FPSLREB Decisions

I. Complaint before the Board

1  Sameh Boshra (“the complainant”) alleges that his bargaining agent, the Canadian Association of Professional Employees (“CAPE” or “the respondent”), committed an unfair labour practice.

2 The complainant works for Statistics Canada in Ottawa, Ontario. He engaged the respondent to represent him following an incident in his workplace on August 7, 2008.

3 The respondent filed a grievance on the complainant’s behalf on August 26, 2008 alleging a violation of the “no-discrimination” article of the collective agreement between the respondent and the Treasury Board for the Economics and Social Science Services (EC) Group that expired on June 21, 2007 (“the collective agreement”). It is the respondent’s carriage of that grievance that is the principal subject of this complaint.

4 The complainant filed the following statement of his complaint on February 5, 2009:

…

1. Continued insistence by CAPE representation (Aleisha Stevens, Allen Stead, Lionel Saurette) that I have no right to security/privacy at the workplace, despite my right as indicated in the Collective Agreement

2. CAPE representation (Aleisha Stevens, Allen Stead, Lionel Saurette) advising that I seek medical exemptions from work, despite not being ill, instead of addressing my workplace concern (Exhibits 1, 2)

3. CAPE representation (Aleisha Stevens, Lionel Saurette) advising that I take extended sick leave or seek work elsewhere instead of addressing my workplace concern with the employer (Exhibit 9-1)

4. Repeated refusal by CAPE representation (Aleisha Stevens) to pursue critical evidence before it was destroyed, despite repeated requests (Exhibits 3, 4)

5. Repeated refusal by CAPE representation (Aleisha Stevens) to address my concern for lack of time at key moments in the grievance process (Exhibits 6, 9)

6. CAPE representation (Aleisha Stevens) repeatedly arguing sexual harassment instead of the workplace security/privacy issues outlined in my initial letter to the employer and repeatedly since the outset of the grievance, despite representation’s (Aleisha Stevens, Allan Stead) own initial advice against it (Exhibit 1-2), private counsel’s advice against it and the fact that it was never grieved (Exhibits 8, 15)

7. CAPE representation (Aleisha Stevens) denying having provided poor counsel despite own correspondence to the contrary (Exhibit 5, 9)

…

[Numbering added]

5 The complainant seeks the following corrective action from the Public Service Labour Relations Board (“the Board”):

…

… that the employee organization compensate for external legal counsel, and where possible compensate me for harm done to the grievance as a result of misrepresentation and for personal loss

…

6 A complaint filed under paragraph 190(1)(g) of the Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2 (“the Act”), as is the case here, charges the respondent with violating a prohibition referenced in section 185, the latter reading 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).

While not stated explicitly in the complaint, its details reveal that the alleged violation involves section 187, commonly known as the “duty of fair representation” provision. Section 187 reads as follows:

187. No employee organization that is certified as the bargaining agent for a bargaining unit, and none of its officers and representatives, shall act in a manner that is arbitrary or discriminatory or that is in bad faith in the representation of any employee in the bargaining unit.

7 The complainant submitted a number of documents (identified in his statement as “Exhibits”) when he filed his complaint with the Registry of the Board on February 5, 2009. The Registry returned the documents to him explaining that, as possible evidence, he should instead present such documents during the hearing process. At the time that I became aware of the file as the Board Member hearing the case, the documents originally submitted no longer formed part of the record and were not available to me.

8 The respondent filed a reply to the complaint on March 6, 2009. In summary, it took the position that the Board should dismiss four of the complainant’s allegations (listed as numbers 2, 3, 4 and 6 in paragraph 4 of this decision) on the grounds that he did not file them within the mandatory 90-day time limit prescribed by subsection 190(2) of the Act. It argued further that the complaint does not disclose a prima facie case that the respondent breached its duty of fair representation, which are also grounds, in its view, for dismissing the complaint. In the alternative, the respondent submitted that it “… fully met and exceeded its duty to the Complainant at all times, providing excellent representation … in a professional and diligent manner.”

9 As part of its reply, the respondent requested that the Board proceed by way of written submissions rather than by holding an oral hearing. It submitted that the facts in the case were discrete and contained, decreasing the need for oral evidence. It also argued that a written hearing process would serve the interests of the Board and of the parties by saving them time and expense.

10 The complainant submitted a partial rebuttal to the respondent’s reply in a letter dated March 23, 2009. The complainant requested that the Board proceed with the “normal hearing process” and indicated that he looked forward to presenting his complaint “in its entirety.” He did not specifically address the respondent’s request to proceed by written submissions, although I interpreted his reference to the “normal hearing process” as contemplating an oral hearing.

11 The respondent declined the opportunity to rebut the complainant’s submission of March 23, 2009, stating that the complainant “… has not raised any new issues in his response.”

12 I reviewed the record and determined that I would proceed to decide the matter based on written submissions under the authority of section 41 of the Act. Section 41 reads as follows:

41. The Board may decide any matter before it without holding an oral hearing.

I based my ruling on my assessment that the initial submissions of the parties appeared to indicate that their dispute was more about the interpretation of the facts than about the facts themselves. Nonetheless, there remained in my mind the possibility that further submissions by the parties might change that assessment and that it was appropriate to hold open the possibility of an oral hearing in the event that I found myself faced with conflicting evidence or unable to rule based on written submissions alone.

