to enable the PSLRB to do so. …

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9 According to the complainant, the event that prompted him to place his case before the PSLRB was his receipt of the following letter, dated September 13, 2007, from the respondent, Mr. Hillier, on behalf of the CRA:

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          It has come to my attention that your name has been included on the list of employees whose work is directly affected by the divestment of OMoR’s corporate tax functions to the CRA.

          I trust that you recall the mediation of your grievances concerning the termination of employment action taken by the CRA when it was discovered that, while you were on paid sick leave with CRA, you were reporting to a new position with the Ontario government. As a result, I must advise you that the CRA is not prepared to offer you employment. You should be aware that, in respect of our Memorandum of Agreement concerning confidentiality, the Minister of Revenue will only be informed that a letter of offer will not be forthcoming for you and we will not be providing them with any further information or details.

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10 The following excerpts from the complainant’s covering letter of November 9, 2007, provides further explanation of, and context for, his complaint:

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This complaint is limited only to the CRA’s refusal to offer me a position, any benefits flowing from that position and no other matter. Specifically, it is not related to any other action I may have against the CRA or other recourse available through the OMoR with respect to any possible remedy, due diligence or remedial failure by it under Article 21 of the HRA for reasons of force majeure or otherwise.

…

… the CRA … refuses to extend me a job offer despite my legal entitlement to it under the HRA.

However, it does so entirely outside the HRA process and without providing me any basis whatsoever despite my openness and transparency with the CRA, which has been graced with nothing but silence.

The HRA is an administrative agreement – negotiated under Article 6 of Annex C of a Memorandum of Understanding Concerning Administration of Ontario Corporate Taxes – further to a Master Memorandum of Agreement Concerning a Single Administration of Ontario Corporate Tax between the Governments of Canada and Ontario. Article 2.1 thereof says the CRA must comply with the Act, which therefore applies to the HRA.

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Based on the [wording of the CRA’s letter of September 13, 2007], the CRA’s rationale for it is the aforementioned PSLRB mediation, my grievances and its termination letter, which included prior claims allegedly supporting the termination action taken by it. However, all of this was fully and finally settled by way of mediation.

Therefore, aside from any possible breaches of confidentiality and contract arising from Mr. Hillier’s reference to my confidential MOA in issuing said letter because he is neither a party to nor a person required to implement it, I respectfully submit that the CRA’s conduct and refusal to extend me a job offer now fall squarely within subparagraphs 186(2)(a)(iii) and (iv) of the Act.

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No matter how wrong my past behaviour and conduct at the CRA may seem or even have been in light of its termination of me, like mine, the CRA’s prior claims are all irrelevant now due to the PSLRB mediation…

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I respectfully submit that this action thus constitutes disguised discipline and double jeopardy after the fact and so, estoppel would now and forever prevent the CRA from denying me a job offer based on the grounds stated in the September 13 letter. The MOA is a valid and binding settlement agreement and presents a complete bar to further action by either party to it. Ere go [sic], my position is that it is not open to the CRA to rely upon the MOA or prior claims to avoid offering me a job under any circumstances and more particularly, under the HRA. If it offered me one, the OMoR would have no concern or reason to enter into a settlement outside the HRA process with me.

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It is very clear that an MOA effectively, fully and finally settles all claims arising out of a matter. Furthermore, the doctrines of double jeopardy, estoppel, res judicata or issue estoppel and disguised discipline prevent the CRA from ever resurrecting the mediation of those same claims now to deny me a job offer outside the HRA process.

Noteworthy, the MOA is clearly silent with respect to re-employment or the impossibility thereof. Therefore, I respectfully submit that the CRA’s tactics here clearly constitute an unfair labour practice within the meaning of sections 185 and 186 of the Act.

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There appears to be no relevant basis whatsoever for this letter now outside the HRA process or even in law. Therefore, the CRA’s actions are completely unwarranted given its obligation under the HRA, the finality of all claims rendered by the MOA, and my solid employer-employee relationship with the OMoR, which is the only relevant factor that should determine whether or not the CRA should offer me a job now under the HRA.

…

[Footnotes omitted]

[Emphasis in the original]

11 In their reply received by the PSLRB on December 5, 2007, the respondents objected to the PSLRB’s jurisdiction to hear the complaint. In the alternative, they submitted that the complaint “… does not make out a prima facie case, and further, that it should be dismissed under s. 40(2) of the PSLRA as being frivolous and vexatious.”

12 The respondents elaborated their objections to jurisdiction in the following terms:

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          … under the guise of an unfair labour practice, Mr. Quadrini is asking the Board to enforce an obligation on the CRA that he wrongly believes is contained in the HRA. The HRA was only between the two levels of government and Mr. Quadrini is not a party to the Agreement. The Board has no authority to enforce the HRA, nor any authority to require CRA to make Mr. Quadrini a job offer.

