FPSLREB Decisions

I. Complaint before the Board

1 On October 31, 2006, the complainant made a complaint to the Public Service Labour Relations Board (“the Board” or PSLRB) under section 133 of the Canada Labour Code (CLC) based on harassment, abuse of authority and threats of retaliation by the employer, in contravention of section 147 of the CLC.

2 Gilles Sainte-Marie (“the complainant”) worked for the Canada Customs and Revenue Agency (“the employer”) from 1984 until September 11, 1998, the date on which the employer dismissed him for refusing to report for work.

3 The complainant objected to his dismissal by filing a grievance on September 25, 1998. The grievance was referred to adjudication in July 1999. A decision was rendered by Adjudicator J.P. Tessier on March 21, 2006 (Sainte-Marie v. Canada Customs and Revenue Agency, 2006 PSLRB 30). The adjudicator dismissed the grievance and upheld the dismissal.

4 The Board appointed a member to decide the complaint made under section 133 of the CLC.

5 On November 23, 2006, the employer made two objections to the complaint.

6 The Board then asked the parties for written submissions on the employer’s two objections.

7 The employer’s two objections relate to the following:

1. the Board’s jurisdiction in light of Adjudicator Tessier’s decision of March 2006 (res judicata); and
2. the delay of several years between the events giving rise to the complaint (September 1998) and the filing of the complaint under section 133 of the CLC in October 2006.

8 Finally, after requesting a postponement several times, the complainant filed his written submissions with the Board on June 2, July 4 and 11, and October 26, 2008.

9 The employer filed its submissions on June 11, 2008.

10 Despite the deadline of July 11, 2008 for filing written submissions, on August 28, 2008, the complainant asked to submit further documents within an additional time of two weeks. That request was denied. Finally, after the Board requested particulars on October 15, 2008 concerning the complaint under section 133 of the CLC, the complainant replied on October 26, 2008.

11 This decision concerns the employer’s preliminary objections.

II. Background

12 A brief summary of the background to the complaint will assist in understanding this case. I will therefore briefly look at the facts associated with three aspects that should be clearly distinguished: the complainant’s history, the adjudicator’s decision and the process before the Commission de la santé et de la sécurité du travail (CSST) and the Commission des lésions professionnelles (CLP).

A. Complainant’s history

13 After the employer hired him, the complainant performed well professionally, and his performance was excellent until 1996. Starting in 1996, the employer tightened management rules; a new team of managers arrived at the collection service where the complainant worked. During that same period, the government ordered a 15 percent reduction in the budget for the entire federal government, including staffing. At the same time, the complainant accepted new union responsibilities that involved discussing his co-workers’ conflicts with management. He found a few of the cases highly exasperating.

14 In May 1997, the complainant left work, and his doctors noted that he was experiencing burnout. He was on sick leave for 16 months, from May 1997 to September 1998.

15 During that 16-month period, the employer required the complainant to have a medical assessment, since his medical certificate indicated a possible return to work on January 5, 1998. The employer’s medical specialist concluded that the complainant had no health problems that would prevent him from returning to work. According to that specialist, the complainant had labour relations problems that required an administrative solution, and the date set for his return to work was March 11, 1998. Following discussions and exchanges of medical certificates between the complainant’s doctor and the employer’s doctor, the complainant’s return to work was set for March 23, 1998.

16 In his second assessment, the employer’s specialist stood by his initial finding. The employer told the complainant that he had to return to work on July 6, 1998 and that the work schedule and a remedial plan would be discussed.

17 The complainant wrote that he could not return to work before September 1998. He repeated that his disability was the result of the undue pressure imposed by his superiors, especially Patrick Allard. He also challenged the validity of the employer’s second medical assessment and argued that, at the time of that assessment, the employer’s specialist had not had all the facts in his possession to make an assessment.

18 In view of these facts, the employer agreed to a third assessment by the same specialist. Following a discussion, the date was postponed from July 30, 1998 until the end of August 1998, and the third medical assessment confirmed the specialist’s previous diagnosis.