13 The Registry of the Board informed the parties in a letter dated April 28, 2009 that I intended to rule on the complaint based on written submissions, subject to the caveat mentioned above. Because the complainant had expressed his expectation that he would have an opportunity to present his case more fully, and to ensure procedural fairness, I also directed the Registry to forward specific instructions to the parties to the following effect:

…

The Board Member invites the complainant to make any further written representations that he feels necessary to establish the grounds for his complaint, including any supporting documents that he wishes to bring to the attention of the Board. The respondent will have an opportunity to make further written submissions and the complainant will have a final opportunity to make rebuttal submissions to the Board.

…

The complainant accepted the invitation and submitted his further account of events on May 19, 2009. The respondent replied on June 9, 2009, and the complainant filed a rebuttal on June 16, 2009.

14 On May 19, 2009, the complainant requested permission from the Board to amend his original complaint by adding the following allegation:

…

CAPE Director of Labour Relations (Jean Ouellette) and CAPE representation (Aleisha Stevens, Allen Stead, Lionel Saurette) proceeding to schedule and hold grievance hearings in bad faith, against the interest and at the exclusion of the complainant, against the interest of the employer, and against the interest of CAPE Local 503.

…

15 The respondent submitted its position on the requested amendment on June 9, 2009. Arguing that the new allegation has no merit, the respondent submitted that the Board should exercise its discretion under section 36 of the Act to deny it as an amendment or, in the alternative, that the Board reject it as untimely.

16 The complainant filed a rebuttal on June 25, 2009 concerning the amendment.

17 In what follows, I have departed somewhat from the usual format for Board decisions. In lieu of presenting a consolidated summary of evidence and of arguments before giving reasons for my rulings, I have focused directly on the principal issues that I must decide and, as appropriate, referred to pertinent points and excerpts from the parties’ various submissions. The full texts of those submissions are available for review as part of the Board’s record.

II. Preliminary matters — the original complaint

18 As outlined above, the respondent has attacked the original complaint in two preliminary ways. First, it takes the position that four of the allegations are untimely. Second, and in the alternative, it argues that the complainant does not make out a prima facie case for a violation of section 187 of the Act.

A. Timeliness

19 Subsection 190(2) of the Act reads as follows:

190. (2) Subject to subsections (3) and (4), a complaint under subsection (1) must be made to the Board not later than 90 days after the date on which the complainant knew, or in the Board's opinion ought to have known, of the action or circumstances giving rise to the complaint.

The Board has consistently ruled that the Act gives it no authority to relax the deadline: see, for example, Castonguay v. Public Service Alliance of Canada, 2007 PSLRB 78, at para 55.

20 The issue of timeliness goes directly to the Board’s jurisdiction. The complaint was filed with the Board on February 5, 2009. It complies with the time limits under subsection 190(2) of the Act if the actions or circumstances complained of occurred within the previous 90 days; that is, during the period from November 7, 2008 through February 5, 2009. To the extent that some or all the actions complained of occurred outside the 90-day period, the Board’s jurisdiction is directly affected.

21 Some characteristics of the complaint — or perhaps how it has been presented — complicate applying the time limit stated in subsection 190(2) of the Act. The respondent has approached the issue of timeliness by examining the seven allegations listed by the complainant in section 4 of his original Form 16 (Complaint under Section 190 of the Act) as if each were an “… action or circumstance giving rise to the complaint.” If the facts related to an individual allegation show that the complainant knew, or ought to have known, about the action or circumstances complained of before November 7, 2008, then the respondent argues that the individual allegation must be found untimely. Within that analytical framework, it submits that allegations 2, 3, 4 and 6 in the original complaint (see paragraph 4 of this decision) are untimely and thus fall outside the jurisdiction of the Board.

22 The respondent’s approach is quite plausible given the manner in which the complainant stated his allegations in section 4 of Form 16. Nevertheless, considering each allegation individually may not be the only way to approach the issue of timeliness in this case or to understand the subject matter of the complaint. An alternate approach could posit that, for example, the seven allegations illustrate elements of a broader or underlying pattern in the representation provided by the respondent. It could be that a cumulative pattern of representation, rather than any individual allegation listed in section 4 of Form 16, comprises the essential subject matter of the complaint. At some point, the complainant could have come to realize that the pattern of the respondent’s actions or inaction, assessed cumulatively, revealed a violation of section 187 of the Act. If the complainant does challenge a cumulative pattern of representation, his complaint might be said to be timely if the evidence shows that he was in a position to realize that there was a pattern that violated section 187 only on a date that falls within the 90-day filing period, perhaps as the result of a precipitating event. In other words, the pattern of representation that offends the Act may have crystallized for the complainant only within the 90-day filing period, despite the fact that some component elements comprising the pattern occurred before that period.

23 What, then, is the essential nature of the complaint? To answer that question, I have found it helpful to examine how the complainant describes the actions or circumstances that gave rise to his complaint in his more detailed submissions. Based on those representations, is it reasonable to find (1) that he intended that each of the seven allegations listed in the original complaint constitute an “… action or circumstance giving rise to the complaint … ,” (2) that the essential character of the complaint instead involves a cumulative pattern of representation or (3) that he intended something else?

