FPSLREB Decisions

I. Request before the Board

1  On October 18, 2010, the Treasury Board (“the applicant”) asked the Public Service Labour Relations Board (“the Board”) to reconsider, pursuant to section 43 of the Public Service Labour Relations Act (“the Act”), its decision of June 25, 2010 that further particulars were not required at that time for the complaints in PSLRB File Nos. 666-02-1 to 3 (“the complaints”). They are pay equity complaints filed by Diane Melançon, Michael Brandimore and Louise Ippersiel (“the respondents”) with the Canadian Human Rights Commission (CHRC). The CHRC referred the complaints to the Board after the coming into force of section 396 of the Budget Implementation Act, 2009, S.C. 2009, c.2 (BIA).

2 After consulting all the parties about their availabilities, the Board informed them on June 2, 2010 that it would hold a pre-hearing conference on June 21, 2010, with the applicant, the respondents and the Public Service Alliance of Canada (”the bargaining agent”). On June 2, 2010, the Board informed the parties that the agenda of that pre-hearing conference would be the following:

The Vice-Chairperson presiding over the pre-hearing conference of this matter, on June 21, 2010, proposes the following agenda:

1. Respective roles of complainant’s counsel and bargaining agent, in light of Budget Implementation Act, 2009 provisions on representation;
2. Timetable of exchange of information/data/reports among the parties; and
3. Preliminary discussion on when the parties expect that hearing dates can be scheduled;

If there are any other preliminary matters that the parties wish to raise, the parties should advise the undersigned, and each other, by June 15, 2010.

3 The pre-hearing conference took place as planned on June 21, 2010. The parties were informed in a letter dated June 25, 2010 of the Board’s decisions on the issues discussed at the pre-hearing conference. The applicant asks the Board to reconsider its decision about the requirement to provide further particulars. The Board’s June 25, 2010 letter reads as follows:

This is further to the pre-hearing conference that took place on Monday, June 21, 2010.

I have been asked to relay Vice-Chairperson Mackenzie’s determinations based on the discussions that took place that day.

1. It was confirmed that the Public Service Alliance of Canada (PSAC) is, pursuant to the Budget Implementation Act, 2009, a party to the application. The PSAC has indicated that it does not, at this point, intend to call evidence. The PSAC will have full participation rights at the hearing, including the right to cross-examine and to make submissions.
2. The employer requested further particulars from both the complainants and the PSAC. The complainants and the PSAC objected to this request. The employer suggested that this would have been the natural course if the complaint had been heard by the Canadian Human Rights Tribunal (CHRT). It also stated that further particulars were required in order to adequately prepare its case. In addition, the employer noted that a request for particulars was granted in another complaint before the PSLRB.

The Vice-President has determined that further particulars are not required, at this time, for the following reasons:

• The request for particulars in the other complaint before the PSLRB was granted on consent of all parties;
• The CHRT rules are not applicable to these complaints. Parliament determined that the CHRT would no longer be the tribunal to hear existing complaints at the CHRC and gave jurisdiction over the complaints to the PSLR [sic]. The PSLRB rules therefore govern any procedural issues;
• Further particulars are only required when the record does not permit, objectively speaking, a party to know the case that it has to meet;
• In this case, the employer has a detailed complaint and other information filed by the complainant, as well as the submissions in the preliminary objection to jurisdiction;
• The parties were given a six-month period in the legislation in order to have discussions about the complaints. It appears that the parties did not utilize this time to have those discussions. A failure by the employer to raise concerns about the particulars of the complaints during this time should not result in a delay to the complainants;
• In correspondence to the PSLRB dated June 22, 2009, Ms. Laurendeau provided a concise summary of the complaints filed and appeared to understand the nature of the complaints;
• Any concerns about surprise or unexpected evidence can be addressed, if necessary, by a request for an adjournment at the appropriate time.

Having considered the submissions of the parties, the Vice-Chairperson has determined that the parties will have until July 30, 2010, to have discussions on the scope of disclosure of documents and to come to an agreement on disclosure. Any issues relating to disclosure must be raised with the PSLRB by August 16, 2010. A further pre-hearing conference will be scheduled, if necessary, after August 16, 2010 on a date to be determined after consultation with the parties.

4 The applicant asks that the Board rescind or amend its June 25, 2010 decision not to require the respondents to provide supplementary facts related to the essential elements of their complaints.

II. Summary of the arguments

A. For the applicant

5 The applicant based its request on the fact that the respondents have not properly pleaded the elements required to establish a prima facie case of systemic discrimination under section 10 or 11 of the Canadian Human Rights Act, R.S.C. 1985, c.H-6 (CHRA). The respondents have not identified a policy or a practice which deprives them of employment opportunities on the basis of their gender. Furthermore, they have not identified a predominantly male comparator group that is allegedly paid higher wages for work of equal value. Instead, the respondents have presented a moving target, both in their description of the female-predominant complaint group and in their choice of comparator groups.

