FPSLREB Decisions

Request before the Board

1 On May 7, 2008, Alain Laferrière (“the applicant”) requested that the Public Service Labour Relations Board (“the Board”), in accordance with its authority under section 43 of the Public Service Labour Relations Act, S.C. 2003, c. 22 (“the Act”), review the decision in Laferrière v. Hogan and Baillargé, 2008 PSLRB 26, rendered April 24, 2008.

2 In that decision, the Board dismissed the complaint filed by the applicant against Stanislaus Hogan and Lucie Baillargé (“the respondents”).

3 The request for review focuses particularly on paragraph 44 of the Board’s April 24, 2008 decision. The applicant proposes correcting paragraph 44 because its content, in his view, could be prejudicial to him in other files pitting him against his employer. However, he does not specify what corrections should be made. Paragraph 44 reads as follows:

[44]    As the complainant alleges, it is true that the employer forwarded two medical opinions about him to the union. Indeed, the complainant already knew in November 2006 that one of the two medical opinions had been forwarded to the union, since a copy of the covering letter was sent to him on November 6, 2006. Based on the evidence adduced, I cannot say whether the complainant knew in November 2006 that the second medical opinion had been forwarded to the union. Whatever the case, based on the forwarding of those documents, it cannot be concluded, as the complainant did, that there was any sort of collusion or complicity between the employer and the union against the complainant. The medical opinions were used solely to establish that the complainant was fit to be reinstated to his position in November 2006. On that point, the forwarding of those documents to the union could even be considered desirable, given the union’s duty to represent the complainant.

4 On May 16, 2008, the Board wrote to the parties, asking the respondents to submit their reply to the request for review before June 2, 2008. The applicant submitted his arguments on May 20, 2008, and the respondents submitted theirs on May 28, 2008. On June 16, 2008, the Board wrote to the parties to inform them that no other arguments would be requested and that it would render a decision based on the documents already on the record.

5 On June 18, 2008, the applicant wrote to the Board to notify it that he was “recusing” Board Member Renaud Paquet from deciding any issue in this case, even though the Board had already informed the parties on June 16, 2008 that it would render a decision based on what it had on record at that date.

Summary of the arguments

6 In his written arguments submitted on May 20, 2008 the applicant makes no mention whatsoever of the purpose of his initial request for revision dealing with paragraph 44 of Laferrière v. Hogan and Baillargé. Instead, he submits that the Board did not consider all of the evidence in deciding the complaint in question.

7 According to the applicant, the Board should have accepted all the evidence he submitted at the hearing, not just the evidence related to the complaint.

8 The Board expressed its position on that argument at paragraph 39 of Laferrière v. Hogan and Baillargé:

[39]    In ruling on this complaint, I will take into account only evidence related to the complaint itself and to the respondents’ actions following the complainant’s March 19, 2007 request for assistance. Although, as the complainant has argued, the events that occurred from July 2006 to March 2007 are related because they have to do with the same situation, which arose from a conflict between the complainant and the employer, resulted in a resignation and became the present dispute between the complainant and the union, that is not the point. If the complainant believed that his union treated him unfairly in summer 2006 or in November 2006, he should have filed a complaint within 90 days. He did not do so; he waited until April 10, 2007 to file a complaint specifically about the respondents’ actions in March 2007. Accordingly, only those actions will be considered.

9 The applicant thus claims that by limiting the analysis of the evidence to the allegations in the complaint (the March 19, 2007 request for assistance), the Board allegedly acted contrary to the spirit of the Act. The applicant claims that the introductory document that he had filed in connection with his complaint should have been considered because it was part of the complaint. That document dealt in large part with the applicant’s conflict with his employer and recounted the various stages of that conflict.

10 The applicant argues that the Board was strict with him, given the admissible evidence. The Board would not have imposed any restrictions with respect to the admissibility of the respondents’ evidence. From the respondents’ point of view, the Board would have acted in a discriminatory manner had it done so. To support his argument, the applicant cites several excerpts from the decision.

11 According to the respondents, the request for revision is, on its face, inadmissible and without merit. Board decisions are final and not subject to review except in cases where there was a serious error in the original decision or a breach of the rules of natural justice or where new evidence has since emerged.

12 With respect to paragraph 44 of Laferrière v. Hogan and Baillargé, the respondents argue that it is a well-founded conclusion that is relevant to the matter that the Board had to decide.

Reasons

13 First, I must consider the applicant’s recusal request. The applicant submitted no arguments whatsoever for the request. The only ground he relies on relates to the fact that I previously rendered a decision that allegedly may be prejudicial to him. That is not evidence of bias. The applicant clearly does not meet the criteria applied by the Board and inspired by the judgment in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369.

14 A mere allegation of bias is not enough. The apprehension of bias must be reasonable. The question to be asked is whether an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that there was bias.

15 This request for review was brought under section 43 of the Act, which reads as follows:

      43. (1) Subject to subsection (2), the Board may review, rescind or amend any of its orders or decisions, or may re-hear any application before making an order in respect of the application.

      (2) A right that is acquired by virtue of an order or a decision that is reviewed, rescinded or amended by the Board may not be altered or extinguished with effect from a day that is earlier than the day on which the review, rescission or amendment is made.

16 Section 43 is not in itself an appeal procedure allowing an unsuccessful party to re-argue his or her position. In another request for review, Czmola v. Treasury Board (Solicitor General - Correctional Service of Canada), 2003 PSSRB 93, the Board wrote the following, at paragraph 11:

[11] … The seminal decision on the issue is Public Service Alliance of Canada v. Treasury Board (Board file no. 125-2-41). In this decision, the Board interpreted the scope of section 27 (formerly section 25) and decided that the purpose of section 27 was not to enable an unsuccessful party to reargue the merits of its case. Rather, the purpose was to enable the Board to reconsider a decision either in light of changed circumstances or so as to permit a party to present new evidence or arguments that could not reasonably have been presented at the original hearing or where some other compelling reason for review exists: see C.A.T.T. and Treasury Board and Federal Government Dockyard Trades and Labour Council East, Board file no. 125-2-51. The Board held that it would be not only inconsistent with the need for some finality to proceedings, but also unfair and burdensome to a successful party to allow the unsuccessful one to try to shore up or reformulate arguments that had already been considered and disposed of. The power to reconsider a decision must be used judiciously, infrequently and carefully.

17 That excerpt from Czmola accurately summarizes the approach adopted by the Board in decisions relating to section 43 of the Act (section 27 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35). The two versions of that section are virtually identical; there is no substantial difference between them.

18 The applicant did not introduce any new fact, circumstance or evidence. In the request for review, he submits that paragraph 44 of Laferrière v. Hogan and Baillargé is prejudicial to him. That is not grounds for review. What is more, paragraph 44 sets out and analyzes the evidence submitted by the parties at the hearing.

19 In his May 20, 2008 letter, the applicant argues that the Board should have accepted all the evidence that he submitted at the hearing, including the introductory document, and not just the evidence related to the complaint. On that point, the Board did not have to admit evidence that was related to anything other than the complaint itself. At the complaint hearing, the applicant could have introduced the documentation that he wanted to introduce, but items unrelated to the complaint were not admitted. In that respect, the applicant was not treated any differently from the respondents. The applicant’s argument therefore fails. The Board clearly did not discriminate against the applicant in acting as it did.

20 In summary, the applicant did not prove that there was a valid ground under section 43 of the Act for the Board to review its decision of April 24, 2008.

21 For all of the above reasons, the Board makes the following order:

Order

22 The recusal request is dismissed.

23 The request for review is dismissed.

July 4, 2008.

Renaud Paquet,
Board Member