FPSLREB Decisions

I. Complaint before the Board

1 On February 6, 2009, David Babb (“the complainant”) filed a complaint under section 133 of the Canada Labour Code (“the Code”). However, before a full hearing could commence, the Canada Revenue Agency (“the respondent”) filed an objection to the jurisdiction of the Public Service Labour Relations Board (“the Board”) to hear this matter. The parties requested that I deal with this jurisdictional issue at the outset. Depending on the result, the matter would end, or the hearing would proceed.

2 Section 3 of the complaint form is titled “Concise statement of each act, omission or other matter complained of, including dates and names of persons involved.” In this section, the complainant wrote as follows:

3. Employees of the Canada Revenue Agency have taken actions against me contrary to section 147 of the Canada Labour Code. These actions appear to be deliberate and systemic. These actions are consistent with similar actions taken against Denis Lapointe and Samantha Scharf.

Employees of the Canada Revenue Agency have knowingly and willfully violated my rights and taken action/inaction against me contrary to rights under the Canadian Human Rights Act, the Canada Labour Code and the Workers Compensation Legislation. Numerous employees of the Canada Revenue Agency on various levels and in various capacities appear to be involved. I have been harmed and suffered injury as a result. HRSDC and WSIB appear to have been involved as participants.

My attempts to gather information needed to identify such persons appear to have been intentionally obstructed by representatives of my employer at 875 heron rd and ATIP/CRA.

These matters have been ongoing for quite some time, focusing on the “RE: OSH Minutes” and “RE: Questions about the Plan of Action posted at 875 Heron rd.” chain of communications the persons primarily involved are as follows:

William Baker, Gary Gustafson, Steve Hertzberg, Kathy Mawbey, Chris Aylward, Gillian Pranke, Denis Maurice, Parise Ouellette, Greg Currie , Jean Laronde, Claude Tremblay, Lysanne Gauvin, Larry Hillier, Gordon O’Conner, Catherine Bullard, Lucie Bisson, Therese Awada, Louise Lambert, Lyne Lamoureux, Renee Donata, Blair, Bill-R; Bryant, Carl; Dodds, Eldon; Evans, Sean; Lapointe, Marie-Claude; Lawrence, Jeffrey; Miller, Shelley; Moore, Greg; Stranberg, Bert; Whyte, June, Moffet, Jeffrey. Persons from WSIB, HRSDC, Health Canada, and Tedd Nathanson (consultant) appear to be directly involved as well.

Recent e-mail communications and gathered information indicates deliberate actions have been taken against me and others contrary to our rights. Reference “Re: OSH Minutes” e‑mails that are presently ongoing.

This is as concise as I can be.

II. Analysis

3 Following much correspondence between the Board and the complainant, the matter was set down for a hearing on September 16, 2011. That hearing was postponed at the request of the complainant. On September 22, 2011, the respondent filed a written objection to the jurisdiction of the Board to hear the matter.

4 The complainant replied to the respondent’s written objection on October 14, 2011. The respondent filed a written rebuttal on November 10, 2011.

5 As was pointed out in Gaskin v. Canada Revenue Agency, 2008 PSLRB 96, preliminary issues may be determined based on the record, without convening an oral hearing. Paragraph 240(c) of the Public Service Labour Relations Act (“the Act”), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, states that the provisions of the Act apply to the complaint before the Board. Further, section 41 of the Act states as follows: “the Board may decide any matter before it without holding an oral hearing.”

6 The respondent based its objection to the jurisdiction of the Board to hear this matter based on the following two issues:

…

1. Should the PSLRB dismiss this complaint without a hearing because the essential components of a 133 CLC complaint are not present in Mr. Babb’s complaint?
2. Is the PSLRB without jurisdiction to hear this complaint because it is untimely?

…

7 When examining a complaint under section 133 of the Code, the Board inquires as to whether “… an employer has taken action against the employee in contravention of section 147 …”

8 Section 147 of the Code prohibits an employer from taking reprisal actions against an employee. It reads as follows:

147. No employer shall dismiss, suspend, lay off or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee remuneration in respect of any period that the employee would, but for the exercise of the employee’s rights under this Part, have worked, or take any disciplinary action against or threaten to take any such action against an employee because the employee

1. has testified or is about to testify in a proceeding taken or an inquiry held under this Part;
2. has provided information to a person engaged in the performance of duties under this Part regarding the conditions of work affecting the health or safety of the employee or of any other employee of the employer; or
3. has acted in accordance with this Part or has sought the enforcement of any of the provisions of this Part.