6 The applicant argued that it did not have an opportunity to put its rationale and arguments before the Board at the June 21, 2010 pre-hearing conference as to the further information about the allegations based on section 10 and section 11 of the CHRA that was required and as to why it was required. Rather, the Board decided that no particulars were required, without hearing any submissions from the parties.

7 The respondents must provide further specifics about the complaints as a matter of procedural fairness and to protect the efficacy of the Board’s process. The applicant has a right to know the case against it and the right to meet that case within a reasonable time. Allowing the complaints to proceed without requiring further particulars might result in delays and confusion. The applicant submits that the Board should take steps to avoid a similar result in this proceeding. It should order the respondents to plead the material facts on which they are relying in support of the essential elements that must be proved to establish a prima facie case under both sections 10 and 11 of the CHRA.

8 The applicant argued that the Board should reconsider its June 25, 2010 decision. The applicant listed in its submission the items for which it wants further particulars from the respondents, including the respondents’ classification and levels, the basis of their assertion that their job classification adversely affected their careers, the comparator groups, the specifics of the alleged bias in the current classification system and how the respondents assert their positions should be classified.

9 The applicant argued that its motion was brought within a reasonable time of the Board’s June 25, 2010 decision and of when it became clear that the respondents were not willing to confirm any material facts essential to their complaints unless they were expressly ordered to by the Board. 

10 The applicant also argued in detail about why it believes that it has met the test for reconsideration under section 43 of the Act.

11 The applicant referred me to the following decisions: Melançon et al. v. Treasury Board (Department of Industry, Department of Health and Canadian International Development Agency), 2010 PSLRB 20; Bouchard v. Public Service Alliance of Canada, 2009 PSLRB 31; Chaudhry v. Treasury Board (Correctional Service of Canada), 2009 PSLRB 39; Chaudhry v. Canada (Attorney General), 2009 FCA 376; Canada Post Corporation v. Canadian Human Rights Commission (1997), 130 F.T.R. 241 (T.D.); Canada Post Corporation v. Public Service Alliance of Canada, 2008 FC 223; Wiseman v. Attorney General of Canada, 2008 CHRT 37; Ontario (Human Rights Commission) v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536; Public Service Alliance of Canada v. Canada (Department of National Defence), [1996] 3 F.C. 789 (C.A.); Canada (Human Rights Commission) v. Canadian Airlines International Ltd., 2006 SCC 1; Public Service Alliance of Canada v. Canada Post Corporation, 2005 CHRT 39; Public Service Alliance of Canada v. Canada Post Corporation 2010 FCA 56; Canadian Museum of Civilization Corp. v. Public Service Alliance of Canada, Local 70396, 2006 FC 704; and Walden et al. v. Social Development Canada, 2007 CHRT 56.

B. For the respondents

12 The respondents argued that the applicant did not bring its motion at the earliest possible opportunity. The applicant was informed in writing on June 25, 2010 of the Board’s position on the issue of providing further particulars about the complaints. The applicant waited almost four months before bringing its motion, during which time the respondents were preparing for the next step of the litigation process. If the motion is granted, the respondents will suffer prejudice from the unfair delay and from increased costs.

13 The applicant did not meet the test for reconsideration under section 43 of the Act. On that point, the respondents referred me to Danyluk et al. v. United Food and Commercial Workers Union, Local No. 832, 2005 PSLRB 179; Bouchard; and Czmola v. Treasury Board (Solicitor General — Correctional Service Canada), 2003 PSSRB 93. No circumstances have changed since the June 25, 2010 decision, no new evidence or arguments exist that could not have been presented at the June 21, 2010 meeting, and no compelling reason exists for the Board to review its decision.

C. For the bargaining agent

14 In essence, the bargaining agent and the respondents argued that the applicant did not meet the test for reconsideration under section 43 of the Act and that it did not bring its motion at the earliest possible opportunity.

15 The bargaining agent reminded the Board that the applicant has brought a lengthy motion concerning multiple preliminary matters and that it has made the Board’s decision on that motion the subject of an application for judicial review (since discontinued). The applicant has also made an additional motion for further particulars, and it requests a reconsideration of the Board’s determination of that motion. A practice of litigating through a revolving door of motions and applications seems at odds with any possibility of ever achieving procedural certainty. In addition, such a practice, if permitted to continue, will allow a party with considerable resources at its disposal to use (or abuse) the process as a back-door method of disposing of complaints.