19 After the third medical assessment on August 24, 1998, the employer wrote to the complainant, informing him that he had to return to work on August 27, 1998, but the complainant did not report for work on that date.

20 The complainant wrote a letter to the employer’s assistant deputy minister deploring the collection service’s poor management and challenging the medical assessment made by the employer’s specialist and suggesting a return to work in another sector, a medical assessment by a different doctor, the continuation of his wage insurance benefits and other conditions.

21 In the end, the employer required the complainant to return to work on September 10, 1998. On September 11, the complainant replied that he could not go back to work at the same place because of the work environment. That same day, the employer dismissed him for refusing to report for work. On September 25, 1998, the complainant filed a grievance that was referred to adjudication in July 1999.

22 Finally, before concluding this history, I note that Dr. Ouellette (the complainant’s specialist) suggested to his patient in March 1998 that he return to work part-time. The complainant asked if he could wait until May, after the departure of Mr. Allard, the manager with whom he had had problems. The managers who had been working in the collection service when the complainant went on sick leave in May 1997, including Mr. Allard, were no longer in that service after May 1998.

B. Brief summary of the reasons for decision in 2006 PSLRB 30

23 The adjudication hearing was held from May 25 to 28, 2004, from October 20 to 22, 2004 and on March 1 and 2, 2005 and was followed by the filing of documents on June 1, 2005. The decision was rendered on March 21, 2006.

24 The long delay in scheduling the hearing resulted from the fact that the complainant had filed another complaint with the CSST of Quebec alleging that he had been harassed at work and that his illness was a consequence of the employer’s actions.

25 The complainant also presented a harassment grievance that was referred to adjudication (PSLRB File No. 166-34-31984). That grievance alleged that agents of the employer had acted improperly and that their actions amounted to discrimination, interference, restriction, coercion, harassment and abuse of authority because of the complainant’s union membership and activities. The complainant withdrew the grievance in 2006.

26 The adjudicator concluded that Mr. Sainte-Marie’s refusal to return to work in September 1998 was not justified. In his view, the medical evidence was insufficient to conclude that Mr. Sainte-Marie was unable to return to his position.

27 Although the testimony of the two parties’ doctors seemed contradictory, it was consistent in several respects. The complainant’s specialist had proposed that he return to work in January 1998, then April, then July and finally September 1998. The employer’s specialist had proposed a possible return to work during the same period under medical supervision, while the complainant’s specialist had proposed additional care before the complainant returned to work.

28 The adjudicator was of the view that the evidence presented and the documents filed at the hearing confirmed the opinion of the employer’s specialist that the complainant had labour relations problems and that he was not incapable of working.

29 Moreover, the complainant had continued criticizing the labour relations problem, including in the letter he wrote to the Assistant Deputy Minister on August 28, 1998. In that letter, he suggested several conditions for a return-to-work protocol.

30 According to Adjudicator Tessier, it was up to the complainant to show that he had the right to refuse to return to work in his former position. His specialist had not presented any objective fact that justified his refusal to report for work and his request for a transfer.

31 According to the adjudicator, if the complainant was dissatisfied with what the employer was doing, he had to debate it in a labour-relations context through a grievance or a complaint, but he could not turn it into grounds for refusing to work.

C. Process before the CSST and the CLP seeking to have burnout recognized as an employment injury

32 The complainant was on sick leave due to burnout for 16 months, from May 1997 until September 1998. During that time, he continued being active as a union representative and handled his co-workers’ disputes while also being concerned about his own health.

33 During that period, the CSST denied his claim in November 1997 and told him that his burnout was not an employment injury but that it involved only a condition of personal origin and a labour relations problem that had not been caused by his employment with the employer.

34 On January 20, 1999, the complainant filed an application with the CLP contesting the CSST’s decision of December 21, 1998. Hearings were held between November 1999 and March 2004, with many interruptions. Arguments were presented on January 27, 2005.

