FPSLREB Decisions

I. Application before the Chairperson

1 On November 30, 2009, the Professional Institute of the Public Service of Canada (“the applicant’s representative”) applied to the Chairperson of the Public Service Labour Relations Board (“the Board”) on behalf of Leanne Coleman-Kamphuis (“the applicant”) for an extension of the time set out in the collective agreement to file a grievance. The applicable collective agreement is between the Treasury Board (“the respondent”) and the applicant’s representative, which is also the bargaining agent for the Health Services Group; expiry date September 30, 2011(“the collective agreement”).

2 Pursuant to section 45 of the Public Service Labour Relations Act (“the Act”), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, the Chairperson has authorized me, in my capacity as Vice-Chairperson, to exercise any of his powers or to perform any of his functions under paragraph 61(b) of the Public Service Labour Relations Board Regulations ("the Regulations") to hear and decide any matter relating to extensions of time. Section 61 of the Regulations reads as follows:

61. Despite anything in this Part, the time prescribed by this Part or provided for in a grievance procedure contained in a collective agreement for the doing of any act, the presentation of a grievance at any level of the grievance process, the referral of a grievance to adjudication or the providing or filing of any notice, reply or document may be extended, either before or after the expiry of that time,

1. by agreement between the parties; or
2. in the interest of fairness, on the application of a party, by the Chairperson.

II. Summary of the evidence

3 On November 30, 2009, the applicant’s representative wrote to the Board, arguing that the applicant had been on sick leave since 2008 and that the respondent discriminated against her on the basis of her disability. The applicant’s representative explained that she complained first to the Canadian Human Rights Commission (CHRC) about the discrimination. However, on August 26, 2009, the CHRC rejected her complaint and advised her that she should instead file a grievance under her collective agreement.

4 In its letter, the applicant’s representative informed the Board and the respondent that the applicant was about to file her discrimination grievance and that it anticipated that the respondent would object to its timeliness. The applicant’s representative therefore filed, by way of the same letter, an application for extension of time limits to file the grievance.

5 The applicant filed her grievance with the respondent on December 1, 2009.

6 On December 16, 2009, the respondent objected to the applicant’s grievance on the basis that it was untimely and argued that she had not provided the Board with clear, cogent and compelling reasons explaining the delay.

7 The respondent added that the CHRC had informed the applicant on August 26, 2009 that her complaint was rejected and that she should speak with a bargaining agent representative without delay about her grievance.

8 The respondent contended that the applicant waited until December 1, 2009 to file her grievance, which was three months after she received the CHRC’s response and was after the 25 days provided in the collective agreement for the filing of a grievance had expired. Moreover, the respondent argued that the fact that the applicant was sick in 2008 was not an excuse for not filing her grievance on time since she had been able to file a complaint with the CHRC at that time.

9 The parties agreed to proceed on the basis of written submissions.

III. Summary of the arguments

A. For the applicant

10 In addition to its letter of November 30, 2009, the applicant’s representative, in its submissions of November 28, 2011 and January 6, 2012, went to great lengths to explain the facts that led to the request for an extension of time.

11 The applicant’s representative explained that the applicant was employed as a case manager in Halifax at the NU-CHN-3 group and level with the Department of National Defence. Since 2004, she has been employed in Halifax. She has been off work since 2008 and does not know when she will return. She is presently considered totally disabled and is receiving benefits from Sun Life. The applicant’s representative explained that, because of the applicant’s medical situation, she has not been able to assist him with this request for an extension of time.

12 In 2005, the applicant was the subject of a harassment complaint filed against her by co-workers. It was investigated and, a year later, deemed to be unfounded.

13 The applicant’s representative explained that in May 2006, the applicant was diagnosed with cancer. A year later, while recovering from cancer treatment, she became the sole caregiver for her two children after her husband was posted to Kandahar, Afghanistan.

14 In 2009, the applicant again found herself the sole caregiver to her children when her husband attended Staff College in Toronto.

15 The applicant’s representative argued that, from the beginning of the applicant’s employment in Halifax in 2004, she was the victim of “. . . rumour, innuendo and direct attacks from her co-workers.” The applicant’s representative also submitted that she tried to resolve the problem herself and that she did not get any support from her employer.

16 In June 2, 2009, while the applicant was represented by outside counsel, she filed a complaint with the CHRC, alleging discrimination.

17 On August 26, 2009, the CHRC informed the applicant that it rejected her complaint and that she should contact her bargaining agent. The applicant’s representative explained that, at that time, the applicant was being treated by both a psychiatrist and a psychologist.

18 The applicant’s representative contended that the applicant contacted him in November 2009. He realized then that she was in no condition to assist him with her representation. On December 1, 2009, a grievance alleging discrimination on the basis of her illness was presented to the respondent, which objected to the grievance on the basis of timeliness.

19 The applicant’s representative argued that the CHRC’s decision, to not deal with the applicant’s complaint, combined with her personal circumstances of being very sick and in charge of two children – one diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) – caused her to become depressed. Only after further treatment did she contact her bargaining agent.

