FPSLREB Decisions

Reasons for Decision

Introduction

1The complainant, Yvan Poulin, requested an extension of time for filing his complaint.The respondent, the Deputy Minister of Justice, opposes an extension of the time limit and is requesting that the complaint be dismissed.

Background

2 On August 28, 2007, the Department of Justice advertised a position of General Counsel, group and level LA-3A (appointment process number: 2007-PPSC-MTL-A-100), in the Public Prosecution Service of Canada, Quebec Regional Office. On October 2, 2007, a second General Counsel position was advertised as part of the same appointment process. The complainant applied for both positions.

3 On February 4, 2008, a notification of appointment was posted on the Publiservice website announcing that Richard Roy and Pascale Ledoux had been appointed on an indeterminate basis as a result of the appointment process.The closing date for filing a complaint set out in the notification of appointment or proposed appointment was February 19, 2008.

4 On February 25, 2008, the complainant filed a complaint with the Public Service Staffing Tribunal (the Tribunal) under subsection 77(1) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13 (the PSEA). The complainant alleges that there was abuse of authority in this appointment process, which was tainted by personal favouritism and bad faith. The complainant believes that the appointments were illegally and improperly advertised, having been posted only one month before the notification of consideration was issued. In addition, the complainant has requested an extension of the time limit for filing his complaint.

5 On February 29, 2008, the respondent requested that the complaint be dismissed on the ground that it was made out of time.

Issue

Should the Tribunal grant an extension of the time limit for filing the complaint?

Arguments of the Parties

A) Respondent's arguments

6 The respondent is requesting that the complaint be dismissed because it was not filed within the time frame prescribed in section 10 of the Public Service Staffing Tribunal Regulations, SOR/2006-6 (PSST Regulations).

7 Under section 10, a complaint must be filed no later than 15 days after the date of the public notice of appointment.The respondent submits that the notification of appointment or proposed appointment was posted on the Publiservice website announcing that the period of 15 days for filing a complaint began on February 4, 2008 and ended on February 19, 2008.The complainant filed his complaint on February 25, 2008, namely six days after the time limit for filing a complaint.

8 In addition, Ms. Paquin, the human resources advisor, sent an email to the complainant on January 15, 2008 indicating that the notification of consideration was posted on the Publiservice website.Ms. Paquin also submits that notices such as the notification of appointment or proposed appointment would be posted on the Publiservice website:

Please note that the notices for the above-mentioned appointment process will be posted on the Publiservice site, so if you no longer have access to Publiservice, please let us know immediately.

[Translation]

9 The respondent also submits that, even though section 5 of the PSST Regulations allows for any time limit to be extended, the complainant has not demonstrated any exceptional circumstances beyond his control that could lead to the granting of an extension.The respondent also submits that the complainant was responsible for ensuring that he knew exactly what the time limits and procedures were for filing a complaint with the Tribunal.According to the respondent, the complainant could have checked the public notice posted on the Publiservice website.

10 Finally, the respondent asserts that it is not the Public Prosecution Service of Canada's practice to send additional emails to inform each candidate of all notifications.

B) Complainant's arguments

11 The complainant indicates in his complaint that a first notification of consideration was sent to him by email on January 15, 2008.This email says that candidates could make use of the informal discussion process and that a five-day waiting period "during which no appointment could be made or proposed" [Translation] was applicable.The informal discussion period ended on January 21, 2008.

12 On February 22, 2008, the complainant contacted Ms. Paquin, leaving a telephone message saying that he was leaving on holidays and asking whether the notification of appointment or proposed appointment would be sent out while he was out of the office. Ms. Paquin replied, leaving a telephone message for the complainant that the notification of appointment or proposed appointment had been posted on the Publiservice website on February 4, 2008. The complainant says that he did not receive the notice directly. He further asserts that the Department of Justice normally congratulates by email all public servants who have been recently promoted. According to the complainant, management did not issue such an email.

13 The complainant submits that he was informed by email at every stage of the appointment process and that nothing had led him to believe that the email notices would cease.According to the complainant, the email of January 15, 2008 did not specify that the notifications would be posted exclusively on the Publiservice website.

Analysis

Issue: Should the Tribunal grant an extension of the time limit for filing the complaint?

