FPSLREB Decisions

I. Request before the Board

1 On November 5, 2009, the applicant, Guy Veillette, filed an application for review under section 43 of the Public Service Labour Relations Act, S.C. 2003, c. 22 (“the Act”), enacted by section 2 of the Public Service Modernization Act, of the May 29, 2009 decision by the Public Service Labour Relations Board (“the Board”) in Veillette v. Professional Institute of the Public Service of Canada and Rogers, 2009 PSLRB 64.

2 To clearly understand the nature of the application, it is appropriate to briefly set out the background of the decision, which is related to other disputes between Mr. Veillette and the Professional Institute of the Public Service of Canada (PIPSC).

3 Mr. Veillette has performed different duties for the PIPSC. In January 2007, the PIPSC suspended him from his union duties for two years, ending January 15, 2009. On March 23, 2007, Mr. Veillette filed an unfair labour practice complaint against the PIPSC, alleging that it had applied disciplinary standards to him in a discriminatory manner. The Board allowed that complaint (Veillette v. Professional Institute of the Public Service of Canada, 2009 PSLRB 58).

4 On January 27, 2009, i.e., after the two-year suspension imposed in January 2007 had expired but before the Board rendered its decision in Mr. Veillette’s complaint, the PIPSC again suspended Mr. Veillette from his union duties. The second suspension was imposed on him under the PIPSC’s Policy Relating to Members and Complaints to Outside Bodies, because he had filed a complaint against the PIPSC with the Board. That suspension was to end when the proceedings concerning the March 23, 2007 complaint concluded. On February 11, 2009, Mr. Veillette filed a second unfair labour practice complaint with the Board against the PIPSC, alleging that the second suspension was illegal. (The second complaint resulted in 2009 PSLRB 64, which is the subject of this application for review.)

5 On May 7, 2009, the Board rendered 2009 PSLRB 58 on the complaint filed by Mr. Veillette on March 23, 2007. In that decision, the Board allowed Mr. Veillette’s complaint, rescinded the disciplinary action and ordered Mr. Veillette reinstated in his union duties. The PIPSC applied to the Federal Court of Appeal (docket no. A-229-09) for a judicial review of that decision. The PIPSC applied for a stay of 2009 PSLRB 58 pending a Federal Court of Appeal ruling on the application for judicial review, but that application was dismissed in Professional Institute of the Public Service of Canada v. Veillette, 2009 FCA 256. Seeing that the PIPSC was not complying with the order made in 2009 PSLRB 58, Mr. Veillette asked that the Board file its decision in the Federal Court for the purposes of enforcement. In Veillette v. Professional Institute of the Public Service of Canada, 2009 PSLRB 174, rendered on December 11, 2009, the Board ruled that the PIPSC had not respected the order made in 2009 PSLRB 58 and indicated that it would file that decision in the Federal Court.

6 Following that decision, the PIPSC decided to comply with 2009 PSLRB 58 and to reinstate Mr. Veillette in his union duties. On January 11, 2010, the PIPSC president notified Mr. Veillette that his status as a union representative had been reactivated in compliance with 2009 PSLRB 58. On January 25, 2010, the PIPSC president wrote to Mr. Veillette again, informing him that, at its January 23, 2010 meeting, the PIPSC board of directors had decided to reinstate him in all the union duties he performed before being suspended on January 11, 2007, in compliance with 2009 PSLRB 58.

7 Returning to the decision that is the subject of this application for review (2009 PLSRB 64), the Board rendered it on May 29, 2009; it allowed the complaint made by Mr. Veillette on February 11, 2007 and ordered the PIPSC to amend its Policy Relating to Members and Complaints to Outside Bodies, under which Mr. Veillette had been suspended (the January 27, 2009, suspension). However, the Board did not allow Mr. Veillette’s second corrective action, i.e., reinstatement in his union duties, because it considered that it did not have the authority to order it.

8 It is that part of the Board’s decision that is the subject of the application for review, and I will return to it later in this decision.

9 The PIPSC applied to the Federal Court of Appeal (docket no. A-266-09) for judicial review of 2009 PSLRB 64. Mr. Veillette asked the Federal Court of Appeal that the applications for judicial review of 2009 PSLRB 58 (docket no. A-229-09) and 2009 PSLRB 64 (docket no. A-266-09) be heard at the same time, and that the hearing before the Federal Court of Appeal be suspended until the Board renders its decision on this application for review. The Federal Court of Appeal dismissed the application to suspend the hearing but ordered that docket nos. A-229-09 and A-266-09 be heard together on April 14, 2010.

10 Parallel to Mr. Veillette’s complaints, another complaint against the PIPSC was before the Board, made by another employee and contesting the application of the same administrative policy as in 2009 PSLRB 64. In Bremsak v. Professional Institute of the Public Service of Canada, 2009 PSLRB 103, the Board allowed the employee’s complaint, ordered the PIPSC to amend its policy, and ordered the complainant reinstated in her union duties. That decision is also the subject of an application to the Federal Court of Appeal (docket no. A-337-09) for judicial review.

