FPSLREB Decisions

I. Complaint before the Board

1 This decision is about the timeliness of a complaint in which Gaston Lampron (“the complainant”) alleged that his bargaining agent, the Professional Institute of the Public Service of Canada (“the Institute” or “the respondent”), committed an unfair labour practice. The complainant filed the complaint on October 26, 2009.

2 In his complaint, the complainant referred to paragraph 190(1)(g) of the Public Service Labour Relations Act (PSLRA), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22. That paragraph reads as follows:

190. (1) The Board must examine and inquire into any complaint made to it that

…

(g) the employer, an employee organization or any person has committed an unfair labour practice within the meaning of section 185.

3 The complainant stated in his complaint that the respondent failed to comply with paragraph 188(d) of the PSLRA, which reads as follows:

188. No employee organization and no officer or representative of an employee organization or other person acting on behalf of an employee organization shall

…

(d) expel or suspend an employee from membership in the employee organization, or take disciplinary action against, or impose any form of penalty on, an employee by reason of that employee having exercised any right under this Part or Part 2 or having refused to perform an act that is contrary to this Part …

4 In its written reply, the respondent raised as a preliminary issue that the complaint was inadmissible and that it should be summarily dismissed because it was not filed within the time limit set out in subsection 190(2) of the PSLRA, which 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.

5 Although the Public Service Labour Relations Board (“the Board”) initially invited the parties to file additional written submissions about the filing period for the complaint, which they did, I nevertheless decided to convene a hearing to better understand and assess the parties’ evidence and arguments on the preliminary issue, specifically the determination of the date on which the complainant knew or ought to have known of the circumstances giving rise to his complaint.

6 The parties were unavailable to attend a hearing until February 3, 2011. The sole purpose of the hearing was to determine whether the complainant’s complaint had been filed within 90 days of the date on which he knew or ought to have known of the circumstances giving rise to his complaint. For the reasons that follow, I found that the complaint was filed well outside the filing period.

II. Preliminary issue - facts

7 Before hearing the parties, I repeated the terms of reference for the hearing, stating that the parties had to limit themselves to evidence and arguments about the preliminary issue, which they did.

8 Two witnesses presented the facts about the filing period. They were Edward Gillis, Executive Secretary of the respondent, who adduced five exhibits supporting his testimony, and the complainant, who did not offer any documentary evidence.

9 Mr. Gillis testified that he sent the complainant a letter on January 19, 2009, informing him that the Institute had learned that he was participating in a group called l’Association des Professionnels de l’Agence (APA). The Institute believed that the APA was raiding members for whom the Institute was the duly certified bargaining agent. Mr. Gillis’s letter pointed out that the APA’s activities considerably adversely affected the Institute’s interests and that the complainant’s involvement in the APA constituted extreme misconduct. Finally, the letter informed the complainant that the Institute was considering taking disciplinary action against him and that he had the option of providing the Institute’s Executive Committee with a written declaration that would be considered before a final decision was made on the appropriate penalty. The complainant’s declaration had to be received by the Institute no later than January 22, 2009.

10 Mr. Gillis confirmed that he had visited the APA website beforehand. The information on that site confirmed that the complainant was a member of the APA executive, that he had openly and harshly criticized the Institute’s activities, and that the APA’s goal was to have revoked the Institute’s certification as the bargaining agent for employees in the Audit, Financial and Scientific bargaining unit at the Canada Revenue Agency.

11 Mr. Gillis testified that the complainant chose not to provide the Institute’s Executive Committee with a written declaration. The Committee concluded that a severe disciplinary penalty was required in the circumstances. On January 28, 2009, Mr. Gillis sent the complainant a letter informing him that he had been permanently expelled from the Institute. The letter described a number of factors that the Committee had considered and informed the complainant of his right to appeal the decision before the Institute’s board of directors under the its Dispute Resolution and Discipline Policy (“the Policy”). According to the letter and Mr. Gillis’s testimony, a copy of the Policy was attached to the letter.

12 The Policy was entered in evidence. Mr. Gillis reviewed it in his testimony. He stated that it clearly sets out that the parties may appeal by written submission to the Institute’s board of directors within 14 days but that the complainant did not exercise his right to appeal the Executive Committee’s decision. Mr. Gillis also stated that he believed that the complainant was very familiar with the Policy, since he had been an active member of the Institute and one of its vice-presidents for a number of years. Mr. Gillis explained that, although the Policy was effective on January 17, 2009, with the exception of a few changes in the Policy, another identical policy aimed to clarify the terminology for groups for which discipline bylaws already existed.