14 The notification of appointment or proposed appointment was posted on the Publiservice website. It was therefore a public notice. Section 10 of the PSST Regulations states that the complaint must be filed within 15 days after the date of the notice, if it is a public notice. The section reads as follows:

10. A complaint by a person may be made to the Tribunal

1. except where paragraph (b) applies, no later than 15 days after the day on which the person receives notice of the lay-off, revocation, appointment or proposed appointment to which the complaint relates; and
2. if the notice of the lay-off, revocation, appointment or proposed appointment to which the complaint relates is a public notice, no later than 15 days after the date of the notice.

15 Section 5 of the PSST Regulations gives the Tribunal the authority to extend any time limit. Section 5 reads as follows: "The Tribunal may, in the interest of fairness, extend any time specified in these Regulations."

16 The Tribunal has dealt with the late filing of a complaint in a number of decisions, including in Richard v. Deputy Minister of Public Works and Government Services Canada et al., [2007] PSST 0002, at paragraph 19:

[19] When it comes to filing a complaint, the time limit set out in section 10 of the Regulations is a strict limit, as indicated in MacDonald, supra, but the Tribunal may extend it. Nevertheless, this extension is not automatic, and the complainant must be able to show exceptional circumstances to justify the delay. (…)

17 The Tribunal has also addressed this issue in Casper v. Deputy Minister of Citizenship and Immigration Canada et al., [2006] PSST 0010, at paragraph 22:

[22] It is important for the parties to know that the time limits are respected and adhered to in order for the process to function properly. In the interest of fairness, the Tribunal may extend the strict time limits for filing a complaint. The complainant has the onus of providing reasons for the request for extension. Unless there are exceptional circumstances to extend the time limits, the Tribunal will not grant an extension.

18 The Tribunal refers the parties to the following decisions dealing with the same issue: Suàrez v. Deputy Minister of Human Resources and Social Development Canada et al., [2007] PSST 0008, at paragraph 28; Chaves v. Commissioner of the Correctional Service of Canada et al., [2007] PSST 0009; Larivière et al. v. Deputy Minister, Health Canada et al., [2007] PSST 0019, at paragraph 25.

19 The onus is on the complainant to provide reasons and exceptional circumstances to justify the delay and satisfy the Tribunal that it should exercise its discretion. The complainant asserts, essentially, that in the past he had been informed by email and that he had not been informed personally of the notification of appointment or proposed appointment.

20 However, the email sent to him on January 15, 2008 specified clearly that notifications for this appointment process would be posted on the Publiservice website.The respondent therefore directly informed the complainant that he would be notified of the appointment by means of a public notice, rather than by email.Furthermore, the fact that the email stated that he was to inform the respondent immediately if he no longer had access to Publiservice emphasized the importance of this notice.The Tribunal finds that the complainant could not just ignore this notice sent out by the respondent.

21 Moreover, the notice stated that, after a five-day waiting period ending on January 21, 2008, the appointments could be made in this appointment process.The respondent notified the complainant by email that he had to have access to Publiservice since the notifications would be posted in that manner and that they could be posted as early as January 21, 2008.A prudent and reasonable person would have understood that an appointment could be made at any time from that date onward.The complainant could confirm this by going to the Publiservice website.If there was any ambiguity, a prudent and reasonable person would have contacted Ms. Paquin, as indicated in the notice, for further information.

22 Furthermore, an informal discussion was held on January 30, 2008 with the respondent, and at no time did the respondent commit to notifying the complainant when the appointment would be made. The Tribunal finds that there was no ambiguity following the informal discussion and that it was clear that the notification of appointment would be posted on the Publiservice website.

23 The complainant is responsible for finding out what the time limit is for filing a complaint. The Tribunal has already pointed out in Casperthat the respondent has no obligation to send a notice directly to the complainant. It is therefore up to the complainant alone to consult the Publiservice website to see the public notice of the appointment or proposed appointment. The complainant must also ensure that his complaint is filed within the time frame indicated in the public notice. As mentioned above, section 10 of the PSST Regulations provides that a complaint by a person may be made to the Tribunal no later than 15 days after the date of the public notice. Consequently, the 15-day time limit began when the notification of appointment or proposed appointment was posted, namely on February 4, 2008.

Decision

24 For the above-stated reasons, the Tribunal denies the complainant's request to extend the time limit for filing the complaint. The complaint is dismissed.

Guy Giguère

Chairperson

Parties of Record

Tribunal File:

2008-0131

Style of Cause:

Yvan Poulin and the Deputy Minister of Justice et al.

Hearing:

Written request, decided without the appearance of the parties

Date of Reasons:

July 8, 2008