35 In its decision of August 4, 2006, the CLP allowed the complainant’s application (Gilles Sainte-Marie v. Agence des douanes et du revenu (2006), file 109572-71-9901-2 (CLP)). The following are a few relevant passages from that decision:

[Translation]

…

PURPOSE OF THE CHALLENGE

[11]    The worker is asking the Commission des lésions professionnelles to recognize that he suffered an employment injury on June 5, 1997.

FACTS

[12]    On July 29, 1997, the worker filed a claim with the CSST based on a diagnosis of burnout that was apparently related to his work as a resource person for complex cases (PM-3 investigator) with the Department of National Revenue. Along with his claim form, the worker enclosed an appendix describing the causes of this burnout as follows:

The causes of this burnout are factual and are related to my work environment. They can be summarized as follows, and this list is not exhaustive.

…

2- Teamwork, involvement, accountability and excellence had no longer been supported or valued since July 1995.

5- Because of this deterioration in labour relations, several people, including me, had ill feelings involving anxiety and stress.

6- Starting in 1996, the ostracism became increasingly open.

7- One employee was even subjected to ostracizing tactics recognized to be unlawful.

11- Former managers from the Department, employees of other departments and even unrelated third parties confirmed this ostracism to me.

12- I was utterly distraught over my knowledge of the facts in paragraph 11.

13- I recognized that a co-worker who had had some heart attacks was similarly distraught.

14- The facts set out in paragraphs 7 and 13 made me feel more distraught; this put me in such a state that I feared for my personal integrity.

15- I therefore consulted a doctor, who ascertained the state of my health.

36 It is important to note that the events referred to in the decisions of the CSST, the CLP and Adjudicator Tessier all occurred between 1995 and 1998.

37 According to the CLP, the evidence showed that, after new management arrived in 1995, certain responsibilities were taken away from the complainant with no explanation, including international files, lectures and training.

38 The CLP concluded that all the events that had occurred between 1995 and 1997 led to an employment injury resulting from a series of sudden and unforeseen events, as defined in the legislation and the case law. The medical and factual evidence showed that, on a balance of probabilities, the events that had occurred in the complainant’s workplace were real, objective and identifiable and that they had led to the development of his mental pathology.

39 The CLP noted that the tribunal’s role was not to decide who was wrong and who was right in the case between the complainant and the employer. Its role was limited to assessing all the events described by the worker and the various witnesses and deciding whether they could have led to the depressive episode suffered by the complainant.

40 For these reasons, the CLP found that the complainant had suffered an occupational accident on June 5, 1997.

III. Issues

41 The employer made the following two preliminary objections to the complaint:

1. res judicata; and
2. untimeliness.

IV. Summary of the arguments

A. Employer’s position - res judicata

42 The employer alleges that the PSLRB has no jurisdiction because the question was decided by Adjudicator J.P. Tessier in his decision of March 21, 2006 upholding the dismissal and because that decision was not appealed.

43 The employer further alleges that at no time during the relevant period did the complainant invoke or apply the provisions of the CLC, Part II, Occupational Health and Safety, in his dealings with the employer. The employer argues that the complainant is trying to bring his dismissal case back before the PSLRB through a different avenue of redress.

B. Complainant’s position - res judicata

44 The complainant’s position was dealt with in English by the union representative, Pierre Mulvihill, on June 2, 2008 and then by the complainant himself in several steps.

45 First, the complainant’s union representative submitted the following:

The jurisdiction of the Board relating to Adjudicator Tessier’s decision of March 2006 is well settled that the Board has concurrent jurisdiction over a grievance filed pursuant to a violation of the collective agreement, and over a complaint filed under 133 of the Canada Labour Code. The legislation provides that an individual may proceed down these parallel tracks and the Board has confirmed such: (Ouimet April 2002, decision No. 171 (C.I.R.B.)

In the case of Mr. Sainte-Marie, these legislative entitlements are exercised in respect of two completely distinct fact situations: His complaint before adjudicator Tessier arose out of his dismissal for failure to return to the workplace following a direction to do so by his employer. On March 21, 2006, this grievance against dismissal was dismissed.