          … with regards to his statements that CRA’s position constitutes disciplinary action, it should be noted that Mr. Quadrini is an employee of the Ministry of Revenue for Ontario and is represented by the AMAPCEO. As such he does not have access to the PSLRB concerning disciplinary matters…

          Mr. Quadrini states that the CRA’s refusal to offer him a position is based on the fact that he filed a grievance concerning his termination of employment with CRA, which occurred on April 8, 2003. This grievance was referred to adjudication at the PSLRB … and led to a mediation session, which resulted in a settlement allowing Mr. Quadrini to resign from his employment with the CRA. It is the CRA’s position that full and final settlement was reached in ending the Employer/employee relationship and that to offer him a position which would have the effect of “undoing” this agreement would not be appropriate. The fact that the CRA is not offering Mr. Quadrini a position as part of the HRA is not a result of Mr. Quadrini having exercised his right to file a grievance in 2003. There is no prima facie breach of section 186 (2) (a) (iii) or (iv) of the PSLRA. Further, the complaint should be dismissed under s. 40(2) of the PSLRA as being frivolous and vexatious.

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13 The PSLRB asked the complainant to provide his position in response to the respondents’ objections to jurisdiction. The PSLRB received the complainant’s submissions on January 4, 2008, as well as supplementary information that he filed on January 8 and 17, 2008.

14 The complainant’s submissions received by the PSLRB on January 4, 2008, consisted of a 46-page letter accompanied by several hundred pages of documents to which he made reference via numerous footnotes. As in his earlier correspondence, the complainant made many allegations against the respondents and asserted multiple breaches of statute, legal principles and process. Given the sheer volume of the complainant’s submissions, I am providing only a “snapshot” of what I take to be a number of the most relevant elements.

15 The complainant alleged various “procedural defects” and makes applications as follows:

• The respondents violated rule 7(1) of the Public Service Labour Relations Board Regulations, SOR/2005-79, in filing their reply to a person at the PSLRB other than the Executive Director. For that reason, the PSLRB should reject their reply.

• Because the complainant was not given a clear indication as to how to reply to the respondents’ submissions, which was both misleading and prejudicial to him, the PSLRB should reject the respondents’ reply.

• The complainant’s open and forthright manner in his submissions should be contrasted with the CRA’s “collusion or conspiracy” with his current employer, the Ontario Ministry of Revenue (“the OMoR”).

• The respondents rely in their reply on hearsay evidence manufactured after the fact. The PSLRB should rule that evidence inadmissible.

• If the PSLRB proceeds by way of a hearing, it should order the respondents to produce relevant information under paragraph 40(1)(h) of the new Act that the respondents have previously denied the complainant.

• If it exists, which the complainant denies, information supporting the respondents’ actions against him has been withheld from him under the Access to Information Act, R.S.C., 1985, c. A-1.

• The complainant requests that the PSLRB exercise its power under paragraph 40(1)(j) of the new Act to assign an investigator to:

  …

  … visit, view and inspect any and all relevant materials at the respondents’ premises and obtain answers to all of my questions relating to this matter including the names and personal addresses of any and all individual CRA employees involved in the decision and action against me so as to ensure that I may take appropriate recourse against them for this unlawful event.

  …

• The complainant requests the consent of the PSLRB under section 205 of the new Act to prosecute 10 persons under sections 200 and 204 or, more generally, “… every party that [he] knows for certain has been involved in the decision and taken action against [him] …” as well as any additional names that may arise with further evidence.

16 On the jurisdictional objection filed by the respondents, the complainant replied that they are false and “… very egregious in both fact and law”:

• The respondents failed to address the complainant’s allegations concerning discriminatory treatment, intimidation and threats. Uncontested, the PSLRB must accept those allegations as proven.

• The complainant has status as a “person” for purpose of pursuing the complaint before the PSLRB. His status as an employee of the Ontario government is totally irrelevant.

• The fact that the complainant accepted another position with the OMoR since filing his complaint “… arguably under duress …” has no bearing on the complaint.

• While the respondents may argue that the complaint depends on the interpretation of article 4.2 of the Human Resources Agreement (“the HRA”), signed in July 2007 by the CRA and the OMoR,  the real issue is the respondents’ refusal to employ the complainant.

• The respondents’ actions in replying to the complaint were “… obviously arbitrary, capricious and not in good faith.”

• Given subsection 191(3) of the new Act, the complainant’s written complaint is evidence that the alleged failure actually occurred. The prima facie [at first look] test argued by the respondents is thus met.

• The respondents have the onus to prove that they did not violate the new Act. In the complainants’ submission, “… it is impossible for them to discharge that burden in light of their unsupported actions, the wording of article 4.2 of the HRA and the preponderance of evidence in [the complainant’s] favour.”

• Given that the prima facie test has been met, it follows that the complaint cannot be described as either frivolous or vexatious.

• The evidence submitted by the respondents “… was simply manufactured ex post facto [after the fact], smarts of backdating and, as such, constitutes both a sham and a camouflage.”

17 Among the many other statements and allegations made by the complainant, I noted in particular the following ones:

• The CRA’s refusal to make an offer of employment to the complainant represents constructive dismissal and disguised discipline. The respondents have attempted to apply discipline for the same misconduct addressed in 2003, which is prohibited by the doctrines of estoppel and double jeopardy.

• A detailed analysis of the HRA proves the complainant’s eligibility for an offer of employment.

• Mr. Hillier’s behaviour, then and now, constitutes harassment and abuse of authority.

• The letter of September 13, 2007, was “… definitely intended to intimidate, threaten or otherwise discipline [the complainant] for grieving and mediating the termination action the CRA took against [the complainant] for the alleged misconduct that occurred in 2003 … .”

• “[The complainant’s] past employment relationship with the CRA is ended and is irrelevant.”