D. Rebuttal for the applicant

16 The applicant reminded the Board that the complaints were transferred to it by the CHRC in March 2009 pursuant to section 396 of the BIA. In the absence of any clear direction to the contrary, it was reasonable for the applicant to presume that a process for the exchange of particulars, or something similar, might be adopted, in accordance with the procedure that would have been followed had the complaints been referred to the Canadian Human Rights Tribunal (CHRT).

17 There is no basis for the assertion that the applicant is litigating through a revolving backdoor of motions and applications. The applicant was at least partially successful in its initial motion brought before the Board which led to the Board’s February 5, 2010 decision (Melançon et al.). That decision helpfully clarified certain aspects of the complaints by dismissing the complaints against the three named departments and by ordering that the complaints be amended to remove any reference to “separate employers” and to section 7 of the CHRA. The applicant maintains that nothing is improper about its current effort to obtain additional facts about essential elements of the complaints, which will assist with ensuring that the respondents receive a timely and fair resolution of their case.

III. Reasons

18 At the pre-hearing conference, the applicant requested further particulars from the respondents and the bargaining agent in order to adequately prepare its case. The Board wrote to the applicant on June 25, 2010 to inform it that it did not agree with its request. The applicant now asks the Board to reconsider, pursuant to section 43 of the Act, the decision that further particulars were not required for the  complaints. Section 43 of the Act 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.

(2) A right that is acquired by virtue of an order or a decision that is reviewed, rescinded or amended by the Board may not be altered or extinguished with effect from a day that is earlier than the day on which the review, rescission or amendment is made.

19 The Board has developed detailed criteria to determine whether to agree to review, rescind or amend its decisions. They are based on criteria already established by the Public Service Staff Relations Board (“the former Board”) under the Public Service Staff Relations Act, which contained a comparable section about reviewing orders or decisions (see Danyluk et al. at paragraph 14). According to Czmola, the seminal decision of the former Board on this issue is Public Service Alliance of Canada v. Treasury Board, PSSRB File No. 125-02-41 (19851218). In that decision, the former Board wrote the following:

…

In the Board's view, section 25 was not designed to enable an unsuccessful party to reargue the merits of its case. The purpose of section 25 was rather to enable the Board to reconsider a decision either in the light of changed circumstances or so as to permit a party to present new evidence or arguments that could not reasonably have  been presented at the original hearing or where some other compelling reason for review exists. It would be not only inconsistent with the need for some finality to proceedings, but also unfair and burdensome to a successful party to allow the unsuccessful one to try to shore up or reformulate arguments that had already been considered and disposed of.

…

20 The purpose of section 43 of the Act is not to allow an unsuccessful party to re-argue the merits of its case. Rather, the purpose is to enable the Board to reconsider a decision on the basis of changed circumstances or to permit the presentation of evidence or arguments that could not have been presented in the original proceedings. The Board could also agree to review a decision for other compelling reasons.

21 Based on a review of some of its key decisions and those of the former Board, in Chaudhry, the Board identified the following criteria for reconsidering a decision under section 43 of the Act: the reconsideration must not relitigate the original case, it must be based on a material change in circumstances, and it must consider only new evidence or arguments that would have a determining effect on the outcome of the original decision and that were not possible to present at the original hearing. In addition, the Board must ensure that a compelling reason exists for the reconsideration and must reconsider its decisions judiciously, infrequently and carefully.

22 Even though the positions of the parties on some issues and their willingness to share information might have evolved since June 2010, I see nothing in what the applicant submitted on October 18, November 9, and December 17, 2010 that could lead me to believe that circumstances have changed or that new determining evidence or arguments have arisen that would have a determining effect on the outcome of the June 25, 2010 decision and that could not have been raised with the Board in June 2010. Rather, it appears to me that the applicant is attempting to relitigate its request for the Board to order the respondents and the bargaining agent to produce further particulars on the complaints. I find no compelling reason to reconsider the Board’s decision of June 25, 2010. Consequently, I dismiss the application.

23 The complaints were filed with the CHRC in 2004 and were amended in March 2007. In March 2009, the complaints were referred to the Board. The complaints were filed more than six years ago and were referred to the Board two years ago. The process used by the Board to hear pay equity complaints is different from the process used by the CHRT and the CHRC, which assist parties in gathering and analyzing the facts in a complaint. The Board does not provide that assistance. It asks the parties to cooperate and to disclose the required information.

24 Shortly after this decision is issued, the Board will call another pre-hearing conference in order to speed up the exchange of information between the parties and to decide on dates to begin hearing the complaints on their merits.

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

Order

26 The application is dismissed.

April 20, 2011.

Renaud Paquet,
Vice-Chairperson