11 Mr. Veillette filed his application for review on November 5, 2009. The PIPSC responded to the application on December 18, 2009. Mr. Veillette responded in turn on January 7, 2010. On January 26, 2010, the Board informed the parties that the application for review would be dealt with by means of written submissions, and it gave the parties the option of submitting additional arguments. Mr. Veillette did not submit any additional arguments. On February 23, 2010, the PIPSC informed the Board that it had complied with the orders made in 2009 PSLRB 58 and that it had reinstated Mr. Veillette in all his union duties. The PIPSC also filed documentation related to Mr. Veillette’s reinstatement.

II. Summary of the arguments

A. For the applicant

12 In his application for review, Mr. Veillette asks the Board to amend 2009 PSLRB 64 and order him reinstated in his union duties. It must be recalled that, in its decision, the Board expressly refused to order that corrective action, since it considered that it did not have the authority to make such an order (at paragraph 43).

13 As grounds for his application for review, Mr. Veillette wrote the following:

[Translation]

…

The decision for which an application under section 43 was filed with the Board, Veillette v. Professional Institute of the Public Service of Canada and Rogers, 2009 PSLRB 64, was rendered in May 2009, very shortly after 2009 PSLRB 58, which was also rendered in May 2009.

It should be noted that, in 2009 PSLRB 64, the parties proceeded by written submissions. The complainant’s position was submitted to the Board on April 23, 2009; the decision in 2009 PSLRB 58 had not yet been rendered.

It is also noted that 2009 PSLRB 64 makes no reference to the orders in 2009 PSLRB 58. That suggests that, given the nearly simultaneous publication of the two decisions in May 2009, 2009 PSLRB 58 constitutes a new argument, significant case law that the complainant was unable to present as part of the original case.

…

14 Mr. Veillette also cited Bremsak in support of his application, arguing as follows:

[Translation]

…

In 2009, the Board twice found the PIPSC guilty of an unfair labour practice, as a result of applying its “Policy Relating to Members and Complaints to Outside Bodies,” in 2009 PSLRB 64 and 2009 PSLRB 103 [Bremsak].

On April 23, 2009, when the written submissions were filed with the Board for 2009 PSLRB 64, Mr. Guy Veillette and Ms. Irene Bremsak had several months previously already made their unfair labour practice complaints against the PIPSC in 2009 PSLRB 58 and 103.

Paragraph 13 of Francine Bouchard v. Public Service Alliance of Canada, 2009 PSLRB 31, reads as follows:

“New facts that could form the basis of an application for review must be facts that existed on the date of the hearing but that the applicant could not reasonably have presented.”

Clearly, 2009 PSLRB 103, a decision rendered in August 2009, is newer than 2009 PSLRB 64. Again, a new argument is involved, significant case law that the complainant was unable to present as part of 2009 PSLRB 64.

…

15 Mr. Veillette specified the following as the corrective action sought in his application for review:

[Translation]

Aside from the fact that this complaint was allowed in part, paragraph 46 is the only order made in the decision. No corrective action was granted to the complainant despite the unfair labour practice committed by the PIPSC.

I respectfully allege that, by failing to make the orders described in subsection 192(1) and in paragraphs 192(1)(e) or (f) of the Act, the Board is committing an error of law.

The PIPSC has applied to the Federal Court of Appeal (docket no. A-266-09) for judicial review of 2009 PSLRB 64.

That review will have a material and determining effect on 2009 PSLRB 58, 64 and 103 in the Federal Court of Appeal.

…

Under the circumstances, with respect, I consider it imperative that the Board take this opportunity to review the orders in 2009 PSLRB 64 to ensure that they are consistent with the two others [2009 PSLRB 58 and 103].

…

B. For the respondent

16 For its part, the PIPSC argues that the application for review does not satisfy the criteria for intervention recognized by the Board, that it does not present any new facts and, in reality, that it is no more than an attempt to obtain new orders as corrective action. The PIPSC wrote as follows:

[Translation]

…

… we submit that the only factor cited by Mr. Veillette in support of his application is the Board’s decision in Bremsak, 2009 PSLRB 103. That decision has to do with another PIPSC member and with facts and arguments that are different from those forming the basis of 2009 PSLRB 58.

In its case law, the Board has developed criteria for intervention in applying section 43 of the Act… .

…

Thus, not only does the application for review require the presentation of changed circumstances or new facts that could not be presented at the hearing, these new facts must also have a material and determining effect on the Board’s decision.