13 Mr. Gillis went on to state that, once the 14-day appeal period expired, the Institute considered the file closed. Mr. Gillis could not recall any contact with the complainant between January 28, 2009 and September 4, 2009, the date on which he was approached by the complainant at the Quebec Regional Council, which was taking place in Magog, in the Estrie region. Mr. Gillis had been invited to give a presentation at the Regional Council on September 4 and 5, 2009. Mr. Gillis stated that the complainant attended the meeting and that the complainant had approached him to ask if they could speak the next day. During that brief encounter, Mr. Gillis agreed to meet with the complainant the next day but did not set a time or agree on the topic to be discussed.

14 On September 5, 2009, Mr. Gillis was seated in the hotel lobby when the complainant again approached him for a conversation. Mr. Gillis agreed to speak with the complainant. Mr. Gillis testified that that meeting was set up only the day before and that it was in no way part of the respondent’s internal conflict resolution process. Nevertheless, the two spoke and, according to Mr. Gillis, discussed the following:

- the intention of the complainant and some of his colleagues to file a complaint with the Canadian Human Rights Commission against the Institute;

- the intention of the complainant to file a series of complaints against members of the Institute’s Executive Committee; and

- the intention of the complainant and some of his colleagues to submit numerous access-to-information requests for documents about certain communications involving members of the Institute’s Executive Committee.

15 Mr. Gillis stated that the complainant indicated a willingness to accept money, although an amount was not specified, to resolve the matter and to avoid all the work that would be created by the multiple complaints and requests. Mr. Gillis then indicated to the complainant that he highly doubted that the Institute would be open to such an arrangement but, at the complainant’s request, agreed to consult the person that he thought appropriate, without saying when that might happen. In cross-examination, Mr. Gillis admitted that he also agreed to tell the complainant about the outcome of those discussions.

16 The exchanges of the meeting of September 5, 2009 are contained in a note to file prepared by Mr. Gillis a few days later and entered in evidence at the hearing. The note accurately reflects Mr. Gillis’s testimony.

17 Mr. Gillis also indicated that he spoke with the Institute’s president, Gary Corbett, and its general counsel, Geoffrey Grenville-Wood, on September 7, 2009. The three were of the view that no action was to be taken in response to the complainant’s proposal. Contrary to his agreement with the complainant, Mr. Gillis did not have any later discussions or communications with him.

18 Mr. Gillis testified that he was surprised that the complainant referred to September 5, 2009 as the date on which he knew or ought to have known of the circumstances giving rise to his complaint because they never broached the subject of the complaint or the grounds for the decision of the Institute’s Executive Committee during their discussion. Moreover, according to Mr. Gillis, the complainant was not seeking at the September 5, 2009 meeting to reverse the Executive Committee’s decision or to change its outcome.

19 Although the complainant raised a number of factors supporting his argument that the respondent sought to expel him at all costs, the evidence that he presented about the filing period for the complaint did not differ substantially from that presented by Mr. Gillis, except for certain facts that I will address in the following paragraphs.

20 Contrary to Mr. Gillis’s testimony, the complainant claimed that he responded to the letter of January 19, 2009 by emailing Mr. Gillis. Although Mr. Gillis and the complainant do not agree on this point, the complainant testified that the email simply read, “Put it where the sun don’t shine.” The message speaks for itself. Moreover, the complainant was unable to confirm the date of the email and did not enter it in evidence, which I requested.

21 As for the right of appeal mentioned in the expulsion letter of January 28, 2009, the complainant acknowledged that he did not file written submissions with the respondent’s board of directors, contrary to the requirements of the Policy. He gave three reasons for not doing so.

22 First, the complainant testified that he was unaware of the 14-day appeal period and that he did not receive a copy of the Policy, contrary to what the letter of January 28, 2009 suggests and contrary to Mr. Gillis’s testimony.

23 Second, the complainant stated repeatedly that the appeal process set out in the Policy was not credible because appealed decisions were usually upheld in advance and were rendered by the same individuals who had originally made the decisions. In cross-examination, the complainant insinuated that it was completely futile to take that course of action because the process was meaningless.

24 Third, the complainant indicated that, further to the letter of January 28, 2009, he had a number of discussions with Institute representatives who claimed that there was no ground for his expulsion and that the Institute would shortly revisit its decision. Moreover, the complainant indicated that he was told that Mr. Gillis would be at the regional meeting in September and that that would be an opportunity to speak with him. In cross-examination, the complainant was unable to specify the number of discussions he had, the names or titles of the representatives he had spoken with, or the locations of the meetings. I reminded him that it was important to provide details about his allegation so that I could determine the weight to give it when I reviewed the evidence. The complainant stated that he preferred not to disclose those details to protect the individuals involved, whom he believed would definitely be subject to reprisals by the Institute if the details were made known. When I asked him to elaborate as to the basis of his statement, he referred me to the Policy, without specifying the relevant part, and to an Institute policy that he could not name and that he did not wish to enter in evidence.