24 In his June 16, 2009 filing, the complainant states his understanding that “… the duty of fair representation is not simply a single act or mistake, but an overall failure to present [sic] the complainant in good faith without prejudice.” He also makes the following statement:

… subsection 190(2), does not indicate that a complainant is to submit a separate complaint for every instance of poor representation or questionable conduct by their representative, but that a complaint needs to be filed within 90 days of the action or circumstances giving rise to the complaint…

25 Taken in isolation, those two statements tend to suggest that the complainant intended to depict a cumulative pattern of actions on the part of the respondent as the unfair labour practice. However, the statements are not sufficient to determine the matter. Offered later in the written submissions process, after he learned the details of the respondent’s objection based on timeliness, they could possibly be viewed as an after-the-fact effort to justify the timing of his complaint.

26 I cannot find closely comparable statements in the complainant’s earlier submissions. I do find in the following passage from his March 23, 2009 filing the related assertion — also evident in the chronology of events that he offers in his May 19, 2009 submission — that his concern about the respondent’s actions was something that spanned an extended period and that involved a series of interactions with the respondent and between the respondent and the employer. According to the complainant, he held off filing a complaint, despite his concerns, while he tried to work out his differences with the respondent:

…

… The complaint submission details all of the issues that I believe constitute bad faith and/or arbitrary misrepresentation from the outset of the grievance process. This should provide ample evidence that repeated efforts were made over an extended period of time to address the issue with CAPE and to avoid submitting a complaint to the PSLRB. I believe that this is the spirit in which the PSLRB recommends that parties proceed in reconciling differences.

 …

27 On the one hand, the foregoing passage can be taken as suggesting that the complainant knew that there was something wrong that could be the basis for a complaint at a relatively early stage, perhaps even “… from the outset of the grievance process.” On the other hand, his underlying point that a potential complainant should try to work out his differences with the bargaining agent before referring a duty of fair representation dispute to the Board has obvious appeal from a labour relations perspective. It led to me to question whether subsection 190(2) of the Act requires that the complaint clock start ticking as soon as an event occurs that could be the subject of a complaint, or can it be interpreted, for the sake of effective labour relations, as allowing for a period of discussions between the parties aimed at avoiding a complaint?

28 Examining the complainant’s submissions further, a different and important element emerges. Despite his reference in the March 23, 2009 document to “an overall failure” to represent him in good faith, the complainant clearly identifies in the same document a single event as the trigger for his complaint. He makes the following statement:

… I submit … that the circumstances giving rise to the complaint was receipt of correspondence from Ms. Stevens dated November 11, 2008, wherein she misrepresents her repeated efforts to argue this case as one of sexual harassment…

…

The complainant makes essentially the same point in his submission of June 16, 2009 as follows:

… I have indicated and the written record can attest to the fact that the incident giving rise to the complaint was Ms. Steven [sic] e-mail of November 11, 2008, which I have already submitted was a complete mischaracterization of the discussion we had at our last meeting on October 14, 2008, as well as much of the representation she had provided up to that point. …

…

29 Both statements identify Aleisha Stevens’ email of November 11, 2008 as the triggering event for the complaint. Notably, those statements are consistent with what the complainant indicated in section 5 of his original Form 16 — that the date on which he knew of the act, omission or other matter giving rise to the complaint was November 11, 2008.

30 What exactly occurred on November 11, 2008? Inexplicably, the complainant did not provide the text of the November 11, 2008 email from Ms. Stevens with his submissions or describe it in full detail. It may be that the email was one of the “exhibits” that the complainant filed with his original complaint but that, as reported earlier, the Board returned to him as prematurely tendered. However, I ensured that the Registry later invited the complainant to submit “… any supporting documents that he wishe[d] to bring to the attention of the Board … ” The letter of April 28, 2009, which conveyed the invitation, stated that I would determine the complaint based on written submissions unless I subsequently found reason to change the process. In my view, the instructions were clear and specific, as follows:

…

Further to the submissions already received in the above-noted matter, the Board Member assigned to consider the complaint has determined that he will render a decision based on written submissions unless he finds that there are substantial evidentiary issues in dispute. In that event, the Board Member may order an oral hearing.

The Board Member invites the complainant to make any further written representations that he feels necessary to establish the grounds for his complaint, including any supporting documents that he wishes to bring to the attention of the Board…

…

Against that background, the complainant should have known that he needed to provide the evidence on which his case relied. Not submitting the November 11, 2008 email or describing its contents in full detail when, by his own accounts, his receipt of that email comprises the pivotal event that led him to file a duty of fair representation complaint, redounds to his disadvantage.

31 The references that do exist to the November 11, 2008 email in the record before me are nonetheless sufficient to identify its subject matter. As indicated in the excerpt from his March 23, 2009 document (quoted in paragraph 28 of this decision), the correspondence concerned Ms. Stevens’ “… repeated efforts to argue this case as one of sexual harassment… ” The complainant twice characterized her email on the subject as an “indignant denial” in his May 19, 2009 rebuttal. Accompanying the first of those two references is a statement that the email “… contradicts assertions made in points 53-56 of the [respondent’s] March 6, 2009 response.” Those paragraphs read as follows:

53. At the first and second level grievance hearings into the discrimination grievance on September 9, 2008 and October 14, 2008, Ms. Stevens briefly raised with the Employer the possibility that article 17 (“No Sexual Harassment”) of the Collective Agreement had been violated as a result of the incident on August 7, 2008. This was raised as an alternative argument only.