However, in this case there is no reason to intervene since Mr. Veillette has not presented any new facts or circumstances that are likely to have a material and determining effect on the Board’s decision. Similarly, the application for review is not based on any allegations of errors of law or principle that cast doubt on the Board’s previous statutory interpretation or of a failure to observe a rule of natural justice (Luc Beaulne v. Public Service Alliance of Canada, 2009 PSLRB 105; Alain Laferrière v. Stanislaus Hogan, 2008 PSLRB 48).

With all due respect, the PIPSC submits that the application for review has nothing to do with the reasons behind the Board’s decision and is no more than an attempt to obtain new orders as corrective action, without citing any facts or arguments other than those already evaluated by the Board in its initial decision. Indeed, one order requested by Mr. Veillette is contrary to the Board’s decision about its lack of jurisdiction to order Mr. Veillette’s reinstatement in his union duties. Mr. Veillette presented no valid arguments that would justify the Board’s intervention.

Additionally, the Board has already concluded that new facts occurring after the hearing date cannot form the basis for an application for review (Francine Bouchard, 2009 PSLRB 31). The Board’s decision in Bremsak (2009 PSLRB 103), as well as the actions taken or remarks made by the PIPSC, occurred after the Board’s decision (2009 PSLRB 58) and, accordingly, are not admissible and are not relevant for the purposes of the application for review.

…

17 The PIPSC also cites the untimeliness of the application for review, arguing as follows:

[Translation]

…

Finally, the application for review should be dismissed on the grounds of its untimeliness. As is noted in Mohammad Aslam Chaudhry (2009 PSLRB 39):

“There are no deadlines for filing an application for reconsideration under section 43 of the PSLRA. However, in the interests of finality in labour relations disputes, reconsiderations should be raised at the earliest possible opportunity. The earliest opportunity is within a reasonable time of an applicant receiving the information or evidence that it intends to rely on in supporting its application.”

The Bremsak decision was rendered in August 2009, and the application for review in this case was filed only on November 5, 2009. That is not a reasonable delay, and the application should be dismissed because it is untimely.

…

18 Mr. Veillette did not respond to the PIPSC’s argument about the untimeliness of the application.

III. Reasons

19 This application for review is based on subsection 43(1) of the Act, which reads as follows:

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

20 That provision does not set out any period for filing an application for review. Yet, in Chaudhry v. Treasury Board (Correctional Service of Canada), 2009 PSLRB 39, the Board ruled that an application for review must be filed “… at the earliest possible opportunity. The earliest opportunity is within a reasonable time of an applicant receiving the information or evidence that it intends to rely on in supporting its application.”

21 The PIPSC maintained that Mr. Veillette’s application was not filed within a reasonable time. On that point, it argued that Bremsak, cited by Mr. Veillette in support of his application, was rendered in August 2009, while the application for review was filed on November 5, 2009.

22 Mr. Veillette maintained that Veillette (2009 PSLRB 58) and Bremsak (2009 PSLRB 103) constitute new arguments that form the basis of his application for review. Veillette was rendered on May 7, 2009 and Bremsak on August 26, 2009, i.e., for Bremsak, a little over 60 days before the application for review was filed. Since Mr. Veillette did not rebut the PIPSC’s argument concerning the untimeliness of the application and did not specify when or in what circumstances he learned about Bremsak, in this case it is difficult to determine when a reasonable period began for filing the application for review. That said, I do not see a need to rule on the PIPSC’s argument concerning the untimeliness of the application since, in my opinion, the grounds cited by Mr. Veillette cannot form the basis of an application for review.

23 Section 43 of the Act came into force on April 1, 2005. That section is identical to section 27 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, which applied before April 1, 2005. The case law of both the former and the new Boards has interpreted those provisions and has developed criteria for intervention. Danyluk et al. v. United Food and Commercial Workers Union, Local 832, 2005 PSLRB 179, clearly illustrates the criteria developed by the Board as follows:

…

[14] … The former Board had long been of the view, based on the wording of s. 27 of the PSSRA, that the purpose of s. 27 was not to allow an unsuccessful party to re-argue the merits of its case. Rather, the purpose was to enable the Board to reconsider a decision either in light of changed circumstances or to permit a party to present new evidence or arguments that could not reasonably have been presented at the original hearing or where there was some other compelling reason for review. Furthermore, the Board’s jurisprudence has held that any new evidence or arguments raised by a party in a request for review must have a material and determining effect. I am in agreement with the position adopted by the former Board regarding the interpretation to be given to s. 27 of the PSSRA and I see no reason why the same interpretation should not be applied to the present Act…

…

24 As for new facts that could form the basis of an application for review, in Bouchard v. Public Service Alliance of Canada, 2009 PSLRB 31, I wrote as follows:

…

13      With respect to the new facts alleged by the applicant, they all occurred after the hearing and, in the circumstances, cannot form the basis of an application for review under section 43 of the Act. New facts that could form the basis of an application for review must be facts that existed on the date of the hearing but that the applicant could not reasonably have presented. By its nature, an application for review assumes that the Board will review a case as it should have been constituted at the original hearing had it not been for the particular circumstances that prevented a party from presenting the new facts…

…

25 In applying those criteria to this case, I see no reason to intervene since none of the grounds cited by Mr. Veillette satisfies the criteria developed by the Board.