• There is no authority under the Canada Revenue Agency Act, S.C. 1999, c. 17,that would enable the respondents to refuse to employ the complainant in the circumstances described in his complaint.

• The divestment by the OMoR of its corporate tax functions to the CRA comprises successorship in labour law. As such, the PSLRB is the governing body with preferred jurisdiction in this case.

• Nothing precludes the new Act from prohibiting unfair labour practices against new hires.

• The failure of the respondents to respect the complainant’s common-law right to choose for whom he will work was an error in law that goes directly to the PSLRB’s jurisdiction, and is “… reviewable on the more exacting correctness standard.”

• With respect to the HRA, the complainant has the status of a “third person” even though he enjoys no privity of contract.

• Even if the PSLRB has no authority to enforce the HRA or require the CRA to make the complainant a job offer, it does have the authority to dispense with any unfair labour practice committed by the CRA with respect to its hiring practices.

• The PSLRB is completely barred from interpreting the Memorandum of Agreement Concerning a Single Administration of Ontario Corporate Tax (“the MOA”). The complaint centres on the HRA and the PSLRB may construe the HRA without regard to the MOA, as if it did not exist.

• By referring to the MOA to support his decision, Mr. Hillier breached confidentiality and breached a contract.

• The respondents’ refusal to employ the complainant violates the Association of Management Administrative and Professional Crown Employees of Ontario (“the AMAPCEO”) collective agreement.

18 In an appendix to his submissions, the complainant lists the following “rights, entitlements and benefits” where he has suffered a loss or “differential” by virtue of the respondent’s failure to offer him a job:

…

• Flagrant disregard for my area of professional expertise and specialty
• Reimbursement of professional dues
• Recognition of nearly 18 years of continuous and uninterrupted civil  service
• Increased vacation leave entitlement
• Cumulative unused sick leave credits carry forward
• Volunteer leave of 1 day per annum
• Personal leave of 1 day per annum
• Family related leave of 5 days per annum
• Unlimited medial [sic] appointments
• Retirement leave of up to 5 paid weeks of leave at age 55 with 30 years service
• Leave without pay for various reasons
• Progressive lateral and upward career mobility

19 In the course of his submissions, the complainant asked to expand the grounds of his complaint to include the allegation that the respondents violated paragraph 186(2)(c) of the new Act:

      186. (2) (c) seek, by intimidation, threat of dismissal or any other kind of threat, by the imposition of a financial or other penalty or by any other means, to compel a person to refrain from becoming or to cease to be a member, officer or representative of an employee organization or to refrain from

(i) testifying or otherwise participating in a proceeding under this Part or Part 2,

(ii) making a disclosure that the person may be required to make in a proceeding under this Part or Part 2, or

(iii) making an application or filing a complaint under this Part or presenting a grievance under Part 2.

II. Preliminary matters

20 The nature and extent of the complainant’s submissions poses a substantial case management challenge. It is not unusual for a complainant or grievor to bundle many allegations together in a single action. However, the complainant has made so many statements and allegations, many of which could command an entire hearing process on their own, that he leaves the decision maker at grave risk of getting lost in the sheer volume. I can only presume that the complainant expects a considered finding for every allegation made in every part of the factual and legal terrain that he attempts to traverse. He has devoted, most evidently, enormous time and energy to the task. He must understand, however, that it is my duty to proceed in a fashion that is practical and appropriate to the nature of the matter placed before the PSLRB while safeguarding the rights to due process of both parties. In my view, that requirement demands that I focus the analysis much more narrowly, in the first instance at least, to render the task manageable and closely responsive to the central allegation of the originating complaint. For that reason, the parties were notified on January 22, 2008, on my behalf, of my intent to turn first to a fundamental preliminary issue:

…

The Board believes, based on the written representations submitted to date, that there is no dispute about the key fact that gave rise to the complaint; i.e., that the respondent refused to employ the complainant as indicated in the respondent’s letter of September 13, 2007.

The question that the Board believes that it should determine, in the first instance, is whether the facts asserted by the complainant with respect to the employer’s refusal to employ the complainant comprise prima facie evidence of a contravention of subparagraphs 186(2)(a)(iii) and (iv) of the Act.

The Board notes that it is holding in abeyance at this time the complainant’s application to the Board under section 205 of the Act for consent from the Board to prosecute as that application requires a prior finding with respect to the complaint.

…

I gave the parties an opportunity to make further written submissions but only on the issue stated in the January 22, 2008, letter.

21 I recognize that the respondents stated more than one reason for objecting to the PSLRB’s jurisdiction to consider the complaint and that the respondents also asked in the alternative that the PSLRB dismiss the complaint as frivolous and vexatious. In my view, the question of whether the complaint on its face shows a reasonable link to the prohibitions listed in subparagraphs 186(2)(a)(iii) or (iv) of the new Act is primordial. It goes directly to jurisdiction in the very first instance. If, taking all of the facts alleged in the complaint as true, no arguable case can be made that the respondents have contravened subparagraphs 186(2)(a)(iii) or (iv), then the complaint may be dismissed for that reason alone. Other jurisdictional issues and the respondents’ alternative argument that the complaint should be dismissed as frivolous and vexatious, as well as some or all of the applications made by the complainant, may or will be before the PSLRB if the precondition of a prima facie basis for the complaint is satisfied. My decision on procedure reflects my understanding of the nature of the analysis required by the new Act, viewed in the context of the case law.