9 Further, the complainant had a 90-day window in which he could file a complaint, as per the provisions of subsection 133(2) of the Code, which reads as follows:

133. (2) The complaint shall be made to the Board not later than ninety 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.

As the respondent pointed out in its written submission, the limitation period is mandatory, and no authority exists to extend it (Larocque v. Treasury Board (Department of Health), 2010 PSLRB 94). Therefore, my jurisdiction to hear this complaint must be limited to examining actions of the respondent that allegedly contravened section 147 of the Code and that took place in the 90 days before February 6, 2009, or of which the complainant learned or ought to have known within the 90 days before February 6, 2009.

10 Section 3 of the complaint form filed with the Board is the applicable area that sets out the specific actions undertaken by the respondent that are complained about. That section would also be the location in which to specify the date of these actions. The written complaint must, in my view, clearly state what actions were allegedly taken and when these actions allegedly occurred. Only following the provisions of this information can the respondent investigate the allegations and respond to them. A complainant is not entitled to make allegations that are not based on facts. That principle was stated in Gaskin, at paragraph 57, as follows:

57 It is quite possible to lose sight of the essential subject of the complaint when reviewing the many allegations that the complainant makes against the employer and against public officials. As a self-represented party in this proceeding, the complainant need not be expected to frame the cause of his complaint in unequivocal and precise terms. On the other hand, he does have a responsibility to make the basis of his complaint sufficiently clear to the Board so that it can understand the nature of his case and so that the respondent can know the allegations against which it must defend.

11 Has the complainant specified any alleged action that could arguably be a contravention of section 147 of the Code? Did such action take place, or become known to the grievor, within the 90 days before the filing of the complaint? If the answer to both questions is “yes,” then I have jurisdiction to hear the matter. However, if the answer to any of these questions is “no,” I have no jurisdiction.

12 What is the action being complained of?

13 In the first sentence of section 3 of the complaint, the complainant writes as follows: “Employees of the Canada Revenue Agency have taken actions against me contrary to section 147 of the Canada Labour Code.” Nothing in that statement indicates what the actions were or when they took place, but it is an allegation that actions took place contrary to section 147 of the Code. The next two sentences of the first paragraph amplify the first, stating that the actions were deliberate, systemic and similar to actions taken against other individuals. However, I find nothing in either sentence to indicate what the alleged actions were or when they allegedly occurred.

14 Paragraph 2 of section 3 of the complaint states that the complainant’s rights were violated. It does not refer to any specific violation of section 147 of the Code. I find that statement so vague as to not alleging any arguable violation of section 147.

15 Paragraph 3 of section 3 of the complaint appears to express frustration with gathering information and, again, makes no reference to a violation of section 147 of the Code.

16 A number of individuals are named in paragraph 4 of section 3 of the complaint with regard to a very vague statement that does not allege any violation of section 147. No reference is made to any alleged action taken by the respondent that could arguably be a violation to section 147.

17 Finally, the last paragraph of section 3 of the complaint is similarly very vague. A statement is made in this last paragraph that “… deliberate actions have been taken against me and others contrary to our rights.” What were those alleged deliberate actions, and when were they allegedly taken? No indication is made of an answer to either question.

18 The first objection to the Board’s jurisdiction filed by the respondent was that “… the essential components of a 133 CLC complaint are not present …” in the complaint. If the only set of particulars in front of me were those in the complaint, I would find the respondent’s argument persuasive. However, the complainant filed additional material that was intended to buttress his complaint; the complainant’s reply to the respondent’s objection contained particulars in support of his complaint.

19 Paragraph 8 of the complainant’s reply states as follows:

8. Mr. Babb’s evidence will include testimony from him, and from other witnesses that describes a pattern of behaviour by the employer. Each complaint by Mr. Babb concerning health and safety issues, and each work refusal, led to particular responses by the employer. It was only over time that the pattern became apparent to him, and that the trajectory of the employer’s responses, violating his employment rights, in particular but not exclusively, his rights under the Canada Labour Code, undermining access to employment benefits, undermining access to timely and appropriate medical care, undermining any return to work process, causing further health issues, with an aim of terminating his employment, was drawn to his attention. It was only in the months leading up to Mr. Babb’s complaint that it became apparent to him that the employer had deliberately and systematically taken steps to put him out of the workplace, and to have him remain out of the workplace so that he could be terminated.