54. In emails exchanged between the Complainant and Ms. Stevens on September 29 and 30, 2008 regarding possible amendments to the grievance, the possibility of grieving a violation of article 17 was again discussed.

55. However, as noted above, the grievance was not amended. Therefore, no reference to sexual harassment was ever included in the grievance.

56. The Respondent believes that it is these facts which form the basis of the Complainant’s allegation that CAPE representation repeatedly argued “sexual harassment” (Allegation #6).

32 Given the record, I believe that I am entitled to hold the complainant to his explicit and repeated identification of Ms. Stevens’ email of November 11, 2008 as the triggering event for the complaint. Receipt of that email, in the complainant’s clear words, was “… the incident giving rise to the complaint.” Reviewing all the complainant’s submissions, that incident is the only event clearly associated with the date specified in section 5 of Form 16 (November 11, 2008) — the date on which he knew of the act, omission or other matter giving rise to his complaint.

33 Holding the complainant to the precision of his words, it does not follow that the allegations listed in section 4 of Form 16 each comprise an action or circumstance giving rise to the complaint. While the matters raised in those allegations may form part of a pattern of representation to which the complainant objects, his specific identification of the email incident on November 11, 2008 as the triggering event must circumscribe the Board’s appreciation of the essential subject matter of the complaint. To answer the question that I posed earlier (in paragraph 23 of this decision), I find that the complainant intended the essential subject of the complaint to be “something else” — the subject matter of the November 11, 2008 email.

34 What is that subject matter? Despite the absence of the text of the November 11, 2008 email, I believe that the evidence surveyed so far is sufficient to find that Ms. Stevens’ “… repeated efforts to argue this case as one of sexual harassment … ,” and not on other grounds such as security or privacy, is the subject of the email and thus the essential subject of the complaint. Identifying the subject of the complaint in that manner is consistent with the sixth allegation originally listed in section 4 of Form 16, as follows:

6. CAPE representation (Aleisha Stevens) repeatedly arguing sexual harassment instead of the workplace security/privacy issues outlined in my initial letter to the employer and repeatedly since the outset of the grievance, despite representation’s (Aleisha Stevens, Allan Stead) own initial advice against it (Exhibit 1-2), private counsel’s advice against it and the fact that it was never grieved …

35 With respect to the essential subject matter of the complaint, was the complaint submitted in a timely fashion? The respondent takes the position that it raised the issue of sexual harassment in its representations well before November 7, 2008. The respondent states as follows:

…

This alternative sexual harassment argument was briefly raised at the first and second level grievance hearings into the discrimination grievance on September 9, 2008 and October 14, 2008. As well, it was considered but ultimately rejected as a possible amendment to the grievance in emails between the Complainant and Ms. Stevens on September 29 and 30, 2008.

…

In the result, the respondent maintains that the complainant knew, or ought to have known, about the circumstances that gave rise to his allegation about the sexual harassment argument earlier than November 7, 2008 and that he thus failed to file his complaint in a timely manner.

36 I find ample indication in the complainant’s own submissions that he was, in fact, aware of the respondent’s use of the sexual harassment argument before November 7, 2008. Consider, for example, his account (May 19, 2009 submission) of the first-level grievance meeting that took place on September 9, 2008, as follows:

…

… Handwritten notes by Ms. Grundy and Ms. Mihorean on that day indicate several times Aleisha’s [Stevens]efforts to argue sexual harassment. One note from Ms. Grundy reads “Aleisha indicates this is sexual harassment” (S Grundy, September 9, 2008 meeting notes). As I was at the meeting, I can recall Ms. Grundy’s exact reaction when it was mentioned: she rolled her eyes, tilted her head back as she backed into her chair, exclaiming “Oh, please!” In addition to it explicitly being indicated by Mr. Stead at my initial meeting with CAPE representatives that this was not a case of sexual harassment, it was not a sound argument. Ms. Stevens decided to make it anyhow, effectively diminishing credibility from the first meeting.

…

37 In his submission of June 16, 2009, the complainant refers to “… advice I had received from the Respondent indicating that adding harassment was the only means of addressing the security/privacy issue, advice which I later discovered, and was advised by counsel was incorrect… ” In an earlier submission (May 19, 2009), the complainant reports that he met with counsel at Sevigny Westdal on September 30, 2008. He describes the meeting, in part, as follows:

…

… I called the offices of Sevigny Westdal for an urgent appointment On [sic] September 30, 2008. I saw a lawyer that afternoon and wrote Ms. Steven [sic] back with the advice received (September 30, 2008 7:37 PM). Among other things, that the privacy and security concerns were valid, that there were several ways of pursuing them, including Charter Section 7, and that sexual harassment should not be argued…

…

Later, he writes as follows:

…

… Ms Steven [sic] used the same stunt twice to refuse to amend the agreement without the sexual harassment article inclusion. On September 30, 2008 she was “not available to continue this dialogue until after the deadline for transmittal”, promising to “further and fully investigate your interest in having Charter issues argued or raised” (Ms. Stevens September 30, 2008, 1:10 PM). This never happened…

…

38 Those excerpts and other similar passages in the complainant’s submissions depict a conflict over the use of the sexual harassment argument that was already well formed by the end of September 2008, if not earlier. The situation was sufficiently serious by that time that the complainant judged that he needed to consult external counsel on an urgent basis. As a result of that consultation, the evidence indicates that he felt reconfirmed in his conviction that the sexual harassment argument was not appropriate — that it was, in fact, “incorrect” — and that the issues that he felt should be pursued — pre-eminently privacy and security— were wrongly absent from the respondent’s approach to representing his interests. If he had an expectation that reporting the results of his consultation with external counsel to Ms. Stevens on September 30, 2008 would change the respondent’s approach, that expectation was shown to be unfounded by what happened at the second-level hearing for his grievance on October 14, 2008. Of that meeting, the complainant states as follows:

…

Ms. Stevens made it an exercise in bad faith, only apparent representation, when she proceeded to once again argue sexual harassment … at this point an absurdity, [and] did not mention security or privacy …

…

39 With that context in mind, is it reasonable to accept the complainant’s position that his complaint — essentially about the respondent’s use of the sexual harassment argument instead of other grounds — is timely because Ms. Stevens’ email of November 11, 2008 was the triggering event? Is it possible to discount the events that occurred earlier, outside the 90-day filing period, as evidence that he knew, or ought to have known, before that date “… the action or circumstances giving rise to the complaint?”

40 Once again, the lack of details about the November 11, 2008 email and about the complainant’s interaction with the respondent on and around that date is regrettable. In my view, the complainant’s failure to provide details to make clear what happened on November 11, 2008 undermines his case. I can only assume that the complainant acted on the mistaken belief that there would be an oral hearing at which time he could introduce further evidence, despite being clearly informed of my intent to decide the matter based on written submissions. If the instructions he had received to that effect were vague or imprecise, I might have excused his failure to offer key evidence as the unfortunate oversight of a presumably inexperienced, self-represented party. However, as stated above, that was not the case.

41 On the balance of the evidence in the submissions before me, I cannot accept that the grounds for a complaint remained unclear or uncertain until the incident on November 11, 2008. I am satisfied that the complainant did know, or ought to have known, that he and the respondent were seriously at odds about the latter’s use of the sexual harassment argument in actual representations to the employer — indeed, at odds about the grounds for arguing his case more generally — considerably before that date. When the complainant urgently consulted with external counsel on September 30, 2008 and verified his objections to the grounds on which the respondent was pursuing his grievance, he “… knew, or … ought to have known, of the action or circumstances giving rise to the complaint.” When, despite his communications with Ms. Stevens following his meeting with counsel, Ms. Stevens again invoked the sexual harassment argument and failed, in the complainant’s opinion, to raise security or privacy issues at the second-level hearing on October 14, 2008, the complainant “… knew, or … ought to have known, of the action or circumstances giving rise to the complaint.”

42 Given the finding that the complainant knew of the circumstances of his dispute with the respondent about the grounds for arguing his case by the end of September 2008, if not as early as the first-level grievance hearing on September 9, 2008, and certainly as of the second-level hearing of October 14, 2008, must the Board then rule that his complaint is untimely? In my view, the issue that remains is whether the complainant’s alleged efforts after September 9, 2008 (or September 30 or October 14, 2008) to continue to work with the respondent despite their disagreement, rather than to proceed immediately to file a complaint, can be taken into account in applying the 90-day time limit.

43 On that issue, the respondent argues as follows:

…

… the date when the complainant knew or ought to have known of the circumstances giving rise to his complaint is measured from the date when the union first informed the complainant of its position on the alleged violations. Further communication with the union, aimed at getting it to change its position, does not extend the date from which the 90 day period starts running… .

…

The respondent cites Cuming v. Butcher et al., 2008 PSLRB 76, in support of its position.

44 I have read Cuming closely. The passage most germane to the respondent’s argument is found at paragraph 40, as follows:

40 With respect to the alleged violation of the duty of fair representation, the complainant was informed in May 2005 of the PSAC’s position regarding the early termination of his term in 2003 and his rehiring two years later to a lower-level position. Even if he had further communications with PSAC representatives in an attempt to have them change their position, the PSAC’S position about the possibility of taking any recourse with respect to the complainant’s layoff in 2003 and his rehiring in 2005 was clearly communicated to him in the spring of 2005.

45 The facts in Cuming are significantly different from those in the case before me and, in my view, could provide a basis to distinguish the decision. Nevertheless, reflecting once more on the language of the statute, I must agree with the principle underlying the Vice-Chairperson’s application of the time limit in Cuming. Subsection 190(2) of the Act does not permit a different approach. Once a bargaining agent has clearly communicated a position in representing a member that the latter considers to be evidence of representation that violates section 187, subsection 190(2) does not allow for a delay in starting the 90-day filing period, however good the reason for a delay. Once again, the language of the statute is mandatory. It is different from what applies to certain other types of actions under the Act.