22 The complaint at issue alleges that the respondents committed an unfair labour practice within the meaning of section 185 of the new Act,which reads as follows:

      185. In this Division, “unfair labour practice” means anything that is prohibited by subsection 186(1) or (2), section 187 or 188 or subsection 189(1).

23 The particulars of the complaint identified subparagraphs 186(2)(a)(iii) and (iv) of the new Act as the statutory provisions contravened by the respondents:

      186. (2) Neither the employer nor a person acting on behalf of the employer, nor a person who occupies a managerial or confidential position, whether or not that person is acting on behalf of the employer, shall

(a) refuse to employ or to continue to employ, or suspend, lay off or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment, or intimidate, threaten or otherwise discipline any person, because the person

…

(iii) has made an application or filed a complaint under this Part or presented a grievance under Part 2, or

(iv) has exercised any right under this Part or Part 2;

24 Subsection 191(3) of the new Act assigns the burden of proof in an unfair labour practice complaint involving subsection 186(2):

      191. (3) If a complaint is made in writing under subsection 190(1) in respect of an alleged failure by the employer or any person acting on behalf of the employer to comply with subsection 186(2), the written complaint is itself evidence that the failure actually occurred and, if any party to the complaint proceedings alleges that the failure did not occur, the burden of proving that it did not is on that party.

25 The reverse onus contemplated by subsection 191(3) of the new Act is unusual in the framework of the statute and a clear exception to the normal expectation in proceedings before the PSLRB that the party who alleges a violation must prove it. The presence of the provision strongly suggests that the legislator believed that actions arising under subsection 186(2) would involve an exceptional situation where a different approach to burden of proof would be required to level the playing field between the parties.

26 A similar approach is found in the Canada Labour Code, R.S.C, 1985, c. L-2 (“the Code”), and may have inspired the legislator in this case. Subsection 94(3) of the Code contains a provision that broadly parallels subparagraphs 186(2)(a)(iii) and (iv) of the new Act:

      94. (3) No employer or person acting on behalf of an employer shall

(a) refuse to employ or to continue to employ or suspend, transfer, lay off or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment or intimidate, threaten or otherwise discipline any person, because the person

…

(v) has made an application or filed a complaint under this Part, or

…

27 As with subsection 191(3) of the new Act, subsection 98(4) of the Code stipulates a reverse burden of proof:

      98.(4) Where a complaint is made in writing pursuant to section 97 in respect of an alleged failure by an employer or any person acting on behalf of an employer to comply with subsection 94(3), the written complaint is itself evidence that such failure actually occurred and, if any party to the complaint proceedings alleges that such failure did not occur, the burden of proof thereof is on that party.

28 Under a strict reading of either subsection 191(3) of the new Act or subsection 98(4) of the Code, the PSLRB or the Canada Industrial Relations Board (“the CIRB”), as the case may be, must take the existence of a complaint in writing that the employer or a person acting on behalf of the employer failed to observe an identified statutory prohibition as proof that that failure did occur. The burden then shifts to the opposing party to disprove that fact.

29 In Wilson v. ADM Agri-industries Ltd., [2000] CIRB no. 99, the CIRB offered what I believe to be a crucial caveat. For the reverse burden of proof required by subsection 98(4) of the Code to apply, there must first be prima facie substance to the complaint. Examining a situation where it felt uncertain about the basis for an unfair labour practice complaint filed against a trade union, the CIRB summarized the approach taken under the Code in those circumstances:

…

[13] At the start of the hearings, the Board declared that the circumstances of the complaint were somewhat vague and did not appear to constitute prima facie evidence of union activities leading to the complaint. Section 98(4) places the burden of proof on the employer. However, as the Board found in Canada Post Corporation (1983), 52 di 106; and 83 CLLC 16,047 (CLRB no. 426), “notwithstanding the burden of proof provisions of section 188(3) [now section 98(4)] of the Code, there has to be some substance to a complaint upon which a contravention of the Code can be founded. It is not enough for a complainant to throw out accusations, then sit back and rely on the inability of the other party to disprove them.” The Board has the authority to decide whether the complainant has established the required elements of a prima faciecase, before the burden of proof can be shifted to the employer. This rule was applied as well in the following decisions: CHUM Western Ltd., Radio CKVN (1974), 3 di 18 (CLRB no. 6); Radio Ste-Agathe (CJSA) Inc. (1975), 8 di 8; and 75 CLLC 16,154 (CLRB no. 39); Air Canada (1975), 11 di 5; [1975] 2 Can LRBR 193; and 75 CLLC 16,164 (CLRB no. 45); and Provost Cartage Inc. (1985), 61 di 77 (CLRB no. 517).

…

30 The similarity between the relevant provisions of the new Act and the Code, in my view, provides ample justification for approaching subsection 191(3) of the new Act in the same fashion that the CIRB has interpreted subsection 98(4) of the Code. For this complaint, I believe that is both appropriate and necessary to follow that approach.