26 Paragraph 43 of 2009 PSLRB 64 is the subject of this application for review. As for its jurisdiction over the reinstatement order sought by Mr. Veillette, the Board wrote as follows:

43      Although I am allowing the complaint, I do not have the power to order that the complainant be appointed as a bargaining agent representative or that he be reinstated in his union duties because I would then clearly be intervening in bargaining agent matters, for which I have no authority …

27 In Mr. Veillette’s opinion, that conclusion is erroneous and constitutes an error of law. Therefore, he asked the Board to amend its conclusions and to order the PIPSC to reinstate him in his union duties. In support of his application, Mr. Veillette stated that the Board’s decision is not consistent with the orders it made in 2009 PSLRB 58 (Veillette) and 2009 PSLRB 103 (Bremsak) and that, since those orders had not yet been made when he provided his written submissions in April 2009, they constitute new arguments that form the basis for an application for review. With respect, I do not share Mr. Veillette’s opinion.

28 By his application for review, Mr. Veillette expressed his disagreement with the Board’s conclusion and asked it to amend the initial decision and to make the order sought. In my opinion, what is involved is clearly an application for an appeal of 2009 PSLRB 64. In considering an application for review, the Board does not sit as an appeal board of the initial decision.

29 My opinion is also that 2009 PSLRB 58 (Veillette) and 2009 PSLRB 103 (Bremsak), cited by Mr. Veillette as “new arguments,” are not new facts or arguments that can form the basis for an application for review.

30 First, 2009 PSLRB 58 dealt with the complaint against the January 2007 suspension, which was separate from the January 2009 complaint dealt with in 2009 PSLRB 64, and was rendered before 2009 PSLRB 64. Therefore, it may be assumed that the Board was cognizant of 2009 PSLRB 58 when it rendered 2009 PSLRB 64. In addition, although the complaint against the January 2007 suspension imposed on Mr. Veillette was the cause of the January 2009 suspension, the orders made in 2009 PSLRB 58 (for the complaint against the January 2007 suspension) did not in any way seize the Board of the complaint against the January 2009 suspension and had no effect on the corrective action sought and ordered in 2009 PSLRB 64. In 2009 PSLRB 58, the Board ordered that Mr. Veillette’s January 2007 suspension be rescinded. In 2009 PSLRB 64, the purposes of the corrective action sought were to invalidate the policy under which the January 2009 suspension was imposed on Mr. Veillette and to rescind the January 2009 suspension. Consequently, even were 2009 PSLRB 58 considered a new argument that could form the basis for an application for review, the new argument would have had no effect on 2009 PSLRB 64.

31 The same comment applies to 2009 PSLRB 103 (Bremsak). That decision, in its own factual context, dealt with a complaint involving another member of the PIPSC, and it was rendered in August 2009, i.e., after 2009 PSLRB 64. Thus, that decision constitutes a later “fact” or “argument” that cannot form the basis for an application for review, as expressed in Bouchard.

32 I agree that, in 2009 PSLRB 58 and 2009 PSLRB 103, the Board ordered Mr. Veillette reinstated in his union duties. The Board declined to do so in 2009 PSLRB 64 because the Board member hearing the complaint was of the opinion that he did not have the authority to make such an order. On that point, it is helpful to note that each decision was rendered in its own factual context. As well, the fact that Board decisions express differing opinions and reach different conclusions concerning certain provisions of the Act would not in itself suffice for the Board to review one of its decisions. If a party, such as Mr. Veillette in this case, is of the opinion that the Board committed an error, the appropriate remedy is an application for judicial review, not an application for review under section 43 of the Act.

33 Therefore, my opinion is that Mr. Veillette has not presented any new facts or arguments that would justify a review of 2009 PSLRB 64.

34 In addition, Mr. Veillette’s objective in filing his application for review was to obtain an order reinstating him in his union duties, but the PIPSC has alleged that, on January 23, 2010, it reinstated Mr. Veillette in all the union duties he had performed before being suspended in January 2007. Even though his reinstatement occurred as a result of enforcing the order made in 2009 PSLRB 58, in practical terms it has the effect of making the order sought by Mr. Veillette in his application for review of less “use.”

35 For all the above reasons, the Board makes the following order:

IV. Order

36 The application for a review of the decision rendered on May 25, 2009, in PSLRB File No. 561-34-384 (2009 PSLRB 64) is dismissed.

March 11, 2010.

PSLRB Translation

Marie-Josée Bédard,
Vice-Chairperson