FPSLREB Decisions

Request before the Board

1 On October 19, 2006, David Barrymore Davies, (“the applicant”) filed an unfair labour practice complaint against the Public Service Alliance of Canada (“the respondent”), pursuant to paragraph 190(1)(g) of the Public Service Labour Relations Act (“the Act”). In that complaint, the applicant alleged that the respondent had breached its duty of fair representation in connection with certain grievances against the applicant’s employer, the Department of Public Works and Government Services (PWGSC), by acting in an arbitrary and negligent manner. I will refer to his previous complaint as PSLRB File No. 561-02-125.

2 The complaint was scheduled to be heard in Vancouver, British Columbia, from May 5 to 7, 2009.

3 However, on April 22, 2009, the applicant advised the Public Service Labour Relations Board (“the Board”) in writing that following a detailed review, he had “reluctantly” decided to withdraw his complaint against the respondent.

4 Upon receiving the applicant’s notice of withdrawal, the Board’s director of registry operations informed the parties in writing on April 27, 2009 that, in light of the applicant’s withdrawal, the hearing scheduled for May 5 to 7, 2009 was cancelled, that the proceeding was terminated and that PSLRB File No. 561-02-125 was closed.

5 On November 16, 2010, the applicant requested a review of the closure of PSLRB File No. 561-02-125 under section 43 of the Act. The application was based on new information that he had allegedly obtained, which would have had, according to him, a significant impact on his previous decision to withdraw his complaint. In the last paragraph of page 4 of his submissions dated March 29, 2011, the applicant refers to having “abandoned” his complaint in April 2009.

6 The respondent submits that the application for review fails to meet the criteria set out in section 43 of the Act and that it amounts to nothing less than an attempt by the applicant to reopen his unfair labour practice complaint (PSLRB File No. 561-02-125). In support of its contention, the respondent referred me to paragraph 14 of Danyluk et al. v. United Food and Commercial Workers Union, Local No. 832, 2005 PSLRB 179, which is referred to later in this decision.

7 In essence, the respondent submits that the applicant failed to provide any details about the alleged new information that had been obtained, that he failed to provide any explanation justifying why the information in question could not reasonably have been presented in May 2009, and that he failed to provide any compelling reasons to reopen the 2006 complaint.

8 The applicant contends that the new evidence that he allegedly obtained was not available when he abandoned his complaint. He refers to misrepresentations by representatives of the PWGSC and by officials of the Treasury Board of Canada Secretariat, without disclosing what those misrepresentations consisted of. He also refers to ongoing collusion between the respondent and the PWGSC, but again without unveiling the basis of his statement. He often states that new evidence will be presented at a later date without providing any real particulars, such as names and dates.

9 It is difficult to decipher the applicant’s argument. For example, he states at page 7 of his submissions that “[t]he fact that the respondent would not assist with the disclosure of the new evidence as requested was one of the main reasons that the complainant on April 22, 2009, abandoned the May 5 to 7, 2009 scheduled Board hearing.” That type of statement, among many other similar ones, certainly does not correspond to the intervention criteria set out in section 43 of the Act. If the applicant was seeking this so-called new evidence before abandoning his complaint, it could hardly be considered new.

10 A large portion of the applicant’s submissions deal with the lack of representation he received from the respondent, something that clearly pertains to the abandoned complaint and that I do not have to consider in this application. In addition, many of the complainant’s comments deal with a memorandum of understanding that was reached with his employer, something that was not part of the original complaint and could therefore not be reviewed.

11 Section 43 of the Act vests the Board with the discretion to review its own decisions 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.

12 Many Board decisions have canvassed this issue. In Veillette v. Professional Institute of the Public Service of Canada, 2010 PSLRB 38, the Board wrote as follows:

…

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…

…

13 Section 44 of the Act empowers the Chairperson of the Board to assign matters of which the Board is seized to panels and to determine the compositions of those panels.

14 Hence, before intervening, the Board will ensure (i) that a party is presenting new evidence or a new argument that was not available when the original decision was rendered by a panel of the Board; (ii) that the new evidence or argument is relevant to the issue that was decided in the original decision rendered by a panel of the Board; and (iii) that the new evidence or argument could reasonably affect the outcome of the case.

15 Even if this application, on its face, were to meet the criteria on which the Board may decide to intervene and review the closure of PSLRB File No. 561-02-125, and I am not suggesting that it does, there is still a major obstacle in the way of the applicant’s quest to have this matter reviewed. Simply put, there is no decision to review.

16 In my opinion, the letter from the Board’s director of registry operations dated April 27, 2009 does not constitute an order or a decision of the Board. The applicant’s complaint was never heard by a panel of the Board. No evidence, documentary or otherwise, was considered by a panel of the Board. The outcome of PSLRB File No. 561-02-125 consisted of a notification to the parties that the proceeding in question was terminated and closed, an outcome that ultimately resulted solely from the applicant’s notice of withdrawal. What “additional” evidence could be considered to affect that outcome? As stated above, no original decision was rendered, and no original evidence was considered.

17 This is a case in which the applicant withdrew his complaint after a detailed review of his claim against the respondent and in which the Board reacted to the applicant’s abandonment of his complaint by cancelling the hearing and closing the file. This situation clearly does not fall within what is contemplated by section 43 of the Act. No original evidence or argument was heard by a panel of the Board, and no decision or order was rendered by a panel of the Board. This is unfortunately fatal to Mr. Davies’ application.

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

Order

19 The application for review is dismissed.

August 3, 2011.

Stephan J. Bertrand,
Board Member