20 It would appear that the heart of this issue is the complainant’s belief that the respondent was going to terminate his employment. That is reinforced by the complainant’s statement at paragraph 12 of his reply. He writes as follows:

12.In particular, we note that the legislation contemplates that the obligation to file a complaint begins when the employee ‘knew or ought to have known of the actions or circumstances giving rise to the complaint’. It is submitted that the timeline for section 133 runs, not from the date of the original exercise of rights under the health and safety provisions of the Code, but from the date that a complainant becomes aware that the employer is engaging in reprisals that are prohibited by section 147. In Mr. Babb’s case, he became aware of the circumstances present that would facilitate his termination, and understood his employer’s intention to terminate him, via information that came to his attention during the 90 days prior to his complaint. (Notwithstanding his section 133 complaint of November 24, 2006 and the actions taken thereafter.) This knowledge was based on the pattern of action of the employer, and further information that came to his attention, shortly before he filed. We submit that the case therefore falls squarely within the Board’s jurisdiction.

Although the complainant’s fears of termination turned out to be prophetic, they cannot be the subject of this complaint under section 133 of the Code, as his employment was not terminated until after the complaint was filed. In addition, the termination of his employment is the subject of another proceeding.

21 In the complainant’s reply, he states, at paragraphs 19 and 20, as follows:

19. Should the Board decide not to defer the motion, as we propose, then it is submitted on behalf of Mr. Babb that there are sufficient grounds contained in his preliminary particulars to establish clear violations of his rights under the Code.

20. In the letter of August 30, 2011, David Babb’s solicitors identified the following in respect of reprisals toward Mr. Babb which he alleged were violations of his rights under the Code:

Mr. Babb was threatened with discipline as a result of his having raised deficiencies with the OSH meeting minutes.

The employer refused to proceed with IAQ health and safety issues after Mr [sic] Babb raised concerns on his own and other employees’ behalf [sic]

The HRSDC further refused to deal with IAQ issues.

The employer refused to properly investigate concerns of health and safety resulting in further illness for Mr. Babb and his ultimate cessation of work.

Mr. Babb requested accommodation in order to permit a return to work and a return to earning a livelihood; the employer refused; which ultimately led to Mr. Babb’s termination from employment.

I will deal with each of those alleged “reprisals toward Mr. Babb”, but, first, it is noted in the respondent’s written objection to jurisdiction that the complainant left the workplace on sick leave in March 2007, either with or without pay, until the termination of his employment on April 13, 2010.

22 The first alleged violation of the complainant’s rights reads as follows: “Mr. Babb was threatened with discipline as a result of his having raised deficiencies with the OSH meeting minutes.” As that issue could arguably be prohibited under section 147 of the Code, the respondent sought clarification from the complainant’s representative. A reply, from the complainant’s representative, listed a series of events that allegedly took place between 2004 and 2009. The majority are untimely, as the complaint was filed in 2009. Any incident cited as taking place in 2008 or 2009, such as “[r]efusal to cooperate and provide information regarding potential hazard information …”, “[k]nowingly and wilfully providing incorrect information to WSIB …” and “[r]efusing accommodation to Mr [sic] Babb … and refusing to acknowledge his illness …”, could not arguably be actions contrary to section 147, and the Board does not have jurisdiction over them in the case at hand.

23 The second alleged reprisal is that “[t]he employer refused to proceed with IAQ health and safety issues…” That could not arguably fit within the parameters of section 147 of the Code, as it is not a dismissal, suspension, layoff or demotion or a financial or other penalty, lossof remuneration or disciplinary action or threat of disciplinary action. The Board does not have jurisdiction to examine that issue under a section 133 complaint.

24 In a similar vein, the third alleged reprisal, which is that “[t]he HRSDC further refused to deal with IAQ issues …”, does not arguably fall within the stated parameters of section 147 of the Code.

25 The next alleged reprisal, which is that “[t]he employer refused to properly investigate concerns of health and safety resulting in further illness for Mr. Babb and his ultimate cessation of work …”, would also not arguably fall under section 147 of the Code and is additionally outside the 90-day timeline, since the complainant stopped working in 2007.