The complaint before the Board at this time alleges that the employer violated Section 147 of the Code based on entirely different facts: In 1998 the employer required Mr. Sainte-Marie to submit to an examination by the company doctor, employed by Health Canada. In fact, Mr. Sainte-Marie was examined by Health Canada on three occasions. During the summer of 2006, and within the ninety days required by Section 133 (2) of the Code required to make this complaint, Mr. Sainte-Marie learned, as a result of various access to information requests, that his employer had applied undue and inappropriate pressure on Health Canada to influence the outcome of these medical evaluations of Mr. Sainte-Marie.

These are the facts, briefly put, that give rise to this complaint under Section 133 of the Code. Around June 3, 1997, Mr. Sainte-Marie raised with a team leader of CRA, Mr. Alain Dion, a concern that stress and a demoralized workplace had caused a co-worker to have a heart attack. Mr. Sainte-Marie raised this concern at the request of his co-worker who was hospitalized. In so doing, Mr. Sainte-Marie exercised his responsibilities under Subsection 126g) and (j) of the Code:

126.   While at work, every employee shall

(g)      report to the employer any thing or circumstance in a work place that is likely to be hazardous to the health and safety of the employee, or that of the other employees or other persons granted access to the work place by the employer;

(j)       report to the employer any situation that the employee believes to be a contravention of this Part by the employer, another employee or any other person.

It should be noted that in so doing, Mr. Sainte-Marie was describing the climax of years of stressful change in the workplace that had culminated in several employees being investigated for having unauthorized access to tax returns, as well as an appreciable increase in workload. The result, in short, was demoralized workplace in conflict.

Mr. Sainte-Marie was rebuffed when he reported this information to Mr. Dion and the latter categorically denied that workplace conditions contributed to his co-worker’s heart attack.

Shortly after this exchange, Mr. Sainte-Marie himself succumbed to the effects of stress and went on sick leave. At this point, the employer’s requirements for Mr. Sainte-Marie to see the company doctor commenced. It is these medical evaluations that the employer improperly influenced and, in so doing, retaliated against Mr. Sainte-Marie for acting in accordance with his responsibilities under Section 126, in contravention of Section 147 of the Code. Mr. Sainte-Marie will be able to conclusively establish that these employer actions were tainted with retaliation again Mr. Sainte-Marie, and ultimately led to Mr. Sainte-Marie’s dismissal.

To sum up, the facts giving rise to this complaint are distinct from those giving rise to the grievances that were adjudicated in board files 166-34-29158 and 31984, and in fact, the specific facts of the employer’s collusion with and improper influence over Health Canada had not yet surfaced when a hearing into this matter was held and a decision rendered by adjudicator Tessier on March 21, 2006.

46 The complainant did not add anything further on the issue of res judicata.

C. Employer’s position - untimeliness

47 The following quotation is from a letter that the employer’s representative sent to the Board on June 11, 2008:

[Translation]

…

The employer reiterates that the Board has no jurisdiction to hear this case. The union’s submissions do not refer to any specific retaliatory action by the employer against the complainant apart from his dismissal. If the complainant was retaliated against for exercising his rights under the Canada Labour Code (CLC), his dismissal is the only action referred to in his submissions. Whether he had access to additional information that allegedly led to his termination or not, he should have filed his complaint under section 133 of the CLC within 90 days after the employer’s decision of September 11, 1998 to terminate his employment.

Moreover, the complaint as filed by the complainant on October 31, 2006 does not refer to the exercise of a right under the CLC. We are of the opinion that the complainant is trying to bring his dismissal back before the Board through a different avenue of redress. At no time before he filed his complaint in October 2006 did the complainant invoke or apply the CLC’s provisions in his dealings with the Agency. Moreover, the submissions made on the complainant’s behalf do not specify the right he exercised that led to retaliatory action, which is a sine qua non for section 147 of the CLC to apply.

