FPSLREB Decisions

I. Complaint before the Board

1 This decision deals with the timeliness of a complaint in which Reg Johnson (“the complainant”) alleges that his bargaining agent, the Professional Institute of the Public Service of Canada (“the Institute” or “the respondent”), committed an unfair labour practice.

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

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

3 Section 185 of the PSLRA defines the meaning of an unfair labour practice as anything prohibited by subsection 186(1) or (2), section 187 or 188, or subsection 189(1).

4 The complainant specified 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

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(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; or …

5 The complainant’s complaint deals with a five-year membership suspension from the Institute. On January 28, 2009, he was informed in writing that he was suspended because he had participated in the creation of a new employee association called “The Agency Professionals Association” (APA), which sought to be the new bargaining agent to represent some of the respondent’s members. The complainant filed his complaint on November 23, 2009.

6 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.

7 In his complaint, the complainant claims that he knew of the act, omission or other matter giving rise to his complaint only on September 5, 2009. He specifies that a meeting was held on that date between Gaston Lampron, a fellow member, and Edward Gillis, the executive secretary of the Institute, which meeting provides, according to the complainant, the date on which to begin the calculation of timeliness.

8 Mr. Lampron also received a lifetime ban from the Institute on January 28, 2009, for his participation in the APA and filed a similar complaint against the respondent, which the respondent also challenged as untimely. Mr. Lampron similarly relied on the September 5, 2009 meeting as the date on which he knew of the act, omission or other matter that gave rise to his complaint. I heard Mr. Lampron’s complaint on February 3, 2011, and directed the parties to exclusively address the timeliness issue. That provided me with an opportunity to carefully examine the circumstances surrounding the September 5, 2009 meeting.

9 The factual basis and arguments raised by the complainant in his complaint are, with respect to the issue before me, identical to those raised by Mr. Lampron. On February 28, 2011, I rendered a decision on Mr. Lampron’s complaint (see Lampron v. Professional Institute of the Public Service of Canada, 2011 PSLRB 29). I found that I could not accept that the meeting of September 5, 2009 was the triggering event that had led to the respondent’s failure to comply with section 190 of the PSLRA and that the meeting could not extend the timelines to file a complaint under section 190. In Lampron, I agreed with the respondent’s position that Mr. Lampron knew or should have known of the circumstances giving rise to his complaint on January 28, 2009. I ruled that his complaint was inadmissible because it was untimely, and I dismissed it.

10 As it appeared very likely that the circumstances of the complainant’s complaint had already been weighed in the Lampron matter, given the identical set of circumstances involved, I provided the parties with a copy of the Lampron decision and invited them to submit additional written arguments as to whether the disposition of the Lampron matter affected their respective positions. The complainant did not submit any additional submissions.

11 The timeliness of this complaint rests solely upon the nature of the September 5, 2009 meeting between Mr. Lampron and Mr. Gillis. Since I have already ruled that that meeting occurred by chance and that it did not extend the 90-day time limit, and in the absence of submissions from the complainant on this issue, I find that it cannot extend the limit for filing the present complaint.

12 The only direct evidence of the meeting is that of Mr. Lampron and of Mr. Gillis, given that no one else was present. I have already heard and considered that evidence. I am satisfied that re-hearing this evidence in the context of this complaint would serve no useful purpose and would unnecessarily duplicate a matter that is now final.

13 For the same reasons as those outlined in the Lampron decision, I cannot accept that the applicable triggering date in this complaint is September 5, 2009. Rather, I am satisfied that, based on the evidence I heard in the Lampron matter related to the meeting of September 5, 2009, and on the documentary evidence submitted by the parties in this case, this complaint is based on events that occurred on January 28, 2009 and that the complainant knew or ought to have known of the circumstances giving rise to his complaint as of that date. That means that the complainant was required to file his complaint no later than April 28, 2009, which he failed to do. The complaint was filed on November 23, 2009, 300 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.

14 As I stated in the Lampron ruling, the 90-day time limit imposed by subsection 190(2) of the PSLRA is strict, and I have no authority to extend it. The Board has consistently affirmed the mandatory nature of that provision.

15 Once more, given that the complainant provided no new evidence or arguments to distinguish his complaint from the Lampron ruling, I see no compelling reason for a different conclusion.

16 For the reasons already outlined in Lampron and those mentioned earlier in this decision, I agree with the respondent’s objection that this complaint is inadmissible because it is out of time.

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

Order

18 The complaint is dismissed.

June 24, 2011.

Stephan J. Bertrand,
Board Member