25 The complainant was fully aware that he had 90 days to file a complaint and that he had been expelled on January 28, 2009, subject to the right of appeal stated in the letter. Nevertheless, the complainant stated repeatedly that he did not have the impression that things were finished until the meeting on September 5, 2009 and that, only one month after that meeting, he realized that there was no longer any hope and that he had to act.

III. Summary of the arguments

A. For the respondent

26 The respondent submitted that the 90-day time limit set out in subsection 190(2) of the PSLRA is strict and that no provision in the PSLRA grants the Board authority to extend that deadline. On that point, the respondent referred me to the following decisions: Castonguay v. Public Service Alliance of Canada, 2007 PSLRB 78, ¶ 55; Cunningham v. Correctional Service of Canada and Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN, 2009 PSLRB 96, ¶ 37; Hérold v. Public Service Alliance of Canada and Gritti, 2009 PSLRB 132, ¶ 14; Boshra v. Canadian Association of Professional Employees, 2009 PSLRB 100, ¶ 45; Éthier v. Correctional Service of Canada and Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN, 2010 PSLRB 7, ¶ 18; and Roberts v. Union of Canadian Correctional Officers - Syndicat des Agents Correctionnels du Canada - CSN (UCCO - SACC - CSN), 2010 PSLRB 96, ¶ 34.

27 The respondent submitted that the complainant filed his complaint well past the deadline set out in subsection 190(2) of the PSLRA,that is, more 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 respondent is of the opinion that the complainant’s claims that he believed that the Institute was still deciding the appropriate disciplinary penalty and that his chance meeting with Mr. Gillis postponed the date on which the Institute’s decision would be final are neither plausible nor credible.

28 The respondent maintained that the letter of January 28, 2009, announcing the permanent expulsion of the complainant, clearly explained how he could appeal the decision and that a failure to appeal meant that the decision was final and irreversible.

29 The respondent stated that, between January 28 and September 5, 2009, the complainant did not contact any Institute representative with the authority to revisit the decision. The respondent further stated that, had it not been for the complainant’s request to speak with Mr. Gillis, the chance meeting of September 5, 2009 would never have occurred.

30 The respondent also submitted that the September 5, 2009 meeting could not have extended the time limit because it was an unplanned meeting that was not part of the Institute’s internal appeal process, and the complainant never attempted to have the Institute’s decision reversed during that meeting. Instead, he sought financial compensation in exchange for his pledge not to take any further action against the Institute.

31 As for the complainant’s claim that he contacted representatives of the Institute who believed that there was no ground for the expulsion and that the Institute would revisit its decision, the respondent argued that that claim is simply not credible, and it is immaterial that some of the complainant’s former colleagues may not have shared the Executive Committee’s view. The respondent maintained that only members of the Institute’s board of directors had the authority to revisit the decision to expel the complainant, and he knew or ought to have known that the decision would be upheld and considered final unless he exercised his right to appeal. The respondent further stated that the complainant has held positions as a regional director and vice-president of the Institute, positions in which he would have participated in the decision-making process set out in the Policy.

32 The respondent submitted that the complainant’s failure to use the Institute’s internal appeal mechanism was fatal to his claim that the Board has jurisdiction to hear his complaint.

33 Finally, the respondent raised a second argument that the complainant’s complaint is inadmissible because its essence is governed by paragraphs 188(b) and (c) of the PSLRA and not paragraph 188(d), as the complainant maintained. That argument is new. The respondent did not raise it in its written submissions filed at the Board’s request before the hearing. The respondent referred to the following decisions in support of that argument: Renaud v. Canadian Association of Professional Employees, 2009 PSLRB 177; Bouchard v. Public Service Alliance of Canada et al., 2008 PSLRB 82; and Daykin v. Union of Taxation Employees et al., 2010 PSLRB 61.

B. For the complainant

34 The complainant reiterated the evidence presented in his testimony without providing any jurisprudential basis.

35 The complainant lamented the fact that the Institute refused to discuss the real question and the real issues, preferring instead to raise preliminary objections that he considered “[translation] technical.”

36 The complainant acknowledged that, under the PSLRA, he had to file his complaint within 90 days. However, he believes that the start date of the 90-day filing period should have been September 5, 2009. The complainant argued that, until that date, he still had hope that the Executive Committee’s decision would be reversed. He stated that it was not until the Institute “[translation] closed all the doors” in September 2009 that he knew of the circumstances giving rise to his complaint.