The Agency submits that at no time did it dismiss, suspend, lay off or demote the complainant, impose a financial or other penalty on him, refuse to pay him the appropriate remuneration or take or threaten to take any disciplinary action against him because he did anything set out in section 147 of the CLC.

The complainant’s allegation that the Agency exercised its rights of redress for retaliatory purposes is unfounded. It is the parties’ responsibility and right to challenge a decision that has been rendered in an appeal proceeding. The exercise of that right must not give rise to a negative inference. As for the directions received by the Agency concerning the process for dealing with the complainant’s access to information request, the complainant duly exercised his remedies against the Agency’s decisions in this regard. It is not the Board’s role to make a ruling or draw any conclusions whatsoever on that basis.

With respect to the complainant’s comment that the Agency "influenced" the assessment of his health, we limit our comments to the facts set out in Mr. Mulvihill’s letter of June 2, 2008, since the nature of the information referred to in the letter was not specified. The Agency submits that this allegation does not concern the CLC, since it does not raise any question of health and safety in the workplace. If the complainant believed that his health was endangered because of his workplace, it was then that he should have exercised his rights under the CLC, which he did not do, and not eight years later, despite the communication between the employer and Health Canada.

…

D. Complainant’s position - untimeliness

48 The following quotation indicates the position of the complainant’s union representative:

…

Question Number Two: The Delay between the Facts giving rise to the Complaint and the Filing of the Complaint:

The provisions that govern the filing of a complaint under this Section are found in Subsection 133(2) of the Code:

133(2): The complaint shall be made to the Board not later than ninety 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 “action or circumstances” referred to in this section is the retaliatory action that the employer took against Mr. Sainte-Marie in influencing the outcome of his medical evaluation. This was made known to Mr. Sainte-Marie when he received information pursuant to Access to Information requests he filed. This information came to his attention during the summer of 2006 and he filed his Section 133 complaint within the ninety days required by Section 133(2).

…

49 On October 26, 2008, the complainant replied to the following question asked by the Board: “[translation] On what exact date in the summer of 2006 did you know of the action or circumstances on which your complaint is based?”

50 The background to his reply is as follows. On October 15, 2008, the Board sent the complainant a letter reading as follows:

[Translation]

On October 31, 2006, you made a complaint in writing to the Board under section 133 alleging that your employer had taken action against you in contravention of section 147 of the Canada Labour Code.

Subsection 133(2) provides as follows: The complaint shall be made to the Board not later than ninety 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.

51 The complainant replied as follows:

[Translation]

In this case, the determination of the legal basis, real and effective existence, and validity of the refusal to work followed on August 4, 2006 at the earliest, when the Commission des lésions professionnelles made its decision, or 90 days later when the time limit for appealing expired, or when the formal determination on permanent injuries was made nearly a year later. This is consistent with my initial complaint made in October 2006.

V. Reasons

A. Preliminary objection - res judicata

52 The employer’s preliminary objection on the issue of res judicata cannot be allowed, since one of the important legal elements required for res judicata is not present. The legal object is not identical, which means that a complaint under section 133 of the CLC is not the same as adjudication under the Public Service Labour Relations Act. Accordingly, the employer’s objection cannot be allowed and is dismissed.

B. Preliminary objection - untimeliness

53 A complaint under section 133 of the CLC must be filed “…not later than ninety 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.” It must therefore be determined how that 90-day time limit applies in this case. The relevant provisions of the CLC are as follows:

…

COMPLAINTS WHEN ACTION AGAINST EMPLOYEES

Complaint to Board

          133. (1) An employee, or a person designated by the employee for the purpose, who alleges that an employer has taken action against the employee in contravention of section 147 may, subject to subsection (3), make a complaint in writing to the Board of the alleged contravention.

Time for making complaint

          (2) The complaint shall be made to the Board not later than ninety 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.