46 In the cases of grievances under section 208, for example, the Act is silent about the time limit for filing. Collective agreements commonly contain provisions for suspending the filing time limit for grievances — whether as specified in the Public Service Labour Relations Board Regulations, SOR/2005-79, or by the collective agreement itself — where the parties are trying to resolve their differences informally or where they agree to an extension. No similar provisions exist in collective agreements about the complaint procedure under section 190, no doubt because subsection 190(2) exists and states a mandatory requirement that cannot be renegotiated by the parties — or modified by the Board.

47 I must then conclude that the Board does not have the option of taking the complainant’s efforts to continue to work with the respondent on his case into consideration. Subsection 190(2) of the Act requires timely filing even where efforts continue to resolve a problem amicably. When those efforts later succeed, a complainant can withdraw his or her complaint.

48 Having determined that the complainant did know, or ought to have known, before the 90-day filing period about the circumstances that gave rise to his complaint — that he and the respondent were at odds about the latter’s use of the sexual harassment argument in representations to the employer, and about other grounds for arguing the grievance, earlier than November 7, 2008 — I rule that the complaint is untimely regarding its essential subject matter. That ruling comprises a sufficient basis to dismiss the complaint.

B. No prima facie case

49 My ruling on timeliness makes it unnecessary to consider the respondent’s second preliminary objection that the complainant does not make a prima facie case for a violation of section 187 of the Act. In any event, I respectfully disagree with the respondent that there is, or was, reason to dismiss the complaint by applying a prima facie test.

50 The respondent cites my decision in Exeter v. Canadian Association of Professional Employees, 2009 PSLRB 14, as supporting its argument that the Board should dismiss the current complaint for its failure to establish a prima facie foundation for its component allegations. The respondent refers to the following paragraphs from Exeter:

…

13   The Board disagrees with the complainant’s position that there is no requirement that she particularize the basis for her complaint under the various paragraphs of subsection 190(1) of the Act cited by her or that it would be unfair that she be required to do so. Any complainant bears a responsibility to outline the details of his or her complaint to the extent necessary to establish how the alleged act or omission breaches a specific prohibition under the Act on a prima facie basis. Should the complainant fail to do so, the Board may dismiss the complaint or may strike from it references to cited provisions of the Act for which it finds no prima facie foundation.

14  In this instance, the complainant has the onus to establish on a prima facie basis how the allegations she makes relate to each of paragraphs 190(1)(a) through (g) of the Act as cited on Form 16. The threshold requirement is not high. A prima facie basis exists for the allegation where the purported facts — assumed for this preliminary purpose to be true — reveal an arguable case that there has been a breach of the statute. Through her original complaint, or through her subsequent submissions in reply to the employer’s request for clarification, the complainant needed to establish to the Board’s satisfaction that there is an arguable case that the respondent breached each of paragraphs 190(1)(a) through (g).

…

51 In Exeter, the reason for applying the prima facie test was that the details offered in Form 16 by the complainant left it entirely unclear how her complaint involved each of paragraphs (a) through (g) of subsection 190(1) of the Act. I found in Exeter that it was not possible to discern from the statement of reasons any arguable case as to how the complaint involved sections of the Act other than section 187. As a result, I ruled that there was no prima facie case for a complaint under paragraphs 190(1)(a) through (e). I did find a basis for proceeding to consider the complaint as suggesting a possible violation of the duty of fair representation under section 187, the subject of a complaint under paragraph 190(1)(g).

52 To be sure, the statement of “Reasons” accompanying Form 16 in Exeter was more detailed than the content of the original complaint now before me. Although it is concise (as Form 16 requests), the current complainant’s statement of allegations in section 4 of Form 16 was still sufficient, in my view, to establish on a prima facie basis that the allegations relate to paragraph 190(1)(g) of the Act. To the extent that it is appropriate to subject the original complaint to a prima facie test, the test is only whether there is, or could be, an arguable case for a breach of the Act,assuming the truth of the allegations made in the complaint. The original complaint need not prove the merits of the case. When I asked for further written submissions from the parties, the issue, for me, was no longer whether the complainant had made out a prima facie case. The analysis had moved forward to examining whether the complainant could demonstrate a violation of section 187, holding him to the civil standard of proving the merits of his case on a “balance of probabilities.” The reason for the submissions was to allow me to evaluate the evidence and arguments on the merits.

III. Comments on the merits

53 I have dismissed the complaint as untimely regarding its essential subject matter. Technically, this analysis need not go further. However, in the circumstances, I believe that is appropriate to offer some brief comments on the merits because I believe that the alleged facts would not support a finding that section 187 of the Act was breached.