20 The applicant’s representative referred me to the criteria used by the Board to determine whether an extension of time should be granted. Essentially, the applicant’s representative argued that the applicant has a clear, cogent and compelling reason to explain the delay. When she received the CHRC’s decision, she was under the care of a psychiatrist and had no support at home. As soon as the treatment began to show results, she contacted her bargaining agent. That was late November 2009; she filed her grievance and this application on December 1, 2009.

21 As for acting diligently, the applicant’s representative maintained that the fact that the applicant filed a complaint with the CHRC demonstrated her intent to deal with the problem.

22 Moreover, when the applicant filed her complaint with the CHRC, she was receiving advice from outside counsel. She should not be punished for the advice that she received. The applicant’s representative maintained that the only discussions the bargaining agent had with the applicant before she filed her grievance were about either another matter before the College of Registered Nurses of Nova Scotia, or the hiring of her outside counsel.

23 The applicant’s representative referred me to Anderson v. Treasury Board (Revenue Canada), PSSRB File No. 149-02-49 (19830708), Vincent v. Treasury Board (Solicitor General ‑ Correctional Services), PSSRB File No. 166-02-21022 (19910515), and Riche v. Treasury Board (Department of National Defence), 2009 PSLRB 157.

24 The applicant’s representative argued that, in this case, based on the Board’s jurisprudence, the delay for filing the grievance is acceptable. Although the applicant’s representative did not specify the length of the delay, he suggested that it is either 3 months, assuming that the 25‑day time limit calculation starts on the day on which the CHRC rejected the complaint (August 26, 2009), or 6 months, if the calculation starts on the day on which the applicant filed her complaint with the CHRC (June 2, 2009).

25 Finally, the applicant’s representative concluded that denying this application would only add to the injustice that the applicant endured for five years in a poisoned work environment. While the chance of success of the grievance is unknown, it argued that the applicant deserves the right to present her grievance. The applicant’s representative referred me to Jarry and Antonopoulos v. Treasury Board (Department of Justice), 2009 PSLRB 11.

B. For the respondent

26 In its submissions filed with the Board on December 13, 2011, the respondent’s representative argued that the applicant failed to raise the issue of discrimination before she complained to the CHRC in June 2009.

27 The respondent’s representative reviewed the criteria developed by the Board in Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1, and concluded that the applicant did not demonstrate that she had a clear, cogent and compelling reason to explain the delay. Specifically, the respondent’s representative argued that the applicant contacted her bargaining agent about the workplace issues in November 2008, February 2009 and June 2009. However, she filed her grievance only on December 1, 2009.

28 Moreover, the respondent’s representative argued that the CHRC informed the applicant on August 26, 2009 that her complaint was rejected, that as a public servant she had the right to file a grievance under the Act and that she should contact her bargaining agent representative without delay. The respondent’s representative submitted that she nevertheless waited 98 days before filing her grievance.

29 As for the length of the delay, the respondent’s representative contended that, as per clause 34.12 of the collective agreement, the applicant had 25 days to file her grievance. The respondent’s representative maintained that the events leading to the filing of the grievance happened prior to July 2008, meaning that the applicant’s grievance is late by 18 months. Alternatively, he argued that, if the calculation for the time limit starts on the day on which the complaint was filed with the CHRC, i.e., June 2, 2009, then the grievance is seven months late, since it was filed on December 1, 2009. The respondent’s representative also stated that, even if the calculation for the time limit starts on the date on which the CHRC rejected the complaint, August 26, 2009, the grievance is still untimely. The respondent’s representative concluded by stating that, in any scenario, the length of the delay is unacceptable since the grievance was filed considerably after the time limit expired. The respondent’s representative referred me to Riche.

30 The respondent’s representative argued that the applicant has not been diligent. Even when the CHRC told her on August 26, 2009 that she should file a grievance and contact her bargaining agent, she waited until December 2009 to act.

31 The respondent’s representative concluded that the applicant should suffer the consequences of her own inaction and that the respondent is not responsible for the errors or bad advice that she might have received from her outside counsel. The respondent’s representative referred me to Vidlak v. Treasury Board (Canadian International Development Agency), 2006 PSLRB 96, Featherston v. Deputy Head (Canada School of Public Service) and Deputy Head (Public Service Commission), 2010 PSLRB 72, and Dumas v. Staff of the Non-Public Funds, Canadian Forces, 2007 PSLRB 74.

32 Moreover, the respondent’s representative stated that, had the allegations referred to in the grievance been raised with the respondent in 2008, the respondent would have had a chance to thoroughly investigate them. The passage of time renders that investigation more difficult and prejudices the respondent’s ability to carry it out.

33 Finally, the respondent’s representative argued that the chance of success of the grievance is limited since the applicant could only have grieved events that occurred in the 25 days before December 1, 2009. Given that the applicant has been away from work since 2008, that could prove difficult.

34 Finally, the respondent’s representative referred me to Lagacé v. Treasury Board (Immigration and Refugee Board), 2011 PSLRB 68.