…

DISCIPLINARY ACTION

General prohibition re employer

          147. No employer shall dismiss, suspend, lay off or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee remuneration in respect of any period that the employee would, but for the exercise of the employee’s rights under this Part, have worked, or take any disciplinary action against or threaten to take any such action against an employee because the employee

(a) has testified or is about to testify in a proceeding taken or an inquiry held under this Part;

(b) has provided information to a person engaged in the performance of duties under this Part regarding the conditions of work affecting the health or safety of the employee or of any other employee of the employer; or

(c) has acted in accordance with this Part or has sought the enforcement of any of the provisions of this Part.

…

54 The complainant alleges that his complaint under section 133 of the CLC was made within the 90-day period after the CLP’s decision of August 4, 2006.

55 The employer alleges that the 90-day time limit under section 133 of the CLC expired several years ago and that the complainant’s complaint must be dismissed.

56 The time limit for filing a complaint set out in subsection 133(2) of the CLC is mandatory.

57 Unlike a grievance under the Public Service Labour Relations Act, where the adjudicator has some discretion to grant an extension of time (see Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSLRB 1), the Board has no discretion to extend the 90-day time limit. The only thing it can assess is when the complainant knew or ought to have known of the action or circumstances.

58 For the following reasons, the Board is of the opinion that the complainant knew or ought to have known of the action or circumstances giving rise to his complaint.

59 Most of the facts and circumstances set out in the decisions of Adjudicator Tessier and the CLP are the same, and the complainant knew of them during the period between 1995 and the end of 1998.

60 In paragraphs 23 and 34, I mentioned the hearing dates before Adjudicator Tessier and the CLP because I consider them important in establishing when the complainant knew of the action or circumstances.

61 The case before Adjudicator Tessier and especially the case before the CLP demonstrate that the complainant knew of the facts he was alleging and could have made those allegations about his dismissal long before he did. This is illustrated by the following passages from the CLP’s decision of August 4, 2006:

[Translation]

…

[15]       On November 10, 1997, the worker [Mr. Sainte-Marie] sent the CSST a letter containing particulars about his claim in which he explained that he had deliberately provided a brief description of the facts in the appendix attached to the claim form from the previous July so he would not put his employer in an awkward position. Thus, he explained the events that had occurred at work and that had allegedly precipitated his illness. Those facts can be summarized as follows:

·              Since October 1995, his superior, Patrice Allard, had subjected him to inappropriate pressure and incidents, ranging from threats of dismissal to a demotion without cause in October 1997.

·              On December 24, 1995, a co-worker, Martin Girard, was removed from the work team, and the worker informed management of this extreme action. When the worker returned after the holidays, he was called in by management and harshly reprimanded for intervening.

·              In the summer of 1996, another co-worker, Gianni De Micco, was falsely accused of violating internal security rules. Despite those false accusations, management conducted an investigation of almost unprecedented scope. Near the end of 1996 or the beginning of 1997, the worker found out that management had unlawfully obtained confidential information about Mr. De Micco. Management admitted this, and the worker was shaken by it, especially since the manager responsible was not punished.

·              In May 1997, a co-worker, Raphaël Maccio, had two heart attacks that he attributed to the work environment, and he asked the worker to handle his case, which the worker did. The division’s management was of the opinion that the state of Mr. Maccio’s health was related to his problems with his spouse and not his work environment. The worker was affected by this reaction by management.

·              At that time, the worker learned from Mr. Maccio that one member of the selection process for a competition in which he had participated had admitted that the competition had been designed to eliminate him. This revelation made the worker feel very anxious.

·              During a late afternoon social gathering one day in late spring 1997, some employees told a former manager that the division’s current management wanted Mr. Sainte-Marie’s head. This incident confirmed the worker’s fears.

·              A lawyer from the Department of Justice with whom he was in the habit of working on certain files called him to advise him that the division’s management was building a case against him.

…

Testimony of the worker, Gilles Sainte-Marie

…

[68]       After they retired around the summer of 1995, Mr. Nadeau and Mr. Dauplaise were replaced by Patrice Allard as Assistant Director and Daniel Forget as Senior Manager.