54 The wording of section 187 of the Act defines the nature of the respondent’s duty to fairly represent the complainant. It does so in the negative. A bargaining agent must not undertake representation “… in a manner that is arbitrary or discriminatory or that is in bad faith … ”

55 A substantial body of decisions of this Board and of the former Public Service Staff Relations Board (“the former Board”) applying an analogous provision of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35, have discussed the meaning and scope of the “fair representation” test. Not infrequently, Board Members have referred to the seminal guidance given by the Supreme Court of Canada in Canadian Merchant Service Guild v. Gagnon, [1984] 1 S.C.R. 509. In that decision, the Supreme Court explained the principles underlying the duty of fair representation at 527 as follows:

…

1. The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit.

2. When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion.

3. This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the other.

4. The union's decision must not be arbitrary, capricious, discriminatory or wrongful.

5. The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.

…

56 In Bahniuk v. Public Service Alliance of Canada, 2007 PSLRB 13, at para 51, the Board referred to a decision of the British Columbia Labour Relations Board as adding useful concepts for applying the concept of fair representation, as follows:

[51] The decision of James W.D. Judd v. Communications, Energy and Paperworkers Union of Canada, Local 2000 (2003), 91 CLRBR (2d) 33 (BCLRB), citing an earlier decision, Rayonier Canada (B.C.) Ltd., [1975] 2 Can LRBR 196 (BCLRB), is also instructive. The actions of a union must not be in bad faith in the sense of personal hostility, political revenge or dishonesty. There can be no discrimination, including unequal treatment of employees, whether on account of such factors as race and sex (which are prohibited grounds under the Canadian Human Rights Act) or simple personal favouritism. And a union cannot act arbitrarily by disregarding the interests of one of the employees in a perfunctory manner. Rather, a union "… must take a reasonable view of the problem before it and arrive at a thoughtful judgment about what to do after considering the various relevant and conflicting considerations." (Rayonier, at page 201-202).

57 The decision in Bahniuk also provided the following comments on the degree of latitude that should be given to a bargaining agent to decide whether, and how, to pursue a grievance and the resources to assign to it:

…

[69] … the duty of fair representation does not require the bargaining agent to take the direction of individual members when deciding what grievances to pursue, when to negotiate extensions of time and what grievances to settle. Finally, an individual member of a bargaining agent has the right to representation, but that is not an absolute or unlimited right. It does not mean, for example, that the member can insist that the bargaining agent provide a representative whenever he wants one. As long as the bargaining agent is not arbitrary or discriminatory or acting in bad faith when it exercises its judgment in these matters, it is entitled to distribute the limited resources of the organization in a reasoned fashion.

…

58 Along related lines, the Board rejected a complaint in Cloutier and Rioux v. Turmel, President of the Public Service Alliance of Canada, and the Public Service Alliance of Canada, 2003 PSSRB 12, that alleged in part that the respondents failed in their duty of fair representation by not meeting with the complainants in a timely fashion or for sufficient amounts of time. The Board noted as follows at paragraph 18:

[18] The complainants would like to dictate to their bargaining agent the timing of the meeting between them and their bargaining agent in preparation for the hearing into their complaint and the amount of time to be spent on the meeting. I deem that it is up to their union to decide when and how long to work on their file. I understand that the complainants would like to have as much attention as possible paid to their case. However, it is up to the bargaining agent to decide on the process (people, time and money) for representing them… .

[Emphasis in the original]

59 In Cox v. Vezina, 2007 PSLRB 100, the Board offered the following comments to make clear that it does not normally assess whether a bargaining agent’s representational decisions are necessarily correct when it considers a duty of fair representation complaint:

…

[110]   I wish to underline, as in Ford, that the Board does not normally inquire into whether a decision made by a bargaining agent in representing an employee was correct. It examines the process by which the bargaining agent made its decisions, as well as its conduct along the way to those decisions, according the bargaining agent considerable latitude throughout. As emphasized in Archambault, the results or outcomes of the bargaining agent's actions weigh heavily in the Board's inquiry. In essence, the Board asks whether the bargaining agent's actions harmed or prejudiced the employee.

…

(Ford v. Public Service Alliance of Canada, PSSRB File No. 161-02-775 (19951218), and Archambault v. Public Service Alliance of Canada, 2003 PSSRB 56.)

60 In the very recent decision in Martel et al. v. Public Service Alliance of Canada, 2009 PSLRB 16, the Board decided against the complainants, finding in part that a disagreement over the case law applicable to the merits of their case did not found a violation of the duty of fair representation. Similarly, in Cyr v. Public Service Alliance of Canada, 2006 PSLRB 57, the Board found that the respondent did not act arbitrarily, in bad faith or in a discriminatory manner when, based on its analysis of the circumstances of a case, it chose to exclude from its representations arguments that the complainant felt should have been pursued.

61 Applying the principles established in the foregoing cases and in other Board decisions, it would be difficult, in my view, to find in the complainant’s submissions evidence of arbitrary conduct, discriminatory treatment or bad faith decision making on the part of the respondent that would be sufficient to prove a violation of section 187 of the Act, on the balance of probabilities. There is much in the complainant’s submissions that quite obviously suggests a pronounced disagreement between him and the respondent as to the grounds on which his case should have been argued and perhaps the specific representations that should have been made at different points in the grievance process. However, disagreement does not substantiate a complaint. To be sure, it could be the case that the respondent made “incorrect” decisions as to the grounds on which the complainant’s grievances should have been argued and perhaps even debatable choices concerning strategies and tactics along the way. However, being “incorrect” or making debatable decisions about what to do during the grievance process is not in itself proof of arbitrary, discriminatory or bad-faith conduct.

IV. Request to amend the complaint

62 In his request of May 19, 2009, the complainant seeks to amend the complaint to include the allegation that CAPE representatives proceeded to schedule and hold grievance hearings “… in bad faith, against the interest and at the exclusion of the complainant, against the interest of the employer, and against the interest of CAPE Local 503.”