IV. Reasons

35 From the outset, I should point out that the parties do not dispute that the grievance’s filing was untimely.

36 It has been well established by the Board’s jurisprudence that the following criteria ought to be considered when deciding whether an extension of time should be granted:

• clear, cogent and compelling reasons for the delay;
• the length of the delay;
• the due diligence of the applicant;
• balancing the injustice to the applicant against the prejudice to the respondent; and
• the chances of success of the grievance.

37 Those criteria were first applied in Schenkman. They were applied recently in Grouchy v. Deputy Head (Department of Fisheries and Oceans), 2009 PSLRB 92, and in Prévost v. Office of the Superintendent of Financial Institutions, 2011 PSLRB 119. In Lagacé, while considering those criteria, the Vice-Chairperson at paragraph 46 stated, “Each criterion is not necessarily equally important. The facts adduced must be examined to decide each criterion’s weight. Some criteria might not apply, or only one or two might weigh in the balance.” I agree.

38 Clause 34.12 of the collective agreement reads as follows:

34.12 A grievor may present a grievance to the first step of the procedure in the manner prescribed in clause 34.06, not later than the twenty-fifth (25^th) day after the date on which the grievor is notified or on which the grievor first becomes aware of the action or circumstances giving rise to the grievance…

[Emphasis added]

39 In July 2008, the applicant went on sick leave. She is still on sick leave, and there is no foreseeable date for her return to work.

40 On June 2, 2009, the applicant filed a complaint with the CHRC against the respondent, alleging discrimination based on her medical condition.

41 On August 26, 2009, the CHRC informed the applicant that it did not accept her complaint at that time. After receiving that letter, the applicant waited until December 1, 2009 to file her grievance.

42 I must first decide whether the explanation provided by the applicant’s representative to explain the late filing, namely, that she was seriously ill, that she was without support and that she relied on the advice of her outside counsel, constitutes a clear, cogent and compelling reason for the delay.

43 After a careful review of the submissions and jurisprudence, I have decided that, in this case, the applicant demonstrated a clear, cogent and compelling reason to explain the delay and that, based on the unique and exceptional circumstances of this case, I should exercise my discretion and grant the extension of time.

44 Although I completely agree with the comments made by the Vice-Chairperson in Salain v. Canada Revenue Agency, 2010 PSLRB 117, at para 44, that “[t]ime limits are meant to be respected by the parties and should be extended in exceptional only [sic] circumstances. Those circumstances always depend on the facts of each case.” I find the circumstances of this case to be exceptional. The applicant’s reasons constitute a clear, cogent and compelling reason for the delay.

45 In this case, it is not in dispute that, in the months before the grievance should have been filed, the applicant was still receiving cancer treatment and had to provide sole care for her two children, one of whom had been diagnosed with ADHD, all while her husband was in Staff College. In addition, the applicant had to face other challenges before the College of Registered Nurses of Nova Scotia. Those were difficult circumstances, not of her own making and over which she did not have control. In my view, those events explain why she was not in a position to respect the time limit for filing a grievance. Although I note that her situation did not prevent her from filing a complaint before the CHRC, I still believe that her situation is exceptional and that, in her case, she was going through such a difficult time in her life that she was not in a position to sift through the recourses available to her and to respect their requirements.

46 As for the respondent’s argument that the applicant waited five months after the CHRC informed her that they would not entertain her complaint and that she should consult her union without delay, I note from the undisputed statement from the applicant’s representative that she was then suffering from depression and was under medical care by two professionals. Again, I believe that it would be unfair to insist that the applicant should have filed a grievance when she was under both psychiatric and psychological care. Under the circumstances, it is also hard to conclude that she was not diligent.

47 Addressing the length of the delay, the respondent’s representative argued that the grievance is late by either 18 months or, alternatively, 5 months which is still excessive. In my view, although the delay substantially exceeded the time limit, the circumstances of this case are such that less weight should be given to this criterion.

48 As for the prejudice that the extension of time could cause to the respondent, this factor is hard to evaluate. While the respondent raised this issue in argument, it provided no factual context to its position that it would be prejudiced in its defence of the grievance. It did not, for example, allege that key witnesses were now unavailable or that key documents had been destroyed. Instead, it argued that its defence would be made more difficult, which is the case in any case involving the passage of time.

49 The criterion of the chance of success of the grievance is difficult to measure, especially in the absence of evidence as to its merits. Therefore, I will not rely on this criterion to determine the merit of the application.

50 Finally, although I conclude that the applicant has a clear, cogent and compelling reason to explain the late filing of her grievance, I want to point out that the circumstances of this case are unique and distinguishable from the other cases submitted by the parties. Again, in light of the fact that the applicant has been off work since 2008 with no planned return date and that she is presently unable to provide assistance in this matter for medical reasons, I urge the parties to work together to find a mutually acceptable settlement.

51 For all of the above reasons, I make the following order:

V. Order

52 The application for an extension of time to file the grievance is allowed.

May 10, 2012.

Linda Gobeil,
Vice-Chairperson