[69]       The worker stated that the atmosphere in the division had changed starting at that time, around fall 1995. It became impossible to talk about files with management, managers were not available and requests for authorization were not answered. In a big file covered by the media, on which he had worked for five years (file B)[2], the Assistant Director accepted a settlement offer that the worker considered totally unacceptable. He told Mr. Allard this, but Mr. Allard answered that he would lose his job if he did not do what he told him. From that time on, his files no longer progressed. His co-workers’ files also progressed more slowly than before, but they did progress.

…

[71]       Once the initial analysis was completed, he had to have the support, expertise or authorization of the assistant director or manager to obtain disbursements or build a case with the Department of Justice. He stated that, in his case, that was a dead end. He did not see his files again or obtain the authorization he needed. After Mr. Allard’s arrival, written authorization was required, which he waited for but never received. It was very difficult for him to meet with Mr. Allard. He alleged that, between July and December 1995, he had had one or perhaps two meetings with Mr. Allard, and he did not recall ever having one with Mr. Forget. His relationship with his team leader, Mr. Ladouceur, had been very good until July 1995, when new management arrived, but quickly deteriorated after that. Around the end of 1995, his team leader asked his co-workers to no longer consult him on complex cases as they had done previously.

[72]       He described the circumstances in which a co-worker, Martin Girard, had been removed from the team to which he belonged on December 24, 1995. After Mr. Girard was removed, the worker went to talk to the managers about that extreme action, and they told him that he was going on vacation anyway and that his turn would come when he got back. When he got back after the holidays, he was verbally reprimanded by his superiors.

[73]       He stated that, since July and August 1995, he had been criticized and had received no reply when he requested something. He was being isolated. After the work environment deteriorated, he requested a transfer or secondment to another department around the end of 1995. He was told that he would never be transferred.

[74]       Starting in 1996, he was constantly monitored by Mr. Allard. His actions, telephone calls, files and movements were monitored. According to him, his immediate superior, Mr. Ladouceur, used the computer system to check the progress of his files to an excessive degree. Mr. Ladouceur’s name thus appears several times in the computerized list of his active files, meaning that Mr. Ladouceur frequently monitored the status of his files.

[75]       At that time, a lawyer from the Department of Justice with whom he was in the habit of working informed him several times that management wanted his head and was building a case against him.

[76]       He described his involvement in a conflict that occurred around the end of 1996 or the beginning of 1997 between two employees, Jean-Guy Ouellette and Gianni De Micco, before he became a union steward. Mr. De Micco was unlawfully recorded and spied on by Mr. Ouellette, and the manager, Patrice Allard, was fully aware of this, since Mr. De Micco’s team leader, Yves Gibeau, had informed him several times and Mr. Ouellette was reporting to him on Mr. De Micco’s actions. Management admitted obtaining confidential information on Mr. De Micco (his tax returns) by unlawful means. Mr. De Micco was suspected of making unlawful requests to access Revenue Canada’s computer system. Mr. De Micco was suspended for one month, while Mr. Allard, who had unlawfully obtained confidential information on Mr. De Micco, was not punished even though the worker had requested this of the Director, Carole Gouin.

[77]       Following those events, since Mr. Allard still had his job, the worker again requested a transfer to another department. His request was again denied. His relationship with Mr. Allard further deteriorated, and all of his actions were monitored by his superior, who was now Mr. Beausoleil.

[78]       According to him, from the time he became a union steward, his superiors increased their monitoring of him, and he was prevented from handling certain files. Before 1995, he had handled international files, but this responsibility was taken away from him around summer or fall 1995. In comparison with his co-workers, he was monitored much more, the attitude toward him was more intransigent and an attempt was made to isolate him by preventing his co-workers from consulting him. He was given an office right beside that of his team leader, Mr. Beausoleil.

[79]       A manager from the audit section, Georges Ledoux, who had attended some lectures he had given, asked him to come back and give a lecture in his section, which Mr. Allard refused to allow, even saying that Mr. Sainte-Marie would never give a lecture anywhere again.