31 In Laplante v. Treasury Board (Department of Industry and the Communications Research Centre), 2007 PSLRB 95, the PSLRB reached a similar conclusion about the required approach in interpreting the reverse burden of proof applicable to subsection 186(2) of the new Act:

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[88] In conclusion, the complainant must meet a precondition for the provision on the reversal of the burden of proof to apply. Before the employer can be required to prove that it did not contravene the prohibitions, the complainant must show that one of the circumstances described in subsection 186(2) of the new Act has been met. Without proof to that effect, the complaint is inadmissible and the reversal of the burden of proof cannot be applied… .

…

32 At heart, the issue of a prima facie case here is one of common sense. Were it the case that a person could simply file a complaint stating his or her conviction that there has been a violation of subsection 186(2) of the new Act and, by doing so, trigger the legal requirement that the respondent prove the contrary, the possibilities for vexatious litigation would be substantial. An allegation of a breach of subsection 186(2) must be reasonably arguable on its face. As stated earlier, the threshold is the following: taking all of the facts alleged in the complaint as true, is there an arguable case that the respondents have contravened subparagraphs 186(2)(a)(iii) or (iv) of the new Act?

33 In essence, the complainant alleged that the respondents committed an unfair labour practice when they refused to employ him because in 2003 he exercised his right to present certain grievances under the Public Service Staff Relations Act,R.S.C., 1985, c. P-35 (“the former Act”), and later referred those grievances to adjudication. When I examined the documents submitted by the complainant in support of his complaint, it was unclear, despite the detail and volume of what he wrote, whether the complaint revealed an arguable case that the respondents have contravened the prohibitions contained in subparagraphs 186(2)(a)(iii) or (iv) of the new Act. In other words, there remained an open question in my mind whether there was a prima facie case for a link between the unfair labour practice complained of and the complainant’s prior pursuit of his rights under the former Act. Only if I could be satisfied that, on its face, the complaint supported an arguable case could my analysis proceed. At that point, the reverse burden of proof required by subsection 191(3) of the new Act would come into play, presuming that the disposition of other preliminary matters led me to proceed to the merits of the complaint. If I were not satisfied that there was a prima facie case for the link, then I would have no basis to continue.

III. Summary of the arguments

A. For the respondents

34 The respondents filed brief submissions on January 31, 2008, to the following effect:

…

It still remains the position of the Employer that the complaint does not raise a prima facie case in respect of an alleged failure by the Employer or any person acting on behalf of the Employer to comply with subsection 186 (2) of the PSLRA. It is clear from the complaint that the basis of the Employer’s decision not to re-employ the complainant was due to his previous misconduct and is in no way related to the fact that he presented a grievance challenging the Employer’s decision to terminate his employment in 2003. The complainant is simply asking the Board to draw an inference of retaliatory conduct, which is unsupported by any alleged evidence. It is equally clear that the employer entertained his grievance and entered into a binding settlement to the mutual satisfaction of the parties.

During this grievance process the bargaining agent represented the complainant. Any assertion by the complainant of retaliation by the employer on account of the complainant having exercised his rights under the Act, is nothing but pure conjecture on his part and has no basis in fact and no factual foundation has been asserted by the complainant to substantiate his complaint.

…

B. For the complainant

35 The complainant filed his submissions on February 4, 2008, styling them as a rebuttal to the respondents’ submissions of January 31, 2008.

36 The complainant argued that the respondents were trying to change the basis of their argument justifying their refusal to employ him:

…

They now attempt to change their basis yet again by relying on the alleged “previous misconduct” of January 3, 2003 versus the reasons clearly expressed in the letter itself. They do so in stark contradiction with their own arguments respecting jurisdiction, and to the prejudice of the complainant, who demolished their burden of proof in the Response.

This proves that they have no real bases [sic], other than for settlors remorse and an illegal burning desire to weed out the complainant from the HRA, preempting his participation in it “outside the process” due to their perception that he is undesirable. All of this has been proven dead wrong with corroborating evidence from the OMoR, which acted as the employer’s agent with respect to the complainant under the HRA.

…

37 The complainant reiterated his position that the respondents refused to hire him for reasons related to the grievance that he referred to adjudication in 2003:

…

The complainant maintains the position that, among other things, the respondents were prima facie wrong to refuse to employ or continue to employ the complainant, and that there is no basis whatsoever in fact or law which would enable the respondents to do so.

…

There simply is no conflict between the now allegedly settled MOA, and the HRA, under which the respondents were obliged to hire me under any circumstances. The alleged misconduct was settled in mediation. Therefore, in light of the finality of past events, it is not open to the employer to refuse to employ me or continue to employ me based on the mediation.

As the prima facie case is clear on its face, the complainant reiterates his request of the PSLRB to confirm the complaint now under section 41 …

…

38 The complainant criticized the respondents’ use of the term “re-employ” in their submissions:

…

Furthermore, misstating the issue as, “… the Employer’s refusal to re-employ …” me, when my Complaint, Response and the PSLRB’s letter stated that it was, “. . . the employer’s refusal to employ … .” me, is yet another disrespectful attempt to distract the PSLRB’s attention from the real facts asserted. The facts supporting the Complaint/Response have only dealt with the respondents’ refusal to employ or refusal to continue to employ not “re-employ” me.

Paragraph 186(2) (a) clearly does not contain the word “re-employ” and therefore, must be construed in the appropriate context. In light of the AMAPCEO Collective Agreement, the mechanics of the HRA and the common law, that context completely ignores any previous employment relationship with the CRA and as such, the complainant must be viewed as a new hire like all other OMoR employees.