37 The complainant also believes that, even if the filing period for the complaint started on January 28, 2009, his complaint would have been late by only a few months, which should not have prevented the parties from addressing the real issue raised in his complaint, which is the right of Institute members to form their own union.

IV. Reasons

38 In this type of complaint, timeliness is a prime factor, and the key element of timeliness is prescribed in subsection 190(2) of the PSLRA, which reads as follows:

190. (2) … 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.

39 Contrary to what the respondent seems to claim, the complainant’s right to file a complaint alleging a violation of paragraph 188(d) of the PSLRA does not depend on him exhausting the recourse set out in the Institute’s appeal process (subsection 190(3)). The complainant chose to base his complaint on paragraph 188(d) and not on paragraph 188(b) or (c).

40 As I informed the parties, the purpose of the hearing was to better understand and assess their evidence and arguments on the filing period issue, specifically the date on which the complainant knew or ought to have known of the circumstances giving rise to his complaint.

41 I entirely agree with the respondent’s arguments that the 90-day time limit is strict and that I have no authority to extend it (see Castonguay, Éthier and Cunningham). The Board has repeatedly affirmed the mandatory nature of subsection 190(2) of the PSLRA. In fact, in Boshra, at paragraph 45, the Board stated the following:

[45] … 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.

42 The extent of my jurisdiction is to determine, based on the evidence before me, the date on which the 90-day period started (see Roberts, at paragraph 34).

43 After reviewing the testimonial and documentary evidence submitted by the parties, I am satisfied that, on January 28, 2009, the complainant knew or ought to have known of the circumstances giving rise to his complaint. Therefore, the complainant had to file his complaint no later than April 28, 2009, which he failed to do. The complaint was filed on October 26, 2009, 271 days after the date on which the complainant knew of the circumstances giving rise to the complaint, which is well outside the 90-day period.

44 The complainant betrayed himself when he stated that the internal appeal process was completely meaningless and that he was fully aware of the 90-day period set out in subsection 190(2) of the PSLRA. Although he was perfectly free to doubt the effectiveness of the internal appeal process and to refuse to use it, it remains that his claims about the appeal process could not postpone the date on which he knew of the respondent’s decision to expel him.

45 Nonetheless, the complainant waited a number of months before bringing his complaint before the Board. I repeatedly attempted to have him specify the nature of the discussions that he claims to have had with the supposed representatives of the Institute in the months following the letter of January 28, 2009, but it was in vain. The complainant refused to specify the exact dates of his discussions, the names of the representatives, the authority under which they were acting or the scope of the discussions. The complainant should have produced much more concrete evidence had he hoped to make his complaint timely under section 190 of the PSLRA, but he failed.

46 I cannot accept that the meeting on September 5, 2009, triggered the failure to comply with section 190 of the PSLRA, which is the subject of the complaint. I am satisfied that it was a chance meeting that was not part of the respondent’s internal appeal process. The complainant’s claim that he did not have the impression that things were finished until the meeting on September 5, 2009 has not been established on a balance of probabilities. On that point, I prefer Mr. Gillis’s version. Moreover, even were I to accept that the complainant had discussions with representatives of the Institute to reverse its decision to expel him, as he testified, or that he tried during the meeting on September 5, 2009 to persuade the respondent to revisit its decision, which was not established by the evidence, it would not change the date on which he knew or ought to have known of the circumstances giving rise to his complaint. Despite the complainant’s efforts to resolve the conflict, the PSLRA requires that the complaint be filed within the prescribed time limit (see Boshra, at paragraph 47). Had the September 5, 2009 meeting been successful, the complainant could simply have withdrawn his complaint.

47 As stated in Éthier, at paragraph 21, “[t]o the extent that there is a violation of the PSLRA, there is no minimum or maximum standard for the degree of knowledge that a complainant must have before filing his or her complaint.” In this case, knowledge of the respondent’s decision to expel the complainant permanently, which the complainant possessed on January 28, 2009, triggered the alleged violation of paragraph 188(d) of the PSLRA and the 90-day time limit. Therefore, I am satisfied that the complainant did not file his complaint within the time limit set out in subsection 190(2).

48 For those reasons, I agree with the respondent’s objection that the complaint is inadmissible because it is out of time.

49 As I have already found that the complaint is inadmissible because it was not filed within the prescribed time limit, I need not deal with the respondent’s second argument, which was about the inadmissibility of the complaint on the basis of paragraphs 188(b) and (c) of the PSLRA.

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

V. Order

51 The complaint is dismissed.

February 28, 2011.

PSLRB Translation

Stephan J. Bertrand,
Board Member