[80]       The worker stated that, in May 1997, a co-worker and friend, Raphaël Maccio, had had two heart attacks that he believed were related to his work environment and had asked him to handle his case. The worker therefore met with Mr. Maccio’s team leader, Mr. Dion, and told him that Mr. Maccio attributed his pathology to his work environment and that something should be done to improve the unhealthy environment. Mr. Dion laughed and told him that Mr. Maccio’s illness was not due to the work environment but rather to his problems with his spouse. The worker stated that he had “lost it” after that meeting on June 4 or 5, 1997 and had gone to see a doctor, Dr. Bennett.

[81]       Before that medical appointment, the worker felt like he was falling into an abyss. He was suffering from insomnia, anxiety and burnout, he would break out into a sweat, he lost about 10 kilograms without dieting, he had a diminished appetite and libido, and he was unable to make decisions or concentrate. The symptoms began gradually starting in fall 1995 and were at their worst in summer 1997. He was able to make day-to­-day decisions fairly well if they did not require formal, logical and structured planning, but he had difficulty with actions that required logical planning on a regular, continuous basis. For example, it took him hours to write certain letters for Mr. Maccio, whom he was representing in his CSST case.

…

[Emphasis added]

62 Finally, continuing with the question of whether the complainant ought to have known of the action or circumstances, I quote below two passages from a letter that the complainant wrote to the Right Honourable Paul Martin, Prime Minister of Canada, on February 23, 2004. The quotations are from pages 1 and 5 of the letter.

[Translation]

…

I myself was a whistleblower. Rather than being supported, I was harassed by authorities from the Canada Customs and Revenue Agency whose actions I had reported.

…

Obviously, the Assistant Director and the Director denied their involvement until they were confronted with a direct witness during a meeting I called. I proposed that the employee and the Assistant Director be suspended, which was accepted. I was then told very clearly that my place was no longer in the Agency. This is what gave rise to the dispute, and it is still central to the dispute.

…

[Emphasis added]

63 The hearing dates for the grievance and the application to the CLP, as stated above, are important because they establish that the complainant knew of the actions and circumstances giving rise to his complaint much longer than 90 days before his filed his complaint on October 30, 2006.

64 It is the hearing dates that are significant to the Board as far as the complainant is concerned, not the date of the CLP’s decision.

65 Yet the complainant waited for the CLP’s decision before proceeding. The fact that the decision confirmed the employment injury is unrelated to the complaint under the CLC. The CLP’s confirmation does not change the fact that the complainant knew of the facts he was alleging, since he brought them up at the hearings before Adjudicator Tessier and the CLP (including the employer’s bad faith, harassment and retaliation for defending his unionized co-workers while he was a union representative).

66 The complainant maintains that he obtained evidence of what he is alleging in summer 2006, but it is clear from his submissions that he waited for the CLP’s decision before proceeding under the CLC.

67 The following quotation is from page 1 of the letter dated October 26, 2008 containing submissions by the complainant:

[Translation]

…

On the advice of my attending physician, I refused to return to my position. On the advice of its doctor, the employer did not accept that refusal. It therefore had to be legally validated…

68 Before his complaint of October 30, 2006, the complainant never referred to the CLC in his discussions with the employer. The CLC cannot be used after the fact to pursue proceedings against the employer. The CLC is used to report a situation right away. This is confirmed by the fact that subsection 133(2) of the CLC imposes a mandatory time limit.

69 In the Board’s opinion, the complainant knew of the act and circumstances during the period from 1995 to 1998 and certainly well before the time limit set out in subsection 133(2) of the CLC. Unfortunately, he did not act under the CLC in a timely manner.

70 In light of this decision, it is not necessary to deal with the question of the CLC’s retroactive application. However, the Board would like to note that section 147, on which the complainant relies, is from 2000. Before that date, the application of section 133 was much more restrictive, and the complainant would have had to prove that he had refused to work under section 128, which certainly did not occur at the time of the events that led to his dismissal.

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

VI. Order

72 The employer’s objection that the complaint is untimely is allowed, and the complaint is dismissed.

March 20, 2009.

PSLRB Translation

Roger Beaulieu,
Board Member