Apart from me characterizing in both the Complaint and Response the terms and conditions of the MOA, which in no way precludes my re-employment and is irrelevant anyway, there was never any fact/issue asserted concerning any “re-employment”. This is because on the OMoR’s transfer of its tax administration, the respondents’ simply assumed the role of the OMoR as the employer in its employer-employee relationship with me, qua employee. Hence, there still is no fact or issue of “re-employment” as there might be if, for example, I were to voluntarily reapply to the CRA. This is because the OMoR’s divestment transferred me involuntarily.

…

39 The complainant appears to have offered the core of his argument concerning jurisdiction in the following passage:

…

… Although the respondents seem to have conceded to the PSLRB’s jurisdiction to hear the complaint, they willfully ignore that a prima facie case is deemed to have been met by virtue of the complaint having been made unless they can refute it. However, they willfully misconstrue subsection 191(3) of the Act in failing to acknowledge that it is their burden to prove the alleged failure did not occur.

Whether or not such refusal by the employer or any person acting on its behalf was due to my previously alleged misconduct, (which, again, for the reasons previously provided is irrelevant but expressly denied), the September 13^th letter, by its own wording, speaks for itself. Any onus I had, (which, again, is expressly denied), has already been met. If all that is necessary for the respondents to refuse to employ me is an employment related reason, (which, under my particular circumstances is expressly denied), the respondents have not refuted my proof demonstrating bad faith, sham or camouflage on their part.

Clearly, the rights that the employer purported to have by issuing the said letter do not exist in law and as such, its refusal to employ me was clearly a sham. I follows that any continuance of its refusal in illegal circumstances obviously constitutes both bad faith and camouflage. It is well-settled that there is no defense for ignorance of or any shield for flagrant disregard of the law. Therefore, the employer should simply say, “Uncle”.

…

… the issue before the PSLRB now is the employer’s refusal to honour my rights under the HRA to employ or continue to employ me, not whether the terms of the MOA fail to be upheld or not by virtue of the HRA. While I have already proven that the PSLRB has no jurisdiction to determine whether the MOA would be unfulfilled due to the HRA, the respondents have essentially asked the PSLRB to enforce the MOA entirely out of context while apparently relying on PSLRB decisions that support my position not theirs. Vexatious, a cost award to me is thus warranted.

…

40 In the course of his submissions, the complainant requested that the PSLRB exercise its powers under paragraph 40(1)(h) of the new Act to compel the OMoR to provide certain “evidence” that he had previously sought in a “fruitless” request under the provincial Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31.

41 The complainant also included in his submissions a number of documents that he received from the CRA in January 2008 after filing an Access to Information request. Because some of the content of certain documents had been redacted by the CRA, the complainant requested that the PSLRB compel the respondents to provide the original version of all of the documents without the redactions.

42 Finally, based on “new information,” the complainant submitted forms requesting the PSLRB’s consent to prosecute a further 30 named individuals.

IV. Reasons

A. Alleged violation of subparagraphs 186(2)(a)(iii) and (iv) of the new Act

43 The prohibitions expressed in subparagraphs 186(2)(a)(iii) and (iv) of the new Act are a vital element of the statutory regime:

      186. (2) Neither the employer nor a person acting on behalf of the employer, nor a person who occupies a managerial or confidential position, whether or not that person is acting on behalf of the employer, shall

(a) refuse to employ or to continue to employ, or suspend, lay off or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment, or intimidate, threaten or otherwise discipline any person, because the person

…

(iii) has made an application or filed a complaint under this Part or presented a grievance under Part 2, or

(iv) has exercised any right under this Part or Part 2;

44 A substantially similar prohibition formed part of the former Act:

…

8. (2) Subject to subsection (3), no person shall

(a) refuse to employ, to continue to employ, or otherwise discriminate against any person in regard to employment or to any term or condition of employment, because the person is a member of an employee organization or was or is exercising any right under this Act;

…

45 It has been and continues to be fundamental to the integrity of the labour relations systems created by the new Act and the former Act that persons who have exercised rights accorded to them under those laws did so, and can continue to do so, without fear of reprisal. Were it otherwise, given the possibility of the misuse of authority in the relationship between individual persons and employers, the chilling effect of reprisal action on the exercise of vested statutory rights could undermine the effective force of those rights.

46 In the new Act, the scope of action prohibited as a reprisal has been expansively expressed in the wording of subparagraphs 186(2)(a)(iii) and (iv). It includes a “refus[al] to employ or to continue to employ … or otherwise discriminate” against any person or to “intimidate, threaten, or otherwise discipline” any person for having presented a grievance or for having exercised any other rights under Parts 1 or 2 of the new Act.

47 The concept of reprisal, in my view, establishes the fundamental context within which an unfair labour practice complaint of this type must be considered. The complainant in this case effectively contends that he was the subject of reprisal action within the meaning of subparagraphs 186(2)(a)(iii) and (iv) of the new Act. The form of the reprisal action argued by the complainant was the respondents’ refusal “to employ or to continue to employ” him. The purported reason for that action was that he presented a grievance during an earlier period of employment with the (then) Canada Customs and Revenue Agency (“the CCRA”), now the CRA, and referred that grievance to adjudication.