26 The last alleged reprisal is a refusal to accommodate, leading to the termination of the complainant’s employment. That issue relates to the complainant’s termination, which is the subject of another proceeding.

27 I can find nothing that would enable me to take jurisdiction with respect to the alleged reprisals against the complainant.

28 The complainant also refers to work refusals in his reply to the repondent’s objection. In part, it reads as follows: “[i]t is submitted that where work refusals have occurred, the onus falls to the employer to demonstrate that its subsequent actions were not an engagement in reprisal against the employee…” Once again, as the complainant left the workplace in 2007, and the complaint was filed on February 6, 2009, this allegation would fall well outside the mandatory 90-day timeline in subsection 133(2) of the Code, and I cannot hear it.

29 At paragraph 24 of the complainant’s reply, he states as follows:

24. In addition, or in the alternative, it is submitted that the allegations identified by Mr. Babb in his counsel’s letter of August 31 [sic], 2011 and email of September 16, 2011, constitute actions of discipline and/or financial penalty which may constitute breaches of the Code, provided that in evidence Mr. Babb can establish that there was a link between his work refusals and complaints, and the employer’s actions in response.

The letter is a response to the respondent’s request for particulars. At page 2 of the letter, counsel for the complainant writes that “Mr [sic] Babb raised the following issues and complaints with the employer regarding health and safety.” The letter then lists some 11 grievances filed by the complainant between 2004 and 2007. None of those issues can be the subject of this complaint, as all relate to issues well outside the 90-day timeline. The letter then lists a number of incidents under the heading “Canada Labour Code Involvement and Complaints”, which took place between 2004 and 2007. Again, none of them could be considered timely. I also note that one of the issues was the subject of a previous complaint by the complainant, which led to another Board decision. The next listing in the letter contains the heading “OSH Issues”, which appear to all relate to health and safety issues, not issues that could arguably fall under section 147 of the Code. In addition, all those issues relate to events that took place between 2002 and 2007, well outside the 90-day period. The next listing in the letter is titled “Outcome/Reprisal” and relates to a threat of disciplinary action for having raised deficiencies with OSH meeting minutes, which was dealt with earlier in this decision.

30 The email of September 16, 2011, is from the complainant’s counsel to the respondent’s counsel and contains the subject “Babb - further particulars.” A number of events are listed that took place between 2004 and 2010 (the latter being the termination of the complainant’s employment in April 2010). Keeping in mind that the complaint was filed on February 6, 2009 and that it could relate only to incidents in the 90 days prior, any events post February 6, 2009, cannot fall under this complaint. Further, the complaint is untimely with respect to any issues prior to 2008.

31 The first item in the September 16, 2011 email that could possibly fall within the 90-day timeline reads as follows: “[r]efusal to cooperate and provide information regarding potential hazard, information (2005, 2006, 2007, 2008, 2009) which Dave required to provide advice on accommodation …” As I said, this may be within the 90-day timeline, but it cannot be said to be a violation of section 147 of the Code. No element of discipline or penalty is alleged in this statement, so I do not have jurisdiction over it. The same is true with respect to the allegation that incorrect information was “[k]nowingly and willfully [provided] to WSIB and Sunlife to prevent Mr [sic] Babb from receiving benefits …” I find this cannot be said to be a violation of section 147 of the Code either, as it was not discipline in nature.

32 The next item in the September 16, 2011 email reads as follows: “… [r]efusing accommodation to Mr. Babb which he required, and refusing to acknowledge his illness (K Mawbey, J Thompson, 2008 ‑ 2009) reported in March 2009 letter …” The email then states, “[u]ltimately terminating Mr [sic] Babb in April 2010 …” The March 2009 letter is post the filing of this complaint, and the termination of employment is, as stated earlier, the subject of another proceeding. I have no jurisdiction to hear these issues.

33 While there are a number of issues cited in the letters, emails and submissions, I can find none that would arguably accord with the provisions of section 147 of the Code within the timeframe I am dealing with. I am left to conclude that I am without jurisdiction to hear this complaint.

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

III. Order

35 The respondent’s objection is allowed.

36 The complaint is dismissed.

April 18, 2012.

Joseph W. Potter,
Board Member