63 In a proceeding under section 187 of the Act, the Board is not concerned with examining whether an act by the bargaining agent does disservice to the interests of other parties, only to the employee to whom the duty of fair representation is owed. Therefore, the germane section of the complainant’s additional allegation is that the respondent proceeded to schedule and hold hearings “… in bad faith, against the interest and at the exclusion of the complainant.” The references to the interests of the employer and of CAPE Local 503 need not be considered.

64 The respondent asserts that the Board has the authority, under section 36 of the Act, to accept or deny any proposed amendment of a complaint that is presented to it. Section 36 reads as follows:

36. The Board administers this Act and it may exercise the powers and perform the functions that are conferred or imposed on it by this Act, or as are incidental to the attainment of the objects of this Act, including the making of orders requiring compliance with this Act, regulations made under it or decisions made in respect of a matter coming before the Board.

65 The respondent argues that the Board should exercise its discretion and deny the complainant’s request to amend because the new allegation further complicates the complaint and may result in a delay in dealing with the original complaint. The respondent further argues that the amendment adds new elements to the dispute. It also takes the position that the amendment is untimely.

66 The respondent cites the decision of the former Board in Rioux and Cloutier v. Leclair, 2003 PSSRB 75, particularly the analysis that appears in the following passage:

…

[13]    … the incidents described in the additional requests occurred after the present complaints were made, and would add new elements to the dispute in the two complaints now being heard. In these circumstances, I consider that the Board would exceed its jurisdiction in allowing the complainants' request simply to include in the present complaints additional allegations about incidents occurring after the present complaints were made. These allegations must be the subject of new complaints.

…

67 The complainant’s rebuttal of June 25, 2009 opens by “thanking” the Board for “… accepting the amendment and proceeding to determination [sic] of the amendment on its merits.” The complainant’s “thanks” are obviously misplaced. The Board has not yet accepted the amendment and requires this analysis to determine its status and future.

68 Perhaps because of his mistaken belief that the Board has already accepted his amendment, the complainant does not address the respondent’s objection to its timeliness in his rebuttal. He also does not debate the respondent’s position, supported by Rioux and Cloutier, that the amendment adds new elements to the dispute that lie outside the jurisdiction of this Board.

69 The complainant’s submissions on the requested amendment reprise some of the concerns that he outlined in support of his original complaint. However, the amendment introduces an element not previously canvassed by the complainant based on the scheduling and hearing of grievances during a period after the February 5, 2009 filing of his original complaint.

70 In Rioux and Cloutier, the Board member asked whether “additional allegations” submitted by the complainants in that case about incidents that occurred after the original complaints were filed altered the nature of the original complaints. Finding in the affirmative, he ordered that the Board should treat the new allegations as the subject matter of a separate, new complaint.

71 I have ruled that the essential nature of the original complaint is the allegation that the respondent violated section 187 of the Act by arguing the complainant’s grievance as a matter involving the “no discrimination” article of the collective agreement and sexual harassment rather than on the grounds of privacy and security preferred by the complainant. In my view, the amendment proposed by the complainant does not expand, clarify or correct the original complaint with respect to its essential subject matter — or, for that matter, regarding any of the original allegations listed in section 4 of Form 16. Instead, it adds a new dimension to the complaint that is even more distinct given that it refers to clearly posterior events. As such, I rule that the allegation alters the nature of the original complaint rather than amends it.

72 Following the precedent established in Rioux and Cloutier, the consequence of my ruling is that the requested amendment should properly be treated as a new complaint, not an amendment. As in Rioux and Cloutier, the order accompanying these reasons will ask the Registry of the Board to treat the "amendment" submitted on May 19, 2009, as a new complaint under paragraph 190(1)(g) of the Act. The Registry will need to open a new complaint file in the complainant’s name containing the "amendment” as the allegation of a violation of section 187 and the submissions received to date concerning that allegation.

73 I wish to emphasize that the new complaint file will be limited to the specific allegation that CAPE representatives proceeded to schedule and hold grievance hearings “… in bad faith, against the interest and at the exclusion of the complainant.” Given my ruling in this decision, the allegations that formed the original complaint — including the complainant’s disagreement with the respondent over the grounds for arguing his case regarding the incident of August 7, 2008 — are not included.

74 My reading of the parties’ submissions suggests to me that there are substantial conflicts over the facts about grievance hearings held in February 2009 as well as over the interpretation to be given to those facts. The issue of the timeliness of the complainant’s amendment treated as a separate complaint is also to be determined. The Board Member assigned to hear the complaint will need to decide whether the natures of the issues and of the evidence require that an oral hearing be held or that they necessitate further written submissions.

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

V. Order

76 The complaint filed on February 5, 2009 is dismissed as untimely with respect to its essential subject matter.

77 I direct the Registry of the Board to open a new complaint file in the complainant’s name treating the "amendment” requested by him on May 19, 2009 as a separate allegation of a violation of section 187 of the Act and containing the submissions received to date concerning that allegation. For purposes of determining any objection concerning the timeliness of the complaint, it will be considered to have been filed on May 19, 2009.

August 18, 2009.

Dan Butler,
Board Member