48 I am led, then, to refine the preliminary issue before the PSLRB as follows: does the complaint show a prima facie case for of a link between the respondents’ decision not to employ or to continue to employ the complainant in 2007 — the alleged reprisal action — and the complainant’s exercise several years earlier, while an employee of the CCRA, of the right to grieve and to refer that grievance to adjudication? As I have ruled above, the complaint must reveal an arguable case as a precondition to my accepting jurisdiction to hear the complaint and before the reverse burden of proof requirement under subsection 191(3) of the new Act can come into play.

49 Despite the volume of information offered by the complainant, I believe that the essential facts relevant to my determination are relatively limited. While an employee of the CCRA, the complainant submitted two grievances and subsequently referred them to adjudication under the former Act. The complainant resigned from employment with the CCRA in October 2004 after settling his grievances in mediation. At the time he filed his complaint, the complainant was an employee of the OMoR, working in its corporate tax division. Subsequent to his taking up employment with the OMoR, the governments of Canada and Ontario entered into the MOA to provide a single administration of the federal and provincial corporate tax administration functions in Ontario. As part of implementing the MOA, the CRA and the OMoR signed the HRA which transfered the incumbents of affected OMoR corporate tax positions to the CRA. The complainant’s name was apparently placed on a list of employees to be transferred. The respondents later claimed that his name appeared on the list in error. By his letter of September 13, 2007, respondent Hillier, on behalf of the CRA, notified the complainant that the CRA was not prepared to offer him employment despite the presence of his name on the aforementioned list.

50 The complainant, for his part, considered the “… failure to extend [him] a job offer like 371 other similarly affected employees as required under the Human Resources Agreement (‘HRA’) between the CRA and Ontario Ministry of Revenue (‘OMoR’) …” to be an unfair labour practice within the meaning of subparagraphs 186(2)(a)(iii) and (iv) of the new Act and filed this complaint accordingly.

51 Applying the prima facie test mentioned earlier, I must assess whether, taking the facts alleged by the complainant as true, there is an arguable case that the respondents have contravened the prohibitions contained in subparagraphs 186(2)(a)(iii) or (iv) of the new Act. To be clear, the test at this stage is not whether I believe that such a contravention actually occurred. It is not whether I am persuaded that it is more likely, as argued by the respondents, that their decision not to employ the complainant was based on the complainant’s purported misconduct. Rather, the test is whether an arguable case can be made for a link between the complainant’s exercise of rights under the former Act and the respondents’ decision not to employ him in 2007, if I accept all of the facts alleged by the complainant to be true.

52 In conducting the required assessment, I am cognizant that, if I have any doubt what the facts, assumed to be true, reveal, I must err on the side of finding that there is an arguable case for the required link and thus preserve the complainant’s opportunity to have his complaint heard in a proceeding that respects the reverse burden of proof requirement under subsection 191(3) of the new Act.

53 My assessment leads me to the conclusion that it is at least possible that the respondents declined to hire the complainant in 2007 because of his exercise of rights under the former Act. While there may well be different and more probable explanations for the sequence of events alleged to have occurred by the complainant, I am unable to conclude that there is no reasonable way to argue a theory of the case linking the respondents’ letter of September 13, 2007, to the complainant’s past exercise of the right to grieve and to refer his grievance to adjudication. On that basis, I am compelled to find that the complaint reveals an arguable case that the respondents have contravened subparagraphs 186(2)(a)(iii) or (iv) of the new Act. Whether a contravention of these provisions really occurred will have to be determined on the basis of the formal evidence that the parties will present on the merits.

54 Having found that, on its face, the complaint reveals an arguable case that the respondents have contravened subparagraphs 186(2)(a)(iii) or (iv) of the new Act, the onus now falls on them, pursuant to subsection 191(3), to establish on a balance of probabilities that their decision to refuse to employ or re-employ the complainant was not motivated by the fact that he presented a grievance and referred it to adjudication.

55 At this point, I wish to make two further comments on the submissions of the complainant in the hope that they will assist to clarify the focus of a future hearing. These comments should not be interpreted as formal rulings.

56 The complainant appears in the following statement to allege that the respondents exhibited an “anti-union animus” and that they imposed discipline in disguise:

…

… that the respondents’ reasons were the alleged conflict of interest and their anti-union animus. They have essentially attempted to apply disguised discipline for the same perceived misconduct, which is prohibited by the doctrines of estoppel and double jeopardy.

…

57 The issue of anti-union animus arises under a different provision of the new Act, subparagraph 186(2)(a)(i). Subparagraphs 186(2)(a)(iii) and (iv), on which the originating complainant does rely, do not address motives related to union status or membership.

58 The complainant later submitted that “… [Mr. Hillier’s] letter was meant to remind and advise me that despite my clear right to receive an offer under the HRA, Mr. Hillier (and maybe others at the CRA) do not want me back there.” I do not believe that the determination that I must make on the merits requires that I interpret the HRA, or the MOA, or, before so doing, determine whether the PSLRB has jurisdiction to make any finding based on what those agreements may have required in the circumstances faced by the complainant.

B. Supplemental allegation of a violation of paragraph 186(2)(c) of the new Act

59 In his reply submissions of January 4, 2008, the complainant asked to expand the grounds of his complaint to include the allegation that the respondents violated paragraph 186(2)(c) of the new Act that reads as follows:

       186. (2) (c) seek, by intimidation, threat of dismissal or any other kind of threat, by the imposition of a financial or other penalty or by any other means, to compel a person to refrain from becoming or to cease to be a member, officer or representative of an employee organization or to refrain from

(i) testifying or otherwise participating in a proceeding under this Part or Part 2,

(ii) making a disclosure that the person may be required to make in a proceeding under this Part or Part 2, or

(iii) making an application or filing a complaint under this Part or presenting a grievance under Part 2.

60 The complainant offered the following rationale:

…

… although my Complaint was not initially based on subparagraph 186(2) (c) of the Act, I request your permission now to invoke it due to the very intimidating evidence involving the OMoR, my current employer, attached to the respondents’ Reply.

If short of conspiracy, the exchange of information and transactions occurring between the CRA and OMoR concerning me without my involvement, consent or knowledge is indeed very threatening. Perhaps, the OMoR may now be said to be “acting on behalf of the employer” respondents within the context of the preamble to subsection 186 (2).

In my view, the parties have ignored Article 1.2.5 while exploiting Article 1.2.4 of the HRA. My fear of reprisal from the OMoR, potential job loss and the resulting financial penalty, which I may suffer by continuing with this matter, has become very real and compelling indeed. For example, the parties’ purported use of the dispute resolution clause to amend the Appendix to the HRA as a sword against me after I’d requested that it be used to require the CRA to honour its obligation to offer me a job as a shield to protect me causes me very serious concern indeed.

…

[Footnotes omitted]

61 I have examined the documents attached to the respondents’ reply of December 5, 2007, the purportedly “intimidating evidence” on which the complainant based his allegation. They consist of the following: (i) a November 9, 2007, letter from an OMoR official stating, among other things, that “… Mr. Quadrini should have been excluded from the HRA job offer list based on the understanding between CRA and OMoR and that he would not be offered a job …”; and (ii) a November 27, 2007, letter from the Ontario Commissioner of Revenue to the President of the AMAPCEO confirming the placement of the complainant in an alternate position in the OMoR after his removal from the “Corporations Tax directly-impacted list.”

62 I cannot find anything in these two letters, or anywhere else in the documentation, that reveals an arguable case that the respondents have sought to compel the complainant to refrain “… from becoming or to cease to be a member, officer or representative of an employee organization.” Nothing relates to the possibility of the complainant (1) having been refrained from testifying or otherwise participating in this complaint procedure under the new Act, (2) from making a disclosure, or (3) from making an application or complaint under Part 1 of the new Act.

63 To the extent that there might be any possible substance to the complainant’s allegation, which I believe to be problematic, the primary target of his concerns, by his own omission, is the OMoR. The OMoR is not a respondent in this complaint, nor has the complainant offered any credible basis for his suggestion that the OMoR can be considered to have “… acted on behalf …” of the respondents.

64 Applying here again the prima facie test mentioned earlier, I am not satisfied that, taking the alleged facts as true, there is an arguable case that the respondents have contravened the prohibitions contained in paragraph 186(2)(c) of the new Act. For that reason, I am denying the complainant’s request to expand his complaint.

C. Request for consent to prosecute and other claims and applications

65 The complainant to date has requested the PSLRB’s consent to prosecute 40 named individuals under section 205 of the new Act:

      205. A prosecution for an offence under this Division may be instituted only with the consent of the Board.

66 As I have denied the complainant’s request to add a new ground to his complaint, and as it remains to be determined whether the respondents contravened the prohibitions contained in subparagraphs 186(2)(a)(iii) or (iv) of the new Act, I rule that the applications for consent to prosecute are premature. They will, therefore, be returned to the complainant.

67 I would like to point out that, to the best of my knowledge, there have been no other proceedings before the PSLRB under section 205 of the new Act since it came into force on April 1, 2005. Under the former Act, applications for consent to prosecute under a similar provision (its section 107) were exceedingly rare and almost all involved situations where it was alleged that employees participated in an illegal strike.

68 It is entirely appropriate, in my view, that the PSLRB view the very few consent-to-prosecute requests that come before it as extremely serious and exceptional applications. Section 205 of the new Act is not a provision that should be invoked lightly given the possibility of extraordinary legal consequences for those persons against whom prosecutions are proposed. I have no clear sense in the case before the PSLRB that the complainant appreciated the PSLRB’s very limited case law in this area. It may be that he believed that it is relatively routine practice to invoke section 205 when making an unfair labour practice complaint. If so, it is a practice that should be discouraged.

69 There is no need or reason to consider at this time any of the other claims or applications that the complainant advanced in the course of his several submissions.

70 For all of the above reasons, the PSLRB makes the following order:

V. Order

71 The respondents’ objection to my jurisdiction to consider the complaint under subparagraphs 186(2)(a)(iii) and (iv) of the new Act is dismissed.

72 A hearing will be convened for the purpose of assessing whether the complainants have contravened the prohibitions contained in these provisions. The respondents will bear the onus of disproving the complainant’s allegation on a balance of probabilities.

73 The complainant’s request to expand the complaint to include an allegation that the respondents violated paragraph 186(2)(c) of the new Act is denied.

74 The complainant’s requests for the PSLRB’s consent to prosecute will be returned to him.

May 28, 2008.

Dan Butler,
Board Member